Contents # 6/2017

MIXED JURISDICTIONS AS AN OBJECT OF COMPARATIVE LAW  Pdf 16

I. Yu. BOGDANOVSKAYA

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

Comparative law traditionally pays serious attention to the issue of classifying national legal systems. However, up to now this issue doesn’t have unambiguous solution. A number of national legal systems, including mixes jurisdictions, continue to remain beyond the current classifications. At present terms “mixed legal systems” and “mixed jurisdictions” are settled ones. They are comparatively young subject of comparative legal studies because as a group they formed afterwards. Meanwhile, they formed legal schools based on coexistence and interaction of different legal cultures. It is necessary to distinguish between a view of mixed jurisdictions in the countries themselves and a view of them by comparativists from other countries. In comparative jurisprudence, two approaches of the definition of mixed jurisdictions can be distinguished - historical and pluralistic. They differ in methodology, and as a result, conclusions about the nature of mixed jurisdictions. The historical approach is limited by formal logical and comparative methods. The pluralistic approach took the methodology of sociological positivism, trying to determine the causes of such a phenomenon as mixed jurisdictions. The first approach is narrower, since it assumes that mixed jurisdictions first of all include Romano-Germanic and common law. The second approach is broad, suggesting that most national legal systems and even supranational European law are of a mixed nature. In this case, mixed jurisdictions can serve as a model for the coexistence of different legal cultures. But withdrawal of Great Britain from European Union leads to revising that position and emphasizes its failure. It is evidently that at present times the interaction of Romano-Germanic and common law does not pass at a new level, but rather comes back to the elaborating coexistence of legal cultures within separate different national legal systems. In the same time the stage of British membership in the EU since 1970s to 2010s has influenced upon Romano-Germanic law and the common law either. Indeed, that factor will influence upon future development.

Keywords: mixed jurisdictions, European law, Brexit, legal doctrine, private law, Romano-Germanic law, common law, legal cultures.

DOI: 10.12737/article_5a1686c2e84260.44394599

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HOW LEGAL COMMUNITY INFLUENCE THE LEGAL SYSTEM OF THE UNITED STATES OF AMERICA  Pdf 16

T. F. AKCHURIN

associate professor at the Russian Foreign Trade Academy of the Ministry of Economic Development of the Russian Federation, associate professor at the Diplomatic Academy of the Ministry of Foreign Affairs of the Russian Federation, candidate of legal sciences
4a, Pudovkin st., Moscow, Russia, 119285
E-mail: nirychka@mail.ru

Among key features of the legal system of the United Sates the following are usually mentioned: common law and federative state and due to this the delimitation of powers between the federal center and states in legal regulation. Each state adopts its own legal acts on those matters which are within their competence in accordance with 10th Amendment to the United States Constitution. These features led to the situation when different sources of law compete among each other. Moreover, issues arise when different states apply the law. In order to harmonize the legislation the states began organizing various non-profit associations comprised of state delegates (for example, National Conference of Commissioners on Uniform State Laws) which started preparing respective model codes. Legal community also participates in various attempts to unify and harmonize the legislation of states in the United States (for example, American Bar Association, American Law Institute). As a result of such activity, various secondary sources were formed that obtained recognition not only at the level of state courts, but also at the federal level (for example, Restatement of Foreign Relations Law of the United States (Third) 1987, Uniform Commercial Code, Model Criminal Code and other documents that are used by different states in their law-making and administration of law). The article analyzes the status and role of the non-profit legal associations that take part in creating the legal system of the United States, the documents that they develop and the significance of their activity for the subsequent development of the legal system of the United States.

Keywords: US legal system, c ommon law, unincorporated association, National Conference of Commissioners on Uniform State Laws, Uniform Commercial Code — UCC, American Bar Association – ABA, American Law Institute — ALI, Restatements of the law, Model code, Principles of the law, Model Penal Code, American Arbitration Association — AAA.

DOI: 10.12737/article_5a1e71d5e98668.28898792

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REGIONAL PRACTICE OF REGULATORY IMPACT ASSESSMENT (in English)  Pdf 16

V. D. CHURAKOV

postgraduate student at the National Research University “Higher School of Economics” 20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: vchurakov@hse.ru

The paper is dedicated to the investigation of regional legislation in the sphere of the regulatory impact assessment (RIA). RIA is a crucial instrument for the evaluation of the effectiveness of law. It provides a solid basis for the objective assessment of proposed regulations in the sphere of business activity. The significant advantage of RIA application is the use of quantitative methods. The federal form of the Russian government requires the analysis of regional experience for the further development of RIA procedure. There are significant differences in regional regulation of RIA, such as the form of the acts, the rule-making body, requirements for RIA, cooperation with local authorities, terms, etc. Hence, investigation of legislation in Russian regions is important for the harmonization of regional legal acts, its development and amendments’ preparation. The paper is aimed at the analysis of regional legal acts establishing regulatory frameworks on the following criteria: formal description of legal acts; RIA models; rates of legal acts’ regulatory impact; RIA stages; content of the consolidated reports; terms of RIA stages. Conclusions, concerning development of regional legislation regulating RIA are provided. The results obtained provide a guideline for studying other aspects of RIA procedure, including law-enforcement practice and retrospective analysis for RIA development.

Keywords: regulatory policy, regulatory impact assessment, law effectiveness, regional legislation, public governance.

DOI: 10.12737/article_5a1e71d96f9919.50732161

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FEDERAL TERRITORIES AND FEDERAL DISTRICTS: THE CONFUSION OF CONSTITUTIONAL-LEGAL MODELS  Pdf 16

I. V. IRKHIN

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

The article analizes the forms of territorial organization of public authority, materialized in the form of constitution-legal statuses of federal territories and federal districts. The constitution-legal nature and features inherent in the federal territories are examined on the examples of Malaysia, India, Pakistan, Canada, Venezuela. The article states that the constitution-legal statuses of the federal territories differ among themselves in specific features, but they are united in the main – the existence of a normatively fixed possibility of direct or indirect control by the central authorities. Author notes that in Malaysia, India and Pakistan, the central authorities directly exercise control and governance of the territories. In Canada, the real constitution-legal regime governing the territories is almost identical to the provinces. At the same time, there are significant differences between the Canadian provinces and territories (Yukon, Nunavut, Northwest Territories). Federal districts in foreign countries materialize in the form of a metropolitan region with a special status. Meanwhile, the constitutional-legal nature of the institution of federal districts is not the same. In Brazil and Argentina, the federal districts in practice have the same amount of autonomy as other subnational units. Federal districts in the US and Australia are highly centralized. The analysis shows that with all the existing differences, the territorial organization of public authority in the federal territories and federal districts is characterized by a generalizing feature in the form of reserves under the authority of the central authorities for the management and control of these units. This status has the capitals of states and other domestic entities. Between them, the differences are only in the parameters of the influence of the center and the inherent features of the management regime of the territories, which are determined by different factors of determination.

Keywords: Constitution, Federal territory, Federal district, powers, centralization.

DOI: 10.12737/article_5a1e71d9d03671.35583995

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MULTICULTURALISM AS A BASIS OF CANADA’S NATIONAL POLICY  Pdf 16

V. S. PAVLOVSKY

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: mrviktorpawlowski@gmail.com

The article discusses the Canadian experience of the ideological and legal establishment of multiculturalism as a basis of the State’s National Policy. Multiculturalism implies that all cultures are unique and equal. Legal efforts, which aimed at the development of multiculturalism in Canada, had good results mainly because the Canadian society was never under dominance of one nation and culture. The Anglo-French dichotomy and the massive immigration streams helped Canadians to form their sense of unique civil identity. After multiculturalism was legally confirmed as a basis of the State’s National Policy, the responsible state authorities were established to support the implementation of multiculturalism into the Canadian society. There are many civil associations which could be helpful in this process. The Canadian multiculturalism went through the three stages of development: 1) a basic stage which provided an ideological establishment of cultural diversity; 2) a making stage which helped to set up the legal basis of non-discrimination and social justice in the Canadian society; 3) an institutionalization stage which is characterized by the establishment of the state authorities responsible for multiculturalism support. Obviously, there is not one proper approach on multiculturalism which has provided good results for all countries. The Canadian multiculturalism experience is extremely valuable in the modern world since it shows what legal tools modern countries could use to fight discrimination and intolerance. However, the idea of multiculturalism could only be effective if it were to find legal approval and social understanding.

Keywords: multiculturalism, state national policy, identity, diversity, integration.

DOI: 10.12737/article_5a1e71d6ae4605.63874107

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THE QUESTION OF THE INTERNATIONAL LEGAL CONCEPT OF THREATS TO INTERNATIONAL INFORMATION SECURITY  Pdf 16

A. Ya. KAPUSTIN

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

The importance of the development of the international legal concept of cyber threats is determined by the fact that new spheres of interstate relations are occurring as a result of scientific and technological progress over the past decades. One of the technological phenomena of present time is the Internet. The article deals with the problems of the formation of the international legal concept of cyber threats. One of these key tasks is the development of international legal issues to identify threats to international information security or cyber threats. For this purpose, the main characteristics of cyberspace and factors affecting the degree of its vulnerability from external influences are considered. The understanding of the cyber threat and its main forms of implementation has been developed on the basis of the analysis of Russia’s strategic documents and legal doctrine: from the simplest (cyber-interference) to more complex (cyber-attack). The international legal qualification of acts of states committed both against information and against information systems is proposed on the examples of possible ways to commit cyber-attacks. The theoretical validity of the applicability of the category “force” to the concept of cyber-attack in the context of the international legal prohibition of the use of armed force is considered. The analysis of the international legal doctrine, as well as the UN documents, first of all the resolutions of the UN General Assembly and the Report of the Group of Governmental Experts on the achievements in the field of information and telecommunications in the context of international security, allows us to conclude that at present times the international legal measures are being developed to counter threats to the international security in cyberspace, the “soft regulation” of state activities in the field of ICT is forming, aimed at ensuring voluntary compliance with their respective obligations in cyberspace (rules, regulations and the principles of responsible conduct of states, capacity-building measures, the need to respect international law and its applicability to the use of ICT).

Keywords: international law, international legal regulation of new spheres of interstate relations, cyber security, cyber threats, the Internet, cyberspace, cyber interference, cyber-attack, cyber operations, “force” category, Report of the Group of Governmental Experts on the achievements in the field of information and telecommunications in the context of international security.

DOI: 10.12737/article_5a1e71d7026536.36788152

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FRANCO-GERMAN COOPERATION: FROM THE “POLITICS OF UNDERSTANDING” TO THE EUROPEAN UNION  Pdf 16

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

The article deals with the policy of mutual understanding, developed by A. Briand and G. Stresemann, two diplomats from France and Germany after the World War I with the aim to establish the lasting peace in Europe. At first the author describes the so called “The System of Versailles”, the main international-legal superstructure of which is League of Nations. Then he analyses Locarno pacts signed to serve as guarantees against war and to begin a reconciliation between Germany and France. After that follow the biographies of A. Briand and G. Stresemann and the author shows how these two statesmen at the time when their countries were at war with each other called up to annex the territory of the enemy and to weaken him totally, transformed their positions of mutual hostility to the peace loving views within the framework of the League of Nations. And it was mostly dictated by the aspiration to effectively realize the important national interests. The collaboration between these two politicians continued only 4 years, but their efforts didn’t go for northing: the author comes to the conclusion that after the World War II the policy of mutual understanding, based on the Franco-German close ties was reborn and became a driving force of the European Union functioning. And in this sense it serves as a monument to their intellectual diplomatic activity, that changed the mentality of both eternally quarreling with each other nations in such a way that Europe has lived in peace for 70 years.

Keywords: A. Briand, G. Stresemann, System of Versailles, Spirit of Locarno, Locarno pacts, Treaty of Versailles, League of Nations, policy of mutual understanding, franco-german collaboration, the World War I, the Briand — Kellogg pact, peace, the European Union, political and economic integration.

DOI: 10.12737/article_5a1e71d73cf188.81617818

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INTERNATIONAL LEGAL ASPECTS OF SEARCH AND RETURN OF STOLEN ASSETS  Pdf 16

V. V. KUDRYASHOV

associate professor at the Financial University under the Government of the Russian Federation, candidate of historical sciences, associate professor
4, Fourth Veshnyakovsky lane, Moscow, Russia, 109456
E-mail: kudryashov.minfin@ya.ru

The article deals with some international legal aspects of the search and return of illegally withdrawn assets. The author pays attention first of all to the complexity of interaction between subjects of international law in this area, as the financial interests of many states are affected: the states from which assets are shifted and states in which these assets are allocated as well. There are also serious technical and legal problems, as the stolen assets, getting into the international financial system, instantly transfers from one country to another, between multiple accounts, get splitted and changed their owners, etc. International cooperation in this field is carried out in two directions. The first is to impact on domestic regimes of financial and legal regulation in order to make asset recovery a priority area of policy; to provide resources for this policy support; to intensify preventive measures against the proceeds of corruption; to create tools for the rapid detection and freezing of assets outside the criminal proceedings. The second is to improve international legal and institutional mechanisms: the UN Convention against Corruption compliance monitoring, as well as the revitalizing the international financial organizations activity — FATF, Group of States against Corruption of the Council of Europe (GRECO); Inter-American Convention against Corruption of the Organization of American States (OAS). The Stolen Asset Recovery Initiative (StAR Initiative) jointly implemented from the 2007 by the World Bank and the UN Office on Drugs and Crime is also to strengthen the effectiveness of the UN Convention Against Corruption and to support international efforts to contain the hidden outflow of proceeds of corruption and facilitate the return of assets. A Good Practices Guide for Non-Conviction Based Asset Forfeiture prepared by the World Bank in the frame of the StAR Initiative proposes thirty-six legal, operational and practical principles that form the basis of an effective non-criminal forfeiture mechanism. However, in circumstances of several dominant countries using the global financial system to secure their financial interests, the return of the stolen assets allocated there is a very complex problem, the solution of which lies largely outside the international legal field and requires significant political and diplomatic efforts. These factors need to be taken into account and are especially relevant for Russia in view of the global sanction campaign launched against it.

Keywords: financial crimes, corruption, stolen assets, tracing and freezing assets, confiscation, assets return, assets allocation, capital amnesty, international financial law, UN Convention Against Corruption, StAR Initiative.

DOI: 10.12737/article_5a1e71d771dca5.49181991

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PRE-TRIAL SETTLEMENT OF COMMERCIAL DISPUTES IN THE ARBITRAL PROCEEDING IN THE FIELD OF CONCILIATION AND OTHER PRE-TRIAL SETTLEMENT IN FOREIGN JURISDICTIONS  Pdf 16

D. V. KNYAZEV

head of the Department of civil procedural law of the Western-Siberian branch of the Russian State University of Justice, candidate of legal sciences
2, Lenin sq., Tomsk, Russia, 634050
E-mail: kdv1979@inbox.ru

Recent amendments to commercial procedure legislation require parties to take pre-trial dispute settlement actions. In the Federal Law from the 1st July 2017 the legislator specified that this procedure should be applied only to civil disputes on money collection for claims arising from contracts and other transactions due to unreasonable gains. The question of the need for the pre-trial settlement of a legal dispute in foreign jurisdictions is resolved in different ways. If such a procedure is introduced, then the law, as a rule, presents detailed claims to answer to the claim: the essence of the claims, the legal and factual justification; requirements to answer to the claim: it must be justified, if necessary, and contain counter-reasonable claims; the parties at this stage are already required to disclose the arguments and evidence to which they refer. The parties are encouraged to out-ofcourt settlement of legal conflicts; even in case of reconciliation failure, the parties recourse to the court with a more conscious understanding of their claims; really important issues that require court intervention “exacerbates”; it reduces the burden on the judicial system. The author claims that, in its current form, the provision of the Article 4 Part 5 of the Arbitration Procedure Code of the Russian Federation does not allow the pre-trial procedure to perform its functions, the key issues remain unresolved: the purpose of the parties’ compliance with the pre-trial procedure and its tasks, the role of the defendant in the pre-trial procedure, how its positive result is seen, what will happen if the parties approached this procedure formally, what the outcome of the compliance with the procedure is for the court process in case of its failure, the procedural consequences of the behavior of the parties in the pre-trial settlement. It is proposed to supplement the current norm in accordance with the revealed shortcomings.

Keywords: arbitration procedure, pre-trial procedures, complaint procedure, pre-litigation conciliation.

DOI: 10.12737/article_5a1e71d7aa4f81.66482827

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ON PERMISSIBILITY OF CHOICE OF A NON-STATE LAW AS APPLICABLE LAW  Pdf 16

M. V. ZLOBIN

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: kirabarster@gmail.com

In March 2015, the Hague Principles on Choice of Law in International Commercial Contracts were adopted by the Hague Conference on Private International Law. These Principles reflect a broad international consensus on party autonomy, recognizing that parties to international commercial contracts should have the freedom to designate the law governing their contractual relationship. The Hague Principles should be considered as best practices, reflecting current trends in regulatory development in the field of choice of applicable law. Over several decades informal documents have been widely used for the regulation of international commercial contracts (Unidroit Principles of International Commercial Contracts, Principles of European Contract Law, Draft Common Fame of Reference, etc.). Therefore one of the issues that has occupied a very prominent place, if not a central stage, in the discussion of party autonomy was allowance for parties to a contract to choose a non-state law as an applicable law. Inevitably, the Hague Principles have had to take a stance on this issue. This article analyzes the approaches of international instruments, domestic law of different states, as well as the Hague Principles on this issue.

Keywords: international commercial contracts, choice of law, non-state law, Hague Principles.

DOI: 10.12737/article_5a1e71db440580.64324425

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REGULATION OF INTERIM MEASURES IN INTERNATIONAL COMMERCIAL ARBITRATION: COMPARATIVE ANALYSIS OF THE LAWS OF ENGLAND, CHINA AND RUSSIA  Pdf 16

D. I. KOBAKHIDZE

postgraduate student at the Doctoral school of law of the National Research University “Higher School of Economics”
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: david025@mail.ru

The article provides a comparative analysis of a legal regulation of interim measures application in international commercial arbitration foreseen by legislations of England, China and Russia. The author devotes attention to the competence of state courts and arbitration tribunals to order interim measures on behalf of the parties to arbitration established by the national legislation of those countries. The specifics of judicial assistance with regard to enforcement of the arbitration tribunals’ orders on interim measures are examined. According to the analysis presented the legislative approaches to regulation of interim measures in international commercial arbitration may vary significantly. The 1996 English Arbitration Act sets out in detail the powers of arbitration tribunal to issue the orders for interim measures and sets the limits for resourcing to state court for assistance. Furthermore, one of the forms of such assistance is the enforcement of arbitral interim measures by the court. In contrast, the Chinese legislation confers the powers to impose interim measures in support of arbitration to the exclusive competence of state courts. In Russia, the Law on International Commercial Arbitration of 1993 endows arbitration tribunals with the abovementioned powers and at the same time allows the parties to arbitration to recourse to the court for interim measures; however the key problem resides in the lack of legal provisions on the enforcement of arbitral interim measures. The article concludes that it is necessary to harmonize national legislations on the issue of application of interim measures in international commercial arbitration in order to improve the effectiveness of arbitration.

Keywords: interim measures, international commercial arbitration, state court, arbitration tribunal, enforcement of interim measures, Arbitration Act.

DOI: 10.12737/article_5a1e71dbc85442.14263172

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LEGISLATIVE MEASURES OF PREVENTION ECONOMIC CRIMES AND CORPORATE LIABILITY: LEGISLATIVE INNOVATIONS AND INITIATIVES IN THE UK  Pdf 16

Yu. V. TRUNTSEVSKY, A. MARINE

Yu. V. TRUNTSEVSKY, leading research fellow of the Department of countering corruption methodology 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

A. MARINE, head of the Department of corporate investigations and disputes of “The Risk Advisory Group plc”, master of laws, barrister
London, United Kingdom
E-mail: alex.marine@riskadvisory.net

Purpose: a consideration of causes and justification for introducing criminal liability of companies for failure to prevent economic crime. Methodology: research and analysis of the results and comparative analysis of English common law doctrine of the “controlling mind” also known as the “identification principle”. According to the Article 7 of the 2010 UK Bribery Act a company is guilty of an offence if an affiliated person offers or pays a bribe to another with the aim of securing or retaining business, or to obtain any other pecuniary advantage to the company, irrespective of whether the “controlling mind” of the company had the necessary mens rea. The only defence available to a company in such circumstances is the existence of “adequate procedures” (internal preventative procedures) to prevent bribery by affiliated persons. The research that was conducted on the practicalities of establishing criminal liability of companies for failure to prevent economic crime permits the evaluation of the extent to which the doctrine of the “controlling mind” can be applied in this area. The UK government is considering different solutions to the existing problem, including extending the list of employees who could be included into the “controlling mind” list of the company. The different ways in which companies can be encouraged and (or) made responsible for introducing adequate procedures to prevent bribery and economic crime are based on the widespread reliance on self-controlling principle of corporate governance in the field of managing compliance risks.

Keywords: corruption, bribery, criminal liability, companies, internal controls, economic crime, failure to prevent, tax evasion.

DOI: 10.12737/article_5a1e71dc311229.41899184

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TRENDS IN SUICIDES AND HOMICIDES IN JAPAN  Pdf 16

V. E. KVASHIS, I. M. NASTUYEV

V. E. KVASHIS, chief research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored scientist of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: kvashis@mail.ru

I. M. NASTUYEV, head of the Department of the Advanced Training Institute of the Ministry of Internal Affairs of the Russian Federation
123, Malbakhov st., Nalchik, Russia, 360016
E-mail: issa07@mail.ru

The article analyzes the main trends and qualitative features of suicides and homicides as polar concepts, but from the psychological point of view the paired social phenomena, the formation and dynamics of which are associated with the specific features of Japanese culture, mentality, psychology and value orientations. In Japan the number and level of suicide are much higher than in the most developed countries. More recently, an average of 30 thousand suicides committed annually. In 2007, for example, daily suicide led to the deaths of 90 persons, and in 2013 — 75 persons; this means that every 20 minutes someone in the world took his own life. The number of suicides decreases only in the last five years. In 2016 the number for the year decreased from 24 025 to 21 900 and their rate (17,5—18,0) for the first time reached the 30-year-old point. Despite the fact that peak figures are in the past, the level of suicide in Japan is among the world leaders even today. Today the number of suicides in 5,6 times more than the number of traffic fatalities and in 25 times more than the number of victims of homicide. If the suicide rate is one of the indicators of the social welfare, the homicide rate is a common indicator of the state of public security. The results of combating crime is really impressive, that is why Japan is considered as one of the safest countries. Over the past 20 years, the total number of crimes has fallen in 2,3 times, the number of homicides — in 1.6 times, and their level — almost in 3 times. According to various sources, the homicide rate today is 0,3—0,6. Stabilization, and since 2006 the annual decline in the number of homicides is due to several factors: increasing of the efforts law enforcement authorities, the anti-criminogenic capacity of national traditionalism, and the other reasons, including the legal factors. In particular, the monitoring of compliance with the law that established a strict ban on the use of firearms. For example, in USA in 2014 33 599 persons were killed with the firearms, but in Japan — 6 persons. Admittedly, the crime in Japan is a unique criminological phenomenon.

Keywords: crime, homicide, suicide, culture, psychology, traditions.

DOI: 10.12737/article_5a1e71d524c7e0.40948371

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THE CONSTITUTION AND JUSTICE IN THE EARLY XXI CENTURY  Pdf 16

L. MEZZETTI, M. G. ABRAMOVA, N. V. PUTILO, Yu. I. SHUPLETSOVA

L. MEZZETTI, director of the High School of Law of the University of Bologna (Italy), doctor of law, professor
Bologna, Italy
E-mail: luca.mezzetti@unibo.it

M. G. ABRAMOVA, associate professor at the Lomonosov Moscow State University, candidate of historical sciences
1, Leninskie gory, Moscow, Russia, 119991
E-mail: Abramova-m@mail.ru

N. V. PUTILO, head of the Department of social legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: social2@izak.ru

Yu. I. SHUPLETSOVA, 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: ecology10@izak.ru

Present article is a brief synopsis of the major reports presented at the III International Congress of Constitutional Justice “Constitution and justice in the early XXI century”, which took place on October 10—13, 2017 in Bologna (Italy). The purpose of this article is to show the existence of common research topics that are of interest of the Russian legal scientists as well as the scientists of other countries. The main points of the liveliest discussion were: the impact of transnational processes on the national legal system; the response of justice systems to the challenges of the modern world; new forms and institutions for the protection of the rights of man and citizen; evolution of social, economic and civil rights; corruption and ways of its overcoming; general trends in the development of constitutional and other types of control, etc. The Congress participants came to the conclusion on the importance of the dialogue of legal cultures, which, along with direct implementation of international law, allows to cross-pollinate national legal systems and stand against the challenges of modernity. The complex of the international legal instruments and mechanisms allows to fight against transnational challenges really effective, including: environmental pollution, organized crime, corruption, etc. The rules of international law are of great importance for the extension of universally recognized human rights standards, thereby increasing the level of legal protection of citizens of individual states. Recognizing the importance of the process of national legislation harmonization, the participants of the conference stressed the need to preserve the peculiarities of national law: constitutions, mechanisms of control and enforcement the judicial system.

Keywords: International Congress of Constitutional Justice, constitution, justice, national law, integration, international law, human rights, protection of the rights of citizens.

DOI: 10.12737/article_5a1e71d5b50b21.63117469

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REVIEW OF THE INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “UNIFICATION AND HARMONIZATION OF ENVIRONMENTAL LEGISLATION WITHIN THE LEGAL SPACE OF THE EEU”  Pdf 16

E. A. GALYNOVSKAYA, B. K. OTOROVA, M. V. PONOMAREV

E. A. GALYNOVSKAYA, head of the Department of natural resources legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ecology@izak.ru

B. K. OTOROVA, associate professor at the Department of theory and history of state and law of the Faculty of law of the Balasagyn Kyrgyz National University, candidate of legal sciences
132, Kievskaya st., Bishkek, Kyrgyzstan, 720033
E-mail: info@university.kg

M. V. PONOMAREV, research fellow of the Department of environmental legislation of the Institute of Legislation and Comparative Law under the Government of Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ecology1@izak.ru

July 12—13, 2017 in the Kyrgyz Republic was held the International Scientific-Practical Conference “Unification and Harmonization of Environmental Legislation within the Legal Space of the EEU”. The Conference was organized by the Law faculty of the Balasagyn Kyrgyz National University, whose students took an active part in its work, with the support of the Association “Lawyers of Kyrgyzstan”. Representatives of the Institute of Legislation and Comparative Government under the Government of the Russian Federation (Moscow), representatives of the Saratov State Law Academy (Saratov), the Financial University under the Government of the Russian Federation (Moscow), and postgraduate students educational and scientific institutions. In the framework of the Conference there was active scientific discussion of the most controversial legal issues of harmonization of legislation in the sphere of environment protection and natural resources within a common legal space in the Eurasian Economic Union. The most significant topics covered during the conference were connected with search of ways of improvement of interaction between science and practice in the field of environmental protection and environmental management; establish an integrated management system environment protection and nature management; the definition of scientific and applied interdisciplinary approaches to the study of issues of environmental protection and nature management; legal protection of participants of economic relations in the market of natural resources; a consideration of the basic problems in development of normative legal acts in the field of environmental protection and natural resource management; evaluation of modern directions of development of education in the field of environmental protection and natural resource management; development of the legal ways of interaction between business, state structures in the sphere of environmental protection; the effectiveness of judicial protection in the sphere of environmental protection.

Keywords: international cooperation, international organizations, environmental protection, the use of natural resources, environmental safety, environmental legislation, natural resource legislation, sustainable development, legal space, the Eurasian Economic Union.

DOI: 10.12737/article_5a1e71dc8891e4.83824238

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JUDICIAL REFORMS IN ARMENIA AND BULGARIA: ANALYTICAL REVIEW OF THE OPINIONS ADOPTED AT THE 112th PLENARY SESSION OF THE VENICE COMMISSION  Pdf 16

E. A. FOKIN, M. G. ogly MEKHTIEV

E. A. FOKIN, specialist of the Center for legal problems of integration and international cooperation 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

M. G. ogly MEKHTIEV, junior research fellow of the Department of scientific support of the Secretariat of the Delegation of the Russian Federation to the European Commission for Democracy through Law (Venice Commission) 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

The article is devoted to the analysis of the Venice Commission’s opinions on judicial reforms in Armenia and Bulgaria in October 2017. The article highlights the positions of the Venice Commission on the main legislative approaches enshrined in the Draft Judicial Code of Armenia and in the Judicial System Act of Bulgaria. The analysis of the Venice Commission’s opinions is based on the theoretical concepts of the judiciary and procedural law, in particular the doctrine of judicial law. Thus, Venice Commission positively assessed Draft Judicial Code of Armenia, noting that it reflects the positive changes that emerged after the constitutional reform. At the same time, this project would benefit from achieving a balance – easing of over regulated provisions and concretization of those provisions that are not properly regulated in detail. As for the Opinion of the Venice Commission on the Judicial System Act of Bulgaria, in general, there is also a positive assessment of the Bulgarian authorities’ efforts to promote an effective judicial system. At the same time, the number of issues and shortcomings lead to an unambiguous idea of the need for further changes aimed at strengthening the principle of judicial independence, enhancing the role of the judicial community and improving the mechanism of disciplinary proceedings against judges. As the conclusion the Venice Commission states that despite a numerous and objective differences between Armenia and Bulgaria, these countries have similar problems in the field of judicial power. The main problem is the need to strike a balance between detailed and explicit regulation on the one hand and the need to ensure the independence of judicial power.

Keywords: judicial power, justice, status of judges, responsibility of judges, principles of justice, independence of judges.

DOI: 10.12737/article_5a1e71d852fd58.90948928

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“LITTLE VENICE” DOES NOT MEET THE STANDARDS OF A “BIG” ONE (ANALYSIS OF THE PRELIMINARY OPINION OF THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW No. CDL-PI(2017)004 CONCERNING VENEZUELA LEGISLATION)  Pdf 16

E. V. KOSHELEVA, Ya. I. LEBEDEVA

E. V. KOSHELEVA, specialist of the Department of scientific support of the Secretariat of the Delegation of the Russian Federation to the European Commission for Democracy through Law (Venice Commission) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, master of Panthéon-Assas University (Paris II)
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: venkom@izak.ru

Ya. I. LEBEDEVA, junior research fellow of the Department of scientific support of the Secretariat of the Delegation of the Russian Federation to the European Commission for Democracy through Law (Venice Commission) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, postgraduate student of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: lebedeva.ioanna@yandex.ru

The analysis of the Preliminary Opinion, taking into account the political text, is based on consideration of the conformity of the adopted norms to European standards: is it justified to change the Constitution to remove foreign policy tensions and to consolidate the socioeconomic rights of Venezuelans, is it possible to convene a Constituent Assembly without people’s participation in a country of participatory democracy, is it legitimate to regulate elections to the Constituent Assembly by acts subordinate by nature, does not the election procedure itself create possibility for manipulating its results? Ranging far and wide from widespread criticism of the modern political leadership of the Bolivarian Republic of Venezuela, the analysis emphasizes that the issue of inconsistency with the declared European standards is not obvious, and responsibility for the crisis cannot be assigned only to one powerful institution — the institution of the President. The Constitutional Chamber of the Supreme Court played an active role in the conflict, which decisions aggravated the crisis: it was the Constitutional Chamber that adopted the decision suspending the powers of the Parliament, as Decision No. 378/2017 of May 31, 2017 did it too. As it is known, the position of the Constitutional Court in relation to the Parliament determines the choice between "political constitutionalism" and a “legal” one: the constitutional court can be only one state body among others, which are instruments in hands of a sovereign, or such a court is something more — the body derives its legitimacy directly from the Constitution, is able to be the last obstacle for the political will of the majority... Moreover, in Latin American countries, including Venezuela, it is the constitutional court’s duty to protect the Constitution. Another question is whether the constitutional chamber of the Supreme Court of the Bolivarian Republic of Venezuela has taken measures, which are proportionate to the goals of defending the Constitution in the context of known events. Meanwhile, in Europe the standards of effectiveness of constitutional justice are not clear and are determined by the correspondence of reality with the existing regulation in the country.

Keywords: European Commission for democracy through law, human rights, European standards, Venezuela, opinion, Parliament, Supreme Court.

DOI: 10.12737/article_5a1e71d904dd41.95432293

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