CONSTITUTIONAL LAW
Reference:
Postnikov A.E., Andrichenko L.V. (2014). Modeling of Laws of the Subject of the Russian Federation
in the Sphere of Protection of Population and Territories
from Emergency Situat. Journal of Foreign Legislation and Comparative Law, 6, 980–1002. https://en.nbpublish.com/library_read_article.php?id=66183
Abstract:
The Institute of legislation and comparative law under the Government of the Russian Federation has conducted
a study of the legislation of the subjects of the Russian Federation in the sphere of protection of population
and territories from natural and man-made emergencies. The analysis of the laws of subjects of the Russian Federation
concerning rescue services of the subjects of the Russian Federation and protection of population and territories of
the subject of the Russian Federation from natural and man-made emergencies showed that these laws have largely
typical defects. The most typical of them are unjustifiable succinctness of regulation or duplication of the provisions
of federal laws, at the same time, many of the powers of subjects of the Russian Federation in this sphere are insufficiently
determined.
Taking into account the results of the conducted study the presented model laws of the subject of the Russian Federation
were prepared. The methodological basis of this article constitute a specially-legal (comparative legal, legalistic,
and others), as well as scientific methods of research. Legislative bodies of subjects of the Russian Federation have to
consider the model law as the recommendation stipulated by the regulatory language which can be used in the improvement
of laws of subjects of the Russian Federation.
Therefore it should be noted that when model laws refer to the concrete terms, quantitative indices which are directly
not provided by the federal legislation (for example, the regulation of additional social guarantees to rescuers), they
have to be discussed taking into account specific conditions of the appropriate subject of the Russian Federation. In
some cases in the model law some variants of the normative regulation of certain issues are offered.
Keywords:
model act, public authorities, emergency, emergency rescue service, the status of the rescuers, the subject of the Russian Federation, the act, separation of powers, local governments, critical facilities.
CONSTITUTIONAL LAW
Reference:
Iskakova G.T. (2014). Features of Constitutional Regulation of Powers
of a Legislative Nature of the President in Kyrgyzstan. Journal of Foreign Legislation and Comparative Law, 6, 1003–1011. https://en.nbpublish.com/library_read_article.php?id=66184
Abstract:
This article discusses the changes in regulation of powers of a legislative nature of the president, which took
place in a number of different editions of the Kyrgyz Constitution of 1993 and the 2010. Each of the powers of a legislative
nature of the president is studied separately, including the right of legislative initiative, veto on law passed by
parliament, the right to adopt decrees having the force of law, and the referendum. The implementation of the said
powers of the president in practice and the impact of this practice on the behavior of members of parliament and the
development of relations between the president and parliament are studied. The analysis of the features of empower
of the president by legislative powers, as well as their practical implementation in Kyrgyzstan is made in relation to the
experience of other countries and the specific characteristics of different forms of government are taken into account.
During considering each of the legislative powers individually, the recommendations are offered by taking into account
the ratio of these powers among themselves and with the authority to determine the composition of the government
as a whole. The conclusion of the article: in systems with a popularly elected president, where parliament does
not have a decisive say in determining the composition of the government, the presence of the huge powers of the
president in the legislative sphere can bring to the strained relations, and even direct conflict with Parliament. If the
president is going to affect the legal regulation, the reduction of conflict contributes to preliminary discussions with the
president and the parliament of their initiatives.
Keywords:
polnomochiya prezidenta, polnomochiya parlamenta, formy pravleniya, prezident i parlament, Konstitutsiya Kyrgyzstana, konstitutsionnye reformy, veto prezidenta, ukazy prezidenta, naznachenie referenduma.
CONSTITUTIONAL LAW
Reference:
Evstratenkova M.A. (2014). Election Systems of the Cantons of the Swiss Confederation. Journal of Foreign Legislation and Comparative Law, 6, 1012–1016. https://en.nbpublish.com/library_read_article.php?id=66185
Abstract:
In the following article the author introduces the readers to the election systems of the cantons of the Swiss
Confederation. The article describes a general characteristic of holding the elections of the supreme elected authorities
of the cantons, as well as reveals the features of the election systems of the cantons, which reflect the development
and formation of the cantonal authorities of the Swiss Confederation. The election system of each canton is peculiar
and deserves special attention and study. Regulation of electoral legal relations in each canton is set independently by
the canton. The questions, which have not been delegated to the Confederation by the cantons, are embodied in the
cantonal legislation. These issues primarily refer to the order of election of the member(s) of the Council of States, the order of formation of the legislative body of the canton, the order of election of the executive body of the canton, trial
court judges, magistrates and local self-government elections where representative body with parliamentary structure
exists. During the study of election systems of the cantons the author has added scientific and theoretical analysis by
the empirical data, which is provided in the table below. Such a wide implementation of the principles of democracy
in the cantons of the Swiss Confederation is one of the most significant characteristics of the constitutional basis of
Switzerland. Thus, the federal legislation along with the cantonal legislation places an important role on the principles
of democracy as well as on the institutions of representative and direct democracy.
Keywords:
canton, electoral law, Landsgemeinde, electoral process, Switzerland, cantonal elections, voting by post, communes, ballot, communal parliament.
Reference:
B. Fauvarque-Cosson (2014). French Civil Code: 1804 – 2014. Journal of Foreign Legislation and Comparative Law, 6, 1017–1022. https://en.nbpublish.com/library_read_article.php?id=66186
Abstract:
The article is devoted to the history of creation and evolution of the Civil Code of France and to its influence
on legal development of the modern world. From the moment of its creation the Code has served not only as the
sample of the civil law codification in many countries of Europe, Latin America, Asia, but as a standard of legislatice
technique. The author analyses the ways of development of the Civil Code of France, existing problems of law application
practice, its significance for the provision of the unity of nation, consolidation of creatice forces, strengthening of
the respect to law.
Special attention is paid to the discussions about further fate of the Civil Code of France, which have started in 2004, in
its bicentennial year and which still continue in our days. The central place in these discussions is occupied by themes
of europeanization and internalization of law, modernization of civil law regulation, swiftly developing processes of
recodification.
The author calls to take into account European and international standards, existing economic and social conditions
in the processes of modernization of the Code and recodification, confirming her conclusions on the example of the
processes of the reform of contract law launched in France in 2005.
Keywords:
Civil code of France, codification, recodification, europeanization and internalization of law, reform of contract law, European public law, European private law.
Reference:
Makovsky A.L. (2014). Lessons of the French Civil Code. Journal of Foreign Legislation and Comparative Law, 6, 1023–1025. https://en.nbpublish.com/library_read_article.php?id=66187
Abstract:
In this article the author examines the French Civil Code (Napoleonic Code) as a result of creative work of French
lawyers and as a complex document, which reflects characteristic features of the French legal tradition. It is emphasized
that it is important to consider such foreign experience both when improving domestic legislation and when conducting
theoretical research. At the same time the author stresses that for these purposes it is essential to have the translations of
the French Civil Code, which are not only up to date from the factual point of view, including the newest amendments and
additions, but have the real theoretical nature, giving ground for the further profound work. It is pointed out in the article
that such translations, including those containing comments on the legislation, should have the necessary references to
the sources and also the information on amendments of the corresponding provisions of law and their prior wording. The
author gives examples of the translations that are successful in his opinion and also the ideas on how to improve other
translations. When improving the legislation it is vital to keep its national identity while paying close attention to the own
legacy of civil law, without blindly copying rules of the foreign law. In the author’s opinion we can learn such attitude
from the French lawyers. In terms of adoption of the Napoleonic Code there are also examined such issues as setting up
the legislative procedures and maintaining the balance between concretisation and abstraction when codifying civil law.
Keywords:
comparative law, civil law, civil code, Napoleonic Code, codification, institutions system, legal translation, lawmaking.
Reference:
Kaminskaya E.I. (2014). Freedom of Contract According to the French Civil Code:
Legal Wording and Interconnection of Rules. Journal of Foreign Legislation and Comparative Law, 6, 1026–1028. https://en.nbpublish.com/library_read_article.php?id=66188
Abstract:
The present article focuses on a fundamental legal principle of freedom of contract as it has been introduced
and brought into life by Section 1134 of the French Civil Code. Any contract is naturally based on the discretion of its parties
and cannot be legally formed at the absence of such discretion, the said idea being fully supported by the French civil
law. It is, however, the vital concern of the authors of the Code that a certain counterweight shall necessarily be applied
while enforcing the principle of the freedom of contract, and namely that of fair dealing rule. Correspondence between,
and not pure confrontation of, the two abovementioned doctrines – those of liberty (freedom of contract) and of duty
(“pacta sunt servanda”) in contractual relations, along with discretional and strict law rules, – makes the main feature of
the French approach as compared to other national civil law approaches. The author of this article insists that the legal tools used by the French Civil Code with the view to marry personal rights
to public interest be extraordinary. Limitations imposed on the right to contract which are specially provided by the text
of statute present but a point of departure for the French civil law. The Civil Code goes further and establishes priorities
and assumptions so that courts are thereby offered general directions in application of law. Noticeable is the fact that
under the French contract law priority evidently goes to public interest, and not to individual one, so that the French
version of the freedom of contract doctrine turns out to be seriously restricted.
Keywords:
contract, agreement, freedom of contract, liberty, the French Civil Code, non-compulsory regulation, discretionary rules, obligation, duty, principles governing civil law, legal wording, construction of legal rule, public interest, priority, statute, equity.
Reference:
Zakharova M. V. (2014). Category of "Legal System" in Theoretical and Comparative
Knowledge of Russia and other Countries. Journal of Foreign Legislation and Comparative Law, 6, 1029–1033. https://en.nbpublish.com/library_read_article.php?id=66189
Abstract:
In this article, the author refers to the experience of the gnoseological analysis of the category of "legal
system" by representatives of various streams and schools of thought: positivist, post-positivist, sociological, etc. In
particular, it is established that in terms of the scope of the “legal system” concept we can speak about two main methodological
platforms when assessing it: the regulatory one and the sociological one. While in the first case the scope of
the “legal system” notion is limited to the regulatory framework only, in the second case its content is enlarged due to
new elements. The author points out that a special place in the legal system assessment is occupied by a cultural and
value-based approach to the assessment. Used together with the civilizational methodological platform developed in
comparative law (legal comparativistics), it is able to reveal not only the formal aspects of the legal phenomenon, but
its hidden features and aspects as well. The article also presents four main components of the legal system: regulatory,
organizational, functional and ideological.
In course of presenting the material, the author makes a conclusion on the need to intensify the research of the said
phenomenon within the framework of the general theory of law.
Keywords:
law, legal system, theory of law, approach, assessment.
THEORY AND METHODOLOGY OF COMPARATIVE LAW
Reference:
Georgievsky E.V. (2014). Religious Encroachments in Criminal Law of
Early Medieval Germany. Journal of Foreign Legislation and Comparative Law, 6, 1034–1046. https://en.nbpublish.com/library_read_article.php?id=66190
Abstract:
Religious abuse in the criminal law of ancient and early medieval Germany was paid the closest attention.
This is due to the fact that the Frankish monarchy was established by church and at the same time the church
in barbarian society was established by Frankish monarchy, and the Frankish kings helped to strengthen the
church. This political, legal and social interpenetration was expressed in the fact that Christianity of Merovingian
receives character of a "privileged enforcement agency" and belonging to it was not already a matter of free internal
beliefs – it was the duty of citizens of the state. All religious crimes in early medieval Germany, as reflected
in the first Ancient Germanic law, can be divided into two groups. The first could be considered as criminal acts
that have become new laws from pagan times, but did not contradict the Christian laws, either in form or content.
The second concerned crimes that infringe on the interests of the Christian religion and emerging in the Christian
era. As laid down in the first Ancient Germanic law, religious crimes have not yet been clearly systematized, the
more they encroach less on dogma, but rather on external ritual practices, but these standards was already quite
stable and reliably defended the new object of criminal law protection in early medieval Germany – the foundations
of the religious peace.
Keywords:
early medieval Germany, religious crimes, ritual practices, the Christian dogma, criminal-law protection, idolatry, sorcery, strife in the church, blasphemy, perjury.
Reference:
Lafitsky V.I. (2014). Comparative Law Dimension of Time and Space. Journal of Foreign Legislation and Comparative Law, 6, 1047–1051. https://en.nbpublish.com/library_read_article.php?id=66191
Abstract:
The article is devoted to comparative law dimension of time and space as fundamental categories of law.
Initially, from the birth of law, they were acknowledged as its immanent attributes determining its temporal and spatial
limits. Proving this, the author analyses sacred scriptures and first secular legislative acts.
For instance, Torah and after it the Old Testament laid down such features (manifestations) of time in legislation and
in application of law, as eternity, discontinuity, selectivity and termination of action, cyclicity of development, determinacy
(inevitability) of events and legal facts and impossibility to subordinate the flow of time.
Many of the aforesaid temporal features one may find in the Quranic, Vedic, other sacred scriptures, as well as in the
monuments of secular legislation of different epochs and legal traditions.
In the further legal development temporal features of law were not left unaltered. They have been changing, obtaining
new features, preserving at the same time inseparable link with the initial sources which had given them life. Sacred scriptures and monuments of ancient law reveal different spatial attributes (manifestations) of law. Torah,
Quran, sacred books of Hindu, Buddhist and other religious traditions had singled out the space of sovereign power of
a state which was limited by national territorial boundaries and which was often including the enclaves of alien law. At
the same time there had been a space of religious law individual and public conscience which was not limited by any
state boudaries. Such dualism of spatial limits of law is preserved in our days, in particular, in Judaic and Islamic legal
traditions. Other spatial manifestations of law also existed. Along with the norms of general action, there were norms
embracing certain territories of the state, appropriate ethnical, merchant, artisan, agricultural communities, separate
families, persons and belonging to them objects of movable and immovable property. Unity and at the same time fragmentation
of spatial limits of law is also preserved in modern law.
There also exists the expiration born in ancient time for enlarging the spatial space of law beyond the boundaries of
their states.
Keywords:
Time, space, law, legal tradition, sacred scriptures, monuments of law, temporal features of law, spatial features of law.
Reference:
Tanchev E. (2014). Constitutional Pluralism and Multi-Level
Governance in the European Union. Journal of Foreign Legislation and Comparative Law, 6, 1052–1062. https://en.nbpublish.com/library_read_article.php?id=66192
Abstract:
The article considers the issues of multi-level governance in the EU in the light of constitutional pluralism. The
author notes that in contemporary global age constitutional pluralism poses challenges to traditional legal theory failure
to explain emerging new issues. At the same time European integration transformed the legal pluralism built on the
coexistence of national and international law into interaction between various levels of constitutional arrangements.
Globalization is still looking for its own constitutional order and the rule of law and global standards interaction with
national constitutional orders has still to rely on pacta sunt servanda principle. Expanding constitutional governance
at global level is related to the concept of societal constitutionalism relating to broadening the scope of regulation
which has been one of the main trends in the fourth constitutional generation. Societal constitutionalism concerns
the increasing number of actors in political decision-making process and poses limitations on their actions. The author
notes the growing importance of international legal standards and norms of «soft law». International legal standards
are within this context a linkage between national and global constitutionalism. They provide compliance of different
legal orders of contemporary constitutional pluralism.
Keywords:
multi-level governance, globalization, constitutionalism, constitution, international legal standards, soft law, European Union.
Reference:
Fedorov A.V. (2014). Introduction to the Russian Federation of the Criminal
Liability of Legal Persons as a Result of the Objective
Development of Criminal Law in Space and Time. Journal of Foreign Legislation and Comparative Law, 6, 1063–1067. https://en.nbpublish.com/library_read_article.php?id=66193
Abstract:
The article explains the author's conclusion that the imposition of criminal liability of legal persons is
forecast trends of development in the Russian legislation, and the objective conditionality of introduction of such
liability is revealed. Article summarizes previously published author's publications on the introduction of criminal
liability of legal persons, referring to these publications and focusing on the conditionality of development of the
criminal law in this part in space and time. The author concludes that upon the occurrence of socio-economic
changes often change the object of criminal law protection and approach to criminalization and decriminalization
of offenses related to the changed economic and social relations. As a result, the prevailing uniformity of
legal decisions in certain groups of countries can be destroyed or, conversely, a convergence of national laws in
some areas can occur. The attention is paid to the need to attitude to the law as an important element in the tool
management system of community which has a significant impact on the economy and society as a whole. It is
indicated that the criminal liability of legal persons is established in many countries and is provided by international
treaties.
It is stated that the accession of the Russian Federation to the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions of 1997 in order to create conditions for the subsequent membership in
the Organization for Economic Cooperation and Development will require the establishment of criminal liability of legal
persons for international bribery, because according to established practice, the countries – candidates for accession to
the OECD, are required to install only the criminal liability for such acts. The materials to introduce criminal liability of
legal persons in the People's Republic of China , which, like the Russian Federation, is taking steps to ensure the legal
transition from socialist to market economic relations are presented.
Keywords:
comparative law, due to the development of criminal law in space and time, the criminal liability of legal persons, Chinese law on criminal liability of legal persons, international treaties, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Trans
Reference:
Kashkin S.Yu. (2014). Space and Time in Integration Law: Trends and Prospects. Journal of Foreign Legislation and Comparative Law, 6, 1068–1074. https://en.nbpublish.com/library_read_article.php?id=66194
Abstract:
The article is devoted to the philosophical and theoretical analysis of the concepts of space and time in the
integration law. It emphasizes the interconnection of these concepts, reinforcing their role in the modern world. There is
an increasing geographical spatial scale of integration organizations and strengthening of their influence in the process
of globalization, as well as reduction of the period of time during which the highly crucial for the world events are taking
place. We study the forms and types of integration organizations through the prism of interaction and mutual influence
of space and time. The phenomenon of integration of integrations, which creates new opportunities to influence the processes
of globalization and their course in time and space are analyzed. Particular attention is paid to the development of
integration in the post-Soviet aria, especially in the form of the Eurasian Economic Union, which combined the features of
European, Asian and other integration organizations and in the course of practice is intended to promote the translation
of globalization in a more democratic, civilizational direction. Development of each integration organization is compared
to the stages of human development: birth, youth, maturity, old age and death. The characteristics of each stage are
given. The trends and the main directions of future development of the integration law are analyzed.
Keywords:
philosophy of the supranational law, space, time, integration law, integration organizations, international law, national law, EC, RF, globalization.
Reference:
Kapustin A.Ya. (2014). International Legal Dimension of Space and Time. Journal of Foreign Legislation and Comparative Law, 6, 1075–1080. https://en.nbpublish.com/library_read_article.php?id=66195
Abstract:
The article considers the spatial and temporal characteristics of international law that characterize international
law as a social normative regulator of interstate relations. Wherein the effect of international law in the space is
analyzed taking into account the category of the object sphere of international law and its relation to the categories of
"spatial" or "territorial" scope of international law.
In addition, the article examines the current practice of international legal regulation of the use of the concepts of
"territory" and "space" not only in terms of the quality characteristics of existing norms of international law, but also
as a specific subject of international legal relations. For these purposes, an analysis of the concept of territory and its
separate parts, formed in the doctrine and practice of international law, as well as in the national legislation of Russia.
Along with this the examples of sustainable use of the term "space" in relation to individual objects of international
legal regulation (air space, outer space, and others.), as well as a new phenomenon in international law – international
legal integration spaces (a common economic space) are considered. Considering the various meanings of the term
"space" a new term "inner space", which refers to the normative content of the scope of international law or the substantive
scope of international law is introduced. In this regard, it is noted that the historical progress of international
law was accompanied by a steady expansion of its internal borders.
The international legal temporary development which is subject to the same social changes that can be observed in
other social processes or systems is analyzed.
Keywords:
international law, international relations, social normative regulator, spatial and territorial scope of international law, international legal development of time dimension.
Reference:
Kashirkina A.A. (2014). Promotion of Eurasian Integration through Time and Space:
Current and Future International Legal Regulation. Journal of Foreign Legislation and Comparative Law, 6, 1081–1086. https://en.nbpublish.com/library_read_article.php?id=66196
Abstract:
The article is devoted to the analysis of problems and prospects of the development and functioning of the
Eurasian economic Union as the successor of the Customs Union. The paper considers the spatial and chronological parameters
of promotion of Eurasian integration in the post-Soviet space. In chronological aspect of the formation of the
Eurasian economic Union was preceded by four of the Customs Union established in accordance with international treaties.
From the point of view of the spatial dimension of the Eurasian economic Union it was enlarged by the accession of
new members of the Republic of Armenia and the Kyrgyz Republic. At the same time it is necessary to further expansion
of the Eurasian economic Union, by increasing joint areas of cooperation, and by the admission of new members.
The fact that at the present time the cooperation of the member States of the Eurasian economic Union is quite limited is
noted . However, achieving even this level is a major progress for the post-Soviet States. The experience of the European
Union in the construction of the Eurasian economic Union cannot be blindly adopted, but is subject to deep study and adaptation.
This article contains a proposal for the extension of the international legal framework of the Eurasian economic
Union in the development and adoption of the Eurasian anti-corruption strategy. The positive role of the international
anti-corruption standards, which can be fixed in the Eurasian anti-corruption strategy are highlighted. The conclusion of
an international agreement on harmonized approaches of the member States of the Eurasian economic Union to the
prevention and liquidation of emergency situations of natural and technogenic character and conduct of rescue operations
is also proposed. Specific recommendations on the structure and contents of this agreement are also presented.
Keywords:
integration, Eurasian economic Union, Customs Union, international legal regulation, the chronological factor, space, time, international treaty, the Eurasian anti-corruption strategy, emergency, prevention, elimination, international cooperation.
Reference:
Leschenkov F.A. (2014). Review of IV International Congress of Comparative Law
“Time and Space in International and National Law”. Journal of Foreign Legislation and Comparative Law, 6, 1087–1100. https://en.nbpublish.com/library_read_article.php?id=66197
Abstract:
The article is devoted to the IVth International Congress of Comparative Law devoted to the theme “Time
and Space in International and National Law” which was organized on 3th – 4th of December, 2014 by the Institute
of Legislation and Comparative Law under the Government of Russian Federation with the participation of the Venice
Commission and where have taken part many leading Russian and foreign specialists in the field of comparative jurisprudence
and international law.
Within the framework of the Congress there three sections “Problems of Sovereignty and Spatial Limits of State Power”,
“Temporal Action of Law in Comparative Law Perspective”, “Territories in International Law: Practical Issues”, round
table “Norms of National Law in the Focus of International Justice”, round table of young comparative law specialists
“Problems of Modern Legal Spaces”.
At the plenary session there were two main reports presented by V. Lafitsky, the deputy director of the Institute of
Legislation and Comparative Law under the Russian Federation Government, and by E. Tunchev, deputy chairman of
the European Commission for Democracy Through Law (Venice Commission of the Council of Europe).
Plenary session was continued by three discussion sessions “International Normative Legal Comprehension of Space
and Time”, “Space and Time in the Legal Doctrine of Modern World”, “Harmonization of International Law and National
Law Models of Space and Time”.
Keywords:
comparative law, jurisprudence, international relationships, foreign states, space, time, sovereignty, perspective, integration, Congress of Comparative Jurisprudence.
INTERNATIONAL LAW AND EUROPEAN LAW
Reference:
Osminin B.I. (2014). Impact of the Decision of the U.S. Supreme
Court Medellin v. Texas on the Implementation
of International Treaty Obligations of the United States. Journal of Foreign Legislation and Comparative Law, 6, 1101–1109. https://en.nbpublish.com/library_read_article.php?id=66198
Abstract:
The US Constitution (art. VI) states that “all treaties made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land”. Early in the country history, the U.S. Supreme court distinguished between
treaties “equivalent to an act of legislature” – and therefore enforceable in the courts – and those “the legislature should
execute” – meaning they could not be enforced in the courts until implemented by Congress and the President. The Supreme
court addressed the self-execution doctrine at some length in its 2008 decision, Medellin v. Texas. In 2004 the International
Court of Justice found that the United States had violated art. 36 of the Vienna convention on consular relations by failing to
inform 51 Mexican nationals of their rights to have their consulate notified of the arrest. The Supreme court held that this
judgment is not directly enforceable as domestic law. While a treaty may constitute an international commitment it is not
binding domestic law, the Court said, unless Congress has enacted statutes implementing it or the treaty itself conveys an
intention that it be “self-executing” and is ratified on that basis. None of the relevant treaties creates binding federal law in
the absence of implementing legislation, and no such legislation has been enacted. The opinion of the Supreme court leaves
unclear whether a non-self-executing treaty is merely judicially unenforceable, or whether it more broadly lacks the status
of domestic law. This could call into question the status of many existing bilateral and multilateral treaties for which there is
neither domestic implementing legislation nor a clear record that they are self-executing.
Keywords:
the consular notification, the International Court of Justice, the U.S. Supreme court, the Medellin v. Texas decision, self-executing treaties, non-self-executing treaties, a private right, a private right of action, a presumption in favor of treaty self-execution, a presumption against treaty self-execution.
INTERNATIONAL LAW AND EUROPEAN LAW
Reference:
Tsirina M.A. (2014). International Legal Regulation of the Issues of
Transparency and Openness of the Activities of Juridical
Persons in the Aspect of Beneficial Ownership. Journal of Foreign Legislation and Comparative Law, 6, 1110–1120. https://en.nbpublish.com/library_read_article.php?id=66199
Abstract:
The subject of study is the international legal regulation of the issues of transparency and openness of the
activities of juridical persons.
The article analyzes the international treaties and acts of regional organizations active in this sphere, including the
Directive of the European Parliament and of the Council number 2005/60 / EC of 26 October 2005, the European Commission
Directive number 2006/70 / EC of 1 August 2006, Recommendations Financial Action Task Force on Money
Laundering (FATF), and others.
The main attention is paid to the identification of beneficial owners. Disclosure of beneficial ownership serves the purpose
of determining the control circuit of juridical persons, to prevent the laundering (legalization) of money, corruption, and ensure tax compliance by the said persons. According to the results of the analysis of the international legal
regulation of transparency and openness of the activities of juridical persons the author provides recommendations for
improvement of the Russian legislation in this area.
The methodological device of this scientific research is made by the general and special methods of scientific knowledge
which are successfully approved during basic and applied researches, among which: the formal and logical method
including the analysis and synthesis, analogy and comparison; system and structural method; the legalistic; the
comparative and legal; method of interpretation of the law, etc.
Keywords:
transparency of activity of juridical persons, openness of activity of juridical persons, beneficial ownership, identification of beneficial owner, anti-corruption, anti-money laundering, the adequate verification of customer, EU, FATF.
INTERNATIONAL LAW AND EUROPEAN LAW
Reference:
Sychenko E.V. (2014). European View on Freedom of Trade Unions:
the European Court of Human Rights. Journal of Foreign Legislation and Comparative Law, 6, 1121–1125. https://en.nbpublish.com/library_read_article.php?id=66200
Abstract:
The author analyzes the practice of the European Court of Human Rights on cases of violations of the art. 11 of the
European Convention on Human Rights by states, which provides the freedom of association. This freedom with regard to
trade union organizations is widely interpreted by the Court. The article includes analysis of its components, such as the right
to collective bargaining, the right to strike or the right to protection from discrimination, the right to freedom of expression,
and others. The author has studied the judgments of the European Court of Human Rights, located in the database HUDOC,
so the Court approaches to freedom of association in relation to trade union activities are analyzed in general.
The practice of the European Court of Human Rights in the field of labor law is not so much studied because of small
number of cases dealing directly with the protection of labor rights. At the same time, despite the scarcity of such decisions
the legal positions of the Court are of great importance, both theoretically and practically. As a main conclusion
the author would like to mention a broad approach to the interpretation by the Court of the right to association and
the theoretical possibility to apply such a broad interpretation by the national courts.
Keywords:
trade union, European Court of Justice, freedom of association, collective bargaining, discrimination, strike, freedom of expression, the European Convention, a member of the trade union, employer obligations.
INTERNATIONAL LAW AND EUROPEAN LAW
Reference:
Dzhimbeeva D.V. (2014). Emerging Approaches to Conflict Regulation Obligations
of Unjust Enrichment in the Russian Legislation. Journal of Foreign Legislation and Comparative Law, 6, 1126–1131. https://en.nbpublish.com/library_read_article.php?id=66201
Abstract:
The article considers the changes to Section VI of Civil Code of the Russian Federation “International private
Law” in respect of unjust enrichment obligations. The author analyses choice of law provisions on unjust enrichment
contained in Reglament “Rome II” and undertakes a comparison with Russian conflict of laws regulation system (articles
1223 and 1223.1 CC). The article outlines the advantages and disadvantages of the novelties of choice of law
rules in unjust enrichment. Based upon on the analysis of the Reglament, the author ascertains the modern tendencies
of conflict-of-law regulation in condictio obligations (application of party autonomy, influence of the most closest
connection principle). Taking into account the tendencies as specified, there are some modifications to be proposed
for introduction in current Russian choice of law rules. The methods of research which are used in the article include
both general scientific (dialectic, system, structural functional methods as well as techniques of formal logic- analysis,
synthesis, induction and deduction) and private scientific (historical, legal comparative, formal juridical, linguistic,
sociological, juridical technical) ones. Based upon on the comparative analysis of Russian choice of law rules in article
1223 of the Civil Code and of the Reglament provisions and subject to the tendencies of conflict-of-law regulation in
the area of unjust enrichment the author has made the following conclusions:
– on necessity of “lex causae condictionis” as the main connecting factor of choice of law rule;
– on addition of article 1223 of the Civil Code by the law of country to which the unjust enrichment obligation is most
closely connected as a subsidiary choice of law rule together with the current choice of law norms;
– on non-possibility of application of traditional approach on the basis of “rigid” connecting factor addressing to the
law of place of unjust enrichment to unjust enrichment cases in the sphere of electronic payments. The most optimal
approach in such cases is to apply the law of most closest connection with a wide range of criteria not only by subject
of relationship, but by place of action or circumstance causing unjust enrichment.
Keywords:
unjust enrichment, tendencies of conflict-of-law regulation, changes of the Civil Code, international private law, choice of law rules, reglament “Rome II”, most closest connection, party autonomy, differentiation of connecting factors, flexibility of choice-of-law regulation.
Reference:
Chernukhina L. S. (2014). Penal policy of Canada in the Sphere of Child Protection. Journal of Foreign Legislation and Comparative Law, 6, 1132–1139. https://en.nbpublish.com/library_read_article.php?id=66202
Abstract:
The article examines the main trends in the formation of criminal legal policy of Canada with the field
of protection of the children from sexual assault, offences related to trafficking in persons, abuse and failure to perform duties of persons to provide children necessaries. A comparative analysis of The Criminal Code sections
as amended and as of March 2012 was made in view of changes introduced by The Safe Streets and Communities
Act (covering areas of criminal responsibility for sexual offences). The author points to integrated approach to
the protection of children from all forms of sexual exploitation and abuse. This approach includes strengthening
the legal framework on conduct related to sexual exploitation and abuse and the prevention and punishment of
conjugal violence and violence against children, development of various tools and strategies for law enforcement
institutions, etc.
The general tendency in the development of Canadian criminal law policy in the protection of the rights of the child is
to increase penalties for sexual offenders against children and the mandatory minimum sentences, to strengthen the
sex-offender registry, to criminalize new offences. In Canada several programmes had been implemented and many
social services centers have been set up in order to minimize negative social consequences and to facilitate the rehabilitation
of child victims. On witness protection special measures for the protection of witnesses and victims of crimes
are wildly provided.
On the 9th of December,2014 the Royal Assent was given to the Protecting Canadians from Online Crime Act. This act
creates a new criminal offence of non-consensual distribution of intimate images.
Keywords:
the rights of the child protection, criminal responsibility, sexual offences, trafficking in persons, kidnapping, abduction, failure to perform duties of persons to provide necessaries, mandatory minimum sentencing, prohibition orders.
Reference:
Teplyashin P.V. (2014). Theoretical Basis of Classification and Typology
of the European Penitentiary Systems. Journal of Foreign Legislation and Comparative Law, 6, 1140–1151. https://en.nbpublish.com/library_read_article.php?id=66203
Abstract:
The requirements of national science of criminal penitentiary law and penal system in adoption of positively
proved the European penitentiary practice is under the investigation in this article. The category “penitentiary system”
and the limits of the method of comparative jurisprudence usage in the analysis of the European penitentiary systems
are studied. The doctrinal positions on the possibility of comparison of national penal system simultaneously with the
whole array of European penitentiary system are subjected to criticism. The scientific basis of the classification and
typology of the European penitentiary systems are presented.
The cultural and historical regularities of formation and development, typical law enforcement features of particular
European penitentiary systems are revealed. The method of comparative jurisprudence and the system analysis of the
European penitentiary reality are used in this article. The methodological substantiation of the existence of a group of
European states with their typical features of penitentiary practice is given. The system approach to the investigation of
the European penology made it possible for the author to propose classification and typology criteria of the European
penitentiary systems.
The author presents the common characteristic of 10 types of the European penitentiary systems: 1) Scandinavian
(North – European) one; 2) English and Irish one; 3) Dutch one; 4) Germany one; 5) French one; 6) Iberian one; 7)
South – European one; 8) East – European one; 9) Baltic one and 10) Slavic one. The conclusion on inexpediency to
compare the Russian penitentiary system simultaneously with the whole array of the European ones is made.
Keywords:
European penology, prisoner, Execution of criminal punishment, continental legal system, convict’s accommodation, keeping regime, resocialization, type of the penitentiary system, penal system, private prison.
Reference:
Akopyan O.A. (2014). New Trends in Regulation of Banking Sectors in the USA. Journal of Foreign Legislation and Comparative Law, 6, 1152–1156. https://en.nbpublish.com/library_read_article.php?id=66204
Abstract:
The subject of the present research is the issues and trends of state regulation of the banking sector in the
United States. Particular attention is paid to the new legislative changes in the US banking legislation, the creation of
new institutions in the financial sphere, as well as changes in attitudes of the regulation of the US financial sector as
a whole. The problems in the regulation of mergers and acquisitions in the banking sector are considered. This article
describes a number of new programs aimed at regulating the banking sector, developed jointly by the Federal Reserve
System and the US Treasury Department.
The methodological basis of the study are the dialectical method of scientific knowledge, and scientific and special
methods: system-structural, comparative, logic, observation, description, statistical. Also the method of documentary
analysis, the method of abstraction and generalization are used.
The main trend in the regulation of the banking sector and the entire US financial sector as a whole marks a transition
from a period of progressive liberalization, based on the theory of self-regulating markets that can come to an equilibrium
and ensure the most efficient allocation of resources with minimal interference of the state, to realization of the
need for restrictions on the freedom of the market by expanding the powers of the regulatory authorities.
Keywords:
bank, finance, investment, the US, Federal Reserve System, reform, crisis, trends, institutions, government regulation.
Reference:
Krysenkova N.B. (2014). Information Technologies in Electoral Process of India. Journal of Foreign Legislation and Comparative Law, 6, 1157–1164. https://en.nbpublish.com/library_read_article.php?id=66205
Abstract:
The article is devoted to features of information technologies usage in Indian electoral process. Information
technologies are often used in different spheres of social life, but its implementation in elections just begins in foreign
countries and in the Russian Federation. The online registration of voters, voter’s information on voting process, location
of polling stations and other electoral information, video streaming of voting process and vote counting are the
most popular in foreign countries. India is not excluded from the list of such countries.
The author presents the analysis of different technologies which are used in the voting process and in the process of
organization of elections in India, such as: electronic voting machines, which was applied in elections in the end of XX
century in the first time, voters’ informing on location of polling station, voting process and other electoral information
through the cell phones, online registration of voters through the Election Commission of India website.
The author also examines the authorities and organizations responsible for implementation and working out of information
technologies for elections.
Keywords:
information technologies, India, elections, voting, electronic voting machines, internet voting, electoral process, voters’ informing.
Reference:
Rogozhkina T.V. (2014). Defining the Mission of Ecological Standards on the
Example of the Legislation of the Republic of Belarus
and other States. Journal of Foreign Legislation and Comparative Law, 6, 1165–1169. https://en.nbpublish.com/library_read_article.php?id=66206
Abstract:
The article discusses the purpose of ecological standardization- one of the most important elements of the
legal framework for the protection of the environment. The purpose of ecological standards due to the goals of ecological
standardization is determined. The analysis is performed on the basis of the provisions of the Law of the Republic
of Belarus "On environmental protection", the Federal Law of the Russian Federation "On environmental protection",
the model Environmental Code of the Commonwealth of Independent States, the model Law "On ecological safety",
the Code of the environment of France, environmental law of the Republic of Belarus, the Russian Federation, India
and the USA.
The scientific methods and special techniques inherent in legal sciences – comparative law and legal modeling were used
during preparation of the article. The theoretical conclusions necessary for the further formation of the concept of ecological
standardization, the development of legal regulation in the direction of increasing the role of ecological standardization
in the implementation of environmental rights are made. Thus, in a number of ecological standards is proposed to
distinguish ecological standards providing parameters of the impacts of environmental factors on human being.
Keywords:
comparative law, environmental law, favorable environment, ecological standardization, ecological standard, environmental rights of citizens, the protection of human health, ecological safety.
Reference:
Kurbanov R.A., Shvedkova O.V., Belyalova A.M., Demina A.N. (2014). Analytic Review of Reports and Decisions, adopted on
the 101th Plenary Session of the European Commission for
Democracy through Law (Venice Commission). Journal of Foreign Legislation and Comparative Law, 6, 1170–1182. https://en.nbpublish.com/library_read_article.php?id=66207
Abstract:
This paper presents a summary of the 101st plenary session of the European Commission for Democracy
through Law (Venice Commission of the Council of Europe), which adopted a number of opinions on legislation of the
countries – members of the Venice Commission, including an opinion on the Law of Ukraine on lustration, as well as in
regard to the law of Azerbaijan, Georgia, Moldova, Montenegro. the Rules of Procedure of the Venice Commission and
OSCE/ODIHR on freedom of association was also approved on the 101st plenary session.
Keywords:
European Commission for Democracy through Law, Venice Commission, Council of Europe, 101st plenary session, law on lustration, law on non-governmental organizations, opinion, analysis of legislation, Constitutional development, rule of law.