Contents # 2/2018

CONSTITUTIONALIZATION OF THE RIGHT TO PRIVACY IN THE DECISIONS OF THE BODIES OF CONSTITUTIONAL JUSTICE  Pdf 16

A. V. KROTOV

doctoral сandidate of the Southern Federal University, сandidate of legal sciences
88, M. Gorky st., Rostov-on-Don, Russia, 344002
E-mail: pravonnov@yandex.ru

The relevance of the article is connected with the formation and development of the concept of “broad” interpretation of the right to private life, which finds expression both in foreign and domestic law, the influence of this concept on the particularities of modern legal regulation of private life. The purpose of the article is to study the ways of modernization (in particular, such an instrument as constitutionalization) of the right to privacy, the reflection of these processes in the decisions of the Constitutional Court of the Russian Federation, for which the author studied the specifics of the formation of the national right to private life, analyzed the constitutionality of the right to privacy in foreign countries (on the example of the French Republic), the content of the decisions of the Constitutional Court of the Russian Federation relating to the legal regulation of private life was examined. Analyzing the processes of formation and development of the right to privacy in Russia and the French Republic, based on the decisions of the European Court of Human Rights and the Constitutional Court of the Russian Federation, the author defines the concept of “constitutionalization” of the right to privacy, the content of the “broad” concept of the right to privacy, there is a basic vector of the evolution of the right to private life (into complex law, which includes both negative and positive elements), which ultimately leads to a significantly extension of private life, regulated by law (the replacement of social regulators: morality, religion, and other rules of law). At the same time, the special role of the Constitutional Court of the Russian Federation in these processes is highlighted, which fulfills in this case the role of a generator of new, positive principles in the field of legal regulation of private life, expanding the scope of the right to privacy.

Keywords: concept of “broad” interpretation of the right to privacy, decision of the Constitutional Court of the Russian Federation, constitutionalization of the right to privacy, constitutionalization of the right to privacy in the French Republic, interpretation of the right to privacy in the decisions of the European Court of Human Rights.

DOI: 10.12737/art.2018.2.1

Adobe pdf 24  Download

UTILIZATION OF THE CIVILIAN CAPACITY FOR PUBLIC CONTROL IN RUSSIA AND FOREIGN COUNTRIES  Pdf 16

O. V. MAKAROVA

leading research fellow of the Department of criminal, criminal procedure legislation; judicial system 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: Makov71@mail.ru

Current scientific research of public control has multidisciplinary and multidimensional nature due to the broad scope of legal regulation of this institute. Nevertheless, the research of public control in terms of the cooperation between the institutes of civil society and public authority is rare to find. The article addresses the specifics of Russian civil society’s development, where the main subject of its development is not the society itself, but the state, which is not only interested in the development of the civil society, but also in the effective interaction. The critical evaluation of the state’s excessive activity in the building of civil society’s institutes, which are also the subjects of public control, is provided. In this regard, risks and negative consequences of the realization of public control are analyzed, and practical recommendations for its elimination and minimization are given. The research goal is to analyze and assess the state and the prospects of utilization of civil capacity and realization of public control in Russia and in some foreign countries. In addition, the possibilities and methods of interaction between public authorities and citizens, organizations in developing of public control mechanisms are considered and practical recommendations for their further improvement are provided. Methodology is based on the set of scientific methods, where dialectical method is primarily used. Special attention was paid to the comparative and systematic methods. Conclusions: state’s efforts to use civil capacity in the realization of public control are required to be geared towards firstly, the enhancement of abilities of civil society institutes for self-governance, by empowering them with controlling-protective and controllingdefensive rights; secondly, the development of legal mechanisms of civil society institutes’ and public authority institutes’ interaction.

Keywords: civilian capacity, public control, public authority, citizen, transparency, state, legislation.

DOI: 10.12737/art.2018.2.2

Adobe pdf 24  Download

BRAZILIAN NATIONAL PLAN ON EDUCATION: HISTORY AND MODERNITY  Pdf 16

E. S. POPOVA

associate professor of the State University of Land Use Planning, candidate of legal sciences
15, Kazakov st., Moscow, Russia, 105064
E-mail: elena0311@mail.ru

This article is aimed at researching the goals and actions in the field of education in Brazil, proposed by the National Education Plans (PNE) for the period from 2001 to 2024. The article attempts to determine the current progress in implementing the PNE, as well as the existing changes in education. The National Education Plan of Brazil is an instrument of state educational policy for a period of ten years (2014—2024). In the present article the stages of the development of educational planning in Brazilian society are analyzed. The work emphasizes that the revival of the idea of planning the educational process is associated with the adoption of the Constitution of Brazil in 1988, in which Art. Art. 204—215 are devoted to education. One of the main laws relating to education is the Education Act No. 9.394, which establishes the responsibility of the Federation for the development of the 10-year National Education Plan of the country. The article explores the specifics of the development and content of the National Education Plan of Brazil, its structure is examined. The article is based on the analysis of national plans, taking into account the historical aspects of this topic, and also represents a synthesis of the 20 goals that constitute the new National Education Plan. The objectives of PNE 2014-2024 should be taken into account by the states and municipalities when drawing up appropriate education plans.

Keywords: Рublic policy, education, National Education Plans, planning, management.

DOI: 10.12737/art.2018.2.3

Adobe pdf 24  Download

THE STATE GUARANTEES OF THE HARMONY OF LOCAL BUDGETS  Pdf 16

O. A. DEMENTIEVA

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: deola@mail.ru

The article presents the results of the analysis of the provisions of the constitutions of some European States containing specific principles and regulations on state guarantees of local government, the European Charter of local self-government and documents of the Council of Europe, the documents of the Commonwealth of independent States on the budgetary basis of local self-government, state guarantees of the harmony of local budgets, the need to ensure compliance of their incomes with the statutory powers assigned to local self-government. Requirements to the legislation (need of fixing of the principles of the organization of local government, rules of formation of local budgets, fixing of tax revenues, etc.) are revealed. The attention is focused on the establishment in the Constitution of Germany the rules for fixing the local budgets (budgets of communities) tax revenues, the list of tax revenues of communities, which includes not only local taxes, but also revenue receipts from income tax, turnover tax and others. The analysis of the dynamics of the Russian Federal legislation, indicating that it does not implement the provisions of the European Charter of local self-government on state guarantees of budgetary foundations of local self-government. The author suggests ways of overcoming the current situation. One of the possible options: based on the experience and objectives of the Charter, to reconsider the need for the Russian Federation to implement a number of paragraphs, which is permissible under the Charter. The second option is to eliminate the actual contradictions: the development and adoption of a specific program at the level of the Government of the Russian Federation to eliminate the inconsistency of regulatory legal regulation and the practice of implementing the principles of financial autonomy of local self-government provisions of the Charter. The program should be aimed at implementing in law the fundamental principle of ensuring the balance of local budgets, namely, that material and financial resources of local governments should be commensurate with their statutory authority.

Keywords: the Constitution, the European Charter of local self-government, the Commonwealth of independent States, the state guarantees the balance of local budgets, the budget autonomy of local self-government.

DOI: 10.12737/art.2018.2.4

Adobe pdf 24  Download

BACK TO THE MIDDLE AGE LAW?  Pdf 16

M. L. ENTIN, E. G. ENTINA

M. L. ENTIN, professor at the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, doctor of legal sciences
76, Vernadsky ave., Moscow, Russia, 119454
E-mail: entinmark@gmail.com

E. G. ENTINA, associate professor at the National Research University “Higher School of Economics”, senior research fellow of the Institute of Europe of the Russian Academy of Sciences, candidate of political sciences
17, Malaya Ordynka st., Moscow, Russia, 119017
E-mail: e.entina@hse.ru

Moscow launched the Eurasian Economic Union and initiated the creation of the Greater Eurasian Partnership. To go ahead with the promotion of both geopolitical projects Russia needs to rely on international law instruments, the development of regional and interregional supranational law and fundamental modernization of its internal legal system. If it is so, it is in its interests to enhance such key quality of its internal legal system as the openness towards international and supranational law, to stick international law and to protect it, to impede blaming it for inefficiency or even disintegration. All theories and speeches explaining or pretending that international law is in deep crisis are nonsense. They are used to have free hands in world politics. In reality adherence to International law is needed now more than ever. It is indispensable to restore normal international cooperation, to secure international peace, to solve global problems, and to achieve prosperity. When insisting on superiority of international law in world politics we need to remember that it is only international and supranational law that is a true law contrary to national which is on many occasions not more than legitimization of irresponsibility and barbarity. Russian lawyers of the beginning of XX century insisted on that with vigilance. At the same time international law is only a part of world regulatory system.

Keywords: nonexistent crisis of international law, relationship between international and supranational and national law, international law as only one true law, open character of Russian legal system.

DOI: 10.12737/art.2018.2.5

Adobe pdf 24  Download

IMPLEMENTATION OF INTERNATIONAL TREATY OBLIGATIONS IN STATES THAT FOLLOW DUALIST APPROACH  Pdf 16

B. I. OSMININ

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp3@izak.ru

Dualist states are states in which no treaties have the status of law in the domestic legal system unless the legislature enacts a statute to incorporate the treaty into domestic law. All treaties require implementing legislation to have domestic legal force. As far as the United Kingdom is concerned, there is a very clear difference between the effect of a treaty in international law and the effect of a treaty in municipal law. A treaty becomes effective in international law when it is ratified by the Queen, but it is usually has no effect in municipal law until an act of parliament is passed to give effect to it. Most common law countries follow the English tradition and strictly deny any direct internal effect of international treaties without legislative enactment. Incorporation of the provisions of a treaty into domestic law can take next main forms. The text of the treaty may be scheduled to the act of parliament which will provide that the provisions of the treaty have the force of law. The substantive treaty provisions (if necessary, in revised form) may be included in statutes. In other cases a statute refers to a specific treaty and provides that it will apply in certain defined circumstances, or refers to any treaty in a defined area. In some cases an enabling act of parliament may grant the executive the power to bring a treaty into effect in municipal law. Finally, a treaty may be implemented by exercise of executive power. Like in dualist systems, many treaties ratified by monist states in fact require legislative involvement to implement them domestically. A distinction between monist and dualist systems does little to explain which treaties apply directly, and which ones not. Whether treaties apply directly differ from treaty to treaty and from country to country.

Keywords: dualist states, monist states, international law, municipal law, to implement a treaty, domestic incorporation, implementing legislation, to have no effect in domestic law, to give effect, to have the force of law.

DOI: 10.12737/art.2018.2.6

Adobe pdf 24  Download

ROAMING IN THE EUROPEAN UNION AND THE EURASIAN ECONOMIC UNION: COMPARATIVE LEGAL RESEARCH  Pdf 16

A. P. BELOVA

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: belova-anna-pavlovna@yandex.ru

The 21st Century is the age of digital technology. Currently, digital technologies play a huge role. Freedom of movement of goods, services and capital is the basis of the internal market. Often, there are various obstacles to the construction and operation of the internal market, one of which is roaming. The article attempts to analyze the experience of the European Union, to determine ways to solve the roaming issue at the level of the Eurasian Economic Union. Charging extra pay for roaming services not only complicates communication between people, but also impedes the functioning of the internal market. In 2004, the European Union for the first time drew attention to the problem of roaming. Various acts aimed at regulating this sphere were gradually adopted. In 2007, the first act was set for discounted rate that gradually decreased. And only in June 2015 roaming charges in the EU were cancelled. When cancelling roaming, it is necessary to take into account not only the interests of consumers, but also the interests of operators, because there are cases of abuse by customers. The roaming issue is also of current interest in the Eurasian Economic Union. In some Member States of the Eurasian Economic Union national roaming is used and its abolition should be the first step towards solving the roaming issue in the territory of the Eurasian Economic Union. The problem solution is a long process that requires decision-making at the level of supranational formation. At the same time, the digital market construction in the Eurasian Economic Union depends on the roaming problem solution.

Keywords: roaming, European Union, Eurasian Economic Union.

DOI: 10.12737/art.2018.2.7

Adobe pdf 24  Download

CORRUPTION AS A SOCIAL PHENOMENON  Pdf 16

A. S. AKHMETOV

professor at the Department of social and humanitarian disciplines of the Pavlodar State Pedagogical University, Ph.D, associate professor
60, Mira st., Pavlodar, Kazakhstan, 140000
E-mail: arman.ahmetov@mail.ru

This article is devoted to the analysis of the corruption's nature and essence as a negative social phenomenon. In the process of writing the article, the author highlighted the main features and basic principles of corruption, which reveal its content and specific features of this phenomenon. The author pays special attention to the analysis of the researchers' existing scientific approaches in the field of studying the peculiarities of the corruption phenomenon. The present research is based on domestic and foreign authors' researches on the problems of studying corruption. The article cites measures to prevent corruption and also develops recommendations aimed at increasing the effectiveness of counteracting the corruption phenomena in society. In the author's opinion, corruption is the anti-legal behavior of an individual who treats negatively the existing legal norms and rules of conduct in a society based on the formed individual's corrupted legal awareness. Corrupted legal awareness is formed due to the population's low standard of living, i.е. it reflects the level of economic development of the country, the success of legal reforms. In addition, grassroots corruption is caused by a low level of efficiency and the quality of the state apparatus's functioning. In conclusion it is worse to state that the process of eradicating corruption is possible only through joint action, both from the state and the society and from various civil society institutions, ultimately from every citizen who is responsible for his/her own actions and takes an active part in the anti-corruption policy of our state.

Keywords: corruption, law, state, society, system, lawyer, anti-corruption policy, education, civil society.

DOI: 10.12737/art.2018.2.8

Adobe pdf 24  Download

FRANCE: DEONTOLOGY IN COUNTERACTING CORRUPTION  Pdf 16

A. N. PILIPENKO

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

In the article, the topic of corruption is viewed through the prism of moral and ethical requirements mainly towards persons who are not only called to counteract this phenomenon (parliamentarians, ministers, officials), but also those empowered, and due to the functions assigned to them, and potentially subject to corruption temptation. The experience of France in this field, accumulated in recent years, is distinguished by a comprehensive approach, when the moral character of government representatives becomes the most important criterion for the trust of society and citizens. Within the legislative and executive branches, special structures have been created for this mission: the deontologist in the National Assembly, the Commission for public service deontology under the Prime Minister, and the referents for deontology in the administrative services. Legalization of lobbyism requires the development of moral and ethical criterion “to representatives of interests”, as persons engaged in this activity are called in France. The author notes a tendency towards the legalization of moral and ethical norms. “Moralization” of power and government is declared as an important direction of the current ruling majority in the country, acting as a president, parliament and government. The first legislative acts were the Organic Law of September 15, 2017 No. 2017-1338 on political trust and the Law from September 15, 2017 No. 2017-1339 with the same name. These laws act as the basis for a broad reform in the sphere of power and management in the context of the moral recovery of society.

Keywords: deontology, corruption, representative of interests, morality, law, transparency, conflict of interests, Public Service Deontology Commission, deontologist, loan intermediary for candidates and political parties.

DOI: 10.12737/art.2018.2.9

Adobe pdf 24  Download

REGULATION OF ANTI-CORRUPTION ENFORCEMENT IN CHINA  Pdf 16

V. V. SEVALNEV

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: sevalnev77@gmail.com

The article is devoted to the research of the issue regarding regulation of anti-corruption enforcement in the People's Republic of China, which is one of the largest partners of the Russian Federation in various spheres, including development of the Far East regions. The author considers separate historical and legal aspects of the legislation contents in the sphere of anti-corruption enforcement in China, provides its classification and investigates the role of the Communist Party in the sphere concerned. It is the first time when the inner-party document, which is of a national character, is introduced in full into legal circulation. The “Eight rules to improve the work style and strengthen ties with the masses” 2012 can be considered as Rubicon of a new Chinese President's — Xi Jinping, anti-corruption campaign. The author comes to the conclusion that this document can be correlated with the Codes of Ethics, which gained popularity in the Russian legal space. However according to the contents, volume and regulation methods the "Eight rules" are more similar to texts of the Confucian doctrines, as it relies on the Chinese Empire's state ideology which was in force until the Revolution of 1911. Here values of education and belief, but not the power and coercion, are on the forefront. At the same time, the author notes that in the People's Republic of China the triad on anti-corruption enforcement is under realization. It ensures that interested persons from public and private sectors are afraid to be engaged in, have no opportunity and do not wish to be engaged in corruption. The Policymakers steadily adhere to course on improving the work style, which is exercised by personal example — namely: do by yourself before you demand it from someone else, and do not do on no account something by yourself what you demand to not do from anyone else. In result of this approach, in these latter days China improved the state in various corruption rankings.

Keywords: regulation, China, anti-corruption enforcement, Xi Jinping, “Eight Rules”, Confucian values.

DOI: 10.12737/art.2018.2.10

Adobe pdf 24  Download

TNE LEGAL NATURE OF A CORPORATE AGREEMENT IN THE US LAW  Pdf 16

S. V. SOLOVIEVA

leading research fellow of the Department of civil legislation of foreign states of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign3@izak.ru

In Russian civil law, not so long ago a new institution emerged — corporate contract. Its emergence in legislation was result of reasons different from those that emerged in the business activities of corporations in the United States. The subject-matter of the presented article is the contract regulation of shareholders by certain states' laws of the United States. The current interest of this topic is the enormous controversy about the nature of the corporate contract and its role in the management of the jointstock company. The United States became the first country with the right to have a corporate contract. The article examines the reasons that prompted state legislators to make provisions on shareholders' agreements in laws on public corporations. Since the first agreements were concluded by shareholders of private corporations, in the article the author pays a special attention to private corporations and their differences from public corporations. The article notes that not all states' laws distinguish the private corporation. In order to examine in details the content of shareholders' agreements, the author examines the structure of the public corporation management, which does not assume the participation of shareholders in the entity's management. The management is in the board of directors' and managers' hands, where the latter is appointed by the former. However this situation does not correspond to the interests of shareholders any more. The desire to manage the corporation and participate in the distribution of profit is exercised by the shareholders through shareholder agreements. Analyzing the state legislation, the author underlines three types of shareholder agreements, where two of them were previously unknown in common law. The article focuses on the fact that all rules regulating shareholder agreements are contained in the laws on public corporations. It is these laws that relate to corporate law, determine types, form and effect period of the shareholder agreements, as well as their conditions and correlation with the provisions of the corporation's by-laws.

Keywords: private corporation, public corporations, shareholder agreements, corporate law, board of directors, corporate management, states' law, voting trust.

DOI: 10.12737/art.2018.2.11

Adobe pdf 24  Download

ON DISCLOSURE OF INFORMATION ABOUT BENEFICIARIES OF TRUSTS AND OFFSHORE COMPANIES: THE CURRENT STATUS AND PERSPECTIVES  Pdf 16

V. A. KANASHEVSKY

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

The author examines the requirements of national and international laws regarding disclosure of information about beneficiaries of offshore companies and trusts. These issues are actual ones in the light of Russian and foreign laws on prevention of money laundering as well as foreign controlled companies (CFC) rules, which require information disclosure about beneficiaries. Currently, the information on beneficiaries of offshore companies and trusts is available through the international financial information exchange mechanisms developed in the framework of the OECD and G20. At present time the laws of offshore jurisdictions are less tolerant towards beneficiaries of offshore companies and trusts: under certain conditions these laws allow provisioning the relevant information to the Russian tax authorities at their request. Now it is difficult to foresee to which extent the agreements on the exchange of information on tax matters (CRS MCCA and others) can be used in resolving civil law disputes in Russian courts. Therefore, while considering the private law cases in courts, the respective parties may get access to the information about beneficiaries and their property in accordance with national law of offshore jurisdictions. It is a question of judicial procedure for obtaining information about the beneficiary, also when it is a result of the application of interim order by local courts. The adoption of the procedural institute of disclosure order by Russian courts, which allows a conscientious plaintiff to gain access to the necessary evidence, is one of the tendencies in identifying the beneficiary in Russian case law. However, this procedure is quite challenging and expensive. A more effective way of establishing the beneficiary assets would be working out appropriate rules in the form of an international “instrument” (treaty, convention, standard, etc.) on public registries of companies’ beneficiaries, funds and trusts in the framework of OECD, FATF and G20, and forcing offshore jurisdictions to implement the relevant standards. Currently under the pressure of the international community a number of offshore jurisdictions implemented the registries of beneficiaries (although those registries are not yet public).

Keywords: trust, beneficiary owner, legal title holder, secrecy, automatic exchange, BEPS, controlled foreign companies, offshore jurisdictions, legitimate interest, registers of beneficiaries, disclosure order, financial organizations, account holders, nonresidents, nominee service.

DOI: 10.12737/art.2018.2.12

Adobe pdf 24  Download

ISSUES ARISING WHEN A COURT ESTABLISHES A CONTENT OF A FOREIGN LAW  Pdf 16

O. Yu. MALKIN

associate professor at the Department of civil law of the North-West branch of the Russian State University of Justice, candidate of legal sciences, associate professor
5, Alexandrovsky Park, St. Petersburg, Russia, 197046
E-mail: olem2008@gmail.com

The article considers the issues that arise when the court establishes the content of foreign law. In particular, the courts do not use all the known ways to establish the content of foreign law; experience some difficulties when the case has a presence of conflicting information about foreign law; move on to the application of Russian law without taking due measures to establish the content of foreign law. The author gives recommendations on the elimination of these problems in law enforcement practice. If the court establishes in the case any contradictory information on the content of foreign law, it has the right to give preference to information submitted by one of the parties in the process (one of the expert opinions, responses to the request by the competent authority). It is based on the rules for assessing evidence. Referring to other ways of establishing the content of foreign law is not mandatory in this case. The application of Russian law in dealing with cases involving foreign participation cannot be justified by the difficulty in establishing the content of a foreign law, the use of which is indicated by the rules of conflict of laws. It is allowed due to the obligatory observance of two conditions: 1) the court takes appropriate measures to determine the content of the applicable law, 2) the content of the applicable law isn’t established within a reasonable time. It is shown that the “reasonable time” may be longer than the general terms for the consideration of cases by arbitration courts and courts of general jurisdiction at a first instance.

Keywords: opinion of a foreign specialist, request to the competent authorities, foreign law, Russian law, reasonable time, court, legal expertise.

DOI: 10.12737/art.2018.2.13

Adobe pdf 24  Download

EVOLUTION OF THE DOCTRINE OF PRIVACY IN AMERICAN LAW  Pdf 16

A. Kh. ULBASHEV

visiting researcher at the Law School of Yale University (USA), candidate of legal sciences
06511 USA, New Haven, Wall st., 127
E-mail: alim-ulbashev@mail.ru

The article is devoted to the problem of formalization of the right to privacy in the judicial doctrine of the USA, while the issues of legislative (regulatory) regulation of privacy are practically not included in the subject of the study. This is due to the fact that historically it was in judicial practice that the main elements of the concept of privacy were formed, while legislative regulation in the United States was of a secondary nature. The author paid attention to the issue of privacy in the works of the founders of the USA, the developers of the US Constitution. This approach allows us to answer the question of why there are no provisions for privacy in the US basic law. The most important implications of such silence on national case law are also highlighted. The article clearly underlines the idea of the historical continuity of the institute of privacy. At the same time, it is shown that the American courts, since the end of the XIX century, were forced to develop the concept of privacy without relying on the Constitution. Taking into account a numerous case-law on privacy (in recent decades, their number has reached many thousands) the author focused only on the most significant cases that somehow influenced the legal understanding of American lawyers. In general, the evolution of the doctrine of privacy in the practice of American courts can be described by the following formula: from a proprietary concept to an individualistic, human-centered one. Initially, the courts followed the logic of the founding fathers and believed that privacy was a “continuation of the right of ownership”. However, this point of view was later corrected: the courts began to recognize the value of the person per se. In conclusion, the author noted that the extreme growth of judicial practice on privacy leads to the erosion of the boundaries of this right, as well as to fill it with completely contradictory content.

Keywords: privacy, freedom, human rights, maternal and child rights, judicial interpretation.

DOI: 10.12737/art.2018.2.14

Adobe pdf 24  Download

THE PRINCIPLES OF SIMPLIFICATION OF CRIMINAL PROCEDURE BY THE EXAMPLE OF SWITZERLAND AND GERMANY  Pdf 16

A. A. BRESTER, A. S. BYKOVSKAYA

A. A. BRESTER, associate professor at the Law Institute of the Siberian Federal University, candidate of legal sciences
79, Svobodny ave., Krasnoyarsk, Russia, 660041
E-mail: russ28@yandeх.ru

A. S. BYKOVSKAYA, undergraduate student at the Law Institute of the Siberian Federal University
79, Svobodny ave., Krasnoyarsk, Russia, 660041
E-mail: bykovskanna@gmail.com

On the basis of self-developed and described principles of simplification of criminal procedure the authors of the paper consider the relevant institutions of the Swiss criminal process (where the criminal procedure has been recently reformed), comparing them with similar institutions in the Federal Republic of Germany and the Russian Federation. The authors propose a description of the individual forms of criminal proceedings in Switzerland — the punishment order (der Strafbefehl) and the shortened proceedings (das abgekürzte Verfahren). Also there is a brief description of these forms. The most important aspects of their functioning are commented in detail and compared with similar institutions in Germany (including the plea agreement) and Russia. The authors analyzed the compliance of the special procedure of judicial decision-making (chap. 40 of the Code of Criminal Procedure of the Russian Federation) in the legislation of European countries with the principles of exclusivity and compensation revealed for the absence of a direct examination of evidence in court. These principles are detailed in the text of the article The authors substantiate the conclusion that the visible similarity between the institutions of simplified proceedings in the criminal process of Russia and Switzerland should be excluded. The emphasis is placed on the almost complete discrepancy of the special procedure of judicial decision-making in Russia to the revealed principles of simplification of the criminal process in foreign countries. Statistical data of application in practice of institutes of the simplified production in criminal process of Russia and Switzerland is analyzed in the context of identifying features of simplified forms in these countries.

Keywords: criminal procedure, simplified procedures, foreign experience, special criminal procedure, punishment court order, condensed procedure.

DOI: 10.12737/art.2018.2.15

Adobe pdf 24  Download

FEATURES OF THE CRIMINAL LIABILITY OF CERTAIN INDIVIDUALS FOR ECONOMIC CRIMES COMMITTED IN CORPORATIONS (A COMPARATIVE ANALYSIS OF RUSSIAN AND ITALIAN LEGISLATION)  Pdf 16

G. A. RUSANOV

doctoral candidate at the University of Turin, associate professor at the National Research University “Higher School of Economics”, candidate of legal sciences
8, G. Verdi st., Turin, Italy
E-mail: georgyrusanov@mail.ru

The article is devoted to the problems of criminal liability of certain types of individuals for economic crimes committed in corporations. The author considers approaches to solving this problem in accordance with Russian and Italian criminal law on the basis of the proposed program of typical specific situations. The research program includes a number of typical situations of responsibility of individuals for economic crimes committed in corporations: the responsibility of individuals, in case if the decision is created by collective management of the organization; responsibility of individuals, in case if the special subject of the crime is “fake subject”, and the real management is performed by another person or group of persons; responsibility of an individual in case of acting by order of the head of the organization; responsibility of an individual in case of delegation of authority.

Keywords: crime, responsibility, individuals, Russia, Italy.

DOI: 10.12737/art.2018.2.16

Adobe pdf 24  Download

SWISS MILITARY CRIMINAL PROCEEDINGS: EVIDENCE, INVESTIGATIONS, COERCIVE MEASURES, PRELIMINARY PROCEDURE  Pdf 16

A. A. TREFILOV

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

The author considers the most significant features of the institutions of evidence and investigative actions in Swiss military criminal proceedings: a non-exhaustive list of evidence; strict differentiation of the status of the witness and the person who is the source of information; consolidation of the continental model of expertise; verbatim record of testimony of a person who does not speak the language of the proceedings; sufficiently substantial rights of the defender related to participation in investigative and other procedural actions. The key features of the system of coercive measures in Swiss military criminal proceedings are analyzed: their separation into detention and so-called alternative softer measures; rather long periods of detention (up to seven days), but very short periods of confinement under guard (in general rule up to 14 days); the presence of a norm on the free movement of a person (the President of the court may grant the accused or the absent convicted person immunity from detention); severe coercive measures applied to violators of law and order in criminal proceedings (arrest for up to three days). Also the author analyzed pre-trial proceedings in the military criminal proceeding, consisting of preliminary evidence-gathering and investigation. It is shown that they are close to each other in nature, because in accordance with part 1 article 104 of the Military Code of Criminal Procedure, preliminary collection of evidence is the inquiry made in the form and with use of means of the preliminary investigation. The differences between them relate primarily to the grounds, or, as Swiss scientists say, procedural prerequisites. A preliminary investigation must be ordered if a person is suspected of committing a criminal offence and disciplinary measures cannot be taken into account, and preliminary evidence is collected if certain prerequisites for the opening of a preliminary investigation are not fulfilled.

Keywords: investigative actions, coercive measures, military criminal proceedings, Switzerland.

DOI: 10.12737/art.2018.2.17

Adobe pdf 24  Download

LEGAL PROBLEMS OF CHANGING THE CATEGORY OF LAND PLOTS FROM ONE TO ANOTHER  Pdf 16

A. Sh. AZIMZODA

deputy head of the Department for agriculture and environmental protection of the Executive office of the President of the Republic of Tajikistan, candidate of legal sciences
80, Rudaki st., Dushanbe, Tajikistan, 734023
E-mail: azimov@fazo.tj

The article deals with the problems of legal regulation of changing the category of land plots from one to another in the Republic of Tajikistan. There is an unsettledness, inconsistency and uncertainty of the norms of the institute of changing the category of land plots in the norms of the Land Code of the Republic of Tajikistan and other regulatory legal acts. Also the author used for the analyze the norms on changing the land category contained in the Model Land Code of the Commonwealth of Independent States. Taking as example the category of agricultural land, the author conceders the concept, location, separation of categories of land plots and their influence. On the basis of comparing the concepts of agricultural lands in land legislation of the Republic of Tajikistan and the Russian Federation, the author gives a definition of agricultural lands. The author proposes to bring into line the norms of the Land and Forest Codes of the Republic of Tajikistan concerning the powers of state authorities in the field of providing land plots from the lands of the State Forest Fund. Since the granting and exception of lands, changing category of land plots are institutions of land law, it is proposed to consider them as priority rules of the Land Code. In addition, it is proposed to state in land legislation in more detailed form the concept, content, location, land category and their delimitation from other land categories, clearly state the conditions and procedure for transfer of land plots, as well as the subject authorized for each specific category of land plots transfer from one category to another.

Keywords: land, category of land plots, land law, agricultural land.

DOI: 10.12737/art.2018.2.18

Adobe pdf 24  Download

THE JUDICIAL REFORM IN POLAND: ANALYTICAL REVIEWS OF THE OPINION, ADOPTED BY THE VENICE COMMISSION ON THE 113TH PLENARY SESSION  Pdf 16

E. A. FOKIN, V. S. CHERENKOVA

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: evgeniy.hse@outlook.com

V. S. CHERENKOVA, junior research fellow of the Department of scientific support of the Secretariat of 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 continues the series of analytical reviews of Opinions, adopted during the sessions of the European Commission for Democracy through Law. The authors analyze adopted on the 113th Plenary session Opinion CDL-(2017)036 regarding to Poland, prepared in light of an extensive judicial reform. Consideration and adoption of the Opinion had debatable character due to a wide range of controversial points of the reform. So the Venice Commission came to firm conclusion that the National Council of the Judiciary — the highest body of judicial community — was politicized. The formation procedure of this body, in particular, promotes politization as it includes excessive participation of the Parliament. The Polish lawmakers are going to create in the structure of the Supreme Court two new chambers — Extraordinary and Disciplinary. Legal provisions on these chambers provoked criticism by the Venice Commission because of obviously incompliance of the status of the chambers with international standards and the theory of procedural law. Finally, the Venice Commission examined in detail the Polish bills to ensure the independence of judges and came to the disappointing conclusion about gross breach of this principle. On independence, in particular, adversely affected excessive powers of the presidents of the courts regarding to judges. At the same time the presidents of the courts are in a vulnerable position too, Polish bills view them as a kind of officials, supervised by the Ministry of Justice. Considerable attention in article is paid to finding parallels with the Russian legislation on judicial system and status of judges. The authors came to the conclusion that a number of problems for Poland and Russia is similar.

Keywords: judicial reform, judiciary, status of judges, the independence of the judiciary, the Supreme court, the body of judicial community, the presidents of the courts.

DOI: 10.12737/art.2018.2.19

Adobe pdf 24  Download

ISLAM AND SOCIAL FACTS. OVERVIEW OF THE THIRD INTERNATIONAL CONFERENCE “FIQH, LAW AND SOCIAL FACTS” CONDUCTED BY THE ISLAMIC RESEARCH CENTER OF ISLAMIC CONSULTATIVE ASSEMBLY (MAJLIS) OF THE ISLAMIC REPUBLIC OF IRAN  Pdf 16

V. Yu. ARTEMOV

senior research fellow of the Department of foreign constitutional, administrative, criminal legislation 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: vladislav.artemov@gmail.com

The article is dedicated to the Third International Conference “Fiqh, Law and Social Facts” held on 28 February — 1 March 2018 by the Islamic Research Centre of the Islamic Consultative Assembly (Majlis) of the Islamic Republic of Iran. At the invitation of the Islamic Research Centre the following representatives of the Institute of Legislation and Comparative Law under the Government of the Russian Federation took part in the work of the Conference: head of the Centre of foreign legislation and comparative law, professor A. I. Kovler, LL. D. and senior researcher of the Department of foreign constitutional, administrative, criminal legislation and international law, V. Yu. Artemov, Ph.D. The Conference was also attended by guests from many other countries such as: Qatar, Turkey, Oman, Lebanon, Tunisia, etc., outstanding Iranian and foreign scholars, specialists in Islamic law, theologians and legal practitioners. The guests of the Conference emphasized the seriousness of the social challenges and problems, which Islamic countries are facing now, and discussed the answers that fiqh (Islamic jurisprudence) and Muslim law in general can give to the social challenges of the present time: poverty, social inequality, crime, etc. The scholars discussed the current role of fiqh in relation to social problems, analysis of the social problems of modern society, individually and collectively, the legal aspect of such phenomena as identity crisis, generations gap, etc., economic and cultural needs of different generations. The leitmotif of many sectional speeches, voiced both by Iranian and foreign participants, was the statement that fiqh and its practical normative expression in legislation should correspond to both Islamic traditions and modern challenges.

Keywords: Islamic law, Muslim law, fiqh, Islam, social facts, Islamic jurisprudence.

DOI: 10.12737/art.2018.2.20

Adobe pdf 24  Download

REVIEW OF THE MONOGRAF “«COLOR REVOLUTIONS» AND «ARAB SPRING» IN THE CONSTITUTIONAL DIMENSION: POLITOLOGICAL AND LEGAL RESEARCH” (T. Y. KHABRIEVA, V. E. CHIRKIN. MOSCOW, 2018. 192 P.)  Pdf 16

L. M. ENTIN

doctor of legal sciences, honored scientist of the Russian Federation

Adobe pdf 24  Download

Archive of issues

2019
2018
2017
2016
2015
2014
2013
2012