Contents of issue # 9/2014

On Certain Questions of Circulation of Exclusive Rights and Material Carrier of Objects of Intellectual Property

M. A. Rozhkova

doctor of jurisprudence

Kutafin Moscow State Law University

9, Sadovaya-Kudrinskaya st., Moscow, 123995, Russia

E-mail: rozhkova-ma@mail.ru

The article draws attention to the main sign of intellectual property, which set them apart from other objects of civil rights, their intangible nature. Given this characteristic, it is emphasized that in civil circulation are introduced themselves the objects of intellectual property and exclusive rights to them and physical media that embodies these objects. In addition, the rules of entering into civil turnover for the named objects of civil rights — exclusive rights and material carriers is different. Physical media are differentiated depending on what is the purpose for their creation. If the purpose of fastening of the object of intellectual activity on the material carrier is to obtain the legal protection of this object, it is a primary material embodiment; if the goal is the introduction of a quantity of material carriers — talking about secondary material embodiment. Exclusive (property) rights can be the object of civil transactions in situations where the right holder provides the legal authority: either alienates belonging to him of the exclusive right to fully or allows another person to one of the rights that make up the exclusive right, the right use of the object of intellectual property rights on conditions of the license.

Keywords: intellectual property, intellectual property rights.

DOI: 10.12737/5495

Integrated Information Systems of Management of Public Finance in Provision of Transparency of Budget System of the Russian Federation

N. A. Povetkina, E. V. Khazova

N. A. Povetkina, PhD in law, associate professor

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

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

E-mail: pna127@mail.ru

 

E. V. Khazova

Financial University under the Government of the Russian Federation

49, Leningradskiy prosp., 125167, Moscow, Russia

E-mail: ekakh@yandex.ru

The principle of transparency of the budgetary system is the openness of public finances to public control. The beginning of reforms in the public finance sector had allowed the Russian Federation to improve the position in the international ranking of the budget system transparency. А modern way of ensuring transparency in public finance operations is formation of a unified information space for all public-law entities by operation of integrated information systems «Electronic budget» and the State information system on the state and municipal payments. The author of the article classifies the integrated information system as a mechanism for disclosure of performance information for public oversight with modern technical features. The article also talked about the effective management of the money supply in the form of non-cash accounts on common problems of the Federal Treasury and provide feedback between state region, providing execution of the budget and the members of society.

Keywords: public finance, the integrated information system, electronic budget, public oversight, transparency of the budgetary system.

DOI: 10.12737/5496

On Two Functions of Notions in Scientific Knowledge of Law

E. Z. Bekbaev

PhD in law

Sapargaliev Institute of State and Law

23/1, Alpamys Batyra st., Astana, 01000, Kazakhstan

E-mail: erzat_bek@mail.ru

The function of the concept of law in scientific knowledge is shown as an exact idea about the signs of law distinguishing it from the other objects. Another logical function of concept of law is in the ability to reflect in thoughts more or less complete result, the amount of knowledge about the law. It is argued that the essence of law can be known, provided the pre-obtained full and complete knowledge of the law as a special subject of scientific knowledge. The possibility of using logical principles of the construction of scientific theories in the science theory of law.

Keywords: law, the concept of law, the essence of law, legal theory, science of science.

DOI: 10.12737/5497

Financial-Legal Forms of Positive Bind

N. V. Omelekhina

PhD in law, associate professor

Novosibirsk State University

2, Pirogova st., Novosibirsk, 630090, Russia

E-mail: n.onv@yandex.ru

Considering method of financial law in the view of whole legal ways and instruments, marks the relation’s specific of forming, distribution and using of public funds, proving the key role of positive liability in financial law regulation. Taking the above-mentioned into account, the author considers that there is the existence of positive liabilities both monetary, and non-monetary character in the finance sphere. This fact enables to conclude about a backbone role of monetary positive liabilities in the financial law and about its division into two groups — monetary duties and monetary obligations. The position of the author on a number of the theoretical questions connected with application of positive holdings liable in financial and legal regulation is stated.

Keywords: finance law, positive liability, monetary duties, monetary obligations.

DOI: 10.12737/5498

Validity of Tax Benefit and “Bad Faith” of Counteragent of Tax Payer

A. S. Titov

doctor of jurisprudence

The Institute of Legislation and Comparative Lawunder the Government of the Russian Federation

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

E-mail: alext72@mail.ru

In article the analysis loose is provided in the legislation of the Russian Federation of criteria which taxing and judicial authorities use when carrying out an assessment of validity of application by the taxpayer of tax benefit in cases of «dishonesty» of the contractor of the taxpayer. Approach of the legislator to definition of the concept «integrity» of the taxpayer is investigated. The position of the author on the practical problems arising in the course of use by the taxpayer of the right to use tax benefit is stated. The author of the real work comes to a conclusion that lack of due legal regulation of process of use by the taxpayer of the right for use of tax benefit often allows taxing authorities to resolve an issue of validity of tax benefit at discretion.

Keywords: tax benefit, taxpayer, dishonesty, contractor, taxing authorities, tax duty.

DOI: 10.12737/5499

Local Technical Regulation as a Means of Reduction of Legal Risks of Industrial Enterprises

A. A. Bauken

PhD in law

South Ural State University (National Research University)

76, Lenina prosp., Chelyabinsk, 454080, Russia

E-mail: bauken_a@mail.ru

The article is considering problems of use of local technical and legal acts by commercial enterprises for decrease in legal risks. Feature of norms accepted at local level consists in regulation by them of the relations with participation of experts, which participate and don’t participate in production. Normative regulation of technological processes aims to order production, distribute spheres of responsibility of experts and departments, to provide legislation observance by production and sale. Local technical and legal acts as way of legal risk management allow to describe risk factors, specify them in certainPositive kind of activity of the enterprise, establish algorithms of identification and minimization of risks. Potential of use of these acts for legal risk management is caused by their ability to concretize technical activity of the enterprise, establish its duties and rights in relation to workers, state and other persons.

Keywords: local regulation, technical regulation, legal risk.

DOI: 10.12737/5500

Vindicatory Action in Protection of Title to Real Property of Legal Persons

P. A. Strel’nikov

The Legal Department of the Bank of Russia Central Federal District

2, Balchug st., Moscow, 115035, Russia

E-mail: p.a.strelnikov@gmail.com

The question of the protection of property rights of legal entities in a market economy is of particular importance because it is the basis of their economic activities. Particularly acute this problem gives the specifics of the legal regime of the real estate, which has a significant impact on the choice of the means of protecting the violated rights, questioning the use of some of them. One of the methods of protection is indicated by replevin. The question of vindication as a way to protect the property rights of legal entities in the real estate is very controversial, because often put into question the very possibility of vindication property. The arguments for limiting the use of debt collection as a way to protect the rights of ownership of real estate can be divided into two groups. The first related to the essential characteristics of the real estate. The second is based on the legal regime of property, largely determined by the system of state registration of the respective object and deal with them. Based on an analysis of court decisions the author concludes that the feasibility of vindication by prohibiting the use of illegal property owner and the release of land, buildings, structures and premises in them from his property.

Keywords: real estate, legal entity, replevin, honest buyer, property rights protection.

DOI: 10.12737/5501

Anticorruption Expertise of Municipal Normative Legal Acts: Current State and Search of Ways of Improvement

E. D. Dymberova

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

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

E-mail: erdd@mail.ru

The article analyzes the legislation, governing the subject composition of municipal legal acts anticorruption expertise. There is no compulsory, solid and independent expertise of municipal acts at present time. An attempt to justify the necessity for legal and anti-corruption expertise, when the municipal legal acts are in the federal register, was made. The solution of problems, set out in the article, directly related to the improvement of legislative regulation of powers separation between the different levels of public authority on keeping the Federal Register municipal legal acts.

Keywords: anti-corruption expertise, municipal legal acts, local self-government bodies, bodies of state power of a subject of the Russian Federation, municipal legal acts Federal register.

DOI: 10.12737/5502

Overcoming of Corruptogenic Factors of Criminal Legislation: Concept and Main Methods

S. A. Ivanov

PhD in law, associate professor

The Institute of Law of North-Caucasian Federal University

2, Kulakova prosp., Stavropol, 355029, Russia

E-mail: null_000@mail.ru

This article deals with the definition of overcoming the corruptogenic factors of the criminal law; notes its positive role in combating corruption in the criminal justice and highlights the main features: universality, casuistry, functional character, law-enforcement level of the implementation. This article discusses some of the most important ways of overcoming the corruptogenic factors of the criminal law: the uniformity of practical activity (the same understanding and application of the criminal law to all situations with a similar set of actual data and identical criminal-legal nature); motivation (rational explanation subject to enforcement activities of the reasons and circumstances underlying the decision on this or other legal and penal question) and formalization of the decision-making (development and implementation of the criminal law or court practice on certain criteria that must underlie the adoption of any authority of any decisions in criminal matters and to narrow the scope of his discretion); raising the level of legal awareness of subjects of criminal-law relationships.

Keywords: criminal law, corruptogenic factor, the quality of criminal legislation, overcoming the corruptogenic factors of provisions of the criminal law.

DOI: 10.12737/5503

Right in Rem: Traditions, Novels, Trends of Development

S. A. Sinitsyn

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: SynSS@mail.ru

On the basis of the analysis of the pandect doctrine, modern theory of Russian and foreign civil law, Russian civil legislation development concepts, the article deals with evolution of understanding of general and special attributes of some corporeal rights (ownership right; limited rights). The author considers reasonableness of mixed, palliative structures of the subjective civil legal rights combining some attributes of both real, and liability rights: real/liability rights. Based on results of the conducted research of civil legislation sources and civil law science the author comes to the following conclusions. The Roman Law did not consider separate institutes (emphyteusis, superficies, easement, ownership right) in the context of the uniform concept of the corporeal rights system. Sampling analysis of pandects has shown that pandectists did not know most attributes of corporeal rights currently used in the scientific literature, and the nature of exposition of pandects does not in any way testify to the uniformity of statement of the concept and specific features of corporeal rights. At the same time the Roman Law and the pandect doctrine laid an essential groundwork for subsequent generalisation and systematization of the most commonly encountered and recurrent attributes of corporeal rights which in the modern science are commonly interpreted as general identification attributes of the corporeal right. The author denies reasonableness and expediency of existence of real/liability legal rights. The article demonstrates historical features of formation of the corporeal right sub-branch in Russia, identifies general tendencies of development of this legislation branch and corporeal right science at the present stage. The methodology of the article is based on general scientific methods of deduction and historicism, special civil research methods: comparative/legal, functional and dogmatic ones.

Keywords: attributes of corporeal rights, corporeal rights system, ownership right, limited corporeal rights.

DOI: 10.12737/5504

Legal Regulation of Prohibition of Discrimination in Criminal Legislation of Russia and Moldova

O. I. Semykina

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: semykola@yandex.ru

The article provides a comparative analysis of the legal measures to combat discrimination in the criminal legislation of the Russian Federation and the Republic of Moldova. Such a problem as regulation in the criminal law of antidiscrimination is active a large scale. In the Russian criminal legislation important legal guarantee the constitutional principle of equal rights and antidiscrimination is article 136 of the Criminal Code of the Russian Federation (Violation of equality of rights and freedoms of man and citizen). Meantime, as illustration the analysis of international antidiscrimination standards and trends to expand of these prescriptions in the legislation of CIS states, this criminal norm is far from perfect. The liability for discrimination can not be treated in direction with the commission of using official position. In our view, preventive legal prohibition in the article 136 of the Criminal Code of the Russian Federation will be significantly enhanced if to ask: 1) the return of criminal liability for discrimination of any individuals; 2) criminalization new aggravating circumstances.

Keywords: discrimination, violation of equality, direct discrimination, indirect discrimination, incitement to discrimination, harassment, segregation, antidiscrimination expert examination.

DOI: 10.12737/5505

Correlation of Responsibility and Sanctions in International Law: Doctrinal Approaches

G. I. Kurdyukov, М. V. Keshner

G. I. Kurdyukov, doctor of jurisprudence

Kazan Federal University

18, Kremlevskaya st., Kazan, 420008, Russia

E-mail: kurdyukov@rambler.ru

 

М. V. Keshner, PhD in law

Kazan Federal University

18, Kremlevskaya st., Kazan, 420008, Russia

E-mail: mvkeshner@gmail.com

The doctrine of international law lacks a clear estimate on the ratio of the international legal sanctions and international legal responsibility. This moment has been reflected in the variety of theories and views in the domestic and foreign literature. Based on the analysis of the international legal doctrine in the development, three main trends interpretation of international legal sanctions in connection with the problem of international responsibility. It is noted that the ratio of treatment embodiments investigated these legal phenomena blur the boundaries between sanctions and responsibility, preventing improved understanding of the nature of these institutions and the proper understanding of the role of each of them in the system of international regulation. Determined by the provisions of that properly take into account the features of international law and based on the trends of contemporary practice of international relations. Substantiates the necessity making a distinction between the forms of liability and international legal sanctions due not only theoretical but also practical considerations important to ensure that the international legal order. In conclusion, it seems necessary to further progress in the work of the International Law Commission on the codification of international responsibility issues and use of coercive measures.

Keywords: international legal sanctions, international legal responsibility, coercive measures, international delinquency, unilateral coercive measures, the UN Security Council.

DOI: 10.12737/5506

New Rules of Conciliation of the International Chamber of Commerce: Awaiting Demand for Mediation

N. I. Gaidaenko Schaer

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: natalia.gaidaenko@sts-law.ru

Russian businessmen are used to include arbitration clauses in their foreign trade agreements. Some of these clauses refer the disputes for settlement under the rules of the foreign arbitration centers, including Rules of Arbitration of the International Chamber of Commerce. While arbitration is one of the best known and widely applicable dispute resolution method, recent trend consists in the growing use of conciliation and mediation procedures for settlement of complex disputes arising between the participants of international commercial turnover. Mediation clauses together with multilayer and combined dispute resolution clauses become part of commercial reality where success and economy depends on the ability of the party to a commercial contract to quickly and correctly analyze the available solutions, consciously chose, correctly formulate and apply the dispute resolution method suitable for the particular dispute. In many cases mediation procedure allows the parties to settle their commercial dispute in the most efficient way. From this prospective awareness of the recent practices and new rules of the leading ADR centers becomes one of the key factors for successful activities on the field of international commercial relations. The ICC Mediation Rules are in force since January 1, 2014. This document replaces the ADR Rules which were in force from 2001. Author analyses the provisions of the new document from the prospective of its use for settlement of international commercial conflicts.

Keywords: ICC Mediation Rules 2014, ADR, mediation.

DOI: 10.12737/5507

Prosecutorial Science: Current State and Prospects of Devel

A. Yu. Vinokurov

doctor of jurisprudence, professor

The Research Institute of the Academy of the Prosecutor General’s Office of the Russian Federation

15, Vtoraya Zvenigorodskaya st., Moscow, 123022, Russia

E-mail: vinalexur@mail.ru

In this article, based on a retrospective analysis of the trends that are emerging in the prosecution of domestic science, the author has attempted to assess its current status, identify problems that hinder its ongoing development. The authors vision of the approaches that can help to raise the profile of science in the academic world of the prosecutors activity as an independent branch of scientific knowledge. In the author’s opinion, the concept of the science of prosecutorial activity should be based on the following main units: a theory of organization of work of the Prosecutor’s office of the Russian Federation; theory of control in the Prosecutor’s office of the Russian Federation; theory of functions and other activities carried out by the Prosecutor’s bodies; theory of jurisdiction and powers of prosecutors; a history of formation and development of prosecutorial activity in Russia and the science of it; theory of organization and implementation of prosecutorial activities in foreign countries.

Keywords: prosecutors, public prosecutors supervision, prosecutorial activities, prosecutorial science research.

DOI: 10.12737/5508

Works Councils in Russia: Problems and Prospects

K. V. Plamennova

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

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

E-mail: phard@list.ru

Provisions of the labor legislation were updated by the right of the employer for creation of works councils. The research of structures of non-trade union workers’ representation has special importance for Russian labour law scholarship. This is mostly so because of low efficiency of trade union representation in Russia that is still structurally influenced by centrally-planned economy’ traditions. System of works councils is a fairly complicated institution of labor law, as their activities are closely linked not only to the organization of labor, but also to the economy as well as the sociological aspects of human resource management. The multidimensional inwardness of works councils attached to this institution of labor law special significance, as consequence of their functioning must become strengthening of social dialogue at the level of the organizations and the separated structural divisions, while setting a consensus not only between the parties opposing interests in relation to a particular issue, but also creating a foundation for continuing cooperation in a spirit of cooperation. Creation of works councils is seeking to reinforce social solidarity, more equitable distribution of income between different social classes and sections of the population, increase employees’ interest in the affairs of the company. As part of the dynamic development of social and labor relations non-trade union workers’ representation becomes a key element in the development processes of industrial democracy, having a basis of workers’ participation in administrative decisions in the enterprise, directly affecting their interests, which allows the use of flexible forms of management of the organization, by providing workers the right to information and consultation.

Keywords: Russian labour law, employee representation, workers’ participation, works councils of employees in Russia.

DOI: 10.12737/5509

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