Contents # 1/2018

COMPARATIVE CONSTITUTIONALISM — AN INSIGHT FROM VENICE. THE VENETIAN CHANNELS FROM NATIONAL LAW TO TRANSNATIONAL / UNIVERSAL LAW (in English)  Pdf 16

Jan E. HELGESEN

professor at the Norwegian Centre for Human Rights, Faculty of law of the University of Oslo, former president and first vice president of the European Commission for Democracy through Law (Venice Commission)
Norway, Oslo
E-mail: venkom@izak.ru

The present article based on the author’s report at the VII International Congress of Comparative Law “National and Universal in Law: From Traditions to Postmodernism” is devoted to the role of the European Commission for Democracy through Law (Venice Commission) in the formation process of comparative constitutionalism, influence of the Venice Commission on national constitutional law of participant states, channels of such influence. What’s more the author accents the impact of founder of the Venice Commission, Antonio la Pergola, on development of constitutionalism, including comparative constitutionalism, in Europe. The author made a brief analysis of mechanisms included in the process of the Venice Commission influence at reforming and perfection of national law, its universalization in relation to participant states. Moreover, the author analyses the law-enforcement standards, the role of “hard law” and “soft law” in legal systems of different countries, taking into account those facts that the  difference between “hard law” and “soft law” is more significant for national law rather than international law. The article is actual research as well because of consideration of the Venice Commission as the platform for sharing experience in the sphere of regulation and formation of national constitutional legislation and solving different problems arising in the legal framework of participant states from the comparative point of view. This topic can be interesting for professional society, researchers and specialists, as well as for students, master’s degree students and post-graduate students who study history and ways of activity of the European Commission for Democracy through Law (Venice Commission), its views and schools of law that adhered to its representatives.

Keywords: comparative constitutionalism, the European Commission for Democracy through Law (Venice Commission), participant states, constitutional law, constitutional legislation, national law, international law, transnational law, universal law.

DOI: 10.12737/art.2018.1.1

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SOCIO-ECONOMIC VECTOR OF CONSTITUTIONAL DEVELOPMENT: COMPARATIVE MEASUREMENT  Pdf 16

V. E. CHIRKIN

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, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: vechirkin@yandex.ru

Up to 1950-ies constitutions of Western European countries followed the constitutional model, rooted in the first Constitution of the world’s states — 1787 the Constitution of the United States. It regulated the state organization (a form of state-territorial structure, the form of governing, the system of the higher organs of the state) and in the first ten Amendments reinforces some of the personal and political human rights (without socio-economic rights, only private property rights are mentioned). This scheme is used in constitutions in Europe, Asia, Latin America, adopted prior to the World War II (Japan, Iran, China, etc.), as well as in many developing countries’ constitutions. Under the slogan of political modernization young states basically followed the constitutional models of their former metropolises (there were exceptions, particularly in countries, that declared the socialist orientation). A decisive turning point in the direction of constitutional development occurred when the Soviet Constitution of the RSFSR was adopted in 1918. Vector development was addressed to socio-economic norms and human life. First chapters titled as the foundations of the social order, were included in the Constitution of the USSR in 1936 and 1977. They extended their influence on other states. After the second World War in foreign capitalist constitutions chapters emerged that stated public order (Italy 1947, India 1949, Spain 1958, Portugal 1976, Chile 1980, Brazil 1988, etc.). 1993 Constitution of the Russian Federation does not have a chapter “fundamentals of social order”, but Chapter 1 enshrines a lot of (not all) principal provisions of this kind. Such provisions are stated nowadays also in some foreign constitutions. The article compares the constitutions of the Russian Federation and its peers in foreign countries and states provisions lacking both in the Constitution of the Russian Federation and foreign democratic constitutions. In relation to the Constitution of the Russian Federation the provisions on socially oriented market is established, even though as state regulated economy, with social justice, social partnership, social function of private property, living minimum wage etc. the article offers socio-economic provisions of a new type of the сconstitution — the socio-democratic capitalism.

Keywords: constitutional development, socio-economic vector, Russian and foreign constitutions, the constitution of the sociodemocratic capitalism.

DOI: 10.12737/art.2018.1.2

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THE PROBLEM OF IDENTIFYING THE UNIVERSAL IN NATIONAL SYSTEMS OF PRIVATE INTERNATIONAL LAW (in English)  Pdf 16

Ilaria PRETELLI

Ph.D. Panthéon-Assas, Paris 2 and University of Padua, legal adviser at the Swiss Institute of Comparative Law
Dorigny, Lausanne, Switzerland
E-mail: Ilaria.pretelli@isdc-dfjp.unil.ch

The article addresses the complexities inherent in identifying the distinctive features of universal law in national legal systems of private international law. The author first makes a historical analysis of studies that considered the issues of the universal origins and the national views of law and then shifts to modern issues with identifying the universal in national private international law systems. In this context, the author gives an example of existing models of marriage. In this connection, the article reveals four basic trends to the formalization of unions between two persons, including same sex couples; the American-Scandinavian system, the twin-track system, the mixed system and the homosexual-hostile system, which denies same-sex legal partnerships. The article will be of interest for practicing lawyers, scientists, scholars and specialists in private international law, foreign and civil laws as well. The article will also be useful for lecturers and students of legal educational institutions.

Keywords: modernism, postmodernism, private international law, uniform law.

DOI: 10.12737/art.2018.1.3

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THE NATIONAL AND THE UNIVERSAL IN LAW: FROM TRADITIONS TO POSTMODERNISM (THE REVIEW OF THE VII INTERNATIONAL CONGRESS OF COMPARATIVE LAW)  Pdf 16

A. I. KOVLER, Yu. E. IBRAGIMOVA, A. I. SIDORENKO, Z. N. BEDOEVA

A. I. KOVLER, head of the Center of the legal issues of integration and international cooperation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored lawyer of the Russian Federation

Yu. E. IBRAGIMOVA, junior research fellow of the Department of implementation of judicial decisions into the Russian legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

A. I. SIDORENKO, senior research fellow of the Department of implementation of judicial decisions into the Russian legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences

Z. N. BEDOEVA, junior research fellow of the Department of financial, tax and budget legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

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

The article is devoted to the VII International Congress of Comparative Law “The National and the Universal in Law: From Traditions to Postmodernism” held in December 2017. Among the participants of the Congress there were eminent Russian and foreign scholars and dignitaries who highlighted the urgent character of the conflict problem of international and domestic law models. Constitutional models of the correlation of national acts and international law basically have sufficient differences (the view of international law from the perspective of a range of constitutionally provided sources, the determination of their legal status in national law, the means of constitutional entrenchment, etc.). At the same time the pattern similarity is often manifested in establishing the priority value of common (universally recognized) provisions of international law in relation to “ordinary” national legal acts and in the lack of regulation of their correlation with constitutional norms. As a result the problems of correlation and interrelation of constitutional and international law in national systems are still among the debatable issues. The participants of the Congress also underlined the issue of conflicting norms of constitutional and international law, in particular in connection with discovering such a “collision” of regulators in the interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights. As constitutional jurisprudence shows, the legal measures taken in result of such collisions justify their legal capacity as subjects of national (constitutional) and international laws’ coordination, during which any scenario of legal correlation and its order can be implemented, taking into account the prioritization of any of them. In speeches of the Congress participants there also was a consideration of the interaction issue of national and universal elements in various branches of law.

Keywords: international law, national law, European Court of Human Rights, jurisprudence, constitutional development.

DOI: 10.12737/art.2018.1.4

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COMPARATIVE CONSTITUTIONAL LAW — AN INDISPENSABLE TOOL FOR THE CREATION OF TRANSNATIONAL LAW (translated by A. E. Pomazansky)  Pdf 16

S. BARTOLE

Emeritus professor of constitutional law, University of Trieste
1, Piazzale Europa, Trieste (Italy), 34127
E-mail: mr_a@mail.ru

The article deals with tasks and prospects of comparative constitutional law at the present stage. Increasing attention is being paid to the study of comparative constitutional law, thanks both to the expansion of transnational constitutional law and to the increasing relevance of the legal value of national constitutional identities. The aim of the study is to identify the role of comparative constitutional law in the formation of modern model of transnational law. To achieve this aim, the author examines the modern concept of development of law in the European space, including the concept of European Constitutional Heritage and the concept of conditionality. The author notes that current trends of globalization and integration dictate the need for new approaches to comparative law researches imposing a transition from the fragmentary experience of the various national legal orders to a global legal space constructed from the raw materials of national experiences. Special attention is paid to the importance of comparative constitutional legal studies at the evaluation of specific constitutional provisions of individual states. In this regard the author emphasizes the role of the Venice Commission which does not limit its analysis to the relevant written constitutional and legislative provisions, but also thinks ahead by taking their concrete interpretation into account. Based on the conducted research, the author has concluded that that the development of national legal orders and the common supranational legal order in a spirit of respect for the universally recognized principles and values of constitutionalism, should be based on the combined efforts of all actors, including judges, lawyers, scholars and experts in the field of law. It is of special current interest when there is a dearth of political initiative, or when intervention is limited to grandiose proclamations or the invocation of general principles, effectively leaving room for the other dramatis personae to develop the work in progress.

Keywords: comparative constitutional law, constitutionalism, European Constitutional Heritage, conditionality, the European Union, Venice Commission, European Court of Human Rights.

DOI: 10.12737/art.2018.1.5

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THE CONCEPT OF BUSINESS ACTIVITY FREEDOM AS AN ELEMENT OF AN ECONOMIC BASIS OF THE CONSTITUTIONAL SYSTEM IN RUSSIA AND IN THE WORLD: SEARCHING AN OPTIMAL SOLUTION  Pdf 16

E. M. YAKIMOVA

associate professor at the Baikal State University, candidate of legal sciences, associate professor
11, Lenin st., Irkutsk, Russia, 664003
E-mail: yakimova_katerin@mail.ru

The involvement of various subjects in development of society can be considered by other participants of society differently from representations of others. For example, businessmen in Soviet period were considered as criminals, lines of invasiveness were attributed to them. Change of the constitutional system of Russia radically transformed a view both of a phenomenon of business activity and of a nature of business activity freedom. Transformation of the Russian society and the state affected also interpretation of business activity freedom, determination of its limits: business activity is more and more considered as subject of the state monitoring (supervision) that actualize a study of business activity freedom from a line item of theoretical judgment, gives new reference points of law enforcement for practice. In the article the main approaches to understanding of business activity freedom, which have developed in the Russian and foreign science with the purpose to reveal basic installations of studying of business activity freedom, are analyzed. The standard principles of scientific knowledge (objectivity, systemacity, development, determinism, etc.) and the special methodological principles of knowledge of the social and legal phenomena are a methodological basis of a research (right recognition as expressions of the formal equality; universality, indivisibility and coherence of human rights; subsidiarity, etc.) that allows to consider freedom of business activity It is proved that along with real problems of realization of the rights and freedoms of the person in the sphere of business activity, there are also problems of their understanding in the context of the transformation of a political and legal order caused by ambivalence of the right and political expediency. As it is expedient to consider the constitution of any country as set of the fundamental principles, but not a set of rules, the interpretation of legal regulation of business activity freedom should be carried out through a prism of fundamental nature of the constitutional norms. The author formulated the general output about the fact that the choice of one or another approach in understanding of freedom of enterprise depends in many respects on the general principles of interaction of the state, society and business.

Keywords: state, public administration, control, constitutional system, society, business activity, freedom of business activity.

DOI: 10.12737/art.2018.1.6

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THE LEGAL MECHANISM OF ADAPTATION AND INTEGRATION OF IMMIGRANTS IN CANADA  Pdf 16

A. 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: alexandr.pavlowski@gmail.com

This article discusses the Canadian experience of the development of adaptation and integration programs for immigrants based on a multiculturalism policy. Canada used to treat non-European immigrants in a negative way, but in the middle of the 20th century discontinued discriminatory measures in its immigration policy. The high level of ethnic diversity of immigrants in Canada caused the emergence of many adaptation and integration programs. The goal of these programs is the successful settlement of newcomers in Canadian society with regards to cultural, social, economic and political aspects of settlement. Settlement support — which was originally provided by ethnic and religious communities — switched gradually to centralized state support, with the hiring of professional workers. The immigration and Refugees Protection Act (2001), which is the primary law on matters of immigration, affirmed the so-called “two-way street” approach. In accordance with this approach, the integration of newcomers to Canada is a two-way process with regard to the links between the immigrants and Canadian society. The Government of Canada develops the adaptation and integration programs for newcomers and manages a wide network of immigration and citizenship centers, providing settlement services both in Canada and abroad via the Department for Immigration, Refugees, and Citizenship of Canada (IRCC). The federal nature of Canada has an impact on the method of delivering of settlement services, as well as the fact that the Canadian population is spread extremely unevenly. As a result the biggest adaptation centers are located in the places with a high level of immigrants (Toronto, Hamilton, Montreal and Vancouver). The state funding of the organizations delivering the settlement services for immigrants is combined with charity and the profit from commercial projects of those organizations. There is a tendency towards further diversification of services for newcomers which makes the legal mechanism of adaptation and integration of immigrants more flexible and responsive to the needs of newcomers during their first years in Canada. Canadian experience in the settlement of newcomers acquires the most important significance for our state because of the activation of the process of forming the legal mechanism for social and cultural adaptation of foreign citizens in Russia.

Keywords: adaptation, integration, settlement, immigrants, migration policy, multiculturalism, acclimatization, volunteers, nongovernment organizations, federation.

DOI: 10.12737/art.2018.1.7

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ENSURING CHINA'S NATIONAL SECURITY AT THE PRESENT STAGE (NORMATIVE AND LEGAL ASPECT)  Pdf 16

S. G. LUZYANIN, P. V. TROSHCHINSKY

S. G. LUZYANIN, director of the Institute of Far Eastern Studies of the Russian Academy of Sciences, professor at the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, professor at the National Research University “Higher School of Economics”, doctor of historical sciences
32, Nakhimovsky ave., Moscow, Russia, 117993
E-mail: lousianin@ifes-ras.ru

P. V. TROSHCHINSKY, leading research fellow of the Institute of Far Eastern Studies Russian Academy of Sciences, candidate of legal sciences
32, Nakhimovsky ave., Moscow, Russia, 117993
E-mail: troshc@mail.ru

Article is devoted to a research of questions of standard and legal regulation of some directions of ensuring national security of the Chinese state during being in power of Xi Jinping. Types and the nature of threats of stability of the state which China faces in recent years are noted. First these threats are terrorism, extremism, activity of the western special services seeking to undermine authority of the government in China and to weaken his positions on the international scene. The important direction in the sphere of support of national security is counteraction to illegal activities in the Internet of the Chinese segment. The authorities of the country undertake a number of political and legal measures for restriction of illegal content, the prohibition of operation on the territory of the People’s Republic of China of the largest western Internet resources, the companies and software makers. Thereby the relative safety of content offered for the Chinese audience is reached. The Chinese authorities also take a number of rigid steps for regulation of the religious sphere which, not seldom, is used by foreign forces for counteraction to the existing mode. The ruling party pursues policy of “sinification of religion” which means obligatory compliance of doctrinal dogmatics of socialist ideology with the Chinese specifics. The religious organizations opposing to “sinification” are forbidden, and their members are prosecuted. The analysis of features of standard and legal regulation of ensuring national security of China allows to note that the state faced a number of serious calls and threats, counteraction to which demands from the authorities of acceptance of drastic and drastic measures. At the same time there is a danger that excessive “crackdown” can lead to establishment in the People’s Republic of China of the mode of authoritarianism.

Keywords: China, legislation, combating crime, national security, espionage, fighting corruption, Internet Security, CPC, religion.

DOI: 10.12737/art.2018.1.8

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LEGISLATIVE REGULATION OF PRE-TRIAL RESOLUTION OF TAX DISPUTES IN MEMBER STATES OF THE EURASIAN ECONOMIC UNION  Pdf 16

S. Zh. ABDRAKHMANOVA

leading research fellow of the Department of civil, civil procedural and executive legislation of the Institute of Legislation of Republic of Kazakhstan, master of laws
8, Mangilik Yel ave., Astana, Kazakhstan, 010000
E-mail: saima_a@mail.ru

Taxation — is a legitimate way of seizure of private property. The owner, the taxpayer strives to evade the obligation to pay taxes or reduce the burden of taxation, while the state is focused on a bigger budget replenishment. It is for this reason the tax relations are initially characterized by the conflict. In order to reduce conflicts, to bring together the interests of the parties of tax relations, optimal mechanisms are being developed. One of such methods is the pre-judicial order of settlement of tax disputes. The article reviews the legislation of the member states of the Eurasian Economic Union on the procedure of resolving tax disputes at the pre-trial stage. The research notes the advantages of pre-trial settlement of tax disputes (efficiency, efficiency, transparency) in comparison with the judicial procedure (duration, cost). The classification of pre-trial settlement (mandatory or voluntary nature) is indicated with the designation of countries that adhere to a voluntary or mandatory pre-judicial order for the settlement of tax disputes. The article provides a detailed overview of the tax legislation of each of the countries that is part of the Eurasian Economic Union which regulates the pre-trial procedure for considering tax disputes (Republic of Armenia, Republic of Belarus, Republic of Kazakhstan, Republic of Kyrgyzstan, Russian Federation). Based on the results of the analysis, common and specific features of pre-trial settlement of tax disputes in the member states of the Eurasian Economic Union were revealed. Common historical ties have affected the similarity of individual approaches to the consideration of tax disputes (subjects of consideration, time limits, etc.). Nevertheless, the emergence and development of economic relations between states in the new legal and political conditions influenced the existence of significant differences in the procedure for considering a tax dispute (for example, the subject of a tax dispute).

Keywords: tax dispute, pre-trial settlement, higher authority, Eurasian Economic Union, court, tax legislation.

DOI: 10.12737/art.2018.1.9

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SUBSTANTIAL CHANGE IN CIRCUMSTANCES AS A BASIS FOR CHANGING OF CONTRACT CONDITIONS  Pdf 16

A. S. LOGINOVA, M. A. SINITSYNA

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

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

Currently, the foreign trade transactions make a big difference in international trade. The parties of a contract should have specific skills in this sphere and carefully analyze contracts provisions to avoid common mistakes in the process of contracts formation. Reservations due to changed circumstances including in a foreign trade contract shield against risks, which could appear in the case of international trade. In practice, some circumstances preventing the enforcing obligations appear because of the longterm nature of foreign trade contract. So, the reservations incorporated into a contract regulate the disputable situations. The purpose of the research is to analyze the relevant issues of inclusion of reservations due to changed circumstances in a foreign trade contract and to define how this reservations influence the treaty relations between parties of the agreement. In the process of the research the general methods of scientific investigation are used, i.e. the systematic and dialectic methods; the general scientific methods — induction and deduction, analysis and synthesis, proceeding from abstract to specific, etc.; a legally specific method — the formal-economic and the comparative-economic methods. The article examines the main characteristics of foreign trade transactions as well as identifies the key national legal acts and international rules regulating this sphere of relations. Furthermore, the article characterizes the principle of the obligation of a contract, formulates the two key concepts: the concept of difficulties and the concept of force majeure. The research conducted has revealed that the parties will avoid some problems existing in practice, if a foreign trade contract includes reservations with changed facts. Hence, the parties should take care of development of contract provisions and take into account the circumstances which could exist in the foreign trade.

Keywords: foreign trade, foreign trade contract, international sales of good, reservations with changed facts, concept of difficulties, concept of force-majeure, principle of the obligation of a contract.

DOI: 10.12737/art.2018.1.10

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THE LAW APPLICABLE TO TRANSBOUNDARY TREATIES IN CHINA: THEORY AND PRACTICE  Pdf 16

Xin MA

postgraduate student at the Institute of State and Law of the Russian Academy of Sciences
10, Znamenka st., Moscow, Russia, 119019
E-mail: 387881735@qq.com

In the context of globalization and economic integration economic interdependence of countries is growing dynamically. Trade and economic ties between organizations, associations and firms of different States are implemented by means of concluding cross-border contracts. Determination of applicable law is one of the most difficult issues in Private International Law, it is the core of the resolution of disputes arising from transboundary agreements. China is the largest foreign trade partner of Russia, for Russia is very actual analysis of international legal norms and national legislation of the PRC governing and sustainable economic cooperation. This article discusses the concept of cross-border agreements in law and doctrines of China, the role of conflict-of-laws rule of “autonomy of will of the parties” and “closest connection” and the concept of “characteristic performance”. The principle of “autonomy of will of the parties” is the original general principle. The principle of “closest connection” is a subsidiary principle, and plays a major complementary role in relation to the principle of “autonomy of will of the parties”. And the concept of “characteristic performance” is only a presumption of the principle of “closest connection”, with the help of which is determined by the law applicable to the regulation of cross-border contractual relationships in China. And the article examined the expression of the will of the parties, time limits for the implementation of “autonomy of will of parties”, margins of “autonomy the will of parties” and the scope of the law chosen by the parties, concerning the conflict of laws rules of “autonomy of will of the parties” and the concept of “characteristic performance”, the international agreement of China and customs of international trade with the domestic laws of China.

Keywords: applicable law, conflict of laws rules, cross-border agreement.

DOI: 10.12737/art.2018.1.11

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REASONABLE TIME FOR LEGAL PROCEEDINGS AND ACCESS TO JUSTICE IN ENGLISH CIVIL PROCEDURE LAW: THEORETICAL UNDERSTANDING AND PRACTICAL IMPLEMENTATION  Pdf 16

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, postgraduate student at the National Research University “Higher School of Economics”
22—24, Bolshoy Kharitonevsky lane, Moscow, Russia, 107078
E-mail: evgeniy.hse@outlook.com

The article is devoted to the concept of access to justice, appeared in the second half of the twentieth century in Europe, and its perception in modern English civil procedure law. The main attention is paid to the issue of providing reasonable time for legal proceedings. Precisely the timeliness of the trial is one of the main requirements of the access to justice, which was confirmed both in the practice of the European Court of Human Rights and in the science of procedural law. The article begins with a brief overview of the evolution of the English civil procedure in the second half of the twentieth century. The impact of the practice of the European Court of Human Rights on only partially codified English procedural legislation is assessed. Then the ideas of the Florentine project are considered in detail, which became prerequisites not only for comprehend of the concept of access to justice in English science, but in general, for the reform English civil procedure. Attention is paid to the underestimated contribution of the Italian professor Mauro Cappelletti to the world procedure-legal science. The final part of the article reflects the current state of the English civil procedure, in particular, the Civil Procedure Rules (the main source of reformed English civil procedural law) are analyzed in terms of the concept of access to justice. As an example of the successful outcome of the reform procedural and legal mechanisms are provided to ensure a reasonable time for trial in English civil procedure. The main conclusion is that the positive experience of the English reform can be a model and a source of inspiration for states that are in search of a balanced procedural legislation, including Russia.

Keyword: access to justice, reasonable delay of proceedings, English civil procedure, Woolf’s reform, Florentine project.

DOI: 10.12737/art.2018.1.12

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CRIMINOLOGICAL RESEARCH OF THE PERSONALITY OF THE CORRUPT CRIMINAL  Pdf 16

O. S. KAPINUS

rector of the Academy of the Prosecutor General's Office of the Russian Federation, doctor of legal sciences, professor
2, Azovskaya st., Moscow, Russia, 117638
E-mail: agp@agprf.org

The development of measures to prevent corruption is closely related to the study of the personality of the corrupt criminal, considered as a system of social and psychological attributes, which in conjunction with the external environment, lead to the commission of a crime. It is in it that the specifics of corruption crimes is reflected, which determines the importance of this area of scientific research, allowed on the results of studying of the personality of the corrupt official, develop special measures to prevent corruption manifestations. The purpose of the study is to identify and theoretically describe the criminological features, as well as the specific factors that influence the formation of the personality of the corrupt criminal. Objectives of the study: the study of socio-demographic, criminal legal and psychological characteristics of the personality of the corrupt criminal; the analysis of the factors influencing the formation of the personality and the choice of models of criminal behavior. The presence of negative psychological characteristics, traditionally attributed to corrupt officials, is not directly corroborated by research results. Conclusions about these characteristics were often made on the basis of indirect indicators and indicators, the use of complex algorithms for statistical analysis and sophisticated data interpretation schemes. It seems that in many cases, alternative versions of the interpretation of the results obtained are possible. Among the types of punishment that have at the same time a high general prophylactic potential, priority is given to property measures. The necessity of scientifically grounded classification of the corrupt personality is substantiated, on the basis of which measures aimed at preventing corruption should be developed. A comprehensive approach is required to eliminate existing gaps in legislation, shortcomings in the work of law enforcement agencies, activities of government agencies to prevent corruption, and to minimize the negative impact of socio-economic and other factors affecting the formation of the identity of a corrupt criminal.

Keywords: corruption, the state of corruption crime, the personality of the criminal, the personality of the corrupt official, the causes of corruption, the determinants of corruption.

DOI: 10.12737/art.2018.1.13

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SOCIAL CONTROL AS ANTI-CORRUPTION TOOL IN THE FOREIGN COUNTRIES  Pdf 16

I. G. TIMOSHENKO

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

Social anticorruption control matters in foreign countries are considered. In particular main categories of social control actors are studied, as far as types and forms of social anticorruption control implementation measures. The basic category of social anticorruption control actors are citizens. They must have legal tools of real impact on state institutions which implement policies in most corruptogenic spheres of public life. Increasing of public control demand should be accompanied by readiness of the state to create real organizational and legal conditions for this purpose. The present forms of social anticorruption control implemented by citizens are diverse. They include the right to take part in public bodies meetings, the right to introduce proposals to legislative and other legal acts, the right to participate in public hearings, public opinion poll and right of petition including electronic petitioning. The substantive legislative acts of different foreign countries which provide for basic features of social anticorruption control implementation are analysed. The role of information legislation in prevention of corruption misconduct of civil servants and public officials is emphasized. Particular administrative procedures providing for enjoying the right of citizens to be informed of the civil servants’ and public officials’ misconduct are described. The specific ombudsman role in anticorruption social control measures realization is examined. The special role of local communities in anticorruption control is described. Anticorruption struggle at local level comprises prevention of corruption in the spheres of constructing, environmental protection, public order, crime prevention as well as public services that include medical and educational services. Bearing it in mind, measures for more effective implementation of social anticorruption control, which should take place at the level of local communities including local budget control, are concerned.

Keywords: corruption, social control, regulation, open government, administrative procedure, public administration, information, foreign states.

DOI: 10.12737/art.2018.1.14

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LIABILITY FOR IMPROPER PERFORMANCE OF PROFESSIONAL DUTIES BY MEDICAL OR PHARMACEUTICAL WORKER UNDER THE CRIMINAL LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN  Pdf 16

E. Yu. ANTONOVA

head of the Department of criminal law and criminology of the Khabarovsk State University of Economics and Law, doctor of legal sciences, associate professor
134, Tikhookeanskaya st., Khabarovsk, Russia, 680042
E-mail: antonovy@yandex.ru

The issues of legislative regulation of public relations in the sphere of rendering of medical aid and services in the field of pharmaceutical activities are raised in present article. The author identifies the characteristics of the liability for improper performance of professional duties of medical or pharmaceutical worker under the criminal legislation of the Republic of Kazakhstan. The concepts of “failure to follow the procedure or standards of medical aid and services in the field of pharmaceutical activity”, “the failure of the medical or pharmaceutical worker of order and standards of rendering of medical aid and services in the field of pharmaceutical activity” and “improper performance of medical or pharmaceutical worker of his professional duties” are disclosed based on the analysis of normative legal acts and judicial decisions of the Republic of Kazakhstan. The author concluded that failure to perform and improper performance of professional duties of medical or pharmaceutical worker are required to join the general category of “violation of order or standards of medical aid and services in the field of pharmaceutical activity”. According to the research results the author suggests de lege ferenda the provision of Russian criminal legislation on responsibility for violation of order or standards of medical aid and services in the field of pharmaceutical activities.

Keywords: medical criminal offense, violation of order and standards of medical aid, failure to fulfil professional duties, improper performance of professional duties, medical professional, pharmaceutical worker.

DOI: 10.12737/art.2018.1.15

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LEGISLATIVE APPROACHES TO THE CRIMINALIZATION OF ACTS RELATED TO ILLEGAL ACCESS TO COMPUTER INFORMATION IN THE COUNTRIES OF THE COMMONWEALTH OF INDEPENDENT STATES  Pdf 16

E. A. RUSSKEVICH

senior lecturer at the Department of criminal law of the Kikot Moscow University of the Ministry of Internal Affairs of the Russian Federation
12, Akademik Volgin st., Moscow, Russia, 117437
E-mail: russkevich@mail.ru

In recent years, the national criminal laws of the countries of the Commonwealth of Independent States have lost their former unity in the regulation of liability for crimes in the field of computer information. This causes a few problems of a purely practical nature (at the level of ensuring effective interaction of judicial and investigative bodies), and actualizes the need for knowledge of the legislative experience of the CIS countries in order to enrich Russian science, to critically reflect on national legislation, to identify its weak and strong sides, to point out the obvious problems, formulate the most expedient ways to resolve them. The purpose of the work is to conduct a comprehensive comparative study of criminal liability for illegal access to computer information in CIS countries, to develop the proposals for improving of the design of Art. 272 of the Criminal Code on this basis. The implementation of these goals were achieved with the help of evaluation of the criminal legislation of the CIS countries, including the regulation of the liability for illegal access to computer information, identification of their merits and shortcomings, identification of the main directions for modernization of Art. 272 of the Criminal Code. The study is mainly based on the application of a comparative-legal method. At the same time, general scientific and special methods (analysis, synthesis, induction, formal-legal, abstract-logical, etc.) were also used. Conclusions: 1) the actions regulated by the Art. 272 of the Criminal Code of the Russian Federation, in the most national legislations of the CIS space are dispersed to several elements of crimes at once: a) illegal access to information, b) its illegal modification, c) intentional destruction, blocking, scrapping (computer sabotage), d) unauthorized copying or other illegal taking over; 2) domestic legislation on liability for unauthorized access to computer information needs to be correlated. The differentiation of liability for illegal access, depending on the form of the guilt of the subject and the nature of the consequences, has to be recognized as the priority measure.

Keywords: criminal law, computer crimes, information and communication technologies, illegal access.

DOI: 10.12737/art.2018.1.16

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MILITARY CRIMINAL PROCEEDINGS IN SWITZERLAND: SOURCES, PRINCIPLES, SUBJECTS  Pdf 16

A. A. TREFILOV

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

In present article, the author considers two models of the so-called military criminal law and procedure, as well as the structure of the judicial system in the context of military justice. The author defines the place of Switzerland in the system such models. The system of sources of modern military criminal procedural law of Switzerland was analyzed: the Geneva Convention of 1949, the Constitution of Switzerland of 1999, the Military Criminal Procedure Code of 1979, Federal Law on Army and Military Administration of 1995, Resolution on Implementation of the Military Criminal Justice of 1979. In some cases, the author compares existing mechanism of legal regulation and the mechanism provided by the Law on Military Criminal Courts of 1989, the “general” Criminal Procedure Code and the Military Criminal Procedure Code. Also the author analyzed the essential principles of the military criminal process in Switzerland: the principle of the independence of military justice, mutual legal assistance, the principle of secondment, the start of public proceedings, the investigation beginning, the principle of reasonable time frame, transparency, reasonable time of the criminal process, right to defense, principle of language of the proceedings. The key members of the military criminal process were considered, which are: the court (garrison, appeal, cassation), the investigating judge, the Federal Council, the auditor (the Prosecutor), the police, the victim, the counsel. It is shown that the consideration of the merits in military criminal procedure the participation of counsel is obligatory in any case (article 127). The duty of the Chairman of garrison court — to ensure the participation of the appointed advocate (if the defendant for some reason did not organized his defense). The author sees a noticeable difference with the “common” criminal proceedings in which the participation of advocate is obligatory only in listed in the CPC categories of cases. At the end, the author made the comparative important conclusions regarding the research subject.

Keywords: military criminal procedure, military criminal procedure law, Military Criminal Procedure Code, Switzerland.

DOI: 10.12737/art.2018.1.17

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ROLE AND SIGNIFICANCY OF THE INSTITUTIONAL SYSTEM FOR THE DEVELOPMENT OF INTEGRATION IN THE EURASIAN ECONOMIC UNION AND THE EUROPEAN UNION: COMPARATIVE LEGAL DISCOURSE  Pdf 16

A. N. MOROZOV

leading research fellow of the Department of constitutional, administrative, criminal law and 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: ccla1@izak.ru

The article examines the issues related to the functioning of the institutional system of the Eurasian Economic Union (EEU). In this context the author has made a comparative legal research of the institutional system of the European Union. The purpose of the study is to develop research-based recommendations and proposals for the development of the institutional system of the Eurasian Economic Union, including the creation of new bodies, as well as to improve the functioning of existing bodies. Tasks of the article: to analyze the provisions of the Treaty on the Eurasian Economic Union of 29 may 2014 concerning the institutional system of the EEU; to make a comparative legal analysis of the institutional frameworks of the Eurasian Economic Union and the European Union; to make an international legal analysis of the competence of EEU bodies; to elaborate the proposals on development of the institutional system of the Eurasian Economic Union; to identify the role of the institutional system of the Eurasian Economic Union for the development of integration. Among the methods used in this article are the dialectical, philosophical, formal-logical, systemic-structural, historical, formallegal, comparative legal methods and methods of expert estimation, legal modeling and forecasting, interpretation of law. On the basis of the study of the international legal framework of the Eurasian Economic Union, as well as scientific developments of Russian and foreign scientists the author has formulated proposals for the improvement of the institutional system of the Eurasian Economic Union.

Keywords: Eurasian Economic Union, institutional system, integration, international law, decisions, international agreements.

DOI: 10.12737/art.2018.1.18

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INTERNATIONAL LEGAL ASPECTS OF RECOGNITION OF SOUTH OSSETIA  Pdf 16

A. A. KHASANOV

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: anvarkhas@yandex.ru

The article examines the international and legal aspects of the recognition of South Ossetia. The secession of South Ossetia from Georgia is analyzed from the point of view of Soviet legislation and international law. It is noted that South Ossetia became a part of Georgia during the Soviet period, and by considering as illegal all Soviet legislative acts, Georgia itself has ceased all state-legal relations with the region. According to the Law of the USSR of April 3, 1990 “On the procedure for resolving issues related to the secession of the union republic from the USSR” the peoples of the autonomous republics and of the autonomous entities preserve the right to independently resolve the question of staying in the USSR or in the seceding union republic, and the right to pose the question of their statelegal status. The seceding Union republics could be considered as new states only when the interests of all their citizens peoples were taken into account, and after the procedures that provide each nation in the territory of a union republic, the opportunity to choose their nationality. However, these provisions were not observed by Georgia. After the collapse of the USSR in December 1991, the Supreme Council of South Ossetia appointed a referendum on independence and reunification with Russia. During the referendum held on January 19, 1992, most of its participants spoke in favor of independence and accession to Russia. On May 29, 1992, the Supreme Council of the Republic proclaimed its independence and the creation of an independent state of South Ossetia. Thus, in accordance with international law and Soviet legislation, South Ossetia legitimately proclaimed its independence. Assessing the actions of Georgia from the standpoint of international law, we can conclude that they were illegal. Georgia as a result of an armed attack on South Ossetia violated such principles of international law as the prohibition of the use of force or threat of force, respect for human rights and freedoms and the self-determination of peoples.

Keywords: recognition of new states, the right of nations to self-determination, principle of territorial integrity, South Ossetia, Georgia, the collapse of the USSR.

DOI: 10.12737/art.2018.1.19

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