THEORY OF LAW
Reference:
Melnikov, V.Y. (2013). Observance
of human rights within
the mechanism of legal regulation. LEX RUSSICA (Russian Law), 3, 223–230. https://en.nbpublish.com/library_read_article.php?id=62497
Abstract:
The mechanism of legal regulation includes all of the variety of the legal means, not being limited
to the normative legal acts, but also including acts of their implementation. The mechanism of criminal
procedural regulation is a united system of legal means, which Includes norms of criminal procedural
law, criminal procedural relations, application of criminal procedural norms, criminal procedural law-enforcement
acts, which include legal regulation and influence in the sphere of criminal judicial procedure.
Implementation of rights and obligations is quite important for the criminal judicial procedure. It should
be implemented precisely as prescribed by law. Otherwise, the goals and aims of the criminal judicial procedure
shall not be met. While there is no unilateral approach to the understanding of the legal regulation
mechanism, one should recognize the following elements of this mechanism: norms of law, legal relations,
acts of implementation of law, legal conscience and legal culture. The mechanism of legal regulation in the
sphere of observance of human rights Is a united system of legal means, which guarantees the efficient
legal influence on the social relations in the sphere of human rights and freedoms. It allows one to comprehend
more deeply how the transformation of the requirements of law and legal positions into the behavior
or people is implemented, what stages this process includes, what obstacles arise and how one could avoid
them. The mechanism of legal regulation shows how any specific link in a chain of actions towards achieving
the goals of legal regulation works, and it allows to find the key legal instruments, which have certain
hierarchical standing among all others.
Keywords:
jurisprudence, person, rights and freedoms of a person, mechanism, legal regulation, criminal judicial procedure, legal guarantees, observance of rights, principles of law, the purpose of criminal judicial procedure.
IMPROVEMENT OF LEGISLATION
Reference:
Besedin, A.N., Kozina, E.A. (2013). Development
of the system of legal entities
in the Russian legislation. LEX RUSSICA (Russian Law), 3, 231–247. https://en.nbpublish.com/library_read_article.php?id=62498
Abstract:
The article is devoted to the systematization of the legal entities in accordance with the Russian civil
law, taking into account the nature of the corporate relations. The authors analyze the draft of the Federal
Law «On amendments to Parts 1,2,3 and 4 of the Civil Code of the Russian Federation», which was formed
based upon the Concept of Development of Civil Legislation.
Keywords:
jurisprudence, legal entity, corporate relations, subject of law, corporate organization, unitary organization, commercial organization, non-commercial organization, system of legal entities, draft of changes to the Civil Code of the Russian Federation.
IMPROVEMENT OF LEGISLATION
Reference:
Tsymbal, E.I., Dyachenko, A.P. (2013). European standards
for the protection of children from
the sexual abuse. LEX RUSSICA (Russian Law), 3, 248–260. https://en.nbpublish.com/library_read_article.php?id=62499
Abstract:
The article includes analysis of the correspondence of the Russian criminal and criminal procedural
law to the standards of the Council of Europe Convention on the Protection of Children from Sexual Exploitation
and Sexual Abuse (2007). The provisions of the Convention against discrimination of children require to
guarantee the protection of sexual immunity of all persons under the age of 18. The authors offer to introduce
the prohibition for any sexual contacts between the grown-up persons and the underage persons of 16 to 18
years old, if the latter are in vulnerable position. The article includes analysis of the issues, which need to be
solved in order to provide rehabilitation for the children victims of sexual abuse, and to provide obligatory
medical and social correction for the offenders. The authors offer to introduce a new legal institution into
the Criminal Code of the Russian Federation — the obligatory correction measures. The authors also offer to
implement into the Criminal Code of the Russian Federation the definition apparatus of the Convention, they
analyze other amendments to the Criminal Code and Criminal Procedural Code of the Russian Federation,
which need to be accepted In order to comply with the European standards.
Keywords:
jurisprudence, sexual abuse, children, child pornography, child prostitution, criminal law, criminal procedural law, victims, seduction, expertise.
IMPROVEMENT OF LEGISLATION
Reference:
Boltinova, O.V., Moshkova, D.M. (2013). Legal regulation of financing
of the higher education
in the light of the current reform. LEX RUSSICA (Russian Law), 3, 261–267. https://en.nbpublish.com/library_read_article.php?id=62500
Abstract:
The article is devoted to the specific features of financing the higher education taking into account
the on-going reform in the sphere of education. Much attention is paid to the principle of normative per-capita
financing in accordance with the normative standards of spending for the state services in the sphere of education,
which may be established per student. It is noted that the transfer of the educational institutions to
the per-capita financing is not obligatory, and it is considered to be an efficient management decision, and
one of the reasons for the provision of grants to the constituent subjects of the Russian Federation and the
municipal units. Additionally, the authors single out the characteristic features of the financial guarantees for
the educational institutions. In particular, the authors analyze the provision of subventions to the autonomous
and budgetary educational institution for the government (municipal) assignments, bases and procedure for
their calculation, as well as for the changes in the amount of financial guarantees for the assignment.
Keywords:
jurisprudence, financing, educational institutions, normative per-capita, subventions, subsidies, state, assignment, budget.
LAW ENFORCEMENT ISSUES
Reference:
Laptev, V.A., Ekimenko, E.N. (2013). Corporate conflicts:
causes of their appearance
and means of protection. LEX RUSSICA (Russian Law), 3, 268–279. https://en.nbpublish.com/library_read_article.php?id=62501
Abstract:
The appearance of conflict situations in the corporate relations requires that a lawyer should find a
norm of law, which would allow to solve the dispute (conflict). The methodological value of classification of
corporate conflicts is that it allows to single out specific types of corporate conflict and to distinguish them
from the other types. Classification of corporate conflicts (disputes) may be provided based on their object
(disputes, related to the formation, reorganization and liquidation of a legal entity, the disputes regarding the
ownership of stocks and shares in the charter capital of the economic partnerships and companies, disputes
on the claims of founders, members, investors of a legal entity on compensation for the losses, etc. They may
be provided based on the initiating subject of the corporate conflict (inner and outer), on the forms of their
appearance or initiation (buy-in, or stripping of large packets of shares, blocking the rights of share-holders, participants or members to manage the corporation, etc.), or based on the subjects and character of the legal
relations (disputes between the entity and the share-holders, or participants, disputes among the share-holders
or participants, disputes between the main and affiliate companies, etc.). The understanding of classification
of corporate conflicts may be useful in order to form the unitary practice of application of the corporate
law norms by the arbitration courts and practicing lawyers. The analysis of objective and subjective causes for
the formation of corporate conflicts allow to avoid them in many cases. The article also includes analysis of
the methods of uncovering the corporate conflicts, namely the analysis of actions (lack of action), which allow
to suppose that the conflict situation is arising.
Keywords:
law, Corporation, corporate relations, corporate disputes, corporate disputes, business companies, corporate disputes, corporate ownership, enterprise security, corporate lawyer.
LAW ENFORCEMENT ISSUES
Reference:
Apresova, N.G. (2013). Small business taxation. LEX RUSSICA (Russian Law), 3, 280–285. https://en.nbpublish.com/library_read_article.php?id=62502
Abstract:
The article is devoted to the issues of legal personality in the sphere of small business, specific features
of tax relations and persons, who participate in these relations (taxpayers, tax bodies and the persons,
facilitating the payment of taxes). The author also discusses the issues regarding the specific features of small
business taxation, and the bases for the general and special regimes of taxation of such subjects, right and
order of transfer from one regime of taxation to another, and the right to apply two special tax regimes. The
article casts light upon the issues of accounting in a simplified taxation regime for the subjects in question.
The author also views the issue of the simplified taxation system based on the patent of an individual entrepreneur,
and she discusses the forms of state support for small businesses.
Keywords:
taxes, business, small business, tax relations, legal personality, general taxation regime, special taxation regime, the Tax Code.
INTERNATIONAL PUBLIC LAW
Reference:
Bekyashev, K.A. (2013). Legal status
of the Eurasian Economic
Commission. LEX RUSSICA (Russian Law), 3, 286–290. https://en.nbpublish.com/library_read_article.php?id=62503
Abstract:
The article is devoted to the prerequisites for the formation of the Eurasian Economic Commission.
The author characterizes its functions from the point of view of international law. The Commission acts based
upon the three principles: a) mutual profit, equal rights and regard for national interests; b) economic feasibility
of decision; c) open, public and objective character. These principles are not of legal character. However,
since they are included In the Treaty of November 18, 2011, they have legal value and are obligatory for the
members. According to the Art. 1 of the Treaty of November 18, 2011, the Commission is a regulating body
and an international autonomous body, which is formed based on the international treaty. The article includes
positions in support of such a view. The author considers that the Commission is not a supra-national organization,
since he believes that there is no such thing as such organizations.
Keywords:
jurisprudence, legal personality, the Eurasian territory, obligations and rights of states, supranational character, connection with the EAEC, cooperation with the UNO, the United Economic Territory, the perspectives for the development of the Commission, the European Commission, the EAEC, the law-making, supranational character of international organizations.
International civil law/private law
Reference:
Shakhnazarov, B.A. (2013). Modernization of the copyright law
in the Russian Federation within
the framework of the WTO
membership conditions. LEX RUSSICA (Russian Law), 3, 291–301. https://en.nbpublish.com/library_read_article.php?id=62504
Abstract:
This article is devoted to the development of the Russian copyright law, and to the amendments to
the Part 4 of the Civil Code of the Russian Federation within the framework of negotiations on the Russian
membership in the WTO, as well as to the obligations of the Russian Federation to amend its legislation on the issues of copyright and allied rights, as well as the rights for the industrial property. The author notes the
important vector of the TRIPS Agreement, as an inalienable part of the packet of the WTO treaties. The author
comes to the conclusion that the provisions of the TRIPS Agreement should be applied directly, including
the cases when the state uptakes an obligation to adapt it into the national legislation The article includes
detailed analysis of the issues, which were objects for the discussion of the working group regarding membership
of Russia in the WTO and the position of the representatives of Russia. The problems of correlation of
the Russian legislation with the TRIPS Agreement provision touch upon the issues of exclusive rights, specific
features of property rights to some copyright objects, as well as to the closed information, which is protected
in case of sale and registration of the pharmaceutical and agro-chemical projects.
Keywords:
jurisprudence, copyright, the TRIPS, the Part 4 of the Civil Code of the Russian Federation, amendments, the accession report, protection, faire use, agreement of the author, exclusive rights.
European law
Reference:
Kashkin, S.Y. (2013). On the work of the section
on the EU law at the Readings named
after O.E. Kutafin
on November 28, 2012. LEX RUSSICA (Russian Law), 3, 302–319. https://en.nbpublish.com/library_read_article.php?id=62505
Abstract:
The brief analysis of the reports from the Section on the EU Law of the Readings named after O.E. Kutafin
is included into this article. The report of Gabriela Belova was devoted to the institutional and procedural problems,
regarding the EU joining the European Convention on Human Rights. Nikolay Morin and his colleague Velichka
Borilova devoted their report to the problems of marriage cases and cases on responsibility of parents. The article
by K.V. Smirnova provided analysis of the historical, structural and functional analysis of the evolution of the legal
instruments for the integration regulation in the EU. The article by Dobrinka Ivanova Chankova is devoted to the
mutual relations and possible perspectives of development of the restorative and criminal justice.
Keywords:
jurisprudence, the EU, the practice of the EU Court, recognition and enforcement of the judicial decisions on marriage cases and cases on parental respon, the European Court of Human Rights, the third party, co-defendant, protection of victims of crimes, restorative justice, criminal justice.
Discussion forum
Reference:
Ischenko, E.P. (2013). Euthanasia:
pro et contra. LEX RUSSICA (Russian Law), 3, 320–330. https://en.nbpublish.com/library_read_article.php?id=62506
Abstract:
For the several decades the global community has been actively discussing the possibility for the legalizing
euthanasia. As for the Russian legal doctrine, the problem of euthanasia is being concealed. Only the
people who face the horror of incurable illness and the suffering that it brings try to find the way out from such
a situation on their own, and usually nothing good comes out of it. Taking the above-mentioned issues into
account, the author analyzes the legal issues regarding euthanasia. The author provides the brief analysis of
the history of the problem, as it was regarded by Thomas Moore and Francis Bacon. The author then analyzes
the points of view on active and passive euthanasia by Russian and foreign authors, and he provides the arguments
«pro et contra» its decriminalization and legalization in Russia. The author provides detailed analysis
of the solutions of the euthanasia problem, which were found in the USA, in the Great Britain, the Federal
Republic of Germany, Italy, Holland, Belgium, and other foreign states. He provides detailed analysis of the
Nancy Cruzan case, when she was for a long time in coma, being connected to the life-sustaining machinery,
as a judicial precedent in the USA. He also pays attention to the conditions of death of Sigmund Freud. He provides
examples of illegal euthanasia and arguments against its legalization in Russia, regarding imperfections
of medical diagnosis, lack of studies of the bordering conditions between life and death, development and
progress of medicine and pharmacology, the impossibility of making «death angels» out of doctors, as well as
negative consequences of commercialization of medical services. The author comes to a conclusion that legalization
of euthanasia in Russia shall lead to the irreversible criminalization of the medical system, lowering the
dignity of medics, perversion of their professional duty and the greater social, spiritual and moral degradation
of person and society. To permit euthanasia is to finally destroy feelings and connections among the relatives.
Keywords:
jurisprudence, euthanasia, «kind death», types of euthanasia, legislative regulation, problem, definition, experience of the foreign states, cases of euthanasia.