Contents of issue # 7/2014

International Law and Challenges of the 21st Century

A. Ya. Kapustin

doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: Kapustin@izak.ru

The article is considered the principal features of modern International law, its nature and functions in the international community. Analysing the changes in its subjects composition as well as the development of law-making methods and means of realization of the norms of international law. It is also engages with principal challenges to international law and the methods of how it is possible to get over them.

Keywords: international law, international community, “europeanisation” of international law, “transcivilizational” perspective on international law, international law-making, international adjudication.

DOI: 10.12737/4819

Liabilities to Creditors in Corporate Relations: Trends and Prospects of Development of Legal Rules

O. V. Gutnikov

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: oleg_gutnikov@mail.ru

This article is about the corporate disregard. Explicates the main principle of corporate law — separation of legal entity (separate legal personality) and separation of corporate property from person and property of participants of that corporation (separation principle). Author analyzed norms of the existing legislation, which are departing from this principle and allow cases to make the founders of a legal entity (or other persons having the ability to determine the actions of the legal entity) accountable for the obligations of that legal entity. Define the boundaries of application of the “piercing the corporate veil” doctrine, on the creation the legal rules on the liability to creditors of the legal person founders and other persons. The author concludes that the application of the “piercing the corporate veil” doctrine is possible only in case of corporate property deficiency during the creation or liquidation of juridical persons. Proposed to extend the relevant uniform rules on any legal entity. At the same time substantiates the thesis against use of the “piercing the corporate veil” doctrine during the existence of the legal entity as violating “the principle of separation”. The author writes about necessity exemption in applicable law cases of the “piercing the corporate veil” doctrine during the existence of the legal entity. Also attention turn to the vagueness of “reverse veil piercing” doctrine in the domestic law, when it concern the interests of the creditors-participating entity, in cases when it is possible to hold a legal entity accountable for the debts of its founders (participants) or the owner of the property.

Keywords: legal entities, corporate relations, liabilities to creditors of the legal entity, piercing the corporate veil, trends of law development.

DOI: 10.12737/4820

What the Environmental Security Strategy of the Russian Federation Should Be?

S. N. Rusin

PhD in law, associate professor

Lomonosov Moscow State University

1, Leninskie Gory, GSP-1, Moscow, 119991, Russia

E-mail: snr1959@mail.ru

According to the Security Council’s decision Environmental Security Strategy has been started to develop in Russia. The author thinks that the Strategy can be successful only if we have previously developed the concept of it. The Strategy’s concept should be based on extensive discussions with public authorities, experts in the field of national security, environmental protection and ecological safety, including lawyers. The article offers to discuss several proposals of the Strategy status and content. First, due to the variety of documents with the name of «strategy», is proposed to develop strategies to consider as a comprehensive plan to prevent threats to environmental security. Second, the strategy should be a comprehensive plan for the implementation of the National Security Strategy and the Concept of Sustainable Development, Environment doctrine, Principles of state policy in the field of environmental development in the part in which these documents are aimed at ensuring environmental safety as an element integral part of national Security. Third, under the threat of environmental safety are invited to understand the factors of the environment, have a negative impact on human society and the state (their physical, spiritual, cultural and other values). Source of threat is the state of the environment, changes in economic and other human activities, as well as natural hazards. Additionally, this article contains proposals for the classification of threats of environmental safety and legal measures to counter such threats. According to the author, stated approaches allow science-based strategies to determine the place in the documents of the state strategic planning, ensure environmental security as an element of national security, to separate it from the environment.

Keywords: strategy, national security, environmental security, threat, environmental protection, public administration.

DOI: 10.12737/4822

Criminal-Law Protection of Religious Relations

V. G. Bespal’ko

PhD in law, associate professor

The Russian Customs Academy

4, Komsomolskiy prospect, Lyubertsy, 140009, Russia

E-mail: viktor_bespalko@mail.ru

In the article the author analyzes the current state of Russian law on crimes against freedom of conscience and religious security. He proves social necessity for criminal law protection of religious relations. He also proposes his classification of the criminal offenses. The article contains the term «religious security». It shows the main threats to religious security in modern conditions, which need counteraction by criminal law. The author developed amendments and additions to the Criminal Code, taking into account the level of religious relations in Russian society. He demonstrates the social significance of protection of the personal freedom of conscience and religious security from criminal trespasses in a democratic state. The author based results of his investigation on sociological findings and links to sources of domestic and foreign criminal law.

Keywords: criminal law, religious crimes, freedom of conscience, religious security.

DOI: 10.12737/4823

Legal System and Legal Life of Society

A. V. Mal’ko

doctor of jurisprudence, professor

Saratov Branch of the Institute of State and Law of the Russian Academy of Sciences

135, Chernyshevskogo st., Saratov, 410028, Russia

E-mail: igp@sgap.ru

In the terms of globalization of modern society jurisprudence faces the goal of searching of categories fully reflected these processes and challenges. The notions “legal system” and “legal life” highlight among such categories. They compete with each other in some ways. But it is necessary to distinguish them because they have different senses. Legal system is directed to the organizing of legal life of society while legal life contains the sources (roots) of development of legal system. Besides legal life unlike legal system includes all legal phenomenons — both positive and negative (including criminality) that should be searched in complex. So, substantial analysis of legal life of society is the next step in the development of jurisprudence (first of all, theory of law) not only from formal-legal but also from cultural positions. It demands applying of necessary methodological recourses. Such approach gives a possibility to analyze positive (lawful) and negative (unlawful) elements of legal life in their interaction and transforming negative part into negative (for example, processes of criminalization) and vice versa, negative part into positive (decriminalization, legalization, pardon, ext.).

Keywords: legal system, legal life of society, correlation, structure, positive and negative legal life of society.

DOI: 10.12737/4824

Concretization in Law: Methodological Basics of Research

N. A. Vlasenko

doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: theory@izak.ru

In article the bases of research of a phenomenon of a law concretization are considered. Are analyzed the logical and language maintenance of a law concretization as subject activity of the person. By means of features of category limits of activity of the person on a law concretization are “wrongly” illustrated. Are allocated a law concretization in law-making and its forms (subject and logical) and a law concretization in law application, in particular, is considered a law-enforcement specification in connection with legal qualification. The question of abuse of a law concretization is raised. It is claimed that efficiency of research of the category “law concretization” is predetermined by right understanding, the understanding of a law concretization as transition from uncertainty to definiteness of legal regulation is the most effective unlike integrative right understanding. The inefficiency of integrative approach contacts inclusion in concept of the right of versatile elements.

Keywords: law concretization, concretization of law, law-making, law application, legal qualification, legal definiteness, legal uncertainty, formal definiteness.

DOI: 10.12737/4825

The Hague Conference on Private International Law and Protection of Person from Violence (Provision of Security of Women and Children)

N. G. Doronina, N. I. Marysheva

N. G. Doronina, doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: office2@izak.ru

 

N. I. Marysheva, doctor of jurisprudence

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: pil@izak.ru

The Agenda of the Hague Conference on Private International Law includes working group discussion of a problem of recognition and enforcement of foreign civil protection orders. Civil protection orders is a legal instrument which is usually used in domestic violence cases. Domestic violence may take different forms of harmful interpersonal behavior. The authors analyze foreign legislation in this sphere of relations, compares it with the Russian legislation and come to the conclusion that it is necessary to broaden the international legal assistance in this sphere. For this purpose the Russian legislation may be accomplished with the institute of civil protection orders, which is now absent in the Civil Process Code. From that point of view the participation of the Russian Federation in the Hague Conference on Private International Law working group seems to be useful both for international relations and Russian legislation because the problem of protection against domestic violence is now being discussed by the Russian specialists in criminal law.

Keywords: protection of a person in domestic violence cases, civil protection orders, recognition and enforcement of foreign civil protection orders, the Hague Conference on Private International Law, the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

DOI: 10.12737/4826

Marine Scientific Research and the Argo Program: International Law Regulation

Yu. V. Bobrova, V. V. Golitsyn

Yu. V. Bobrova, PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: juliabobrova@gmail.com

 

V. V. Golitsyn, doctor of jurisprudence, professor

Lomonosov Moscow State University

1, Leninskie Gory, GSP-1, Moscow, 119991, Russia

E-mail: vgolitsyn@gmail.com

The article is devoted to the consideration of an issue of “marine scientific research” as it is regulated under international law and the applicable Russian legislation. Particular attention is paid to the analysis of the relevant provision of the 1982 United Nations Convention on the Law of the Sea (hereinafter UNCLOS) governing the conduct of marine scientific research in territorial sea, exclusive economic zone, continental shelf, the international seabed area beyond national jurisdiction, high seas. The article is outlined the general principles of the conduct of marine scientific research which shall be conducted exclusively for peaceful purposes. Draws attention to marine scientific research in the exclusive economic zone and on the continental shelf which shall be conducted with the consent of the coastal State. Emphasis is made on the analysis of legal aspects of the Argo Programme, launched for the purpose of conducting marine scientific research with the use of drifting buoys. The article considers practical and legal issues that arise in connection with the adoption in light of the relevant provisions of UNCLOS of the of international documents related to the Argo Programme, namely: Resolution XX-6 of the Assembly of the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (1999); the Guidelines for the Implementation of Resolution XX-6 of the IOC Assembly regarding the deployment of profiling floats in the High Seas within the framework of the Argo Programme (2008). In accordance with it, an IOC Member State must be informed in advance of the deployment in the High Seas of any float within the framework of the Argo Programme that may enter its EEZ. In implementing this provision, the Executive Secretary of IOC will invite all IOC Member States to state that they wish to be notified of it. In this light, denotes the position of the Russian Federation on the Argo Programme as marine scientific research and its wish to be notified of the deployment in the High Seas of all Argo Programme floats that may enter its EEZ.

Keywords: marine scientific research, United Nations Convention on the Law of the Sea 1982, exclusive economic zone, continental shelf, high seas, rights and obligations of coastal States, the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (IOC / UNESCO), Argo Programme.

DOI: 10.12737/4827

Determination of the Law Applicable to Foreign Economic Transactions under the Principle of the Closest Connection

Yu. V. Blinova

PhD in philology

Altai Academy of Economics and Law

86, Komsomolskiy prospect, Barnaul, 656000, Russia

E-mail: jblinova@yandex.ru

The present article focuses on questions of qualification of applicable law to foreign trade transactions on the basis of the principle of most significant connection if the applicable law has not been chosen by the parts. The meaning of the principle of most significant connection is made study of in national law, the meaning of the term “characteristic performance for the contract meaning” is defined by analyzing of different legal sources. Herewith attention is paid to the problems connected with the using of article 1211 of the Civil Code of the Russian Federation and precedents of the International Commercial
Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation are analyzed.

Keywords: applicable law, most significant connection, foreign trade transaction, characteristic performance for the contract meaning.

DOI: 10.12737/4828

Forms of Participation of Indigenous Peoples of North America in Administration of Justice

L. S. Chernukhina

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: foreign1@izak.ru

The author examines the legal status of the aboriginal people of North America in the USA and Canada as well as the protection of their rights. The article explores the legislation of these countries which provides protection of aboriginal people at the administration of justice.

Keywords: aboriginal people, access to justice, restorative justice, North America, truth and reconciliation commissions.

DOI: 10.12737/4829

Stages of Development of the Soviet Statehood of 1917—1940 and their Estimation in Works of Soviet Scientists

T. E. Shubert

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: const@izak.ru

In this article the three stages of development of the Russian Constitution (1918, 1925, 1937), are discussed each of represents a certain phase of the constitutional development of the Soviet state. The
first stage (1917—1925) is characterized with the transition from capitalism to socialism, the second one stages (1925—1937) is associated with the adoption of the Constitution of the RSFSR in 1925, reflecting changes in the state-building — the formation of the unanimous union of the republican states — the USSR and delegating some mostly important items to it, the formation of the new autonomous regions, the end of the civil war and the reconstruction of the national economics. The third stage (1937—1940) is connected with the adoption of the Constitution of the RSFSR in 1937 (based on the Stalin Constitution of the USSR), which was characterized with the victory of socialism, the industrialization of the country and the collectivization in the agriculture, sphere of economics, the construction of a society without exploiting classes based on the alliance of the working class and the peasantry.

Keywords: Constitution, the Declaration of the rights of working and exploited people, All-Russian Congress of Soviets, the proletariat, the Soviet government, military communism, revolutionary tribunals, the dictatorship of the proletariat.

DOI: 10.12737/4830

Criteria of Awareness in Challenging Transactions with Preference under the Bankruptcy Legislation

A. A. Ayurova

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: ayuna-ayurova@yandex.ru

In the article the author consider the questions related to the party’s good faith who acted with the debtor in the contested over the preference and causing of harm transaction. The author analyze the grounds and common contestation over the preference transactions procedure, criteria on which the judges come to a decision about party’s good faith marked in the practice of the arbitrazh courts.

Keywords: contestation over the preference transactions, bankruptcy, awareness about the marks of non-creditworthiness or debtor property’s deficiency.

DOI: 10.12737/4831

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