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Университета имени О.Е. Кутафина (МГЮА)


LAW EVOLUTION

Статьи в номере 1 за 2018 год

Аннотация: The award of the 2022 World Cup football to Qatar is highly controversial because of the human and labour rights infringements due to the Kafala-system. The argument in this contribution is though that it has also brought something good, namely it created the momentum for change, in particular, to abolish the Kafalasystem. It is difficult to enforce such change through judicial review, as is illustrated by the case FNV c.s. vs FIFA. Soft law procedures, on the other hand, which are based on dialogue, trust and commitment are able to set changes in motions, which is illustrated by the Art. 26 complaint initiated by twelve delegates of the ILO against Qatar and the Specific Instance with the Swiss NCP initiated by BWI against FIFA. This contribution describes the consequences of the Kafala-system, explains why FIFA also fulfils a role in this, even though it concerns the law of the sovereign State Qatar, describes three cases addressing the poor circumstances of the migrant workers in Qatar, and concludes that for these kind of situations soft law proactive processes may be more effective than hard law retrospective judicial review.


Автор: Beryl Ph. ter Haar


Рубрика: LAW EVOLUTION


DOI: 10.17803/2313-5395.2018.1.9.139-164


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Аннотация: This article focuses on the study of the problems of legal regulation of payment and settlement system oversight. The results of the study showed certain shortcomings of legal techniques in the sphere of legal regulation of public relations, formed in the process of providing this oversight in the national payment system. These shortcomings arise from inaccuracy and inconsistency of the concept of payment and settlement system oversight, as well as difficulty to establish the precise range of objects of oversight, as well as a number of other challenging issues. In this respect, the author suggests an original definition of payment and settlement system oversight in the Russian Federation, which can be brought into use in the federal legislation. The work makes a distinction between payment and settlement system oversight and supervision, which makes it possible to consider the latter as a separate direction of the control and supervision of the Bank of Russia, the main body of monetary regulation. The article also examines the impact of the Bank for International Settlements (BIS) documents on the process of introducing Russian national legislation into the national payment system oversight, as well as the definition of the subject of assessment conducted during such monitoring. This suggests that the Bank of Russia adequately approaches the implementation of the principles set out in the BIS documents. It introduces the best international practice, with due consideration of features of the legal regulation of public relations developing in the Russian national payment system. Currently, the oversight model in the national payment system fully corresponds to the oversight proposed by the BIS.


Автор: Alexander A. Sitnik


Рубрика: LAW EVOLUTION


DOI: 10.17803/2313-5395.2018.1.9.165-181


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CONSTITUTIONAL LAW: NOTION AND SOURCES

Boris Strashun, Doctor of science (Law), Institute of State and Law, Academy of Sciences of the USSR, 1978 Professor, Kutafi n Moscow State Law University


Опубликовано в номере 1 за 2014 год

Аннотация: "This paper consists of two main parts. The first one gives an understanding of the term “Constitutional Law” and its different meanings: as a system of legal regulations, legal studies, and an academic discipline. It’s worth mentioning that some scholars define Constitutional Law as a Political Law. This is also correct, even if nowadays, some constitutions tend to include certain issues that seem to be absolutely irrelevant; for example, the ones concerning the institutions of marriage and family. This results from the fact that a constitution-maker considers those issues to have a political meaning. Regarding methods of legal regulation, they are not much different from the ones used in other branches of law, which are: obliging, permitting (authorizing), and prohibiting. At the same time, the author also mentions the method of general principles declaring. Constitutional Law as legal studies is a result of its norms and social relations research, which elaborates recommendations for lawmakers and relevant state bodies concerning the proper development and interpretation of Constitutional Law norms. Most of the law universities in Russia include Constitutional Law of the Russian Federation and Foreign Countries, as well as Comparative Constitutional Law, as a part of scholar program. The second part of this paper defi nes the sources of Constitutional Law. There are also some ideas of constitutionalism. "


Автор: Boris Strashun, Doctor of science (Law), Institute of State and Law, Academy of Sciences of the USSR, 1978 Professor, Kutafi n Moscow State Law University


Рубрика: LAW EVOLUTION


DOI: 10.17803/2313-5395.2018.1.9.165-181


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Аннотация: The article analyses peculiarities of civil law in socialist countries. The author also considers problems of adaptation of Central and Eastern European law systems in the conditions of modern market economic reality after socialism upset. The author believes that a Roman-law tradition in the mentioned countries used to be and still is presented at both legislative and theoretical level. Romanist (Pandectist) infl uence can be observed in civil codes of all socialistic states. There were three different types of civil law codifi cation in those countries. The fi rst of them (USSR, Czechoslovakia, Poland and Hungary) is characterised by adoption of socialist civil codes. The second type (Bulgaria and Albania) is characterised by adoption of several laws relating to the law of property, law of obligations, law of succession, etc. The third type (e.g. Romania) is characterised by conserving its former “bourgeois” Civil Code. Nowadays a major contribution to the development of private/civil law is the ongoing process of European harmonisation of law in those countries of Central and Eastern Europe which became member states of the European Union. Private Lаw of the Community is increasingly coming to the fore. Today the most “Europeanized” area of private law is a corporate law. But a signifi cant modern trend in the mentioned countries is also so-called re-implementation of the pre-socialistic legislation. In the author’s opinion, the main reason for this phenomenon is the intention to maintain a relative autonomy.


Автор: Gábor Hamza


Рубрика: LAW EVOLUTION


DOI: 10.17803/2313-5395.2018.1.9.165-181


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Аннотация: Nowadays the attitude to private property in people’s mind and its constitutional regulation has signifi cantly changed. There are no more definitions of private property as sacred and inviolable. The exception is Article 17 of the French Declaration of the Rights of Man and of the Citizen of 1789 that is considered as a part of non-consolidated Constitution of France (‘le bloc de constitutionnalité’). There are new approaches in regulating the institution of private property institution in constitutional law; they are referred to the economic and social justice, as well as to the social function of private property. The legitimacy of its nationalization in the interests of society and the state is recognized, but some restrictions are imposed. Each form of property has its own legal regulation in the constitution. Even in those states where totalitarian regime still takes place the attitude to private property has been changed as well. There are no any prohibitions on private property in those countries. On the contrary, constitutions include provisions of its existence and high use. This imperative approach to the regulation of property rights in constitutional law is signifi cantly different from the legal regulation of the ownership institution in civil law. The article covers the evolution of the legal status of private property and its legal regulation under modern conditions; the original absolution of private property in the interests of social layers, winning bourgeois revolutions in XVII-XVIII centuries considering the forms of subsequent restrictions on this right.


Автор: Veniamin Chirkin


Рубрика: LAW EVOLUTION


DOI: 10.17803/2313-5395.2018.1.9.165-181


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Аннотация: In the Russian Federation geological survey is carried out by both the state at the expense of public funds and by subsoil users at their own expense. All activities related to geological exploration of mineral resources regardless of the source of financing are held in accordance with the geological project that is subject to the expertise carried out by Rosgeolexpertiza. The paper contains an analysis of the Soviet and current Russian mining legislation, in particular, legislation on geological exploration, and an analysis of main directions of reforming the national system of legal regulation of projects of geological exploration.


Автор: Narmin Mirkerimova


Рубрика: LAW EVOLUTION


DOI: 10.17803/2313-5395.2018.1.9.165-181


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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: 10.17803/2313-5395.2018.1.9.165-181


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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: 10.17803/2313-5395.2018.1.9.165-181


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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: 10.17803/2313-5395.2018.1.9.165-181


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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: 10.17803/2313-5395.2018.1.9.165-181


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

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