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Reference:
L.V. Sokolskaya. (2009). The Notion and Signs of Legal Acculturation. LEX RUSSICA (Russian Law), 3, 557–569. https://en.nbpublish.com/library_read_article.php?id=59746
Abstract:
In the article author probes notion and signs one of problems of cooperation
of the in a civilized manner-legal systems – legal acculturation.
Conducting the etymologic analysis of notion in scientific literature an
author comes to the conclusion, that acculturation it is the protracted process of
influencing of cultures of different group, at which contact the culture systems
are perceived by properties of each other, as a result the certain “identicalness”
of both cultures is formed and there is new integrity, possessing new descriptions
high-quality.
Comparatively recently acculturation became the article of independent
researchin domestic and foreign jurisprudence. The theory of the state and right
only begins to probe this phenomenon, therefore fundamental theoretical developments
absent until now. And exactly fundamental acculturation researches
actuality until now. Due to constantly appearing works which affect the insufficiently
known or in general new aspects of this problem, the theory of legal acculturation
is complemented new ideas and the same develops and perfected.
As a result of the conducted research author formulated the followings
conclusions:
1. Legal acculturation is determined through the categories of process
and result of co-operation of the different in a civilized manner-legal systems;
2. As a process of co-operation can flow in different forms and accept
voluntarily, forced or forced character, volume of term “legal acculturation” depends
on that includes researcher in his maintenance.
3. Volume of term “legal acculturation” associates and with the results
of legal co-operation (effective, partly effective and uneffective acculturation). If
legal co-operation carried mainly one-sided character and resulted not in transformation,
but to absorption of one legal system other, whether there will not be
this “deacculturation.”
4. As a result of co-operation there is an origin of new integrity, possessing
new properties high-quality, conditioned both properties of basic parts and
origin of the new systems of connections between parts. Volume of term legal
acculturation such, depends appearance on forming high-quality of new integrity,
for example, of single legal space.
On the basis of foregoing the following determination is formulated: legal
acculturationis the long contact of the in a civilized manner-legal systems of
different group, utillizing depending on historical terms various methods and
methods of influence the necessary result of which is a change of primary structures
of culture of contact and forming of single legal space.
Further the signs of legal acculturation open up an author, distinguishing
it from other forms of cultural exchange.
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Reference:
M.A. Prikhodko. (2009). The Historical and Legal Systematization of Central
Institutions of Public Administration in the Russian Empire by September 8,
1802. LEX RUSSICA (Russian Law), 3, 570–576. https://en.nbpublish.com/library_read_article.php?id=59747
Abstract:
The problem of the systematization of central institutions of public administration
in the Russian Empire in the beginning of XIX century is still one
of not adequately explored and vexed points in the Russian history of state and
law.
Pre-revolutionary, Soviet and contemporary Russian researches give just
an approximate picture of the system of central institutions of state administration
in Russia in XVIII–XIX centuries. Basically 8 collegiums are listed: The
Department of Water Communications, the Main Postal Directorial Board, The
Expedition of State Economy, the Guardianship of Foreigners and Rural Home
Economics, the Department of State Treasurer, sometimes – the Department of
Independent Principalities, the Cabinet of His Imperial Majesty, the Court Chancellery,
and, as a rule, this is the end. The same applies both to the latest textbooks
and to the schematic material devoted to the given problem.
Meanwhile, the actual system of central institutions of public administration
in Russia in the beginning of XIX century was much more diverse and
multifold.
Such discrepancy is explained by objective difficulties in the research of
the history of state and law, and the history of public administration in Russia at
the turn of XVIII–XIX centuries.
One of the major difficulties is a lack of a legally vested legal status of a
central institution for many public administration institutions of that historical
period that makes their strict identification practically impossible.
Besides, in accordance with the choice words of the Soviet historian of
state institutions, A.V. Chernov: “The institutions of XVIII century had not been
formed in centralized administrative authorities (departments) that existed in
XIX–XX centuries),” that complicates the research.
In spite of a lot of difficulties the systematization of central institutions
of public administration, seems to be possible. More than that, there is a need in
this systematization for the research of the structure of state institutions of that
period.
For that we have to make the classification of all central institutions (as
well as relative ones) of public administration in the following groups: collegiums, institutions with a status of collegium, collegiate institutions and court
administration institutions.
The similar systematization of central institutions of public administration
in the Russian Imperia in the beginning of XIX century gives an opportunity
to understand more precisely a lot of structural and organizational aspects of the
history of state and law in Russia in that period.
Along with that the given systematization is important indirectly, from
the historical and legal point of view, for the present system of public administration
as well, in connection with the administrative reform, that is under way
in Russia.
Keywords:
istoriya gosudarstva i prava, gosudarstvennoe upravlenie, Rossiiskaya imperiya, kollegiya, kollezhskoe uchrezhdenie, uchrezhdenie pridvornogo upravleniya
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Reference:
T.V. Shershen’. (2009). On the Principle of Strengthening a Family in Russia. LEX RUSSICA (Russian Law), 3, 577–582. https://en.nbpublish.com/library_read_article.php?id=59748
Abstract:
2008 year is announced a Family Year. Along with this, necessity of developing
different attitude to a family from state and society puts the task of
providing a national priority of healthy and having many children family not for
one year but for decades.
The article is ablout the principle of strengthening a family as one of
fundamental principles of a family law of the Russian Federation. Here are being
investigated provisions of a family law of Russia, aimed at implementation of
the principle of necessity of strengthening a family, being disclosed its contents
and analyzed problems which take place in law enforcement practice.
Here are being researched basic problems of a modern Russian family
and possible approaches of its solution from the position of optimization of private
and public sources in legal settlement of family relations.
Among basic sources of family law in paragraph 1 article 1 of Family
code the Russian Federation is proclaimed: “Family, maternity, fraternity and
childhood in the Russian Federation are under protection of the state. Family law
origins from necessity of strengthening a family, building family relations on
feelings of mutual love and respect, mutual aid and responsibility before a family
and its members, inadmissibility of accidental interference in family matters,
providing free exercising of rights by members of a family and possibility of
legal protection of these rights.”
A family is the basis of a society and it is exactly because a society itself
cannot exist without a family. A family is a mirror of a society, it changes as a
society changes, reflecting complications and problems of a certain stage in development
of public relations.
Tendencies of modern stage of development of a Russian society are low
birth rate and high mortality, preserving of which, as it was mentioned in the
report of UNO in April, may lead to the population of Russia by the beginning
of 2025 to be reduced till 125–135 mln of people, and by 2050 – by 100 mln
people. Unfortunately, not only characteristics of birth rate and mortality indicate
instability of a Russian family, but data of registered and dissolved marriages
ratio, where there are about 6–7 divorces for 10 registered marriages.
To strengthening of a family have been aimed a lot of standards of Family
law, first and foremost, Family code of the Russian Federation: firstly, regulation
of relations, preceding registering of marriage has the aim to create conditions,
promoting strengthening a future family (art. 11–15 Family code of RF);
Secondly, consolidation of the provision, limiting a husband’s right
without a wife’s consent to start a divorce case during her pregnancy and within
one year of a child’s birth (art. 17 Family code of RF);
Thirdly, concession the court of a right (in the absence of consent of one
parent to divorce) to postpone the trial of the case, setting the date of reconciliation
within three months (prov. 2 art. 22 Family code of RF);
Fourthly, acceptability of divorce only when the court establishes that
future joint life of spouses and preserving of a family is not possible (prov. 1 art.
22 Family code of RF);
Fifthly, acceptability by the court to recognize marriage valid even when
conditions of entry into marriage have been violated and there are grounds to
recognize marriage not valid, if by the moment of trying the case those circumstances,
which due to force of law prevented entry into marriage, have fallen
away (prov. 1 art. 29 Family code RF);
Sixthly, current family law does not admit parents’ refusal of parents’
rights, parents can be deprived of parents’ rights only on the grounds, the closed
list of which is stipulated in the law and in order, established by the law (art. 69,
70 Family code of RF);
Seventhly, deprivation of parents’ rights is not considered as a final
measure and therefore current legislature admits possibility of restoration of parents’
rights (art. 72 Family code RF);
The present article is devoted to investigation into these and many other
provisions, aimed at strengthening a family.
Keywords:
brak, rodstvo, usynovlenie
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Reference:
A.V. Volkov. (2009). The Role of the Article 10 of the Russian Federation
Civil Code in the System of Civil Legal Rules. LEX RUSSICA (Russian Law), 3, 583–592. https://en.nbpublish.com/library_read_article.php?id=59749
Abstract:
It is mentioned in the article that the notion “misuse of right” in the
modern system of the civil law is very vague and controversial.
In the civil law the majority of rules have optional structure of legal material,
the main point of which is in provision the person with an opportunity to
determine his/her behavior himself/herself willfully, that open the space for actions
of the person at his/her discretion. Guarantees of exercising civil rights are
an integral part and main point of any legal system, without which legal rights
would be declarations, failed to be exercised and useless, due to this. So, the rule
of Article 10 of the Russian Federation Civil Code refers to the rule-principle,
which guarantees proper exercising of civil rights in accordance with their real
purpose.
Article 10 of the Russian Federation Civil Code defines limits of civil
rights exercise, prohibiting absolutely distinct, namely misuse behavior. It provides a general restraint of discretion of civil turnover subjects, while they are
exercising their civil rights.
The sense of the text of Article 10 of the Russian Federation Civil Code
is wider than the sense of this article’s title, and it is inadmissible for the law.
Taking into consideration the mentioned information, in the notional order, it
would be more correct to give the following title to Article 10 of the Russian
Federation Civil Code: “Inadmissibility of misuse behavior” or “Criteria of using
civil rights,” or “Subjective limits of exercising the rights for participants of
civil matters,” or “Prohibition for negligent acts.”
Taking into consideration the above-mentioned, misuse of the civil law
can be defined as a special type of civil right violation, related to authorized person’s
going deliberately beyond inner limits (sense, purpose) of the civil law
(which are determined by the requirement of reasonableness and good faith, inclusive)
in order to reach his/her illegal hidden object with using juridical formalism
of the civil law, such as blanks, slips of the tongue, drawbacks, narrowness,
contradictions of legal rules and contractual provisions.
In juridical and technical view, misuse behavior is expressed when the
person violates the liability to faithfully exercise his/her right; this liability is
included in his/ her civil right and comes from ideas and principles of the civil
law (first of all, the principle of equity and the following principle to exercise the
right in good faith), when he/she follows formally of uses special civil legal
rules.
Keywords:
grazhdanskoe pravo, GK RF, zashchita prav, zloupotreblenie pravom, predely osushchestvleniya grazhdanskikh prav
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Reference:
I.B. Lagutin. (2009). Financial Control as a Category of Russian Financial
Law: New Visions of Definition. LEX RUSSICA (Russian Law), 3, 593–604. https://en.nbpublish.com/library_read_article.php?id=59750
Abstract:
Nowadays in Russia the theory of the financial control develops rather
active however the system of the institutions and the categories of the modern
financial law in Russia is exposed to the constant transformation that cause the
vast fields of the science researches.
Every science including juridical has its own categorical system. For
every science using conceptions are unequal with their importance, concernment
and role in the perception of the processes in this science.
This article is dedicated with the researching of the development of the
conception “financial control” in our country. Different points of view on the
problem of the different term apparatus of the financial control sphere are dedicated
in the issue. There is also the review of the last years scientific literature
devoted the financial control problems.
The author makes the conclusion that the financial-law categories among
the other categories have their own distinctions. Taking into account that the
financial-law has long history it’s impossible to say that the system of its law
categorical has been formed in full. One the direction of the financial-law science
development is the problem of applying those or other conceptions to the
financial-law science’s law categories.
The financial-law science’s law categories are divided into bases (the
model science conceptions) and special. In the article the author bases that the
financial control is the special category of the financial law that is indicated with
that this is the whole sphere of the financial law and this is the special conception
including the other conceptions (State and local financial control, currency
control, tax control, insurance and bank control etc).
The financial control in science means the special sphere of knowledge
connected with the learning the State and local finances expenses, its advisable
using and observance the legislation control action.
In the article the author bases that the financial control is not only economical
category and also law category that has theoretical and vast practical
importance.
Keywords:
kategoriya, finansovoe pravo
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Reference:
A.B. Agapov. (2009). Procedures of Management of Public Property. LEX RUSSICA (Russian Law), 3, 605–635. https://en.nbpublish.com/library_read_article.php?id=59751
Abstract:
Registration procedures represent the mediated form of the control over
realization by enforcement authority, the public or private commercial organization
of competences of possession, using or ordering of the state or municipal
property. Registration procedures include gathering, analytical processing (including
examination) of the data on public property and also using of such data
by the state body (organization) or the subject of private law.
Registration procedures are closely connected with realization of the
registration and other public allowing procedures carried to conducting of enforcement
authority, for example, to conducting by such bodies of registers, cadastres,
registers of objects of the real estate.
Maintenance of the control over rational use of corresponding property
object concerns to political-legal preconditions of registration procedures.
The major applicability of registration procedures is legitimization of
property competences. Execution by the legal owner of registration duties is the
necessary precondition of investment with its property competences.
Stages of realization of registration procedures: expert; analytical processing
of the information; appeal.
Special registration procedures are stipulated concerning the property,
which is turned into the property of the state as a result of fulfilment of an offence.
Legal regulation of the account of public property at a federal level is carried
to conducting by the Government of the Russian Federation and federal enforcement
authorities.
Estimated activity is one of stages of management of public property and
includes the administrative procedures which are carried out at a preventive
stage and a stage of state regulation.
The stage of a public regulation of estimated activity includes administrative
procedures of legal regulation, the control and supervision of activity of
the self-adjustable organizations of appraisers, and applications of sanctions to such organizations and their officials guilty of default of duties, established by
the federal legislation on estimated activity.
The control of the self-adjustable organization of appraisers for observance
by its members of the requirements established by the federal legislation,
concerns to the most important stages of a public regulation.
Default by the appraiser – member of the self-adjustable organization of
appraisers of the duties established by the federal legislation on estimated activity
and local normative legal certificates, published by the self-adjustable organization
of appraisers, entails application to the infringer of sanctions.
Keywords:
publichnoe imushchestvo, upravlenie, uchet, administrativnoe pravo, uchetnaya protsedura
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Reference:
L.A. Gros’. (2009). On Issuing Measures of Interim Protection in Arbitral
Procedure. LEX RUSSICA (Russian Law), 3, 636–646. https://en.nbpublish.com/library_read_article.php?id=59752
Abstract:
The article is dedicated to issuing measures of interim protection in the
proceedings of the State arbitration (commercial) court.
Having reviewed theoretical and practical aspects of their application,
the author makes the following conclusions.
1. The subject of interim relief in action proceedings is the subject of the
legal action, i.e. a substantive claim of the plaintiff to the respondent.
2. Measures of interim protection, defined and not defined in Article 91
of the Arbitration Code of Practice of the Russian Federation, are substantive
means to provide for civil liabilities implementation of which is made under the
specific procedural order based on the definition or ruling of the court.
3. Difficulties in issuing measures of interim protection are a consequence
of insufficient grounds for their application. A conclusion about them is
frequently made on the basis of assumptions on probable actions of the respondent
only. It is proposed to establish in the legislation a disputable presumption
of occurrence in future of the facts which may either impede execution of the
judicial decision or render it impossible.
4. As a measure of interim protection it is inadmissible to suspend levy
of execution issued by bailiffs based on the decisions of State courts and arbitration
tribunals.
Keywords:
grazhdanskii protsess, arbitrazhnyi protsess, obespechenie iska, obespechenie ispolneniya sudebnogo resheniya, obespechenie inykh imushchestvennykh interesov zayavitelya
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Reference:
V.N. Ivakin. (2009). The Special Powers of Litigant’s Representative in Civil
and Arbitration Proceedings. LEX RUSSICA (Russian Law), 3, 647–666. https://en.nbpublish.com/library_read_article.php?id=59753
Abstract:
The litigant’s representative in civil and arbitration proñess actions
within the limits of powers which was assignment to him. In this connection the
question about them volume is of great practical importance and needs careful
studi.
In the article points the extension of the volume of the special powers of
the representatives on a contractual basis the advocates included in the CPC RF
of 2002 year. The appointing in the CPC of the powers on the dispose actions in the executive proceedings that regulate the separate federal law recognized as
inexpedient. Are groundless also the offers to the addition of the list of the special
powers with the new powers.
At the same time exsists the necessity some to broad such powers as in
the CPC as in the APC RF of 2002 year. Was criticized the excessive increase of
the quantity of the special powers of the representatives in the APC which leads
as soon as to the complication of the legalization of the powers of the representatives
including advocates and can to break the interests of the principals.
The autor notes as the lack of the notarial practice the automatic legalization
of the powers of attorneys in all cases with the indication in them of the
whole of dispose actions without explanation of the consequences of these actions.
But the question whether he entrusts to the representative the accomplishment
of the actions which influences of the clame’s fate and the execution of the
judgement must decide himself the principal. In order to avoid the disputes will
better to indicate specifically in the power of attorney the dispose powers.
Unacceptable is the offer to complicate the order of the access in the trial
and the leave out of it by means of pronouncement of the decision that enters in
the record of proceedings. The need to include in the law the rule according to it
the principal can to empower one’s representative to accomplish of the separate
processing actions is absent too. Mistaken seems the opinion that needs to allow
to the principal to approve of the following accomplish of the dispose actions
with the litigant’s representative if he even hadn’t the legalized according powers
originally.
In conclusion were analysed the explanations of the Supreme Court of
the RF concerning powers of the advocates which take part in the trial as the
litigant’s representatives by appointment.
Keywords:
advokat, grazhdanskii protsess, arbitrazhnyi protsess
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Reference:
T.M. Makhova. (2009). Activities of Judge in Preparing Criminal Case for
Trial. LEX RUSSICA (Russian Law), 3, 667–672. https://en.nbpublish.com/library_read_article.php?id=59754
Abstract:
This article aims to consider a number of topical issues concerning the
role of judge at the stage of preparation of criminal case to the trial and his or her
appointment. Although Criminal Procedure Code of Russian Federation does not
specify the starting point for the beginning of this particular stage of criminal
procedure, but rather tends to link the deadline for making this decision by a
judge at this stage to the day when the criminal case entered the court; and also
Criminal Procedure Code of the Russian Federation does not provide for a judge
to make separate decision on starting proceedings for this case. In this regard, a
conclusion is made that the start of this stage will be the date when particular
criminal case entered the court office, thereafter court president orders a particular
judge to start proceedings on this case, which results in the judge making his
or her proceedings for this case. Such judge is entitled to make the most important
final decision reflecting the essence of this stage, that is, decision on the
possibility of ordering a trial on such case, which should be considered as taking the case to proceedings by the judge. Another matter considered in this article
concerns the right of the judge on its own to make decision on the inadmissibility
of the proof on this case at this stage of the process. Discussion matters include
deciding on whether a judge should be given a right – when determining
any grounds for conducting preliminary hearing – to order it in his own judgment
regardless of availability of petition by a party. In doing so the law allows
conducting preliminary hearing initiated by the judge if only the judge sees,
based on the material of the case under his or her scrutiny, any grounds for suspending
or terminating such criminal case or returning the case to public prosecutor.
Despite regulation of the procedure on exclusion of evidence, this article
draws attention to the absence in the law of a clear point made by lawmakers
concerning the right of judge on his or her own to make decision on exclusion of
evidence on the case, primarily in cases when respective petition failed to be
made by either party.
As substantiation of this proposal, an opinion is made that the judge
shall proceed with common case in such a way that while examining case papers,
he or she should find out the availability of not only factual but also legal
grounds for ordering a trial and in doing so the judge may reveal a breach of the
criminal procedure law as far as collection and verification of evidence is concerned,
while no reference to a petition made by a party in order to exclude such
evidence is found in any provision of the above mentioned and other clauses of
the Criminal Procedure Code of the Russian Federation.
Keywords:
ugolovnyi protsess, ugolovnoe sudoproizvodstvo, podgotovka k sudebnomu zasedaniyu, ugolovnoe delo
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Reference:
I.I. Chernykh (2009). The System of Case Preparation for the Court Trial. LEX RUSSICA (Russian Law), 3, 673–684. https://en.nbpublish.com/library_read_article.php?id=59755
Abstract:
In modern Russia the process of improvement in civil proceedings and
growing in efficiency of individual protection citizens’ and organizations’ rights
is the most important direction of public formation.
More often the greatest and profound tendencies on proceedings development
are formed by court practice and judicial opinion. But its implementation
in legal proposition can result in disfigurement of legal reality and the errors
of legal regulation, if it has not the sufficient scientific examination.
The dogmatic-normative method of study of legal phenomena with its
integral methodological researches and analyses is the most widespread way in
the science of civil procedure. Such variant do not answer all the requirements of
science and practice. This article contains suggestion to use another scientific
direction – the systematic method of analysis certain phenomena, relating to the
objects, which are regulated by civil procedure. The attention is concentrated on
one of stages of proceedings in general jurisdiction courts and arbitration
courts – on the preparation of contentious case for the court trial. It is not an
overstatement to determinate case preparation as the proceedings stage of the
highest significance level in the court of first instance. It is precisely such quality of case preparation provides correctness and timeliness of civil investigation and
disposition decision.
Case preparation for the court trial is defined as a system, which is
formed by common purpose of this proceeding stage – providing correctness and
timeliness of civil investigation. Achievement of this goal is realized with the
activity of system elements. Such element as the tasks of case preparation implements
designing function of the system, it is in the fact to reconstruct the virtual
model of justiciable controversy, which has arisen in reality and requires the
adjudication by the instrumentality of legal potentialities.
The next element of case preparation for the court trial – the parties –
functions as personalization. Analysis of the parties as the element of system
makes it possible to obtain the knowledge such characteristic of the system of
case preparation as the capability to form legally acceptable purposeful behaviour
of the procedural relationship participants and to take into consideration
personal legal interest of them on the ground of procedure regulations.
Another element of system, the function of legal proceedings, can be defined
as objectifying function. When it is realized, the dynamical characteristic of
the system becomes apparent. This characteristic explains the capability of system
to advance and to develop according to influence of internal and external
factors and also provides coordination with other systems.
In the projection on legal reality the systematic approach finally permits
to estimate correspondence of components (in present case – certain legal regulations)
to the systematic character of object and to reveal inaccuracies of legal
regulation.
Keywords:
grazhdanskii protsess, arbitrazhnyi protsess, podgotovka, sudebnoe zasedanie
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Reference:
M.V. Mazhorina. (2009). The Place of International Trade Law in Regulation
System of International Trade Relations. LEX RUSSICA (Russian Law), 3, 685–698. https://en.nbpublish.com/library_read_article.php?id=59756
Abstract:
From the legal point of view, international trade phenomena is conditioned
by the composite nature. It joints public and private law that leads to
complexity in legal and normative regulation.
It is possible to classify two ways of international trade relations depending
on public or private issue:
international trade relations – official relations between international
subjects of law like commonwealth, international organizations, integration organizations;
transnational trade relations – private law relations between natural persons
and juridical persons of the world countries. The most common form of the
transnational trade relations is foreign trade agreement.
However, the backbone factors for all relations in international trade are
their trade substance and transnational nature.
The entire system of international trade relations is normative regulation
object.
Taking in to account quasi-legal (non-legal) regulation methods the
modern legal tolls is very developed. Up to our vision, the diversity of norms
that regulate international and transnational trade relations could be united in to
International trade normative system.
Therefore the structure of international trade normative system should
consist of:
legal norms belonging to different system and branches;
non-legal norms, regulating international trade relations – lex mercatoria
norms.
It is necessary to define the place of international trade law in international
trade normative system.
There are plenty of terms in native legal science competing against
meaning of international trade law. That definitely leads either to object regulation
splitting or backwards to their overlapping. Like that, there could be certain
scientific mess.
It seems that the meaning of international trade law as the sub-branch of
international private law is the most proper one.
The doctrine widely discussed in foreign juristic literature says that an
international commercial contract is the subject of specific normative system –
transnational commercial law or modern lex mercatoria.
International trade law and lex mercatoria comparison shows common
properties as well as their significant difference. Firstly, the common nature is
based on regulation impact and secondly on regulation subject itself as transnational
trade relations. Nevertheless, international trade law has definitely got
public feature. In general lex mercatoria is deprived of such a public law function.
It is fairly aimed on developing optimal conditions to regulate the relations.
The root-cause difference is hidden in wide spectrum of sources, their
legal and non-legal nature which is conditioned by the way of creation.
In spite of similarity and differences, it is not really correct to state concurrence
between international trade law and lex mercatoria or even ousting one
by another terms. To our comprehension, both of those terms and phenomena
play important role in international trade normative system. Any of them performs
personal functions, using own instruments. In the end, both of these terms
are aimed on regulation of transnational relations.
Keywords:
mezhdunarodnoe chastnoe pravo, mezhdunarodnaya torgovlya, mezhdunarodnye torgovye otnosheniya, mezhdunarodnaya torgovaya sistema, lex mercatoria
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Reference:
Stanko Beyatovich. (2009). New Tendencies in the Modern Science of the
Criminal Procedure Law and the Criminal Procedure Legislation in Serbia. LEX RUSSICA (Russian Law), 3, 699–716. https://en.nbpublish.com/library_read_article.php?id=59757
Abstract:
In the article it is mentioned that there has been lately unification of
criminal procedure legislation of different countries, and the factors, affecting
the condition of this branch of law, and main tendencies of its development are
given.
As for tendencies of the modern science of the criminal procedure law
and the criminal procedure legislation of Serbia, it is mentioned that during reforming of Serbian criminal procedure legislation, high attention has been given
to the following two issues: 1) creation of the basis of raising effectiveness of
the criminal procedure and 2) change of investigation concept.
Authorities of the single judge, which have become increased with acceptance
of the Criminal Procedure Code of 2001, are reviewed. Now the judge
is entitled to examine and allow criminal cases regarding the crimes, penalties
for which are not more than three years of imprisonment. Besides that, it is reviewed
to widen the opportunity to impose a penalty without judicial examination
for deeds, penalties for which are not more than three years of imprisonment.
It is highlighted that provisions, new for criminal procedure legislation of
Serbia, concerning the institution of cooperating witnesses, need to be corrected.
The content of the principle of practicability of criminal prosecution and
ways of its application in Serbia are presented in the article, there are also given
some additions to this principle.
It is offered to introduce an institution of bargain (consent on guilt admission)
between the prosecutor and the defendant to Serbian criminal procedure
law. The main point of this bargain institution is preliminary negotiations
with the prosecutor about admission of guilt by the defendant and the following
declaration or non-declaration of the reached agreement by the court.
It is also been considered that besides above mentioned issues, which
have priority in the light of creating the regulatory structure for more effective
criminal procedure, some other issues need to be given attention; their topicality
are proved by both criminal law and modern criminal procedure legislation, and
also by results, received in application of this regulations.
Examples of special criminal procedures and special authorities for individual
types of criminality are given in the article, practicability of their introduction
and perspectives of their existence are analyzed.
It is mentioned that one of important prerequisites of effective activities
of subjects of the criminal procedure and, thereby, effective criminal procedure
in general, is effective defense of participants of the criminal procedure. On the
basis of this, it is suggested to introduce to the criminal procedure legislation a
number of regulations, purpose of which will be the maximum possible degree
of defense of the criminal procedure participants.
In the author’s opinion, such system of appeal should be introduced to
thecriminal procedure legislation of Serbia, which would satisfy all public interests.
It is necessary to pay special attention to issues, concerning narrowing and
more precise definition of grounds for detention, limitation of periods for pretrial
detention, the possibility for wider participation of the attorney in solving
the issue of detention, the possibility to implement an institution of so called
house imprisonment, creation of regulatory basis for determination of the bail,
that could take a more significant place in the system of support measures of the
defendant’s presence and unimpeded maintenance of the criminal procedure.
Keywords:
ugolovnoe pravo Serbii, UPK Serbii, ugolovnyi protsess, sudebnoe rassmotrenie del
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Reference:
V.S. Eliseev. (2009). The Interbranch Coordination of the Tax Obligations
and Civil Grounds of Their Occurrence. LEX RUSSICA (Russian Law), 3, 717–729. https://en.nbpublish.com/library_read_article.php?id=59758
Abstract:
The article is devoted to the actual problem of the coordination of tax
obligations and civil grounds of their occurrence. The decision of this problem
maybe on the base of the interbranch law theories. It’s possible only in the limits
of the economic law.
The author proves, that the economic basis of taxes is formed the property
interest. It representing the movement of the property from the taxpayer to
the state. The feature of the tax as models of relations consists that it is derivative
from civil grounds and cannot arise without a financial basis (income).
The author suggests to fix civil grounds of their occurrence of the tax as
a basic element of the taxation. With the purpose of fastening of property interest
of tax obligations the author suggests to fix definitions of separate kinds of
taxes by analogy to treaty obligations.
Keywords:
nalog, priznaki naloga, grazhdansko-pravovoe osnovanie naloga, nalogooblozhenie
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Reference:
A.V. Kalashnikov. (2009). Contemporary UK Contract Law in the Light of
Judge Denning’s Decisions. LEX RUSSICA (Russian Law), 3, 730–736. https://en.nbpublish.com/library_read_article.php?id=59759
Abstract:
English judge Denning (1899–1999) is one of the prominent lawyers
who has made changes into contract law. His analysis of complicated situations
became the basis for future judicial awards. This article focuses on the leading
cases of the judge in the sphere of contract law, i.e. contract formation, breach of
contract and disclaimer. A distinctive feature of the judge was that he preferred
to construing rather than following laws strictly. He became especially known
after challenging the stare decisis doctrine under which prior court decisions
must be recognized as precedents. Denning made a significant contribution into
the development of concepts estoppel and promissory estoppel. The ideas of the
English judge are still topical and some of them are being developed in the current
EU laws.
Keywords:
Denning, dogovornoe pravo Velikobritanii, pretsedent, dela o zaklyuchenii dogovora, dela, kasayushchiesya ogovorki ob osvobozhdenii ot otvetstvennosti
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Reference:
T.V. Zhmurova, L.A. Zaitseva. (2009). Informational and Analytical Review of
the Theses Presented in 2008 at Thesis’ Councils by Moscow State Law Academy. LEX RUSSICA (Russian Law), 3, 737–794. https://en.nbpublish.com/library_read_article.php?id=59760