The Modern Lawyer №2(19)
CОNTЕNT
CONSTITUTIONAL LAW |
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Sergey G. PavlikovDoctor of Legal Sciences, Professor, Department of Legal Regulation of Economic activities, Financial University under the Government of the Russian Federation, Moscow (E-mail: 89152499928@mail.ru) Aigul E. Karnaukhovanotary, PhD in Law, Moscow (E-mail: 6918090@ mail.ru) |
Revisiting the constitutional entrenchment of property right in foreign countriesAbstract Subject The following article deals with the complex of problems arising from the transformation of the constitutional regulation of ownership right in foreign countries. The main goal of the article is to systematize foreign constitutional provisions governing the right of property. Methodology Within the conducted study such general theoretical and special scientific methods of cognition as analysis and synthesis, logic, dialectic, systemic-structural, comparative legal, sociological and statistical methods have been employed. Conclusion The modern foreign constitution rarely ascertain the status of a particular country as a state with market economy. The attempts at “socialization” of the constitutional rules governing the right to private property have become more intense whereas the constitutional regulation of property evolves in terms of expanding of the list of possible limitations of this right under various positive pretexts. The new forms of property (e.g. reproductive and transplant medicine, genetic engineering, etc.) are being fixed on the constitutional level. Keywords: The Constitution, property, private property, object, subject, law, constitutional law, owner, law, laws, country, state, norm, society, rights, person, citizen, principle, value, experience, integrity, economy, market economy, market, person, property, thing, power, character, characteristic, regulation, land, land.
JEL Classification: К19
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Igor D. Semenovskiypostgraduate student, Department of Legal Regulation of Economic Activities, Financial University under the Government of the Russian Federation, project manager, Department for State Programs and Regional Development, State Corporation «Bank for Development and Foreign Economic Affairs (Vnesheconombank)», Moscow (E-mail: i.semenovskiy@yandex.com) |
Constitutional basics of the regulation of federal structure principles in Brazil, India and RussiaAbstract Rationale The federative structure principles are the institutional foundations of the constitutional order in the BRICS member states. The present phenomenon is one of those concepts, comprehensively studying and deeply understanding of which is not possible on the example of one single state. Comparative analysis of the federative structure constitutional regulation serves to researching of this subject and allows to maximize the reliability of conclusions regarding the phenomenon being studied. Objective The goals of this article are the brief review of the forms of fixation and analysis of the constitutional principles of federation structure in Brazil, India and Russia as the BRICS member states. The key federative structure principles of division of the subjects of jurisdiction between the federation and its subjects is being considered in detail. The principles and procedure for the formation of the authorities of the three states in the context of their federal structure have been analyzed. Methods The methodological basis of this research is mainly based on the comparative-legal method of scientific research. The methods of system and structural-functional analysis and classification have been also employed. Conclusions and Relevance The results of the study revealed similarities and differences in the legal regulation of the three state federative structure constitutional principles. In particular, the principles establish an ultra-rigid level of centralization of India and a relatively moderate degree of centralization of federations in Brazil and Russia. The suggestion to fix in the Article 66 of the Russian Constitution the provisions on the principles and methods of empowering of the highest official of the subject of the Russian Federation has been made. Keywords: federative structure, federative structure constitutional principles, division of authority, comparative-law analysis, Brazil, India, Russia, BRICS. JEL classification: К19.
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Vladislav O.KravchenkoKutafin Moscow State Law University (MSAL), Institute of the Prosecutor’s Office, training program of the Legal Support of National Security, Moscow (E-mail: vokravchenk@gmail.com) |
The inadmissibility of rights abuse as a constitutional law principle in context of the constitutionalization processAbstract Subject The present paper deals with the phenomenon of the constitutionalization in its three aspects and its link with the principle of inadmissibility of rights abuse. The main goals of the research are to analyze the civil law principle of inadmissibility of rights abuse, to interpret the relevant legal rule (namely Constitution part 3 article 17), to discover the influence of the constitutionalization processes on law principles from theoretical point of view. Metodology Within the conducted research the following methods were used: analysis, formal logical, comparative etc. Conclusions and Relevance. Such constitutionalization aspects as a process, a tendency and a legal system characteristic have been analyzed. The constitutionalization tendency of legal systems is highlighted. The definition of this term is given. The phenomena of the constitutionalization of law, constitutionalization of common legal principles and constitutionalization of judicial practice are noticed as autonomous ones. The interpretation of the Constitution of the RF part 3 article 17 is given both in expansive and restrictive ways in order to prove the constitutional meaning and significance of the principle of inadmissibility of rights abuse. The possibility of legal interests’ protection instead of only human rights protection is concluded. It is also concluded that the principle of inadmissibility of rights abuse is an constitutional one and it has significance for the whole legal system. Keywords: constitutionalization, human rights, abuse of rights, law principle, legal interest. References:
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CIVIL LAW |
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Artem S. Dyukova postgraduate student of the Department of Civil Law, International Law Institute, judge assistant of the Arbitration Court of Moscow, 3rd class Counselor of Justice of the Russian Federation, Moscow (e-mail: artem.ond@mail.ru) |
The legal nature of possessory protectionAbstract Rationale The article presents the very essence of the protection of ownership bas a legal category. The analysis of the historical development of the doctrinal holdings of the matter studied is made, the status of the institute of the possessory interdicts in modern national law is condiered. The relations of property objects accessory have become the subject of research. The object of research is the definition of principles for the protection of ownership, the analysis of the law-enforcing approach on the issue of research and development design of the proposed regulatory consolidation of the regulated statutes. Goals/objectives The author has focused on the review and analysis of judicial practice on the object of study of this article. During the study the existing need for generalization and development of a unified position on the classification of the examined relations has been identified. Methodology The study was carried out on the basis of an analysis of current judicial practice, its generalization, the establishment of singularity of assessment of the investigated issue. Conclusion The necessity of actual regulation of accessory relations in the Russian system of private law has been justified. Keywords: property law, ownership, property, ownership, possession, holding the legal ownership, right of possession right to possession, the facticity of ownership, form of ownership, content ownership, the duality of ownership, qualifications of ownership, the legal category of possession, protection of possession, possessory security, interdict, self-defense.
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Alexey V. SeredaDeputy Head, International Cooperation Department, Financial University under the Government of the Russian Federation, Moscow(Е-mail: alvsereda@fa.ru)
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The analysis of the law enforcement practices of the cryptocurrencies’ transactionsAbstract Rationale This article deals with the first law enforcement experience of Russian courts in the process of settling the disputes arise in the sphere of cryptocurrencies’ transactions. References 1. OpredelenieArbitrazhnogosudaVologodskojoblastiot 06 oktjabrja 2016 g. podelu № A13-3814/2016 [Electronic resource] // Available at: http://kad.arbitr.ru/PdfDocument/22a3c75e-75af-4721-8d42-fcd92bd933d9/%D0%9013-3814-2016__20161006.pdf?download=true (accessed on: 18.05.2017). 2. PrigovorSovetskogorajonnogosudagorodaCheljabinskaot 27 oktjabrja 2016 g. podelu № 1-382/2016 [Electronic resource] // Available at: http://sudact.ru/regular/doc/CNwIr8LAh1WQ/ (accessed on: 19.05.17). 3. P.p. 1 i 3 informacionnogopis’maPrezidiuma VAS RF ot 24 sentjabrja 2002 g. N 69 “Obzorpraktikirazreshenijasporov, svjazannyh s dogovorommeny” [Electronic resource] // “Vestnik VAS RF”. – 2003. – №1.The access brought by reference legal system “ConsultantPlus”. 4. Savel’ev, A.I. Jelektronnajakommercija v Rossii i zarubezhom: pravovoeregulirovanie [Electronic resource] / Savel’ev A.I. – 2-e izdanie – M.: Statut – 2016 – 639 s. The access brought by reference legal system “ConsultantPlus”. 5. P.1 informacionnogopis’maPrezidiuma VAS RF ot 21.12.2005 N 103 «Obzorpraktikiprimenenijaarbitrazhnymisudamistat’i 414 Grazhdanskogokodeksa RF» [Electronic resource] // “Vestnik VAS RF”. – 2006. – №4.The access brought by reference legal system “ConsultantPlus”. 6. OpredelenieArbitrazhnogosudaTjumenskojoblastiot 22 ijunja 2016 godapodelu № A70-15360/2015 [Electronic resource] // Available at: http://kad.arbitr.ru/PdfDocument/864bd690-2fe9-42b9-a936-848d466f2baf/%D0%9070-15360-2015__20160622.pdf?download=true (accessed on: 18.05.17). 7. ReshenieNev’janskogogorodskogosudaSverdlovskojoblastiot 30 sentjabrja 2014 g. podelu N 2-978/2014 [Electronic resource] // Available at: https://bits.media/images/news/15.01.2015/bitcoin.pdf (accessed on: 18.05.17). 8. «SudEkaterinburgaotmenilreshenie o blokirovke Bitcoin sajtov» [Electronic resource] // Available at: https://bits.media/news/sud-ekaterinburga-otmenil-reshenie-o-blokirovke-bitcoin-saytov-i-priznanii-informatsii-o-kriptovalyu/ (accessed on: 18.05.17). 9. ReshenieAnapskogogorodskogosudaot 25 fevralja 2016 g. podelu № 2-869/2016 [Electronic resource] // Available at: http://sudact.ru/regular/doc/rx4FGJP63uUK/ (accessed on: 19.05.17). 10. ReshenieZheleznodorozhnogorajonnogosudagorodaKrasnojarskaot 27 ijulja 2016 g. podelu № 2-4298/2016 [Electronic resource] // Available at: http://sudact.ru/regular/doc/hmr08YWCKOoJ/ (accessed on: 19.05.17)
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ADMINISTRATIVE LAW |
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Yurii V. StepanenkoDoctor of Legal Sciences, Professor, Professor of Department of Administrative Law and Process, O. E. Kutafin Moscow State Academy of Law (MSAL), honored lawyer of the Russian Federation; chief research worker of VNII MVD of Russia; Professor of the Department of Legal Regulation of Economic Activities, Financial University under the Government of the Russian Federation, Moscow (E-mail: Stepanenko.50@mail.ru) |
The code of the Russian federation on administrative offences: upgrade optionsАbstract Subject This article deals with the public relations related to the search for the most optimal ways, forms and methods of modernization of the administrative and tort legislation of the Russian Federation. The main goal of the conducted study is to analyze the currently known attempts to streamline the administrative and tort legislation of the Russian Federation, as well as to develop alternative options for the upgrade of the Russian code on administrative offences. Method The general dialectic method of scientific cognition has become the methodological basis of research whereas such general scientific methods as analysis, synthesis, description, comparison, analogy as well as method of comparative law and formal legal method have been employed. Conclusions The study showed that the attempts to modernize the administrative-tort law by introducing new draft of the code of the Russian Federation on administrative offences and the code on administrative responsibility, which have been taken either by groups of deputies or individual deputies of the State Duma of the Federal Assembly of the Russian Federation, have not led to the desired result yet: the bills seem to “stuck” permanently in the responsible Committee of the State Duma. However, you can not take into account other options of improvement of the legislation on administrative offences, in particular by optimizing existing administrative code or adopting its new edition. Keywords: Code of the Russian Federation on administrative offences, the draft Code of the Russian Federation on the administrative responsibility, administrative and tort legislation, administrative code. JEL Classification: K23 References:
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EDUCATIONAL LAW |
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Sergey V.AponitskySenior Lecturer, Department of Legal Regulation of Economic Activities, Financial University under the Government of the Russian Federation, Moscow (E-mal: oper9000@yandex.ru) Teymur E. ZulfugarzadePhD in Legal Sciences, Associate Professor, Department of Civil Law Disciplines, G.V. Plekhanov Russian Economic University, Moscow (E-mal: teymurz@yandex.ru) |
The improvement of personnel legal training for the domestic economyAbstract Subject The present article deals with several approaches to definition of areas of legal training of personnel for the modern economy of the Russian Federation taking into account constantly increasing in volume information resources which quality and relevance could vary widely and prospects of computer software development in legal activities. This paper also presents the problematic issues of formation of legal awareness and cyber law training of the contemporary alumni of higher educational institutions. It is noted that the increase of the trainee consumer approach to the educational process reduces the quality of their training and requires mandatory adjustments, consistent with both the main directions of the implemented educational policy and the state requirements for educational institutions and potential employers. Goals/objectives The main goal of the conducted research is to formulate the main approaches, aimed at further improvement of the legal training of personnel by the institutions of secondary professional and higher education for the needs of the economy of the Russian Federation. Methodology The methodological basis of research includes the employment of universal methods of knowledge, general scientific methods, including systematic and logical method as well as the analysis, synthesis and analogy along with the specific methods such as the method of comparative law and formal legal method. Conclusion Innovative methods and innovative approaches of a legal nature that are implemented in various spheres of economic and enforcement activities, are being expedient to be introduced into the educational process at the stage of legal testing software, paying special attention to the formation of morality and a high level of awareness among graduates of educational organizations, combining the educational process with legal and computer training, necessarily contributing to the production of assessment of the level of their competence among the alumni. Keywords: law, lawyer, legal training, human resources, improvement of modern economy, development.
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BUSINESS LAW |
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Sergey V.AponitskySenior Lecturer, Department of Legal Regulation of Economic Activities, Financial University under the Government of the Russian Federation, Moscow (E-mail: oper9000@yandex.ru) |
The mechanism for the implementation of pre-trial rehabilitation to restore solvency of the debtor-legal entity: problems of theory and practiceAbstract Subject/theme In the article some approaches to the definition of “rehabilitation” from the prospects of rehabilitation aimed at prevention of bankruptcy and foreign influence or external financial support are studied. The problem of implementation mechanism of pre-trial rehabilitation to restore solvency of the debtor-legal entity has also been studied. It is noted that under the unstable situation in Russi the system of management of financial improvement processes of the legal entity requires special attention, because the matters related to sanitation have important theoretical and practical significance, which becomes particularly relevant. Goals/objectives The main goal of the research is to formulate a complex representation about the realization mechanisms of pre-judicial sanitation for restoration of solvency of the debtor legal entity. Methodology The methodological basis of research include universal methods of knowledge, such general scientific methods as systematic and logical method among with the analysis, synthesis and analogy. The special methods such as the method of comparative law and formal legal method have been also employed. Conclusion The pre-judicial sanitation is undertaken in order to provide the enterprise with an opportunity to be saved from closing and pay off on debts. The studying of the specified procedures causes interest in the mechanism of financial improvement and its’ application as an alternative elimination within the bankruptcy proceedings. Keywords: a legal person, the debtor, reorganization, insolvency, failure, bankruptcy, pre-trial rehabilitation. JEL Classification: K20
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Alexey А. TerenichenkoPhD of Historical Sciences, Associate Professor, Department of Legal Regulation of Economic Activities, Financial University under the Government of the Russian Federation, Moscow (E-mail: terenichenko@yandex.ru) |
Legal regulation of investors 'access to the securities markets of the EAEUAbstract Rationale In the activities of the modern securities market of the member countries of the Eurasian Economic Union (EAEU), investors and issuers benefit from joint actions. However, there are many questions on the problem of their mutual access to the securities markets. Therefore, the issue of finding ways to harmonize the relevant legislation for the EAEU member states and identify problems in this area is relevant. Subject The purpose of this article is to carry out a comparative analysis of some provisions of the regulatory legal base of the EAEU member states on mutual access of issuers and investors to the securities markets with international treaties in force within the framework of the EAEU and the strategic goals of forming an economic union. The stated goal of the work stipulates the need for the formulation and solution of the following tasks: 1) to identify the legal features of the securities market of the EAEU member countries; 2) to identify the problems that arise in the process of integration and convergence of the securities markets of the EAEU member countries in the issues of access of issuers and investors to Securities markets, 3) to develop ways to harmonize the regulatory framework of Russia and other EAEU member countries in the regulation of mutual access of issuers and investors to the securities markets. Methodology During the conducted research the author employed the method of comparative analysis to determine the most promising areas of development of the securities markets and the stock markets of the EAEU as a way of harmonizing the regulatory legal base of Russia and other EAEU member countries in this area. Conclusions The author concludes that such areas include the harmonization of legislation on the securities market, the provision of unified conditions for access to the exchange markets of the EAEU, the recognition of national licenses, the legalization of the rights of market participants, the development of unified approaches to protection against risks, ensuring the transparency of markets in the light of the fight against money laundering and the financing of terrorism, the creation of a single regulator and oversight system. The results of the work are of interest for further research on the problems of integration of the securities market of the EAEU members and can be used in the educational process of universities when developing materials on the discipline of “Comparative Law, Securities Market (Financial Law)”. Keywords: Legal regulation, issuers, investors, national securities markets, the Eurasian Economic Union, licensing, participants in financial markets, supervision of financial markets. JEL classification: K 22
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ROMAN LAW |
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Tatiana B. GvozdevaPhD in Historical Sciences, Associate professor, Department of Legal Regulation of Economic Activity, Financial University under the Government of the Russian Federation, Moscow (E-mail: tbgvozdeva@rambler.ru) |
Offences on the funeral games in Homer's IliadAbstract Rationale The funeral games were the earliest type of athletic competitions of Ancient Greece prior to the Olympic Games. Although they were private by nature, they emerged as principal events, which then became a part of the Olympic Games, and the principles of organization as well as the first rules of refereeing. Moreover, it is also interesting to note the first cases of offence in sports in the description of the funeral games in Homer’s Iliad. Objective The main goal of this article is to analyze offenses committed in the funeral games in Homer’s epics «Iliad». Methodology The methodological basis of the present research stated in the analysis of the heroic epic of Homer «Iliad», describing the funeral games in memory of Patroclus as well as the classification of offenses games. Conclusions and Relevance The study identified three types of offences in the funeral games organized by Achilles. The first kind of offences connected with the dishonest tactics used by some of the contestants. The second type of crime is linked with the will of the Olympian gods, ruling not only the military deeds of the epic heroes, but also their sports victories. The third type of offences is linked with the personality of the organizer of the games, Achilles, who often modifies rules which were earlier established himself. Keywords: the funeral games, Olympic games, chariots, Homer, Achilles, Patroclus, doping JEL classification: K10 References:
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