Contents of issue # 10/2015

Legal Mechanisms of Social and Cultural Adaptation and Integration of Migrants in the Russian Federation  Pdf 16

L. V. Andrichenko

doctor of legal sciences, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: lvandr@mail.ru

The article analyzes the current state of Russian legislation and expanded organizational and legal mechanisms of adaptation and integration of migrants in the Russian Federation. The problems of the division of powers between the various territorial levels of the public authorities in the field of adaptation and integration. The problems of legal regulation of the process of adaptation and integration and on the basis of relevant experience of foreign countries are offered the direction of its development. There have peculiarities of adaptation and integration in a multi-ethnic composition of the population of the Russian state. It is concluded that the implementation of the integration is a challenge not only to the state. Its implementation should involve the media, cultural and scientific organizations, the economy, as well as organizations of migrants themselves. It recognizes the need for differentiated integration policy of the state in relation to various categories of migrants. It is emphasized that the most optimal model of interaction of migrants and the host population is the integration model. An important area of legislative regulation of the author considers the need for further clearer delineation of powers between the public authorities in the field of adaptation and integration of migrants.

Keywords: adaptation, integration, migration legislation, migration, migrant, entry, exit, foreign workers.

DOI: 10.12737/13251

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Legal Models and Experiment in Culture  Pdf 16

Yu. A. Tikhomirov, N. V. Kichigin, A. E. Pomazanskiy, E. V. Pulyaeva, E. V. Sidorova

Yu. A. Tikhomirov, doctor of legal sciences, professor
N. V. Kichigin, PhD in law
A. E. Pomazanskiy, PhD in law
E. V. Pulyaeva, PhD in law
E. V. Sidorova

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: sve-evs@ya.ru

The article discusses the draft federal law “On Culture in the Russian Federation”, as the legal base model legislation in the sphere of culture, reveals its basic features in comparison to the current legal regulation, based on the laws of the Russian Federation on culture. There are three basic models of implementation of the bill: conservative, positive and negative, as well as their significant characteristics. It is concluded about the need for legal experiments in making basic laws in a certain area of social relations. Currently the legal regulation of legal experiments in the Russian Federation is absent. It is proposed to conduct two legal experiments to assess the implementation of the draft federal law “On Culture in the Russian Federation”. The article describes the baseline characteristics of these experiments and the legal order of their conduct. In conclusion the study is summarized and conclusions are formulated.

Keywords: сulture, law, law drafting, legal model, model of the implementation of the bill, legal experiment, cultural tourism, public-private partnerships.

DOI: 10.12737/13259

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Interdisciplinary Approach to the Examination of Law Enforcement Practice Issues  Pdf 16

A. I. Abramova

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: theory@izak.ru

The article justifies the need to create an integrated theory of efficient law enforcement, and in the author’s opinion it is the interdisciplinary approach that is designed to serve this purpose. Integration of various spheres of scientific knowledge which forms the base of the interdisciplinary approach permits to consider law enforcement with reference to and in mutual interdependence of all its system elements, to reflect actual state of the law effects on social relations. The possibility emerges for the search of more efficient ways that help to disclose law enforcement in various aspects, see its new dimensions, and identify the most problematic issues of this type of activity. Conditions are created for preserving functional integrity of law enforcement, and its transfer to the qualitatively new development stage is provided, which meets modern challenges, answers requirements for innovation and modernization of this process.

Keywords: interdisciplinary approach, law enforcement practice, law enforcement, implementation of legal norms, research methodology, efficiency.

DOI: 10.12737/13260

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Development and Peculiarities of Compensation Function Formation in the Russian Law  Pdf 16

A. P. Tarakanov

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: anpata@yandex.ru

Compensation function of rules of law is considered at various stages of formation and development of the Russian state and the Law. The legal norms in the Ancient Russian law which expressed compensation function are identified and analyzed. In the Ancient law the opportunity to protect economic as well as moral benefits was fixed. Standards of Russian Truth performed the compensatory function. In the study of the penal system of that period the elements of liability and compensation of non-pecuniary damage are identified. It is suggested that modern legal institutions of compensation for material and moral (non-property) damage originate from the earliest written records of the ancient Slavs. The improvement and strengthening of the compensation standard functions contained in the Code of Law in 1497 and 1550 are analyzed. There is a significant development of compensatory function in the rules the Conciliar Code of 1649. The author considers the further development of the compensation function of the law in connection with the adoption of the Law "On conscientious possession" 1851. The legislation of the Soviet state which was used exclusively for compensation for material damage is analyzed. There is a growing function of the compensation law in connection with its reform of 1990 and the construction of all branches of the law on the principle of full compensation for losses.

Keywords: compensation, function of law, compensation rules.

DOI: 10.12737/13261

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Problems of the Thesis on the Only True Interpretation in the Constitutional Law Sphere (Part II)  Pdf 16

Márcia Haydée Porto de Carvalho

doctor of law of the Pontifical Catholic University of Sao Paulo, associate professor of the University of Maranhao, researcher-professor of the University of UniCEUMA, prosecutor of justice

117, Rua do Sol, São Luís — MA — Brasil, CEP: 65.020.909
E-mail: paulorbr@uol.com.br

H.-G. Gadamer has established the foundations of philosophical hermeneutics, in which it is important, a preliminary understanding of the interpreter and the tradition. R. Dworkin harshly criticized the idea that the individual constitutional rights may be limited to preserve the rights and demands of society as a whole. In addition, assuming that there should be judicial discretion, even in difficult cases, the author criticized the judge’s image of an ideal that can detect only one correct answer for specific cases. For neoconstitutsionalists R. Alexy and M. Borowski, comprehension is not a procedure that would have resulted in all or in any case to a single and unequivocal results, however, according to M. Borowski, it’s not a lack of specific comprehension of the concept, and quality that characterizes the whole process deciding regulatory issues. The thesis of the only correct interpretation has problems, as indicated by the positivists and neoconstitutsionalists. Indeed, it is impossible that it was the only right decision in each case, in particular in the constitutional area. Taking into account, the open, uncertain and fragmented nature of constitution and characteristics of the social reality in which it is used, it is possible to create a variety of correct answers for the solution of practical problems. Through the interpretation (application) of the constitution implies that it is possible to determine the outcome in a rational and controlled process, approve the result with convincing arguments and thus create certainty and predictability.

Keywords: methodology, interpretation, constitutional law, methods of interpretation, legal certainty, the only correct interpretation of the constitution, integrative method, topical method, concretism, philosophical hermeneutics, neoconstitutsionalizm.

DOI: 10.12737/13252

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Legal Regulation of Social Welfare for Women and Children (Demographic Aspect)  Pdf 16

E. G. Azarova

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: labour@izak.ru

The article contains the analysis of the policy documents that reflects the complicated demographic situation in modern Russia, in particular the Concept of the Demographic Policy up to 2025. The author shows how specifically the social welfare of women and children legislation influences the demographic development. It emphasizes the need of the simultaneous development of this brunch of legislation with the other brunches especially the labour legislation. The attention is paid to the inadmissibility of the reduction of the already achieved level of social guarantees. The provision of social security benefits as a reward fertility is criticized. The special attention is paid to the danger of depriving the women’s right to decide the issue of motherhood.

Keywords: demographic situation, demographic policy, strategy of action for children, state family policy, children, women, family, social insurance, social welfare.

DOI: 10.12737/13253

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Performance Efficiency of an Educational Establishment: Criteria, Indicators, Forecasts  Pdf 16

O. Yu. Eremina

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: eremina_ou@mail.ru

Legal basis of the assessment system efficiency of the educational institutions founded by the Federal Law “On Education in the Russian Federation” and the Federal Law “On Amendments to Certain Legislative Acts of the Russian Federation on an Independent Assessment of the Quality of Service Delivery Organizations in the Sphere of Culture, Social Services, Health and Education”. It has developed an extensive practice of regional, municipal and local regulatory evaluation of the effectiveness of educational organizations. As a result, educational institutions are closely monitored both by the founder — the state authorities at federal, regional and municipal levels, and by society — consumers of educational services. Approved by the extensive list of criteria, the performance indicators of educational organizations. In addition, it introduced several types of evaluation procedures: assessment of the effectiveness of the educational organization, carried out by the founder, independent evaluation of the quality of education, self-examination, monitoring the effectiveness of educational organizations. Each of these assessment procedures contains a certain number of performance indicators of the educational organization. The author analyzes the figures approved for the purpose of determining an effective way of educational organization on the basis of existing regulatory reality.

Keywords: education, assessment, quality, efficiency, education authorities, performance indicators.

DOI: 10.12737/13254

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Legal Aspects of Corruption Offence Prevention  Pdf 16

E. V. Cherepanova

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

The basis of corruption prevention consists of the activity on counteraction corruption including detection and removal of grounds of corruption (prevention corruption), activity on revealing, prevention, investigation and detection of corruption offences and activity on minimization and (or) cure of corruption offences effects. The author reveals and proves the necessity of application of such sources as: anticorruption expertise of legal acts and bills, increasing of legal culture of society, improvement of efforts of the civil society institutes in the sphere of counteraction corruption. As a result of analysis the author concludes that counteraction corruption allows to prevent negative effect of corruption offences and to reduce the corruption risks.

Keywords: corruption, offence, prevention, corruption risks, anti-corruption expertise of legal acts, legal culture, civil society institutes.

DOI: 10.12737/13262

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The Influence of Christianity on the Development of Institutions of Crime and Punishment in Russia  Pdf 16

N. V. Akimova

PhD in law, associate professor

The Russian Law Academy of the Ministry of Justice of the Russian Federation
2, Azovskaya st., Moscow, Russia, 117638
E-mail: a.n.w@mail.ru

The article deals with the issues, related to the problem of correlation between law, religion, morality and cultural traditions in the context of criminal behavior. The article analyses tendencies in determinism of philosophical-religious beliefs developed on the basis of centuries-long experience of Christianity, and their influence on the formation and development of the domestic criminal legislation. In her research the author founds upon such sources as the Statute of Prince Vladimir, the Russian Truth, the Code of Tsar Aleksey Mikhailovich. The author draws the conclusion that throughout the whole period of the Christian religion existence, the church and the state have never stayed apart from each other. The church has had a major impact on various aspects of social life, including formation of the customary law, which was one of the factors that seriously affected the development of the modern criminal legislation. Criminal law and the legislation of the pre-revolution Russia had gone hand-inhand with the Christian religion all the way up through the October Revolution of 1917, always finding from its ally spiritual support and canonic recipes to criminalize certain socially dangerous actions, and also to differentiate responsibility and individualize punishment.

Keywords: religion, Christianity, church, criminal law, crime, punishment, criminal legislation.

DOI: 10.12737/13263

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Definition of the Applicable Law to the Treaty on International Passenger Air Service in Russian Judicial Practice  Pdf 16

V. A. Kanashevskiy

doctor of legal sciences

Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: vkanachevski@yandex.ru

The author researches the question of determination of applicable law to the contracts for the international carriage of passengers by air including application of Warsaw Convention and Montreal Convention, consumer protection laws, foreign laws and applicable terms and conditions of the aircraft companies. The author analyses inter alia the issues of determination of the content of applicable foreign law and jurisdiction of the courts over the disputes arising from the contracts for the international carriage of passengers by air. Specifically the author researches the issues of application of Russian Consumer Protection Law (as supra-imperative rules).

Keywords: contract of carriage, international carriage, protection of consumers’ rights, applicable law, supra-imperative rules, Warsaw Convention, Montreal Convention, jurisdiction.

DOI: 10.12737/13255

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Axiological Approach in International Law  Pdf 16

E. E. Rafalyuk

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: rafaliuk_e@mail.ru

The article is devoted to the study of the question of the values of international law, in particular the value of regional integration and cooperation of states. The author analyzes the approaches to the definition of value in terms of the classical approach (“Value as a property of the valued object or as a sample on the basis of which the evaluation shall be made”) and non-classical approach (“The relationship between the object and the statement of what should be an object”). The article discusses the formation of axiology and contribution to its development of R. G. Lotze, V. Windelband, G. Rickert, P. G. Natorp. It is expressed the idea that any axiological analysis should be cultural-historical, because the relation to human values were and remain different in different periods of human history. The author notes that international law is based on the universally valid for all mankind values. They are reflected in the generally recognized principles of international law, customary international law, the universal conventions and declarations. The government and the international community were recognizing gradually the universally significant values. The crisis of international political relations at the present stage threatens the existence of fundamental principles of international law and the values protected by them. However, with the development of globalization, we can talk about the formation of new values — the regional cooperation of states for the achievement of the common good. States are forced to participate in regional integration projects in order to be able to confront the challenges of globalization and to trade with other countries in terms of global competition. The value of integration is gradually “wires” in life through activities of bodies and international officials of interstate integration associations. However the principles of regional integration and cooperation, which include liberalization of the market, free movement of goods and services, non-discrimination of participants trade, are not always clearly interpreted and applied by supranational courts; some basic guidelines are only produced. The interaction of states should be based on common elements of the legal culture, as well as on the idea of the unity of kindred peoples laid down in the legal consciousness. Otherwise integration projects may not enjoy the support of the citizens.

Keywords: axiology, value, international law, regional integration, the generally recognized principles of international law, principles of regional international law, legal culture, legal consciousness, national identity, Latin America, the Eurasian Economic Union.

DOI: 10.12737/13256

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To the Issue on Contestation of an Arbitration Clause  Pdf 16

A. V. Gabov, O. A. Belyaeva

A. V. Gabov, doctor of legal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: Gabov@izak.ru

O. A. Belyaeva, doctor of legal sciences
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: O_beliaeva2011@mail.ru

Authors of article analyze algorithm of actions of the arbitration court in a situation when the respondent declares that didn't sign the contract which contains the arbitration clause. Authors formulate the conclusions on the basis of research of the basic principles of arbitration trial, and also lawsuits. Authors note that the main beginning of arbitration trial is free will of its parties, consider types of the arbitration agreements practiced in the Russian Federation, explain value of the principle of competence – competence and autonomy of the arbitration clause in activity of the arbitration court. In article the algorithm of actions of the arbitration court at purpose of handwriting examination is stated, and also by its results, importance of check of a being of dispute regarding possibility of its permission in the arbitration court is noted.

Keywords: arbitration court, arbitration agreement, arbitration reservation, competence of the arbitration court, handwriting examination.

DOI: 10.12737/13257

 

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