Reference:
Pilipenko A.N..
Principle of Legal Security in French Law
// Journal of Foreign Legislation and Comparative Law.
2013. ¹ 4.
P. 646-652.
DOI: 10.7256/1991-3222.2013.4.63589 URL: https://en.nbpublish.com/library_read_article.php?id=63589
Abstract:
The present article continues a series of articles, devoted to the problems, connected with activities of lawmaking
process in France. The matter is about the latest constitutional reforms in the country, the role of Parliament in
the legislative process, the idea of “general interest” in public law, the quality of the law. In general the author’s task can
be formulated as follows: how deeply does the modern French law reflect and express the realities and needs of the state,
society and individuals. The subject of analysis of this article is the principle of legal security, which focuses the requirements
to legislation and rule-making subjects, and also, the interpretation results of such activity in public consciousness.
Keywords:
principle, legal security, confidence legitimate, law, doctrine, the quality, the Constitution, the law, the Parliament, the Government, the Constitutional Council, the State Council.
Reference:
Khalabudenko O.A..
Some Issues of Comparative Law Methodology —
from Functionalism to Construction
and Deconstruction
// Journal of Foreign Legislation and Comparative Law.
2013. ¹ 4.
P. 653-663.
DOI: 10.7256/1991-3222.2013.4.63590 URL: https://en.nbpublish.com/library_read_article.php?id=63590
Abstract:
The paper presents the author’s vision of the ways to resolve the complex of philosophical and methodological problems
in comparative law. The author points out the possibility of applying the legal constructivism method for determining
the subject sphere of comparison. The author proves that the externalized result of applying the functional structural method
is possible only at the level of the comparable legal reality. The relevant concept (“construction”), according to the author’s
opinion, should be able to be expressed in the objective form; it should be characterized by certainty and autonomy among
other legal phenomena. The paper covers the author’s point of view on the use of the construction on three levels of dimension:
theoretical, normative and substantial. The implicit properties of the construction specific to each level of dimension can
resolve the problems, arising at the implementation of the Comparative Law issues. The application of the method of deconstruction
allows solving a number of methodological issues, related to the application of metaphysical conceptual categories
of the legal science, which stresses the effectiveness of the method of constructivism for Comparative Law.
Keywords:
Comparative Law, methodology of Comparative Law, legal culture, legal tradition, legal construction, constructivism, deconstruction, functionalism, structure.
Reference:
S.U. Kashkin.
Basic Trends of Development of Foreign, International
and European Law
// Journal of Foreign Legislation and Comparative Law.
2011. ¹ 5.
P. 40-52.
DOI: 10.7256/1991-3222.2011.5.58920 URL: https://en.nbpublish.com/library_read_article.php?id=58920
Abstract:
The article analyses the evolution as a result of globalization of the interaction of national law, law of integration
and international law during the last 25 years. The mechanisms of legal regulation of social relations in integration
organizations are studied on the example of the European Union. Special attention is given to examination the new sources
of law and the dialectics of their application on the national, supranational and international levels. The new features
and qualitative characteristics of the EU law are dealt with. The author comes to the conclusion that with the formation of
the supranational law in the form of the European Union, being a separate system of law in itself, the former world system
of law has substantially changed. The stages of the evolution of the law of integration and its perspectives are formulated.
Keywords:
Trends, international, national, integration, European, regional, regulation, mechanism, evolution, principles, sources, development.
Reference:
I.M. Mutay.
Transplantation and Restoration in Law
// Journal of Foreign Legislation and Comparative Law.
2011. ¹ 5.
P. 53-64.
DOI: 10.7256/1991-3222.2011.5.58921 URL: https://en.nbpublish.com/library_read_article.php?id=58921
Abstract:
The subject of article is analysis of correlation of legal transplantation and following restoration of law in
private and public law. Author made conclusion about misrepresentation of transplanted law norms of western law in
post–socialistic countries as a result of underdevelopment of teleological interpretation of law norms.
Keywords:
transplantation of law, restoration in law, private law, history of law, modernization of law, The Netherlands Civil Code, Napoleon Code, amendments
Reference:
B.I. Osminin.
Implementation of International Treaty Obligations
in the Domestic Legal System
of the United States of America.
// Journal of Foreign Legislation and Comparative Law.
2011. ¹ 5.
P. 65-75.
DOI: 10.7256/1991-3222.2011.5.58922 URL: https://en.nbpublish.com/library_read_article.php?id=58922
Abstract:
Under art. VI, cl. 2 of the U.S. Constitution (the Supremacy Clause) all treaties concluded by the United States
are considered to be part of the supreme law of the land. Consequently, they are superior to State law, while they have
equal status to federal statutes. The Supremacy Clause has been interpreted by the U.S. Supreme Court as also applying
to executive agreements.
Cases of inconsistency between a treaty and a statute will be resolved by means of the “last–in–time” rule. U.S. courts
will not apply international law, whether derived from treaty or from custom, in conflict with congressional enactment
that comes later in time: the courts have reasoned that “the latest expression of the sovereign will” should prevail.
U.S. courts have developed a distinction between “self–executing” and “non–self–executing” treaties; the former will be
directly applied by the courts but the latter must await implementation by the legislative or executive branches.
Keywords:
the supreme law of the land, to give effect to international agreements within the U.S., the latest expression of the sovereign will, the “last–in–time” rule, implementing legislation, self–executing agreements, non–self–executing agreements, a presumption in favor of treaty self–execution, a presumption against treaty self–execution, the non–self– executing declaration.