Contents # 3/2018

CONFLICT OF INTEREST: NATURE, PREVENTION, SOCIAL REGULATION  Pdf 16

T. Y. KHABRIEVA, A. Ya. KAPUSTIN, A. V. GABOV, N. N. CHERNOGOR

T. Y. KHABRIEVA, director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, academician of the Russian Academy of Sciences, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

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

A. V. GABOV, deputy director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, corresponding member of the Russian Academy of Sciences, doctor of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: gabov@izak.ru

N. N. CHERNOGOR, acting deputy director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, professor of the Russian Academy of Sciences, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: chernogor72@yandex.ru

Currently, the problem of conflict of interest, its prevention and settlement is discussed mainly in the context of anti-corruption. Although the anti-corruption sphere is not limited to the “living space” of this phenomenon. It is also found in relations not related to the implementation of corruption or anti-corruption practices (for example, in civil law relations). Acknowledging this conclusion, the authors focus on the issue of prevention of conflict of interests in order to counter corruption. In this way the authors limit the object of study. The object of study is the relations arising in the sphere of anti-corruption. In this aspect, the topic of conflict of interest, at first sight, is of quite applied character. At the same time, its doctrinal development brings to the fundamental problems that are in the field of view not only of legal science, but also of philosophy, ethics, conflictology, the conclusions of which can serve as a scientific “basis” for the search for practical solutions in the direction of improving the mechanisms of prevention and settlement of conflicts of interest, not only in the public but also in the private sphere. The article proposes a new point of view on the conflict of interests, which allows to identify its difference from the legal conflict and categorize it in the doctrine as a concept that reflects an independent phenomenon and a specific subject of legal conflictology. Along with this, the article presents the characteristics of international legal and national regulation of relations related to its prevention, as well as the mechanisms of their institutionalization in the legislation, shows the problems of implementation and prospects for the development of ethical codes in the Russian Federation and formulated scientific tasks facing legal science, in
order to provide doctrinal support to improve social regulation.

Keywords: conflict of interest, corruption, international legal standard, anti-corruption legislation, anti-corruption, social regulation, ethics, code of ethics, legal conflict.

DOI: 10.12737/art.2018.3.1

Adobe pdf 24  Download

CHECK AGAINST DELIVERY (in English)  Pdf 16

Martin KREUTNER

dean and executive secretary of the International Anti-Corruption Academy
2, Muenchendorfer strasse, Laxenburg, Austria
E-mail: mail@iaca.int

The author of the present report speaks about the tackle of serious global threats such as corruption, economic and social inequality; societal polarization; and extremism and terrorism. For the achievement of the goal of good governance and responsible leadership at the global level he denotes the United Nations’ 2030 Agenda for Sustainable Development, a road map for a better common future that was unanimously adopted by all 193 UN Member States in New York in September 2015. The attention should be focused at the strong and sustained fight against corruption which is essential for the realization of this ambitious agenda — a “new global social contract”. The author also pointed out a trend in all countries towards more effective enforcement of anti-corruption laws but as we have clearly learned over the past 20 to 25 years, we can’t tackle corruption through criminal law and enforcement alone. There is a need of prevention, education and awareness-raising, as well as regional and international cooperation. One of the underlined ingredients is inclusivity — working together and calling for joint responsibility to prevent and combat corruption.

Keywords: corruption, extremism, terrorism, Sustainable Development

DOI: 10.12737/art.2018.3.2

Adobe pdf 24  Download

LEGAL PROBLEMS OF PREVENTING CONFLICT OF INTEREST IN PUBLIC ADMINISTRATION  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

Legal problems of preventing conflict of interest in public administration The article deals with legal relations arising in the process of regulating the conflict of private and public interests in the system of public administration and anti-corruption; the rules of law establishing the procedure and procedures for resolving the conflict of interest and preventing corruption manifestations, as well as the practice of their implementation; developed theoretical provisions and practical recommendations in the field of conflict of interest as the main way to prevent corruption in public administration. It is noted that the powers granted by the state and the corresponding influence to persons holding public positions can be used for personal interests, including against the interests of the state, which in turn leads to the degradation and inefficiency of the legal mechanisms of the public administration system. Results of work of bodies of Prosecutor’s office which testify to prevalence of the conflict of interests in the sphere of public administration are presented. The author has developed theoretical provisions and practical recommendations in the field of conflict of interest settlement as the main method of prevention of corruption in the system of public administration. In particular, it is proposed to Supplement the legal definition of the concept of «personal interest» with the possibility of committing acts of corruption on the basis of not only material but also other personal interest, including non-material nature; standardize approaches to mechanisms of public opinion research characterizing the effectiveness of anti-corruption activities of the state; to install additional component of administrative offences provides for liability for violations of the prevention of conflict of interest, including in the form of a submission to the relevant Commission information on persons that may be associated with personal interest that can lead to a conflict of interest, and provision of incomplete or untrue information subject to the conflict of interest, etc.

Keywords: conflict of interest, corruption, public service.

DOI: 10.12737/art.2018.3.3

Adobe pdf 24  Download

CHINA’S FIGHT AGAINST CORRUPTION SINCE THE 18th CPC NATIONAL CONGRESS: ACHIEVEMENTS AND EXPERIENCES (in English)  Pdf 16

DENG Zhonghua

head of the disciplinary responsibility group accredited by the Central Commission for the inspection of the discipline of the Chinese Communist Party at the Chinese Academy of Social Sciences
People’s Republic of China
E-mail: jianguo@cass.org.cn

The present report highlights the experience of China in the grim situation of corruption and the breeding and spread of “unhealthy tendencies” (such as abuse of power) in its exploration for the establishment of the socialist market economy system. The corruption now poses the biggest threat to the Party. In this context, the CPC Central Committee, with great political courage and strong sense of responsibility, has launched a series of major anti-corruption initiatives, carried out a series of significant reforms, solved a number of long-standing problems, and completed a number of significant tasks that had remained unfulfilled in the past. It remains a general trend and a common aspiration of the people that all countries open their doors and integrate themselves to the world system to jointly drive away the “corruption haze” in the community of shared future for mankind. The author pointed out differences among different countries in terms of anti-corruption approaches and practices due to their different history, culture, social structure and development model. However, regardless of what kinds of systematic model, anticorruption remains a pressing problem every country is yet to resolve in its national governance. Over the four decades since the reform and opening-up, especially since the 18th National Congress of the Party, China has made remarkable achievements in fighting corruption and accumulating original experiences.

Keywords: anti-corruption initiatives, the 18th National Congress of the Communist Party of China.

DOI: 10.12737/art.2018.3.4

Adobe pdf 24  Download

CONFLICT OF INTEREST: ETHICS AND IMPROVEMENT OF LEGISLATIVE REGISTRATION  Pdf 16

V. I. MIKHAYLOV

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

Consider the content of the institute of conflict of interest, features of its manifestation in different spheres of social life, emphasized the wait and so on component in the mechanism of prevention and resolution of conflicts of interest, it is shown that the basis of the normative fixed mechanism of prevention and settlement of the conflict of interests is the general legal institution of extreme necessity, it is proposed to adopt a new reaction of the Federal law “On Countering Corruption” regulating various aspects of anticorruption and improving the quality of regulatory legal registration of anti-corruption. It is noted that the measures taken in recent years to improve the mechanism of prevention and settlement of conflict of interest are mainly aimed at expanding the scope of the existing mechanism with an emphasis on strengthening the prohibitive principles. But it does not take into account very important circumstances. In particular, there is an objective impossibility to form commissions on conflict of interest in a number of municipalities, as well as the fact that for certain categories of employees of state corporations, the legislation establishes a different regime for the prevention and settlement of conflicts of interest. In order to systematize and streamline the legal norms regulating various aspects of anti-corruption, and improve the quality of regulatory legal registration of anti-corruption, it is proposed to adopt a new version of the Federal anti-corruption law, in which the conflict of interest should be devoted to a section containing rules on the definition of conflict of interest, the circle of persons who are obliged to take measures to prevent and resolve the conflict of interest, the moral principles of the institution in question, measures to prevent conflicts of interest and ways to resolve the conflict of interest, the consequences of failure to take measures to prevent and resolve conflicts of interest, measures of responsibility. At the same time, it is emphasized that the new version of the Federal law “On Countering Corruption” should be developed on the basis of the principle of stability of the main elements of the system of measures to combat corruption, enshrined in the Federal anti-corruption law of December 25, 2008 No. 273-FZ.

Keywords: countering corruption, ethical aspects of anti-corruption, new version of the Federal anti-corruption law, extreme necessity.

DOI: 10.12737/art.2018.3.5

Adobe pdf 24  Download

TRANSPARENCY OF ACTIVITIES OF OFFICERS AS THE MOST IMPORTANT MEAN FOR EXCLUSION OF CONFLICT OF INTEREST  Pdf 16

G. A. VASILEVICH

head of the Department of constitutional law of the Belarusian State University, doctor of legal sciences, professor, honored lawyer of the Republic of Belarus
8, Leningradskaya st., Minsk, Republic of Belarus, 220030
E-mail: gregory_1@tut.by

Transparency of the activities of officials in the exercise of their powers is one of the most important means of combatting the conflict of interests, and hence the eradication of corruption. Conflict of interest takes place when the employee, performing his duties, is engaged in solving a problem in which he has a personal interest. In such cases, personal interest prevents unbiased performance of duties. It is the official himself who must avoid conflicts of interest, promptly identify it and notify his manager about it. In the opinion of the author, it is presumed that it is necessary to take appropriate measures to exclude a conflict of interest by the candidate for the position or an official who has already been hired. We do not exclude the possibility, with concealment of the facts of the existence of a conflict of interests, the dismissal of the guilty persons in connection with the loss of confidence. The legislation of some countries in this area is analyzed, as well as the main vectors of counteracting corruption to the conditions that give rise to it. It is emphasized that the accountability, openness and transparency of the activities of parliamentarians, state and municipal employees, all representatives of public authorities, the establishment of a clear procedure for the interaction of citizens and state bodies, officials is an important means of preventing corruption. Openness, and therefore public control of officials, allows to exclude a conflict of interests, as one of the factors of committing abuse. Along with the selection of officials who are endowed with power decisions to manage the state’s resources, and are also called upon to work to counter corruption, prevent and resolve conflicts of interest, it is important to have perfect legislation that takes into account general and specific anti-corruption requirements for its quality, as well as effective law enforcement practice.

Keywords: corruption, counteraction to corruption, conflict of interest.

DOI: 10.12737/art.2018.3.6

Adobe pdf 24  Download

CONFLICT OF INTEREST AS A LEGAL CONFLICT  Pdf 16

A. V. FEDOROV

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

The article is prepared on the basis of the theses of the author’s report at the Seventh Eurasian anti-corruption forum “Conflict of interest: law and ethics” (Moscow, April 25—26, 2018) and is devoted to consideration from the perspective of the theory of conflict of interest as a legal conflict. Based on the analysis of the existing Russian anti-corruption research points of view on the disclosure of the content of the conflict of interest, two approaches to its definition are identified. The first one — static, as a specific situation in which the personal interest of the authorized person may affect the objective performance of their official (official) duties and cause harm to the legitimate interests of citizens, organizations, society and the state. The second is dynamic, as use of official (office) powers in personal interests. It is noted that the basis of the conflict of interests is the presence of a possible contradiction between the personal (usually — selfish, selfish) interest and the public (public) interest. The objective and subjective components of the conflict of interests as a legal conflict are highlighted. The conclusion is formulated that the conflict of interest as a legal conflict has a normative characteristic and a normative mechanism of conflict prevention (resolution). In statics it is a conflict situation, in dynamics-due resolution of the conflict of interest or its transformation into an offense. The procedure of conflict of interest resolution (prevention), including several stages, is considered. It is indicated that in addition to the adoption of regulatory legal decisions and organizational measures to identify, prevent and resolve emerging conflicts of interest requires systematic work on the formation of anti-corruption legal awareness and legal culture of the individual and society.

Keywords: anti-corruption, conflict of interest, legal conflict, personal interest.

DOI: 10.12737/art.2018.3.7

Adobe pdf 24  Download

ON SOME LEGAL ISSUES REGULATION OF THE CONFLICT OF INTEREST IN THE REPUBLIC OF KAZAKHSTAN  Pdf 16

Zh. U. TLEMBAEVA

deputy director of the Institute of Legislation of the Republic of Kazakhstan, candidate of legal sciences, associate professor
8, Mangilik Yel ave., Astana, Kazakhstan, 010000
E-mail: zhanna.ot@mail.ru

The article examines the problems of legal regulation of the conflict of interest in the Republic of Kazakhstan as one of the important components of the state anti-corruption policy, analyzes procedures for the prevention, identification and settlement of conflicts of interest in the legislation of the republic, and suggests ways to improve them in Kazakhstan. Legal regulation in this area is incomplete. Therefore, it needs to be improved, especially in the following spheres: the notion of “conflict of interest”, the expansion of the scope of the subject of corruption offense, and the legislative consolidation of the obligations of former civil servants to prevent conflicts of interest in the event of their transition to the private sector. Surpassingly the implementation of these proposals will improve the legislation, mechanisms for preventing conflicts of interest and the practice of its application in state bodies. The concept of “conflict of interest” fixed by the legislation of the Republic of Kazakhstan does not disclose the content of the phrase “personal interest”, it is not clear whether the interests of relatives of a civil servant, official, other persons and organizations associated with him or her friendly and other relations. It is noted that the issue of expanding the range of the subject of corruption offense has been repeatedly raised in Kazakhstan. The author on the basis of the analysis of legislation and law enforcement practice, proposes to extend the rules of conflict of interest not only in relation to persons holding responsible public office, as well as persons authorized to perform public functions, and equated to them persons, officials, but also in other public areas of legal relations, in particular, legal, notarial activities, activities of bailiffs, etc. The implementation of these proposals will improve the legislation, mechanisms for preventing conflicts of interest and its application in state bodies. Special attention is paid to such an effective preventive mechanism in combating corruption in the Republic of Kazakhstan as analysis and identification of corruption risks. This institution is actively used in the OECD countries and has found consolidation in the new Law “on combating corruption”. As a result of such analysis, the system shortcomings characteristic of most state bodies are revealed. Most of them are related to the imperfection of the procedures for the provision of public services, the presence of discretionary powers in regulatory legal acts; conflict of interest.

Keywords: conflict of interest, civil servant, prevention of conflict of interest, subject of corruption offense.

DOI: 10.12737/art.2018.3.8

Adobe pdf 24  Download

CONFLICT OF INTEREST: LAW AND ETHICS  Pdf 16

A. M. TSIRIN, V. V. SEVALNEV, E. V. CHEREPANOVA

TO THE ANNIVERSARY OF ACADEMICIAN OF THE RUSSIAN ACADEMY OF SCIENCES TALIYA KHABRIEVA  Pdf 16

COMPARATIVE LAW AS MODERN SOCIAL PHENOMENON  Pdf 16

A. V. EGOROV

rector of the Masherov Vitebsk State University, candidate of legal sciences, associate professor
33, Moskovsky ave., Vitebsk, Republic of Belarus, 210038
E-mail: egorof@yandex.ru

Comparative law was formed as a separate component of the legal life of the countries and peoples, different from comparative jurisprudence dealing with comparative description of modern legal systems. In this regard, it is necessary to develop the doctrine of comparative law, which brings the comparative sphere of legal knowledge to the macro level of social organization. The doctrine of comparative law is a single conglomerate of legal categories reflecting the integration processes in societies. The article examines examples of developing common approaches to understanding of different concepts and categories from the point of view of national legal systems. The level of theoretical understanding of the formation of comparative law has been shown, the analysis of the ratio of interests of general theory of law as a legal science and comparative law, as a social legal phenomenon has been made. Comparative law in the modern world is viewed not simply as a science, but as an independent legal phenomenon, an image of legal thinking and a certain philosophy of development of the legal world. Lawyers should look differently at processes of lawmaking and law-enforcement nature, namely, through the prism of integration globalization, while preserving the legal identity of states and societies. Comparative law is an important doctrinal component of the legal reality on the basis of which the normative integration of states takes place. Each legal system has its own conglomerate of theoretical legal knowledge. Comparative law is the common heritage for all modern legal systems. At the same time, the general legal orientation of countries and peoples, presented as a “tracheotomy” of legal communities of Roman-German, Anglo-Saxon and religious-communal types, does not matter for the theory of comparative law. The article describes the limits of integration interaction of legal systems, the criteria of legal identity. Comparative law is considered as the main axiom of aligning this value paradigm.

Keywords: comparative law, comparative jurisprudence, comparative legal method, legal phenomenon, legal integration, legal model, conflict of laws.

DOI: 10.12737/art.2018.3.9

Adobe pdf 24  Download

EVOLUTION OF THE ORIGINALIST THEORY OF THE INTERPRETATION OF THE CONSTITUTION IN THE MODERN SCIENCE OF  CONSTITUTIONAL LAW OF THE USA  Pdf 16

R. R. ISMAILOV

judge of the Constitutional Court of the Republic of Azerbaijan, candidate of legal sciences
1, Gencler Meydani, Baku, Republic of Azerbaijan, AZ1005
E-mail: rovshan_ismayilov@constcourt.gov.az

In the article, on the basis of a consistent analysis of ideas, views and concepts within the framework of both the “old” and “new” originalism, the main stages of the development of the modern originalist theory of the interpretation of the US Constitution are examined, attempts to reconcile originalism with the doctrine of “living constitution” are considered. The old originalism claimed the role of a theory capable of ensuring the implementation of the doctrine of judicial restraint in the framework of constitutional legal proceedings, expressed in limiting judicial discretion and in showing judicial deference for the choice of the legislator by identifying the intentions of persons who participated in the drafting of constitutional provisions. The new originalism is represented by such scientists as J. Balkin, L. Solum, K. Whittington consists of two main components — the doctrine of the original public meaning originalism and the distinction between the concepts of “interpretation” and “construction”. The new originalism is significantly different from the old one because of its much less focus on criticism of the Warren Court, a much less adherence to the doctrine of judicial restraint, a change in attitude towards the place in the constitutional interpretation of judicial deference to the choice of political branches of power. The new originalism is characterized as a scientifically more substantiated and valid theory of the interpretation of the constitution, allowing the use of non-originalist methods of interpretation. Despite this, the new originalism remains within the distinctive properties of originalism, proceeding from the idea of the invariability of the meaning of the constitution from the moment it was adopted.

Keywords: interpretation of the Constitution of the USA, originalism, old originalism, new originalism, judicial restraint, judicial activism.

DOI: 10.12737/art.2018.3.10

Adobe pdf 24  Download

ORGANIZATION OF DECENTRALIZATION SYSTEM IN INDIA BY TERRITORIAL PRINCIPLE  Pdf 16

N. B. KRYSENKOVA

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: foreign2@izak.ru

The author analyses the aspects of decentralization in India, history of its formation, structure and procedure of formation of local self-governments of different level as well as its competence. The article devotes to the questions of correlation between federal bodies and local self-governments, its funding procedures and financial reporting. The Committee for district and metropolitan planning function in a row with panchayats and municipalities. Such Committees consolidate plans on rural development drafted by the panchayats and municipalities. Nevertheless development and reformation of decentralized system of governance in India can be continued. First of all it relates to the structure of panchayats that regulates under the Constitution of India and is considerably inhomogeneous. Thus, the district panchayats have specific features and competence within the district of concerned state, just as competence of panchayats formed at village or intermediate levels is not regulated under legal acts. What’s more there is a threetier system of local self-governance constituted under legal acts in some states of India just as the other states have a piece of freedom on determination of level and model of decentralization due to the problem of maintenance of balance between technical aspects of local self-governments work and possibility of active participation of people in local self-governments activity on the village and intermediate level. Therefore the author analyses the possible ways of solving such problem.

Keywords: decentralization, India, panchayats, municipalities, federal state bodies, local self-governments.

DOI: 10.12737/art.2018.3.11

Adobe pdf 24  Download

IMPLEMENTATION OF THE FREE ELECTIONS PRINCIPLE IN RUSSIA AND THE WORLD: A COMPARATIVE-LEGAL ANALYSIS  Pdf 16

S. N. SLOBODCHIKOVA

senior lecturer at the Department of constitutional and administrative law of the Law Institute of the Baikal State University
11, Lenin st., Irkutsk, Russia, 664003
E-mail: sveta150189@gmail.com

The article analyses the theoretical and practical component of the free elections principle both in Russia and abroad. It is noted that at present most countries are at the stage of formation and development of democratic legal ways of organizing relations between the state and society. In the first place, legitimate electoral principles are defined, on the basis of which electoral relations are built and government authorities are formed. Particular attention is paid to the principle of free elections, enshrined in both international and domestic legislation. A comparative analysis covers the approaches developed in the legal doctrine for understanding this principle. Variations in the content of the free elections principle as the only permissible democratic way of delegating the people’s power to representative authorities are considered in detail. In this connection, the international acts recognized by the majority of democratic states, as well as legal sources of foreign countries and Russian electoral legislation are examined. A detailed analysis of such substantive components of the free elections principle, such as freedom of participation in elections, freedom to form their political behavior and freedom of voting, is conducted. Such electoral parameters as freedom of participation in elections, a “compulsory voting” and an “optional voting” are compared. Their conditionally positive and negative sides are determined. The organizational parameters of the freedom to form their political behavior and freedom of voting are explored and summarized in detail. A conclusion is drawn on the constitutional significance of the implementation of the free elections principle in the context of Russian and foreign legislation.

Keywords: principles of suffrage, free elections, freedom of participation in elections, compulsory voting, optional voting, freedom of political behavior, freedom of voting.

DOI: 10.12737/art.2018.3.12

Adobe pdf 24  Download

REGISTRATION INSTITUTE: COMPARATIVE-LEGAL ANALYSIS  Pdf 16

I. V. PLYUGINA

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: inna_wp@mail.ru

The modern Russian registration institute, which transformed from the Soviet period “propiska” system, remains one of the most frequently criticized tools for regulating internal migration processes. In particular, the existing definition approach to the “place of residence” term is criticized. The registration procedure itself is rather complicated. It is ascertained that the fact of registration at the place of residence affects the realization of individual rights and freedoms, etc. In this regard, it is of scientific and practical interest, how to solve the problems arising in the implementation of registration of the population abroad. The purpose of the article is to study the approaches used in the legislation of foreign states to regulate the issues of population registration, to identify available positive practices. The realization of this goal implies the solution of the following main tasks: the analysis of the conceptual-categorical apparatus (in particular, the concepts determining the place of residence and the place of stay); identification of approaches to the legislative consolidation of the duty to register at the place of stay; identification of the methods used to prevent fictitious registration at the place of residence and at the place of stay. Achieving the goal and tasks requires the use of various research methods, the main of which is a comparative legal method. The author carried out a comparative legal analysis of the legislation of the Russian Federation, Austria, Belarus, Germany, Kazakhstan, Poland, regulating the registration of population. It is concluded that in the listed foreign countries the approaches to determine the place of residence and the place of stay for the purpose of registration are in most cases not as stringent as in the Russian Federation. This seems quite justified, since the purpose of registration is to record the current location of persons residing in the territory of the state. However, at the same time, the legislation of these countries fixes mechanisms aimed at preventing fictitious registration, in particular, involving the participation in the registration procedure of the owner (proprietors) of housing, a detailed check of the documents submitted, and monitoring activities.

Keywords: registration, records, place of residence, place of stay, living quarters, housing.

DOI: 10.12737/art.2018.3.13

Adobe pdf 24  Download

INDEPENDENT ECONOMIC COUNCILS IN ECONOMIC GOVERNANCE  Pdf 16

S. O. SHOKHIN, E. V. KUDRYASHOVA

S. O. SHOKHIN, professor at the Department of administrative and financial law of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, doctor of legal sciences, honored lawyer of the Russian Federation
76, Vernadsky ave., Moscow, Russia, 119454
E-mail: doctorsos07@rambler.ru

E. V. KUDRYASHOVA, 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: Ev_kudryashova@inbox.ru

The article is devoted to the problem of economy survey for the state level decisions on the economy governance and expert support for the economy prognoses, models and planning. In many states there are special independent institutions, which are in charge for collection and analysis of economic data, economy expertise of draft laws, prognoses, elaboration of scenarios, strategic planning support etc. Ironically most of those institutions resemble the Gosplan of the USSR, which is, probably, one of the first institutions of this kind. With the transfer to the strategic planning the need for economic prognoses seriously increased. Therefore the activity of such independent economic councils became more significant. The article provides examples from the USA (Congressional Budget office), Canada (Parliamentary Budget Officer), Holland (Dutch planning Bureaus), Italy (National Council of economy and labor). All these institutions are based on the provisions of a special law, which guarantees their independence and coherent work, or even on the provisions of the Constitution. The article draws attention to the problem of the information exchange and analytical reports between independent economic councils in the framework of regional economic integration. The platform for the information exchange and coordination in the European Union is the Association of independent fiscal institutions. An Association has been established in the European Union, which is a platform for the information exchange and coordination of the independent councils’ activities. Obviously, this experience is useful for the Eurasian economic Union.

Keywords: economic expertise, economic governance, strategic planning, European Union, Eurasian Economic Union.

DOI: 10.12737/art.2018.3.14

Adobe pdf 24  Download

INDEPENDENT FISCAL INSTITUTION IN THE MECHANISM OF ENSURING THE FINANCIAL STABILITY  Pdf 16

N. A. POVETKINA, D. A. MEITARDZHIAN

N. A. POVETKINA, head of the Department of financial, tax and budget legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, associate professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: pna127@mail.ru

D. A. MEITARDZHIAN, postgraduate student at 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: meitr@yandex.ru

The article scrutinizes the legal status of an independent fiscal institution (IFI) as one of the most innovative elements of the financial stability mechanism. The cyclical frequency of financial and economic crises determines the increased relevance of legal means ensuring the stability of the financial system. Currently, in connection with the anti-crisis fiscal policy carried out in the European Union, special subjects of financial law — independent fiscal institutions (IFIs) — are getting more widespread. The aim of this article is to scrutinize the legal status of an independent fiscal institution as one of the most innovative elements of the financial stability mechanism and to develop proposals to implement the IFI in the Russian legal system. To achieve this goal, the following tasks are solved: the correlation between the functional roles of independent fiscal institutions and supreme audit institutions is investigated; guarantees of political, functional and financial independence of the IFI are considered; the prospects for the introduction of IFI in the national legal system are analyzed. In this study the comparative legal method of research is mainly used, as well as general scientific and special methods (analysis, synthesis, induction, deduction, formal-legal, etc.). Considering the correlation between the functional roles of supreme audit institutions and independent fiscal institutions, the authors conclude that the IFI has a unique role in compliance monitoring and ex ante analysis of the government’s fiscal policy in western countries. Based on the study of the OECD Draft principles for IFIs and international experience of the IFIs’ activity, the authors find that organizational and content elements of the IFI status, as well as guarantees of their political, functional and financial independence should be fixed at the legislative level. The article also analyzes the prospects for the introduction of IFI in the Russian legal system.

Keywords: financial system, budget, budgetary legal relations, independent fiscal institution, supreme audit institution, risk management, compliance control, risk in the sphere of budgetary legal relations, risk management system, financial system stability.

DOI: 10.12737/art.2018.3.15

Adobe pdf 24  Download

JUDICIAL LEGISLATION IN INTERNATIONAL JUSTICE  Pdf 16

Kh. I. HAJIYEV

head of the Department of judicial practice and law enforcement of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: khanlar9999@gmail.com

The 20th Century went down in history as the time of establishment of international courts. This achievement is due to the desire of states to solve international disputes and prevent many actions conducive to human rights violation by law. Guided by the general principles of law, provisions of international treaties and rulings of national courts, international courts themselves directly developed the law through judicial legislation. This was both due to concise treaties and tasks faced by the courts in the administration of justice. A study on the activities of the two international courts (the European Court of Human Rights and the Court of Justice of the European Union) shows that while the life of a legal rule is supported by its use, it owes its exemplarity and relevance to the interpretation by judges. This is why both courts, when solving problems which were not always the same, sought to develop the law through creative efforts and use of knowledge that is not limited to the law only. At the same time, judicial legislation, attributable to seeking adequate reaction of courts to rapid development of different areas of life, which affect human rights and freedoms, needs reasonable respect for the institutional constraints and judicial doctrines involving the manifestation of judicial restraint. Following the above rules, in turn, should not constitute an obstacle to the judicial legislation as the most important judicial function in the administration of justice.

Keywords: justice, legislation, interpretation, common law, civil law, judicial restraint, judicial activism.

DOI: 10.12737/art.2018.3.16

Adobe pdf 24  Download

ABOUT COMPENSATION OF NON-PECUNIARY DAMAGE TO LEGAL ENTITIES IN THE REPUBLIC OF BULGARIA  Pdf 16

E. V. GAVRILOV

consultant of the Legal Department of the Expert and Law Office of the Legislative Assembly of Krasnoyarsk region
110, Mira ave., Krasnoyarsk, Russia, 660009
E-mail: gavrilov@zakon.ru

The article explores the issue of compensation for non-pecuniary damage to legal entities in the Republic of Bulgaria: legislation, judicial practice, legal doctrine are analyzed; practice of The European Court of Human Rights with the participation of Bulgarian companies and organizations is given. The author notes that the Bulgarian legislation, unlike the judicial practice, does not make exceptions to the subject composition of persons entitled to compensation for non-pecuniary damage. However, the practice of Bulgarian courts does not recognize the right of legal entities to compensate for non-pecuniary damage. In legal doctrine this is explained by the fact that legal entities do not have a soul, they are not capable of experiencing physical and mental sensations (for example, pain, suffering, psychological negative experiences, emotions), so they can not suffer moral harm. Such a narrow understanding of moral harm advocates compensation for non-pecuniary damage to legal entities are called survivals of “socialist realism”. The Bulgarian legal literature notes that the current practice in Bulgaria, which denies compensation for non-pecuniary damage to legal entities, is outdated and inadequate. Meanwhile, the European Court of Human Rights admits compensation for non-pecuniary damage to legal entities. Such compensation shall be recovered if there are appropriate grounds and conditions, if the breach is material. In the author’s opinion, the practice of the European Court of Human Rights on the issue of compensation of non-pecuniary damage to legal entities should be considered as a mandatory judicial custom in the national legal systems of the countries – parties to the Convention for the Protection of Human Rights and Fundamental Freedoms. It is concluded that in the Republic of Bulgaria, as well as in any other country of the Romano-German legal family, legal entities should have the right to compensation for non-material damage, the content of which differs from the content of moral harm inflicted on citizens.

Keywords: non-pecuniary damage, legal entities, foreign experience, The European Court of Human Rights.

DOI: 10.12737/art.2018.3.17

Adobe pdf 24  Download

RESPONSIBILITY FOR CRIMES OF INTERNATIONAL TERRORISM: JURISDICTION OF THE INTERNATIONAL TRIBUNAL OR NATIONAL COURTS?  Pdf 16

D. A. KOSHKINA

applicant at the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: morgenstern03@rambler.ru

The article considers an important question about classification of terrorism like an international offence because in the theory of international public law there isn`t united opinion considering the question of whether the terroristic crime is an international crime (a crime contra peace and security of humanity) or an international criminal offence. The author has determined that this fact entails both the problem of classification of terroristic crime and the complexities of bringing to responsibility of guilty terroristic crimes. That`s why the author suggests to divide the mechanism of bringing to responsibility: International tribunal has to judge managers and founders of international terroristic organizations and national courts have to judge executors and persons who commit terrorism. The author of the article focuses the readers` attention to the existence of the substantial combating terrorism legal provision problems. The author considers, that nowadays the international legal regulation of the relations, occurring in connection with the combating terrorism, is not enough effective in following its aims. Thus, the subject of international terrorism is out of the International Criminal Court jurisdiction framework. Moreover, the Charter of the International Criminal Court has not been approved via the process of ratification yet by some influential and economically highly developed countries, such as: Russia, the United States of America, Israel and by some others. The international law in force doesn`t stipulate the unified regulative definition of terrorism or international terrorism. The above mentioned circumstances stimulates legal indefiniteness, negatively influencing the estimation of some criminal deeds or actions as being terroristic. The author also suggests establishing a specialized international judicial institution, authorized to hear only the criminal cases in the framework of accusation the involved in international terroristic activity persons. This institution is to hear the cases, opened on the basis of the completed terroristic acts.

Keywords: terrorism, international crime, classification, jurisdiction, international tribunal, international terroristic organization.

DOI: 10.12737/art.2018.3.18

Adobe pdf 24  Download

CONCILIATION AND MEDIATION: DIFFICULTIES IN TRANSLATING, OR ON THE WAY TO THE UNIFIED TERMINOLOGY  Pdf 16

N. I. GAIDAENKO SCHAER

deputy head of the Center of promotion of mediation and alternative dispute resolution, senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, senior lawyer of the Swiss law firm “Secretan Troyanov Schaer S. A.”, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: natalia.gaidaenko@sts-law.ru

The article is written upon the results of the 68th Session of UNCITRAL Working Group II, where basic agreement was reached on the English versions of the two documents — the Convention on international mediation agreements and the amended version of the Model law on international commercial conciliation. It was for the first time that both texts were drafted simultaneously, showing the new approach to unification of law. It deals with the basic consent on the text in English, the task of drafting authentic texts in other languages allowing to ensure uniform understanding and application of both texts is still to be performed. Despite of the fact that the Working group strived to avoid using the terms and expressions having established legal meaning in different jurisdictions, which could lead to drastic differences in perception, understanding and implementation of the documents, it could not completely avoid questions related to wording. It derives from the comparison of provisions of the recently published Russian draft laws on settlement of disputes with the provisions of international legislative texts that terminology used in them must be unified, such unification allowing to reach uniform understanding of a number of legal notions and to simplify implementation of model legislative provisions on the enforcement of mediated settlement agreement into the national laws, create bi- and multilateral agreements on the subject and simplify the accession of the country to the convention on international mediated settlement agreements in future.

Keywords: mediation, mediated settlement agreement, conciliation, Convention, UNCITRAL.

DOI: 10.12737/art.2018.3.19

Adobe pdf 24  Download

ELEMENTS OF PRIVATE LAW IN FRENCH TAX LAW  Pdf 16

V. P. PROKUDINA

postgraduate student at the Aix-Marseille University, expert of department of the BNP Paribas Asset Management
10, Edward Steichen st., Luxembourg, L-2540
E-mail: prok.vero@gmail.com

Modern legal doctrine classifies tax law as one of the most complex legal disciplines. This trend has consolidated its position in both Russian and foreign legal doctrine. However, the specific characteristics of the tax law may vary due to the peculiarities of the legislation of different countries. Thus, in contrast to the Russian legal doctrine, one of the important characteristics of tax law in France is the ambiguity in its definition as a private or public law. Disputes among French scientists on this issue last for more than a decade. This fact led to the formation of strong arguments in favor of the private law nature of tax law. The experience of French lawyers may be interesting for Russian legal science and give impetus to the development of new trends. In this regard, this article is a synthesis of the main positions on the place of tax law in French law and pays special attention to the issue of the presence of private law signs in French tax law. The author analyzed the work of French jurists of different eras, since the first decades of the XX century to write this article. In addition, the author studied the French legislation on this issue, in particular articles of the Civil and General Tax Code of France. These materials were mainly used to demonstrate as many arguments as possible in favor of the private law characteristics of French tax law. As a result of the study of this problem, the author comes to the conclusion that now there are no sufficient grounds for classifying tax law as a group of private law industries. However, the position of a group of French scientists on the presence of pronounced private law characteristics in tax law forms a theory about the specifics of tax law and the ambiguity of its legal nature.

Keywords: tax law, French tax law, public law, private law, financial law, administrative law, Finance, economic relations, taxes, taxation, the principle of independence

DOI: 10.12737/art.2018.3.20

Adobe pdf 24  Download

COMPARATIVE CIVIL PROCEDURE: SUBJECT, AIMS AND PROSPECTS  Pdf 16

E. A. FOKIN

research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
22—24, Bolshoy Kharitonevsky lane, Moscow, Russia, 107078
E-mail: evgeniy.hse@outlook.com

This article is an attempt to determine the role of comparative law in the field of civil procedural law. The study proceeds from the clear relevance of the comparative method for procedural and legal research, including attention to the fact that the use of the comparative method often became the guarantee of the development of procedural and legal science. As a confirmation of this thesis, examples from the pre-revolutionary, soviet and modern stages of the development of the science of procedural law are given. Separately and in sufficient detail the question of the content of the subject of modern procedural and legal research is considered. It is concluded that this subject, firstly, is heterogeneous, and secondly, it is dynamically developing, expanding and becoming more complicated. The role of comparative law in determining the ways of implementing international standards of fair trial in national procedural law is underlined. In addition, a significant role belongs to comparative law in states in which large-scale reforms of procedural law and the judicial system are being implemented. During such transformations comparative law helps to determine possible ways of reform, further difficulties and ways to overcome them. Finally, the article gives a brief overview of the comparative civil procedure — a science that formed in European countries. In foreign countries a clear methodology of this science was developed, scientific schools were created and fundamental research were prepared that justify the role and importance of the comparative civil procedure as an independent science. It is concluded that, although in Russia comparative procedural legal studies were not formed in an independent sphere of science, nevertheless the comparative method is actively used by Russian procedural scientists and allows coming to serious conclusions demanded in practice.

Keywords: comparative legal method, comparative law, comparative civil procedure, comparative procedural law, implementation of standards of fair trial, foreign experience.

DOI: 10.12737/art.2018.3.21

Adobe pdf 24  Download

CRIMINALIZATION OF FINANCIAL AND ECONOMIC RELATIONS IN THE SPHERE OF PUBLIC PROCUREMENT (COMPARATIVE ANALYSIS)  Pdf 16

O. I. SEMYKINA

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

The paper provides a comparative analysis of new mechanisms of criminal law protection of public procurement in foreign countries. This article is different from other scientific works on criminal liability for violations of the rules of public procurement. The author of the article, “starts” from the new legislative initiatives in the amendment and supplement of the Criminal Code of Russia and chose as a subject of the study some approaches to the modernization of the criminal legislation of those foreign countries, which over the past two years have significantly adjusted the measures of criminal responsibility for the use of public procurement in criminal activities. Thus, in connection with the adoption of a new package of European directives (2014/23/EU, 2014/24/EU and 2014/25/EU) focused on the regulation of public trading in the EU, the article analyzed the approaches of the Belgian and Estonian legislator to the improvement of national legal mechanisms in 2017 in accordance with the new European standards. No less interesting, from the author’s point of view, was the comparative analysis of the rules on criminal liability for violations of the rules of public procurement in countries which are close to the specifics of criminal law protection to Russia. In this part, the article considers three different approaches to the “profile” criminalization of such violations in special acts in the criminal codes of Azerbaijan, Armenia, Belarus, Georgia, Kazakhstan and Kyrgyzstan. At present, the legislator’s interest in criminalizing violations in public procurement is also increasing in common law countries. However, in the countries of this legal family, the view of criminalization of the “range” of acts related to violation of the rules of public procurement is significantly different from the approaches acceptable in the Russian criminal law. In order to illustrate these differences, the author made a review of the new changes in the criminal law of Canada, where from the end of 2016 responsibility for violations of the rules of public procurement in the commission of many crimes of transnational, corruption, anti-competitive and deceptive orientation has been strengthened. Another factor that influenced the choice of the subject of study was due to the lack of legal literature developments in this area.

Keywords: public procurement, corruption, bribery, fraud, conflict of interest, lobbying, competition, financial and economic relations, criminalization.

DOI: 10.12737/art.2018.3.22

Adobe pdf 24  Download

PRINCIPLE OF SUBSTANTIVE (OBJECTIVE) TRUTH AND PHILOSOPHY OF PRAGMATISM IN AMERICAN CRIMINAL TRIAL  Pdf 16

F. A. VOSKRESENSKY

scholar of the laboratory of political and legal studies of the Faculty of political science, postgraduate student at the Department of criminal procedure, justice and public prosecutions of the Law Faculty of the Lomonosov Moscow State University
1, Leninskie gory, Moscow, Russia, 119991
E-mail: voscresensky@mail.ru

The article explores the issues of establishing substantive (objective) truth in criminal proceedings. The ratio of the continental and Anglo-Saxon models of the criminal process to the principle of material (objective) truth is analyzed. This principle is characteristic only for the continental model of criminal justice. It is not consolidation and development in Anglo-Saxon process. Truth here is not the principle and purpose of proof. On this issue, the positions of US scientists are cited. The article explores the question of the correlation of the indicated place of the principle of substantive truth in the American criminal process with the philosophy of pragmatism. The main focus is on the analysis of the theory of evidence and the standards of proof used in American criminal courts. It is concluded that the philosophy of pragmatism, which became widespread in the American society of the XIX—XX centuries had a significant impact on the formation of existing standards of evidence in criminal proceedings. The article presents theoretical guidelines of American philosophers — the founders of pragmatism John Dewey, William James, Charles Sanders Pierce. The truth of this or that object is necessarily connected with the profitability, the practical result. In criminal proceedings, this led to the formation of certain standards of evidence based on subjective certainty, primarily proving or persuading “beyond reasonable doubt”. The institute of the transaction with justice, in which decisions on the absolute majority of criminal cases in the American courts are made, is widespread. It is concluded that in the criminal process the goal and the form of achieving a pragmatic result, often comes into conflict with the goal in the form of achieving substantive truth, which predetermines the need for prioritization.

Keywords: American criminal justice, philosophy of pragmatism, objective truth, standards of evidence.

DOI: 10.12737/art.2018.3.23

Adobe pdf 24  Download

ROLE OF SOCIAL GUIDANCE IN DETERMINING THE LEVEL OF SECURITY OF RUSSIAN CITIZENS BENEFITS FROM THE STATE BUDGET TAKING INTO ACCOUNT THE EXPERIENCE OF BELARUS AND KAZAKHSTAN  Pdf 16

N. V. ANTONOVA

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

The article is devoted to some problems of legal regulation of providing the population with benefits from the state budget (budget benefits) in Russia, Belarus and Kazakhstan. The author focuses on the unfavorable situation associated with insufficiency, and in some cases the decrease in the level of maternity benefits, child care, child unemployment, etc. The comparative legal analysis of the national legislation of the countries led to the conclusion that the basis for determining the size of such benefits is a state — defined social standard (standard): in Russia — a solid sum of money; in Belarus — the largest value of the budget of the subsistence minimum and the base value; in Kazakhstan-the monthly calculation indicator. The article notes that these standards in Russia and Kazakhstan (the base value in Belarus), for the most part, do not reach the subsistence minimum, the so-called physiological minimum, comparable with such a social reference point as “acceptable standard of living”. The views of Russian scientists on the need for regulatory consolidation of social guidelines — “sufficient” and “decent” standard of living. The author proposes to develop a social standard for the Russian children’s benefits-the minimum consumer budget of the family, which would exceed the subsistence (physiological) minimum by the content of the provided benefits, and could be correlated with the social orientation of the “sufficient” standard of living. For unemployment benefits and maternity benefits in the absence of other social standards, it is proposed to use the amount of the subsistence minimum of the able-bodied population in the whole country. The author also suggests the need for developing a uniform act on budgetary allowances, including within the framework of the CIS and EAEC (the Model law), which could contain a single social benchmarks (standards, regulations) for budget allowances.

Keywords: harmonization of legislation on social security, budgetary benefits, social benchmark (standard), subsistence level (physiological) minimum, minimum consumer budget of a family.

DOI: 10.12737/art.2018.3.24

Adobe pdf 24  Download

GENDER DISCRIMINATION IN EMPLOYMENT: INTERNATIONAL COMBATING EXPERIENCE  Pdf 16

M. V. NEVEZHINA

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: Nevezhina.M@gmail.com

The article is devoted to the problems of legislative regulation of labor relations through the prism of gender equality. The relevance of the chosen topic is due to the dynamics of the development of legal consciousness, which at the present stage comes from the absolutization of equality between men and women in all spheres of public life. Such changes necessitate the revision of Russian legislation in order to ensure equal rights of men and women in the field of work and to protect them from gender discrimination. The purpose of the article is to analyze the foreign legislation on the presence of effective measures to combat gender discrimination and consider the possibility of implementing certain rules in the Russian legislation. The methodology of the research is comparative-historical, formal-legal, analytical methods, system approach. The article deals with the following problems of Russian reality: unequal access of men and women to employment and professional development; problems of women’s representation at the level of key decision-making in politics, business, public administration; asymmetric level of wages of men and women; the complexity of protecting the rights and interests of persons who have been discriminated. Based on the analysis of the legislation of foreign countries, effective methods of combating gender discrimination and inequality in the field of labor are given. The article considers such methods as the policy of job quotas; state measures to support working parents, which include a developed system of preschool institutions; control over the level of wages of men and women in order to prevent unjustified differences; the system of specialized bodies for the consideration of disputes on discrimination. A number of proposals to improve the labor legislation taking into account international and foreign practice were made.

Keywords: labor legislation, equality, gender discrimination, protection from discrimination, women’s labor.

DOI: 10.12737/art.2018.3.25

Adobe pdf 24  Download

Archive of issues

2019
2018
2017
2016
2015
2014
2013
2012