Научные журналы
Университета имени О.Е. Кутафина (МГЮА)


Issue № 2 for 2017


Статей в номере: 21

Самый читаемый автор номера: Arthur S. Gulasarian

Аннотация:
On 6 and 7 of April, 2017 Family and Civil Law Sections have taken place as part of the Moscow Legal Forum at the Kutafin Moscow State Law University (MSAL), Moscow. The subject of Family Law Section are legal and economic functions of Russian family, Civil Law Section is devoted to obligation law reform in relation to economic development. Economic function of family is determined by property family relations. New legal and doctrine approaches have generated new debating points in modern Family Law. These points have been main issues of Family Law Section. Obligation law reform involved new concepts in Obligation and Contract Law of Russian Federation, such as creditors’ agreement, indemnities, option contract, consideration, agreement with open terms, framework contract. These concepts have created a new role for courts, because nowadays the court has to estimate some conditions and facts of the litigation aimed to apply the modern rules of Obligation and Contract Law. Acts of Supreme Court of Russian Federation, as an example, about contract liability (24 March, 2016, 7) and performance of obligations (22 November, 2016, 54) give new approaches to civil law appliance in the light of economic development.


Автор: Ekaterina B. Poduzova


Рубрика:
THE BEST OF THE IV MOSCOW LEGAL FORUM AND THE VII ST. PETERSBURG LEGAL FORUM


DOI: 10.17803/2313-5395.2017.2.8.566-569


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Аннотация:
This article discusses issues related to the legal status of irregular or undocumented migrants from the international law perspective. The authors analyze the existing tendency in international organizations to use the term “irregular migrant”, rather than terms such as “illegal migrant” or “migrant without papers”. The authors also think that the minimum degree of protection of human rights must be granted to every individual, including illegal migrants.


Автор: Gabriela Belova , Nikolay Marin


Рубрика:
LAW EVOLUTION


DOI: 10.17803/2313-5395.2017.2.8.555-565


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Аннотация:
The article focuses on different theoretical approaches towards establishing corporate criminal liability in national legislature of the Russian Federation. The article focuses on the roots and evolution of the problem of introducing criminal corporate liability, analyses arguments pro et contra corporate criminal liability as an instrument of prevention and combat against corporate and other forms of white-collar crime. The central part of the article examines different theoretical and practical views on introduction of corporate liability in general and in the Russian Federation in particular. The author aims to shed light on different dimensions of the matter, pointing to interdependency of various aspects.


Автор: Anna V. Shashkova


Рубрика:
LAW EVOLUTION


DOI: 10.17803/2313-5395.2017.2.8.544-554


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Аннотация:
The present analysis is devoted to the way in which the principle of power division is applied in the Russian Federation. A thesis is posed that in the governing system adopted in Russia it has its application; however, it is not treated as a priority. It is subordinated to the principle of harmonious cooperation of the bodies of state power. A special role in this aspect was assigned by the constitution to the President. Without being included within the division of power, he is supposed to be the coordinator of the harmonious functioning and cooperation of the organs of state power.


Автор: Jacek Zaleśny


Рубрика:
LAW EVOLUTION


DOI: 10.17803/2313-5395.2017.2.8.527-543


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Аннотация:
This article examines the interpretation of constitutions in terms of underlying values, focusing on the theory of the German Federal Constitutional Court that the German Basic Law incorporates an “objective order of values’. The article describes the Court’s theory as well as its reception by constitutional scholarship. It also provides a critical evaluation. The article argues that the theory — although understandable in light of Germany’s particular historical and political circumstances — is both unnecessary and undesirable. The theory is unnecessary because the most salient implications of the Court’s assumption of the existence of an objective value order — positive state obligations, third party effect of basic rights and entrenchment of the core of the constitution — can also be based on provisions of the written constitution. The theory is undesirable because it has the potential to undermine the democratic nature of the constitution and could lead to the moralisation of constitutional law and constitutional discourse. It is not advisable, therefore, to transplant the Court’s theory to other jurisdictions.


Автор: Maarten Stremler


Рубрика:
LAW EVOLUTION


DOI: 10.17803/2313-5395.2017.2.8.498-526


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Аннотация:
The three-part paper analyzes important issues in the field of experts and expert evidence in the arbitration process in particular problems — both in common and civil law jurisdictions. It covers legal proceedings and arbitrations as well as the limits to the use of expert evidence. The key point here is that it is an opinion — what the expert thinks — which is of evidentiary value. Ordinarily, evidence is fact based, not opinion based. Such opinions, therefore, have to reach a very high standard in proceedings where they are used. If judgments and decisions are to be used, and be based upon such opinions, they have to be sound, and be anchored in a real expertise. Interesting and exciting new directions in case management of such evidence are discussed The overall objective of this paper is to provide the reader with an appreciation of expert evidence, some of the current debates on its use, and how to challenge it when it is used. The paper also contributes to the current debates on expert evidence with some observations on how t might be improved.


Автор: Charles Goddard , Inna Goddard


Рубрика:
INTERNATIONAL ARBITRATION


DOI: 10.17803/2313-5395.2017.2.8.481-497


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Аннотация:
Faced with the Western sanctions, Russia has launched its “pivot to Asia” policy, which has prompted many Russian companies to look for business opportunities and funding resources in the East. Russian businesses’ growing commercial activity in Asia accelerates a potential shift way from their traditional preference for arbitration in Europe. Against this background, Hong Kong has emerged as a viable alternative to host Russian-related disputes. Hong Kong’s premier arbitral institution, the Hong Kong International Arbitration Centre, has also taken active steps to develop a system that provides a fair, sophisticated and sanctionsfree framework to arbitrate Russian parties’ disputes.


Автор: Teresa Cheng GBS SC JP , Joe Liu


Рубрика:
INTERNATIONAL ARBITRATION


DOI: 10.17803/2313-5395.2017.2.8.458-480


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Аннотация:
This article discusses issues related to the Digital Single Market’s implementation in the European Union. The author analyzes the regulation of the personal data protection in the EU and some of the cyber security obstacles. Successfull implementation of the Digital Single Market will boost growth and jobs and will impact various aspects of life of the EU citizens.


Автор: Yosif Kochev


Рубрика:
REGIONAL INTEGRATION


DOI: 10.17803/2313-5395.2017.2.8.449-457


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Аннотация:
The growing cooperation in ASEAN and ASEAN+ frameworks goes hand in hand with the proliferation of ASEAN and ASEAN+ dispute settlement mechanisms. However, due to this proliferation, ASEAN countries and their partners face a dilemma. On the one hand, in spite of their role, ASEAN and ASEAN+ dispute settlement mechanisms are underused. Therefore, it may be necessary to improve these mechanisms and encourage disputing parties to use them. On the other hand, proliferation of dispute settlement mechanisms may provoke risks. This paper presents a general perspective of ASEAN and ASEAN+ intergovernmental dispute settlement mechanisms. It compares them and their jurisdictions, while suggesting some ideas for a sustainable growth of these mechanisms.


Автор: Tran Thi Thuy Duong


Рубрика:
REGIONAL INTEGRATION


DOI: 10.17803/2313-5395.2017.2.8.418-448


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Аннотация:
The aim of this article is to evaluate the legal basis for the EURussia relations in security matters on the background of general deterioration of the partnership between Russia and the EU. This issue, first of all, pays attention to the role of the EU and Russia in global security matters; secondly, it points to the EU-Russia bilateral agreements in the security field; thirdly, this article is connected with legal aspects of the EU-Russia security relations in the context of soft law and wide political cooperation dimension.


Автор: Paul A. Kalinichenko


Рубрика:
REGIONAL INTEGRATION


DOI: 10.17803/2313-5395.2017.2.8.398-417


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Аннотация:
The article is an attempt at examining the legal and ethical issues with regard to the new research and technological development.In view of the fact that there are various new relations that are based upon the development of modern technological research in recent decades, there is a necessity of legal regulations in order to ensure the compliance with certain ethical and legal principles. Since science and business are continuously evolving, some reasons, challenges and dangers of the Fourth Industrial Revolution have been scrutinized. The factors facing this phenomenon and its influence on various levels, namely law and ethics, are thoroughly analyzed. Due to the new research and technology development there appear to be diverse dynamics and fundamental changes that are a serious challenge for the existing legal and ethical frameworks.


Автор: Anna Hristova , Gergana Georgieva


Рубрика:
LAW AND ECONOMICS


DOI: 10.17803/2313-5395.2017.2.8.388-397


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Аннотация:
This paper explores historical developmental stages, rationales for the existence, and characteristics of Vietnam’s state monopolies as legal structures. It contributes to the explanation why competition policy concerns arising from the existence of state monopolies in Vietnam are long-lasting issues and thus hopes to enrich the source of knowledge about the formation and work of state monopolies in transitional economies. It is concluded that Vietnam’s state monopolies have strongly been influenced by political thinking and determined by its socio-economic context and the assertion of “leading role of state economy” concept.


Автор: Tran Thang Long


Рубрика:
LAW AND ECONOMICS


DOI: 10.17803/2313-5395.2017.2.8.361-387


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Аннотация:
Martti Koskenniemi is a renowned international legal scholar. He was the member of the International Law Commission in 2002–2006 who presented his highly acclaimed report “Fragmentation in International Law”.


Автор: Larissa I. Zakharova


Рубрика:
A BOOK REVIEW


DOI: 10.17803/2313-5395.2017.2.8.353-360


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Аннотация:
The article provides a critical look at the article “What Use for Sovereignty Today?” by Martti Koskenniemi. The author presents his view of the development of the institution of sovereignty and the system of international law in the second decade of the 21st century. The article points out that nowadays we are witnessing the strengthening of sovereignty and the growing mistrust in some international treaties and international organizations. The reason behind this trend is seen in the lack of consensus among the major subjects of international law on the key issues of international cooperation, as well as in the discrediting (in the eyes of the international community) military operations in Iraq, Afghanistan, Libya, and the bringing of cholera to Haiti by the UN peacekeepers. At the same time, the author postulates positive development in the international environmental cooperation.


Автор: Alexander Solntsev


Рубрика:
A BOOK REVIEW


DOI: 10.17803/2313-5395.2017.2.8.346-352


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Аннотация:
The active participation of states as members in international organizations, including regional economic integration organizations, and the recent rapid growth in the number of such organizations, has necessitated renewed discussions of the idea of potential limitation of state sovereignty in the early 21st century. The analysis of the texts of basic laws (constitutions) of a number of member-states of certain international organizations, as well as the contemporary doctrine of international law, draws us to the conclusion that the limitation of sovereignty today is quite possible on account of the transfer of sovereign powers from the state to the international organization. Meanwhile, the article justifies the impossibility of the transfer of state sovereignty to the international organization in its entirety.


Автор: Arthur S. Gulasarian


Рубрика:
CRITICAL SCHOOL OF THOUGHT IN INTERNATIONAL LAW


DOI: 10.17803/2313-5395.2017.2.8.334-345


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Аннотация:
Human rights problems exist all over Europe. Although the European Court of Human Rights is competent to deal with individual complaints about such problems, the Court is much criticised. Moreover, there may be little political will or capacity to tackle the structural problems which have caused such complaints to be made. At the same time, the judgments of the Court can be shown to have great impact on national case-law, legislation and policy. Paradoxically, thus, the Court’s case-law has an important transformative power, as is further explained in this essay.


Автор: Janneke Gerards


Рубрика:
CRITICAL SCHOOL OF THOUGHT IN INTERNATIONAL LAW


DOI: 10.17803/2313-5395.2017.2.8.315-333


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Аннотация:
The article focuses on the environmental and economic security of a State as the constituent elements of its national security protected by the principle of permanent sovereignty over natural resources. It also analyses interdependency of the two, exposing their practical interconnection in a way that a threat to environmental stability almost necessarily affects economic stability of a State. At the same time, a right to permanent sovereignty over natural resources is not absolute and should be exercised so as not to endanger environmental and economic security of others.


Автор: Daria S. Boklan , Daria S. Boklan Anna V. Korshunova


Рубрика:
CRITICAL SCHOOL OF THOUGHT IN INTERNATIONAL LAW


DOI: 10.17803/2313-5395.2017.2.8.299-314


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Аннотация:
The following brief remarks discuss the essential arguments put forward in Koskenniemi’s thought-provoking article. While I think that some of these arguments are not really fitting or are exaggerated, I agree with the author that it is much too early to put sovereignty to rest. On the contrary, we still very much need the sovereign State, but as a State whose sovereignty has undergone important changes. The real issue is not whether we need sovereignty or not, but rather how to induce the States to play their indispensable role as guarantors of the international legal order.


Автор: Eckart Klein


Рубрика:
CRITICAL SCHOOL OF THOUGHT IN INTERNATIONAL LAW


DOI: 10.17803/2313-5395.2017.2.8.292-298


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Аннотация:
This essay uses the theme of sovereignty in order to produce a little introduction to critical legal thinking. By focusing on the indeterminacy of an expression such as “sovereignty” it highlights the rhetorical and polemical aspects of law and the nature of legal competence as the ability to project to such expressions with a meaning as desired in the context of legal argument and contestation. One of the conclusions to be drawn from such a view is that what “sovereignty” or indeed “international law” means cannot be detached from the way lawyers use such expressions. There is therefore no a priori reason to commit to them or to reject them. It is true that they have, in the course of history, come to stand for reasonably stable ideas or expectations. But this does not mean that those connotations might not change. It is therefore important, that lawyers are not enchanted by such expressions but, instead, view critically the values and interests that their use actually supports.


Автор: Martti Koskenniemi


Рубрика:
CRITICAL SCHOOL OF THOUGHT IN INTERNATIONAL LAW


DOI: 10.17803/2313-5395.2017.2.8.282-291


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Университет имени О.Е. Кутафина (МГЮА) прекратил сотрудничество с издательской группой Nota Bene.

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