Contents of issue # 12/2018

■ TO THE 25th ANNIVERSARY OF THE CONSTITUTION OF THE RUSSIAN FEDERATION

The Constitution of the Russian Federation in the Focus of Modern Constitutional Legal Doctrine (to the 25th Anniversary of Russian Basic Law)  Pdf 16

T. Y. KHABRIEVA

director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, academician of the Russian Academy of Sciences, titular member of the International Academy of Comparative Law, doctor of legal sciences, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office@izak.ru

The Anniversary day of adoption of the Basic Law of the state is a serious reason for understanding the changed worldview, philosophical and life meanings not only of the Constitution of the Russian Federation, its role and significance in the life of the Russian society, but also the original constitutional regulation that has been developed and proved its viability and efficiency. At the same time, the Anniversary of the Russian Constitution is conducive to thinking about the prospects for its renewal, to the analysis of existing initiatives and sociological research results, illustrating the level of public demand for change, which in the mass consciousness is associated with constitutional changes. The range of issues addressed in the article covers the ontological and axiological aspects of the Russian Constitution’s phenomenon, the specifics of the “semantic codes” embodied in it, ways of further unfolding its potential, doctrinal approaches to the problem of updating the Basic Law and tools to identify the objective need for its transformation, as well as the justification the initiatives concerned. In this context, the urgent tasks of the constitutional legal doctrine are formulated and the ways of their solution are proposed.

Keywords: constitutionalism, constitutional reform, constitutional law, constitutional regulation, constitutional legal doctrine, constitutional standards, the Constitution of the Russian Federation, the fundamental law of the state, legal monitoring.

DOI: 10.12737/art_2018_12_1

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The Constitution of Russia in the Context of Global Changes in Legal Life: From Political Illusions to Legal Realism  Pdf 16

N. S. BONDAR

judge of the Constitutional Court of the Russian Federation, doctor of legal sciences, professor, honored lawyer of the Russian Federation, honored scientist of the Russian Federation
1, Senatskaya sq., St. Petersburg, Russia, 190000
E-mail: ksrf@ksrf.ru

The article presents the author’s approach to understanding nature, the purpose of the 1993 Constitution of Russia in the current conditions of global changes in legal life, which required exploring the meaning and depth of its influence on social reality, the sources generated by it at the initial stage of adopting political illusions and legal romanticism, its degree realism as an act of direct action. On this basis it shows the place and the role in the modern sociocultural and legal world order. The analysis of contemporary challenges to law, which, in the opinion of the author, as a deficit of constitutional equality, the separation of sociocultural elements from the formal legal characteristics of law, is of great importance. It ultimately creates the threat of the loss of its essential characteristics as an equal measure for all of freedom. An important factor in overcoming contemporary threats to law is the current Constitution of Russia, which philosophical and ideological basis is methodological pluralism. The demand for this methodology in the activities of the Constitutional Court of the Russian Federation allows it to carry out both law enforcement and transformative functions. The Court implies the possibility of sociocultural self-development and the evolution of the Constitution without changing its text.

Keywords: stability and dynamism of the Constitution, threats to the law, constitutionalism, constitutional justice, sociocultural environment, moral and ethical principles of the Constitution, philosophical and ideological pluralism, direct effect of the Constitution.

DOI: 10.12737/art_2018_12_2

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Creative Potential of the Constitution of the Russian Federation  Pdf 16

S. M. SHAKHRAY

dean, head of the Department of state audit of the Higher School of State Audit (Faculty) of the Lomonosov Moscow State University (MSU), vice-rector of the Lomonosov MSU, head of the Center for legal support of socio-political processes of the Institute of Socio-Political Research of the Russian Academy of Sciences, doctor of legal sciences, professor, honored lawyer of the Russian Federation
1/13, Leninskie gory, Moscow, Russia, 119991
E-mail: info@audit.msu.ru

Proposals on introduction of the “selective adjustments” into acting Constitution of the Russian Federation or its extensive revision have been being circulating among the wide range of experts and in public opinion throughout 25 years since adopting the Fundamental Law. However, as experience shows, authorizing new political and socio-economic realities does not require obligatory interference in the Constitution’s text, since this document provides many political and legal mechanisms to effectively implement innovations into the existing constitutional legal field. This article is devoted to the various mechanisms of this kind in relation to the most relevant “inquiries for amending the Constitution”. To solve the tasks, general scientific methods (generalization, analysis, and synthesis), comparative methods (including comparative legal methods) and empirical research methods are used. It is shown that the creative potential of the 1993 Constitution is far from being exhausted: it is only necessary to use the full range of constitutional possibilities, some of which have not been fully exploited by the legislator. In particular, the issues related to the clarification of the constitutional legal status and powers of a public authority should be solved by means of a tool, such as federal constitutional law. A number of initiatives that do not contradict to provisions of the current Constitution, if they are needed, can be implemented on the basis of a socio-political consensus by introducing a new political tradition. The article also expresses a cautious assessment of the ideas embodied in the project of economic specialization of the Russian regions prepared by the Ministry of Economic Development of the Russian Federation. In particular, potential risks are noted for the system of federalism and the integrity of the State.

Keywords: Constitution, constitutional law, State and Law, constitutionalism, federal constitutional law, federalism.

DOI: 10.12737/art_2018_12_3

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■ CIVIL AND FAMILY LAW. BUSINESS LAW

Freedom as a Category of Russian Civil Law  Pdf 16

E. V. BOGDANOV

professor at the Department of civil law disciplines of the Plekhanov Russian University of Economics, doctor of legal sciences, professor
36, Stremyanny lane, Moscow, Russia, 117997
E-mail: Bogdanov.de@yandex.ru

The article explores the definition and content of the freedom category in Russian civil law. The conclusion that the freedom of the individual can represent freedom as an actual state, freedom as a legal condition and freedom as a subjective right is proved. In the context of freedom as its actual state the individual, at his own discretion and at his own will, makes a choice of behavioral options relating, for example, to his/her daily life and being indifferent to society. However, if the individual, realizing this freedom, violates the freedom of others, he/she shall take responsibility for adverse consequences. The freedom of the individual, as its legal state, implies the need to consolidate in the law the possible behavior of the individual: to acquire property, inherit and bequeath property, engage in entrepreneurial activities, choose a place of residence, etc. Such freedom of the individual shall not be limited, except in the cases and under the procedure specified by law. But pursuant to the general rule, the individual can not fully or partially refuse his/her freedom. The peculiarity of such freedom is that its implementation depends not only on the will and discretion of the individual, but also on the availability of appropriate, including economic, conditions. Freedom of an individual can also be expressed as a subjective right that is a measure of behavior guaranteed by law and provided by the duties of others. The legislation establishes the limits of this freedom: the need for conscientiously implementation of the behavior, not to allow abuse of law, etc.

Keywords: freedom, actual state, legal status, subjective law, public relation, equality.

DOI: 10.12737/art_2018_12_4

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Stimulating Youth (Startup) Entrepreneurship Development in the System of Support for Small and Medium-Sized Enterprises in the Russian Federation  Pdf 16

A. N. GAZETOV

head of the Department of economic support for education and science of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of economic sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: agazetov@izak.ru

The development of youth (startup) entrepreneurship is difficult to assess objectively, despite its obvious importance and significant role for innovative development of our country by participation of young people in entrepreneurial activities. The article analyzes the legal and financial aspects of supporting young (startup) entrepreneurship, reveals shortcomings in regulation based on empirical and theoretical research methods. The Federal Law No. 209-FZ of July 24, 2007 “On the Development of Small and Medium-Sized Enterprises in the Russian Federation” does not single out the category of youth entrepreneurship as a separate category of Small and Medium Sized Enterprises (SME’s). Nevertheless, the “You are an entrepreneur” subprogram of the Ministry of Economic Development of Russia, which is supervised by the Federal Agency for Youth Affairs, allocates 430 million rubles, which is 8,6% out of more than 5 billion rubles of co-financing in total allocated from the federal budget of regional business support programs. This information does not allow to fully appreciate the full amount of support for youth (startup) entrepreneurship, since a burgeoning entrepreneur can take advantage of other support measures provided for by Subprogram 2 — “Development of small and medium enterprises” — from the Main activities list of the state program of the Russian Federation called “Economic development and innovative economy». The article proposes measures to improve effectiveness assessment of the “You are an entrepreneur” event, eliminate functional duplication with support of youth (burgeoning) entrepreneurship, and also include co-working centers in managing entrepreneurship infrastructure support due to the targeted nature of their activities, accumulated by positive domestic and international experience of the functioning of co-working centers (spaces) as part of an enterprise development ecosystem, including innovation.

Keywords: youth (startup) entrepreneurship, small and medium-sized businesses, managing infrastructure, co-working centers (spaces), regional programs to support entrepreneurship and innovation.

DOI: 10.12737/art_2018_12_5

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Anticompetitive Agreements: Legal Essence and Legal Implications  Pdf 16

V. G. ISTOMIN

head of the Department of private law of the Ural Institute of Management — branch of the Russian Presidential Academy of National Economy and Public Administration, candidate of legal sciences, associate professor
66, Vosmogo Marta st., Ekaterinburg, Russia, 620144
E-mail: 5555VS@rambler.ru

In modern Russian competition law there are various prohibitions of wrongful conduct by entities in commodity markets. In particular, the legislation operates such categories as “competitionrestricting agreements” and “competition-restricting concerted actions”. At the same time, these types of anticompetitive behavior are not sufficiently investigated from their legal nature’s point of view. Moreover, the theory and law are not always ready to provide clear recommendations for a law enforcer on grounds for applying one or another prohibitions. There are also disputes over various application aspects of legislation on invalid transactions to anti-competitive agreements, including changes to civil legislation. The purpose of this work is to analyze the legal nature of agreements that restrict competition, identify their place in the system of legal facts within modern law, consider the theoretical and practical problems of the anticompetitive agreements qualification as invalid transactions. The objectives of the study are: the characteristic of the competition-restricting agreement concept, the forms and types of these agreements, the analysis of the practice of applying competition protection legislation in assessing the legal nature of anticompetitive agreements. Research methods are the method of formal — logical interpretation, system and comparative analysis. In the course of the study, the author comes to the conclusion that the agreements restricting competition are bilateral or multilateral unlawful willful acts of legally equal subjects, i.e. legal facts of civil law or invalid transactions. The author also underlines the absence in certain cases of legal criteria for attributing anticompetitive behavior to competition-restricting agreements or to concerted actions, which creates a threat of violation of the rights and legitimate interests of economic entities. In addition, the author, taking into account the modern version of the Article 168 of the Civil Code of the Russian Federation, expresses the opinion that it is possible to classify competition-restricting agreements as null and controversial transactions. However at the same time it is proposed to exclude an indication of a public interest violation from the grounds provided for in this article in order to recognize the transaction as void due to the lack of certainty of the public interest concept. In the course of the study, some recommendations for the legislator are formulated.

Keywords: anticompetitive agreements, legal facts, invalid transaction, concerted actions, balance of private and public interests.

DOI: 10.12737/art_2018_12_6

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■ ADMINISTRATIVE LAW. FINANCIAL LAW. INFORMATION LAW

Budgetary-Legal Status of the Russian Public Universities: the Limits of Self-Sufficiency to Use Funds  Pdf 16

N. A. SHEVELEVA

head of the Department of administrative and financial law of the St. Petersburg State University, doctor of legal sciences, professor
7/9, Universitetskaya emb., St. Petersburg, Russia, 199034
E-mail: n.sheveleva@spbu.ru

The article reveals issues of forming and using funds that are legally provided to the Russian public universities, which operate in the educational services market. Russian public universities deliver state educational services like other participants of the market: private universities and educational entities, which have legal procedural type of the public establishment. Meanwhile the state and general public expect that Russian leading universities make groundbreaking progress and join the list of the world’s best universities. The public universities’ legal status (found as a state-financed or autonomous entity) has some special characteristics based on norms of civil laws, which define the property status of the statefinanced or autonomous entity, as well as on norms of budget laws. These characteristics are the following: receiving subsidies to fulfill the government tasks. In this way the subsidies are used only for state-financed or autonomous entities. The universities’ dependence on subsidies aimed at fulfilling the government tasks is compensated by their right to have income-generating activities. Profits from these types of activities are disposed by the statefinanced or autonomous entities themselves. However this right is limited by several restrictions and mandatory requirements. The most important limitation for the budgetary entities is the responsibility to use bankbooks opened by the Federal Treasury authorities. The mandatory use of several bankbooks with different types of disposing rights and rights of controlling procedures (including the approval procedures) limits the self-sufficiency to make effective decisions on how to dispose the funds. Due to the lack of regulations and incoordination of the budgetary norms, which define the goal of using the funds, it is sometimes unclear if it is legal for the Universities to use the funds or how to specify the financial basis of civil-legal liability of the state-financed entities, which are participants of the education services market.

Keywords: subsidies to fulfill the government tasks, subsidies for “other tasks”; bankbooks, financial and economic activities plan, chartered goals and tasks.

DOI: 10.12737/art_2018_12_7

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Legal Aspects of Financial Planning in Public Expenditure  Pdf 16

E. V. KUDRYASHOVA

senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences, associate professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ev_kudryashova@inbox.ru

The purpose of the article is to study a state financial planning mechanism to regulate public expenditures (appropriations). A transition to strategic planning in the Russian Federation has influenced a number of legal aspects of public finance, and in particular regulation of public expenditures. The concept of strategic management “from the future to the present” has predetermined that the management of public expenditures changed from costs management to results management. It should be noted here that strategic planning does not have such a fundamental impact on public revenues. Within the public revenue there is a principle of cash unity, which in the theory of financial law means a single purpose of state and municipal revenues for financing state and municipal functions exercising. The author fills the regulation mechanism of the state financial expenditure planning with a research content. State programs are investigated in terms of their belonging to the financial planning acts. The integrity of the financial planning act and the interconnectedness of all its prescriptions, which should give an idea of the regulated subject’s state in the future, means that it cannot contain provisions not related to public financial planning. Such a position is formulated in relation to budgets and should be extended to government programs. Financial relations regarding public financial planning form a special level. Relationships within public financial planning are first-level relations, which are a base to form further relations of following levels and directly related to the redistribution of funds (allocations, provision of social benefits, etc.). The article reveals the relationship and the structure of financial and legal relations associated with public financial planning. There are examples from judicial practice, which illustrate theoretical positions and also indicate the need for theoretical studies of the regulation mechanism of public financial planning.

Keywords: strategic planning, cash unity, target programs, result-oriented budgeting, government programs, government expenditure, regulation mechanism, budget, financial law, financial legal relations.

DOI: 10.12737/art_2018_12_8

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On the Content of the Financial and Legal Regime  Pdf 16

K. V. ANDRIEVSKY

doctoral candidate at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: k.andrievskii@mail.ru

The task of characterizing the content of the financial and legal regime involves its analysis as a kind of social regime and as a special type of public law regime. This article is devoted to the substantiation of the efficiency of regulation regime in the sphere of financial relations depended from the general conceptual design of social regime regulation. Analysis of the content of the financial and legal regime cannot be carried out outside the characteristics of the subjects of regulation regime, targeting regulations that implement the management of the behavior of such subjects, the object of the financial and legal regime. The purpose of this article is to study the nature of the financial and legal regime as a kind of social regime. The objective of the study involves the elucidation of community in terms of socio-modal regulation, peculiarities of legal regimes and conditionality the subject of financial law regulation of industry order. The content of the financial and legal regime should be associated with the analysis of the subjects and the object of the financial and legal regime, detailing the features of the implementation of regime in the conditions of actively developing social relations. The methodological basis of the research is dialectical, system-structural, functional and other methods. Legal support of the such regulation involves the focus of the regulations, its guarantee on an indefinite circle of persons. Individualization of operating requirements associated with the stage of enforcement, the end result, the goal of the implementation of the legal regime. Regime regulation at the level of the legal industry involves participation in the field of rule-making and norm-application not only of the state, but also of all entities to which the legislator has delegated the relevant powers. A common denominator in the ordering of social regimes is the management of the behavior of participants in public relations. The purpose, nature and nature of the regime prescriptions determine their differentiation. Criteria of differentiation of the regimes, including allocation as independent financial and legal, are the subjects having powers on acceptance of instructions of the corresponding regime and object as sphere of the public relations on which regulation regime norms are directed.

Keywords: regime, governance, social mode, types of regimes, the legal regime, financial-legal regime, comprehensive regime of regulation, the dynamics of regime regulation, the subjects of legal regimes, object of the legal regime, special financial status of the cryptocurrency.

DOI: 10.12737/art_2018_12_9

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■ SCIENTIFIC FUNDAMENTALS OF COUNTERING CORRUPTION

Legal Regulation of Placement in the Internet of Data on the Income, Expenses and Property Obligations of Certain Categories of Persons  Pdf 16

A. M. TSIRIN, E. V. CHEREPANOVA

A. M. TSIRIN, acting head of the Department of countering corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

E. V. CHEREPANOVA, senior research fellow of the Department of countering corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

Russian legislation, based on the norms of international law and in order to prevent and combat corruption, provides for the mandatory placement on the official websites of Federal state bodies, state bodies of the constituent entities of the Russian Federation, local authorities of the information on income, expenses and obligations of property nature of certain categories of persons. At the same time, the trend of the constant expansion of the circle of persons who are subject to the obligation to submit and post on the Internet the designated category of information, the question of finding an appropriate balance between publicly available information and the protection of privacy is more acute. Based on the analysis of international legal acts and of foreign experience of legal regulation concerning placement of information on income, expenses and obligations of property nature in the Internet, the authors came to the conclusion that it is necessary to amend the law on combating corruption, providing for the exclusion of the need to post on the Internet information on income, property and property obligations of employees not endowed with state authority. According to the authors, this will allow to restrict an access to information on the incomes and property obligations of workers and to prevent its publication in the Internet.

Keywords: convention, information on income, expenses, property and property obligations, corruption prevention, Internet, public information disclosure, risks.

DOI: 10.12737/art_2018_12_10

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■ JUDICIARY, HUMAN RIGHTS AND LAW ENFORCEMENT

Accessibility of Justice, Quality of Law and Development of Arbitration Procedural Legislation  Pdf 16

E. A. FOKIN

research fellow of the Center of foreign legislation and comparative law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
22—24, Bolshoy Kharitonevsky lane, Moscow, Russia, 107078
E-mail: evgeniy.hse@outlook.com

The present research is devoted to the analysis of general trends in the Russian commercial procedural legislation. The author proceeds from the fact that the nature of the latest amendments to the Commercial Procedural Code of the Russian Federation indicates that Russian justice in the field of economic disputes is currently in a transition and aspires to formulate fundamentally new tools and norms. In order to determine possible directions of commercial procedural law development, two European concepts have been chosen: the concept of access to justice and concept of quality of law, which are regularly used in the case-law of the European Court of Human Rights. Comparison of changes in the procedural legislation with these concepts and the practice of the international court led to the conclusion that certain legislative novels cause an excessive number of questions. Thus, the writ proceedings introduced into the commercial process does not fully correspond to the ideas of access to justice. Particularly criticized is the idea of refusing to compose the reasoning part of the judgment in view of the discrepancy of this innovation with the case-law of the ECHR and doctrinal views on the access to justice. To determine the admissibility of any legislative changes, the ECHR’s method of comparing objectives is proposed, which is to determine the balance of the objectives of the state (legislator, court) and persons seeking judicial protection. Also, the article gives the estimation of tendencies of development of commercial procedural legislation from the point of view of concept of quality of the law. It was concluded that in procedural legislation (and as a consequence in judicial practice) provisions that do not meet the requirements of legal certainty. The conclusions of the article systematize the formulated conclusions and proposals.

Keywords: commercial procedural law, the concept of access to justice, the concept of the quality of law, reform of procedural legislation.

DOI: 10.12737/art_2018_12_11

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Special Right of Legislative Initiative of the Russian Courts: Issues of Identification of the Legal Content  Pdf 16

I. A. KARULIN

postgraduate student at the Russian State University of Justice
69, Novocheremushkinskaya st., Moscow, Russia, 117418
E-mail: ikar2912@yandex.ru

One of the main tasks for the further state and society development is the improvement of the legislative process. The implementation of right to legislative initiative is one of the most important stages in this process. The legislation establishes this right for various subjects. Nevertheless, the study of judiciary’s law-making activity is the most actual areas of the research. The article analyzes some aspects of implementing by courts the special right to legislative initiative. This right implies the opportunity to come forward with a legislative initiative on certain issues. The term “matters of jurisdiction” is often used in relation to courts. At the same time, the list of such issues is not defined in the legislation. Different approaches to understand the “matters of jurisdiction” of the courts of the Russian Federation in the exercise of their rights to legislative initiative are discussed in this article. This notion is analyzed in correlation with other similar categories, such as competence, jurisdiction, subjects of management, authorities, etc. The methodological basis of this study is a set of scientific knowledge methods, among which the dialectical method takes the leading place. Aside from and along with that, general scientific and special legal methods of research are used (such as analogy, synthesis, induction, legal analysis, functional, systematic and structural approach, legal modeling, formal-legal and abstract-logical methods, etc.). The study concludes that the courts’ preferred implementation form of law-making functions is the right to legislative initiative general, along with other eligible subjects of this process.

Keywords: judicial system, matters of jurisdiction, right to legislative initiative, competence, jurisdiction, subjects of management, authorities.

DOI: 10.12737/art_2018_12_12

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■ REVIEWS

Who Doesn't Know Lenin? (Review of the Monograph “Unknown Lenin: The Theory of the Socialist State (Without Addiction and Servility)” by V. M. Syrykh. Moscow, 2017. 520 p.)  Pdf 16

V. G. BAYEV, V. V. KRAMSKOY

V. G. BAYEV, doctor of legal sciences

V. V. KRAMSKOY, candidate of legal sciences

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Review of the Scientific Publication "Law and Climate of the Planet" (ed. by Yu. A. Tikhomirov, S. A. Bogolyubov, N. V. Kichigin. Moscow, 2018. 180 p.)  Pdf 16

V. M. ZHUYKOV, R. V. NIKONOV

V. M. ZHUYKOV, head of the Department of civil legislation and procedure of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor

R. V. NIKONOV, postgraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation

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■ LEGAL LIFE. CHRONICLE

Law, Geriatrics and Gerontology: Points of Contact and Areas of Interaction  Pdf 16

N. S. VOLKOVA, N. V. PUTILO

N. S. VOLKOVA, deputy head of the Department of social legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences

N. V. PUTILO, head of the Department of social legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences

 

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Preservation of the Environment: Opportunity of Society and Law  Pdf 16

Yu. I. SHUPLETSOVA

leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences

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Contents of issues:

2019
2018
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2015
2014
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2012
2011
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2009
2008
2007
2006
2005
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