TOPICAL PROBLEMS OF PUBLIC LAW
Reference:
V.I. Lafitsky (2011). Constitutional Traditions and Models
in the Comparative–Legal Dimension. Journal of Foreign Legislation and Comparative Law, 5, 4–14. https://en.nbpublish.com/library_read_article.php?id=58916
Abstract:
Constitutions of the world share a lot of common features because they have to solve the same problems. Nevertheless,
it is possible to single out typical constitutional models united by general constitutional traditions and culture
(North American, West European, Islamic, Socialist, Slavonic and so on). There are also a number of unique fundamental
laws (for instance, of India, Japan, China) which are not embraced by any constitutional model. The process of formation
of new models and appearance of new unique constitutions continue reflecting the processes changing the world.
Keywords:
comparative law, constitution, constitutional model, legal traditions, legal culture, legal norm.
TOPICAL PROBLEMS OF PUBLIC LAW
Reference:
A.N. Pilipenko (2011). Organization of the Lawmaking Activity in the System
of the Executive Authorities of Foreign Countries. Journal of Foreign Legislation and Comparative Law, 5, 15–23. https://en.nbpublish.com/library_read_article.php?id=58917
Abstract:
The object of the present paper is to organize the rulemaking undertaken under executive authority. On a number
of countries (France, USA, Canada, Switzerland, etc.) are considered different organizational forms of preparation
of bills introduced by the Parliament, the order of the development, adoption and monitoring of the implementation of
normative acts of executive power to execute the laws. It seems that the experience of foreign countries in this part, will
be useful to all those who in any way involved in such activities in Russia and not only them.
Keywords:
executive, government, ministries, parliament, rulemaking, legislation, regulation, examination, counseling, listening, efficiency and control
TOPICAL PROBLEMS OF PRIVATE LAW
Reference:
I.K. Yeleusizova (2011). Introduction of the Utility Model
in Civil Circulation under Legislation
of the Republic of Kazakhstan. Journal of Foreign Legislation and Comparative Law, 5, 24–30. https://en.nbpublish.com/library_read_article.php?id=58918
Abstract:
The article deals with topical issues of implementation of a utility model into civil circulation according to the
Republic of Kazakhstan legislation. In the course of writing the article the author has studied the legal nature of the utility
model as the object of industrial property in the Republic of Kazakhstan, as well as legislation that strengthens the rule
of law regulating the issuance of a title of protection, emergence and protection of exclusive rights on the utility model,
as well as legal nature service and secret utility models. Recommendations for improvement of legislation of the Republic
of Kazakhstan aimed to regulate the utility model as the object of industrial property developed based on the analysis of
international practice and legislation of the Republic of Kazakhstan.
Articles and monographs of the well–known domestic and foreign civil lawyers in Intellectual Property Law and Industrial
Property, the regulations covering the legal regulation of the utility model, as well as statistical data in the study
area during the period from 2002 to 2010 in the Republic of of Kazakhstan were considered for scientific research.
Keywords:
utility model, patent legislation, secret utility models, service utility models, inventions, industrial property, patentability, patent office, innovation patent.
TOPICAL PROBLEMS OF PRIVATE LAW
Reference:
O.V. Lutkova, D.O.Chernysh (2011). Cases of Fair Use of Works in Cross–Border Commerce
under Russian and Foreign Law. Journal of Foreign Legislation and Comparative Law, 5, 31–39. https://en.nbpublish.com/library_read_article.php?id=58919
Abstract:
This article investigates the institute of free use of works in copyright sphere: its history and nature at international
and national levels (as exemplified by Russia, USA and another countries), and its influence on cross–border commerce.
Keywords:
license agreement, copyright, conflict of law regulation, applicable law, fair use, territorial nature.
TOPICAL PROBLEMS OF COMPARATIVE LAW
Reference:
S.U. Kashkin (2011). Basic Trends of Development of Foreign, International
and European Law. Journal of Foreign Legislation and Comparative Law, 5, 40–52. https://en.nbpublish.com/library_read_article.php?id=58920
Abstract:
The article analyses the evolution as a result of globalization of the interaction of national law, law of integration
and international law during the last 25 years. The mechanisms of legal regulation of social relations in integration
organizations are studied on the example of the European Union. Special attention is given to examination the new sources
of law and the dialectics of their application on the national, supranational and international levels. The new features
and qualitative characteristics of the EU law are dealt with. The author comes to the conclusion that with the formation of
the supranational law in the form of the European Union, being a separate system of law in itself, the former world system
of law has substantially changed. The stages of the evolution of the law of integration and its perspectives are formulated.
Keywords:
Trends, international, national, integration, European, regional, regulation, mechanism, evolution, principles, sources, development.
TOPICAL PROBLEMS OF COMPARATIVE LAW
Reference:
I.M. Mutay (2011). Transplantation and Restoration in Law. Journal of Foreign Legislation and Comparative Law, 5, 53–64. https://en.nbpublish.com/library_read_article.php?id=58921
Abstract:
The subject of article is analysis of correlation of legal transplantation and following restoration of law in
private and public law. Author made conclusion about misrepresentation of transplanted law norms of western law in
post–socialistic countries as a result of underdevelopment of teleological interpretation of law norms.
Keywords:
transplantation of law, restoration in law, private law, history of law, modernization of law, The Netherlands Civil Code, Napoleon Code, amendments
TOPICAL PROBLEMS OF COMPARATIVE LAW
Reference:
B.I. Osminin (2011). Implementation of International Treaty Obligations
in the Domestic Legal System
of the United States of America. Journal of Foreign Legislation and Comparative Law, 5, 65–75. https://en.nbpublish.com/library_read_article.php?id=58922
Abstract:
Under art. VI, cl. 2 of the U.S. Constitution (the Supremacy Clause) all treaties concluded by the United States
are considered to be part of the supreme law of the land. Consequently, they are superior to State law, while they have
equal status to federal statutes. The Supremacy Clause has been interpreted by the U.S. Supreme Court as also applying
to executive agreements.
Cases of inconsistency between a treaty and a statute will be resolved by means of the “last–in–time” rule. U.S. courts
will not apply international law, whether derived from treaty or from custom, in conflict with congressional enactment
that comes later in time: the courts have reasoned that “the latest expression of the sovereign will” should prevail.
U.S. courts have developed a distinction between “self–executing” and “non–self–executing” treaties; the former will be
directly applied by the courts but the latter must await implementation by the legislative or executive branches.
Keywords:
the supreme law of the land, to give effect to international agreements within the U.S., the latest expression of the sovereign will, the “last–in–time” rule, implementing legislation, self–executing agreements, non–self–executing agreements, a presumption in favor of treaty self–execution, a presumption against treaty self–execution, the non–self– executing declaration.
DISCUSSING A PROBLEM
Reference:
O.O. Salagay (2011). Measures Counteracting Tobacco Consumption
in the European Union Law. Journal of Foreign Legislation and Comparative Law, 5, 76–84. https://en.nbpublish.com/library_read_article.php?id=58923
Abstract:
This article is focused on the research of legislative measures took to combat tobacco consumption in the European
Union law. The results showed that the main lines along which the regulation of tobacco consumption in the EU
is realized were: setting proper requirements to tobacco products, their packaging and labeling, the prohibition of cross–
border advertising and sponsorship of tobacco, the change in agricultural policy on tobacco, tax policy, the creation of
tobacco–free environment, and prevention of illicit trade of tobacco products. Several proposals to improve the relevant
legislation of the Russian Federation were also made by author.
Keywords:
European law, tobacco, comparative law.
CRIMINAL LAW: PROBLEMS OF THEORY AND PRACTICE
Reference:
P. Törnydd (2011). To the Realistic Purposes of Criminal Policy. Journal of Foreign Legislation and Comparative Law, 5, 85–92. https://en.nbpublish.com/library_read_article.php?id=58924
Abstract:
Patrik Törnudd formulates the principles of the criminal political ideology, which were at the basis of the total
reform of Finnish penal law. The main principles include the minimization and fair distribution of the social costs of crime
and crime control, shifting of the emphasis from the severity of criminal sanctions towards their inevitability, fairness and adequacy.
At the same time he disproves the thesis that the crime level is determined mainly by the qualities of the penal system.
Keywords:
penal policy, penal policy goals, crime control, social control, social costs of crime control, prisoner rate, general prevention of crime, situational prevention of crime.
CRIMINAL LAW: PROBLEMS OF THEORY AND PRACTICE
Reference:
D.Y. Prymakov (2011). Development of Criminal Legislation of Israel
(1936–1977). Journal of Foreign Legislation and Comparative Law, 5, 93–104. https://en.nbpublish.com/library_read_article.php?id=58925
Abstract:
In this article scrutinize an issue of the penal law evaluation in Israel. The essential influence took place from
the British legality and common law doctrine. However the Criminal Law Ordinance 1936 and Criminal Law Act 1977
show authentic place which the Israel Modern Criminal Law takes plays.
Keywords:
Israel Criminal Law, influence, legal transplants, common law doctrine.
JUDICIAL SYSTEM AND JUDICIAL PRACTICE
Reference:
E.A. Petrova (2011). Doctrine of Judicial Statutory Interpretation
in American Legal System. Journal of Foreign Legislation and Comparative Law, 5, 105–111. https://en.nbpublish.com/library_read_article.php?id=58926
Abstract:
In the article the author analyses main statutory interpretation methods as well as the role of the caselaw interpreting
enacted law in American legal system. Examples from some statutes and court decisions are given. The author
concludes that these are judges who make the statute “alive” in process of its construction.
Keywords:
American legal system, statutory law, caselaw interpreting enacted law, doctrine of statutory interpretation (construction), maxims (canons) of construction.
INTERNATIONAL LAW AND EUROPEAN LAW
Reference:
M.N. Kopylov, E.R. Basyrova (2011). A Glimpse at «Debt–for–Nature Swaps» in the Light
of the Principle of Permanent Sovereignty
of States Over their Natural Resources. Journal of Foreign Legislation and Comparative Law, 5, 112–119. https://en.nbpublish.com/library_read_article.php?id=58927
Abstract:
This paper analyzes «Debt–for–Nature Swaps» concluded by the states of North America, Latin America,
Europe, Africa and Southeast Asia. The characteristic features of three types of «Debt–for–Nature Swaps»: commercial
or three–party, bilateral and multilateral — are examined. The legal content of the principle of permanent
sovereignty of states over their natural resources is explained and it is concluded that «Debt–for–Nature Swaps»,
not only do not contradict this principle, but on the contrary, contribute to its implementation in practice. The ways,
suggested by the authors, how further improve «Debt–for–Nature Swaps» include, inter alia, the spread of their application
to the spheres of sanitation, water supply, infrastructure development, the mechanisms of combating global
climate change.
Keywords:
Debt–for–Nature Swap; World Wildlife Fund; principle of permanent sovereignty of states over their n
INTERNATIONAL LAW AND EUROPEAN LAW
Reference:
A.A. Kashirkina, A.N. Morozov (2011). Scopes of International Legal Regulation
and Development of Integration Processes
in the Post–Soviet Space. Journal of Foreign Legislation and Comparative Law, 5, 120–125. https://en.nbpublish.com/library_read_article.php?id=58928
Abstract:
The article concerns issues related to scopes of international legal regulation in connection with development of
integration process in the post–soviet space. It is observed that in the conditions of globalization international and municipal
law are closely related and exert mutual impact on each other. International law trends of interstate integration on post–soviet
space are analyzed on the example of the Eurasian Economic Community and the Customs Union. The article discovers
factors impacting interaction of international and municipal law and thereafter influencing the scopes of international legal
regulation. Some aspects of cooperation within the framework of the European Union are indicated which may be used for
the development of integration processes in the Eurasian Economic Community and the Customs Union.
Keywords:
international law, integration, interstate associations, the Customs Union, European Union, interaction.
SPORT AND LAW
Reference:
V.V. Karyakin (2011). Management of Elite Sport in Foreign Countries. Journal of Foreign Legislation and Comparative Law, 5, 126–133. https://en.nbpublish.com/library_read_article.php?id=58929
Abstract:
This article is devoted to the problems of the organization of management of elite sport in foreign countries
— the leaders of sports movements. Also the author considers some aspects of sports financing abroad, features
of interaction of the state and private structures by preparation of sportsmen for participation in the main
world championships. Various mechanisms of attraction of off–budget means in developing sports of the higher
achievements have been analyzed.
Keywords:
Sports; sports of the higher achievements; sports financing; sports management.
RESEARCHES OF YOUNG SCIENTISTS
Reference:
K.A. Galin (2011). Present Subject–Matter of Freedom
of Contract Concept in German
and Russian Federation Law. Journal of Foreign Legislation and Comparative Law, 5, 134–139. https://en.nbpublish.com/library_read_article.php?id=58930
Abstract:
The paper gives a brief insight to freedom of contract doctrine in various aspects including its present development
due to the justice and equality principles. In first part of paper the author tries to detach and substantially describe
the main elements of freedom of contract doctrine in Germany and Russian Federation. Second part is devoted to the correspondence
of freedom of contract with the categories of formal and material justice and equality principle of contracting
parties. The third is dealt with the two contrary concepts of German law doctrines differently considering government
intervention in private relations — theories of formal and material freedom of contract.
Keywords:
comparative law, freedom of contract, private autonomy, legal and factual equality, formal and material justice, unrestricted competition, government intervention, formal and material freedom of contract, social function of contract, freedom of contract limits.
RESEARCHES OF YOUNG SCIENTISTS
Reference:
T.G. Dabizha (2011). Procedural Guarantees of Advocate’s Independence
in Criminal Proceedings of the French Republic
and Federal Republic of Germany. Journal of Foreign Legislation and Comparative Law, 5, 140–145. https://en.nbpublish.com/library_read_article.php?id=58931
Abstract:
The article examines the dependence of the procedural guarantees of advocate’s independence from the procedural
powers contained in the criminal process in France and Germany. The author notes that the procedural guarantees
of advocate’s independence provide the implementation of the defense function in full, as well as ensure the constitutional
right of an accused to a defense.
Keywords:
advocate, the defense, advocate’s independence, procedural guarantees, criminal process in France, criminal process in Germany.
RESEARCHES OF YOUNG SCIENTISTS
Reference:
L.P. Krekhaleva, J.V. Fedonina (2011). Idea of Civil Law Regulation for Corporate Relations. Journal of Foreign Legislation and Comparative Law, 5, 146–157. https://en.nbpublish.com/library_read_article.php?id=58932
Abstract:
In the article the authors consider the problem of idea which lies behind civil–law regulation using one of the
legislative innovations implemented within the limits of the Concept of development of the civil legislation as an example.
In the first part of the article they look through the doctrine and judiciary practice of leading foreign jurisdictions, such
as England, the USA and Switzerland, at the subject matter and qualification of shareholders agreements and draw an
unfavorable conclusion that it is impossible to reveal any reasonable justification for the restrictions on the subject matter
of the agreement established by the Russian legislator. The thesis is forwarded that the formalism in the issue in question
should give way to the idea of legal regulation which contains apprehensions of rationality and justice and reflects the
spirit of law. In the second part of the article subjects, terms and sanctions under the given agreement will be analyzed
in the same context.
Keywords:
idea, agreement, shareholder, voting, transfer, balance, interest, purpose, governance.
RESEARCHES OF YOUNG SCIENTISTS
Reference:
Y.V. Maslov (2011). About some forms of the parliamentary control
in France and Russia. Journal of Foreign Legislation and Comparative Law, 5, 158–165. https://en.nbpublish.com/library_read_article.php?id=58933
Abstract:
In this article, author considered the forms of the control of the Senate and National assembly of France of the
national government. Review of this problem made with researching changes in the legislation that have occurred since
the adoption of the Constitution of France in 1958, and considers the possibility of further changes in legislation.
Keywords:
Constitution, the Senate of the France National Assembly, the President, government, reforms, parliamentary control.
RESEARCHES OF YOUNG SCIENTISTS
Reference:
N.B. Shlykova (2011). Evolution of Elections’ Institution in View
of Local Bodies’Formation in India. Journal of Foreign Legislation and Comparative Law, 5, 166–170. https://en.nbpublish.com/library_read_article.php?id=58934
Abstract:
The evolution of modern system of local self–governance, the competence of local bodies and process of its
formation are analyzed in the article. The author has made an accent on electoral aspect of local bodies’ formation and
evolution of electoral process on local level of state governance.
Keywords:
India, local self–governance, elections, electoral system, competence.
RESEARCHES OF YOUNG SCIENTISTS
Reference:
E.V. Romanova (2011). Application of Judicial Doctrines in US Tax Law. Journal of Foreign Legislation and Comparative Law, 5, 171–176. https://en.nbpublish.com/library_read_article.php?id=58935
Abstract:
For more than 70 years, courts in US have interpreted and applied the tax law with the aid of various «common
law» doctrines, such as business purpose, sham transaction, and economic substance. Notwithstanding this long
history, the application of the doctrines has always been controversial. This article analyzes doctrines and reviews the
principles which courts and tax authorities rely on, their application to specific transactions and impact on taxpayers
and tax system.
Contingent liability transactions have great importance. Their treatment is currently in limbo, and recent cases present
several concerns with both the assumption of liabilities in section 351 transactions and judicial doctrines traditionally
used to combat tax shelters.
Keywords:
tax law US, common law doctrines, contingent liability transactions, tax shelter, tax antiavoidance.
RESEARCHES OF YOUNG SCIENTISTS
Reference:
A.S. Prokofiev (2011). Legislative Regulation of the Assignment
of Rights in France and in Germany. Journal of Foreign Legislation and Comparative Law, 5, 177–183. https://en.nbpublish.com/library_read_article.php?id=58936
Abstract:
In this article the author examines legislative regulation of the assignment of rights in France and in Germany
as well as the underlying doctrinal views. The research also covers historical aspect of the development of cession in the
named legal orders, and notices last tendencies of such development.
Keywords:
assignment, cession, comparative law, security for obligation, civil law of France, civil law of Germany.
Eng
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