Annotations № 5 / 2013
ROUND TABLE «FRAGMENTATION OF INTERNATIONAL LAW»
Savchuk K. A. (Kiev, Ukraine) The problem of international legal recognition of States in the context of the fragmentation of international law
A brief description of the basic concepts of recognition of States is presented. The modern examples of recognition of states in the former Yugoslavia and the former Soviet Union are considered. The conclusion is made that today the recognition of new states is more a political problem than a legal one and attempts to establish common rules for recognition are unlikely to be successful.
Key words: recognition of states, doctrine of recognition, Kosovo, Abkhazia, South Ossetia, Yugoslavia, Soviet Union, European Union
Sazhienko N. V. (Odessa, Ukraine) International health law as an expression of differentiation and expansion of international law
The problems of differentiation and expansion of international law is considered through the prism of international health law. The practice of protecting the right to health in international judicial and quasi-judicial bodies is analyzed.
Key words: fragmentation of international law, international health law, individual right to health, collective right to health, human rights
Kononenko V. P. (Kiev, Ukraine) Formation of international judicial process
The history of the formation of international jurisprudence, the practice of International Court of Justice, European Court of Human Rights , International Tribunal for the Law of the Sea are considered, the formation of case law is analyzed. The sources of international procedural law are examined, the use of own precedents by certain international criminal courts and tribunals for filling the gaps in the procedural area is critically evaluated. It is found that the practice of international courts is drawn to the Anglo-Saxon law where judicial precedent is considered a source of law.
Key words: international procedural law, legal position, precedent, International Court of Justice, International Tribunal for the Law of the Sea
Smbatyan A. S. (Moscow) Conflict of jurisdictions of international judicial bodies as denial of their interrelations
The problem of conflict of jurisdictions in public international law is a reflection and at the same time a result of the lack of systemic approach to international judicial bodies. While taking into consideration their interrelations significantly reduces the risks of such conflicts.
Key words: international, adjudication, judge, conflict, jurisdiction, identity, claim, admissibility, competence, consolidation
Kuzmenko L. R. (Kiev, Ukraine) Analysis of the concept of international law of catastrophes through the lens of phenomena of fragmentation
Analysis of the concept of international law of catastrophes as a regulatory system aimed at regulating relations between subjects of international law in the event of disasters (catastrophes) is shown. The risks associated with the possible fragmentation of international law in this area is considered.
Key words: international law of catastrophes, fragmentation
Isupova M. V. (Yekaterinburg) The interrelation of international humanitarian law and international human rights law in the process of fragmentation of international law
The analysis of the fragmentation of international law on the example of international humanitarian law (IHL) and international human rights law (IHRL) is made. The author studied the conditions of fragmentation in relation to those branches of international law. It is concluded that during the armed conflict the provisions of IHL contradict the norms of IHRL, because in these conditions the obligation to ensure human rights is not suspended. It is stated that the decision of International Court of Justice on the use in armed conflict of IHL as lex specialis, and IHRL as lex generalis is not supported by regional courts. In the interrelation of IHL and IHRL the fragmentation occurs , which means that the law enforcers have to ensure the unity of its implementation.
Key words: international humanitarian law, international human rights law, fragmentation of international law, lex specialis, conflict of legal norms
Shershneva E. A. (Kiev, Ukraine) The fragmentation of international law by the example of the collision problems of cross-border relations on alimony payment
Certain problems of private international law at the present stage are analyzed. The author studied the legal acts of over 30 countries concerning conflicts in child support regulation. Legislation of Ukraine is set to world standards in matters of recognition and enforcement of judgments in disputes about withholding of alimony to the benefit of children.
Key words: collision, choice of law, domicile, child support, obligator, recognition of a foreign judgment
THEORY OF LAW AND STATE
Bazhenova T. M. (Yekaterinburg) Sources of law and the sources of knowledge of law
The characteristic of reports and presentations of the roundtable is given. The key issues of the study of sources of law and sources of knowledge of law in the research work of the representatives of theory and history of state and law as well as branch juridical sciences are considered.
Key words: jurisprudence, history of state and law, sources of law, sources of knowledge of law, source study of history of state and law
Muravskiy V. A. (Yekaterinburg) On the difference between the source and the form of law
The difference between the source and the form of law is shown. This allows to examine the structure and essence of the authorized sources of law. The author's position provides an opportunity to take a fresh look at the relationship of law and sence of justice.
Key words: source of law, form of law, legal practice, authorized sources of law, law and sence of justice
Ilalutdinov A. I. (Kazan) The concept and the nature of structure of norm of law
The analysis of existing approaches to the concept of the structure of the norm of law is given. The author reveals the concept of structure of norm as a logical construct that is based on the internal order and relationships of elements. The idea is put forward that elements, inter-element connections and order of the elements form the structure of norm. Particular attention is given to the last component.
Key words: norm of law, structure, elements, inter-element connections, internal order, systems approach
Fayzrakhmanov R. Kh. (Yekaterinburg) Wars and armed violence as a factor of development of the Russian statehood
The place of war and other forms of armed violence in the history of the Russian state is analyzed. Their impact on the development of the state and law is considered.
Key words: riot, war, armed violence, rebellion, statehood
ROUND TABLE: «CURRENT LEGACY AND NEW IDEAS IN THE PHILOSOPHY AND SOCIOLOGY OF LAW»
Glazyrin V. A. (Yekaterinburg) Can the ruling elite establish the rule of law
The purpose of this paper is in solving the problem of how today the ruling elite can establish the rule of law. Four explanatory hypotheses are formulated and consistently considered. Social opportunities and difficulties of the ruling elite becoming the driver-actor rule of law are called.
Key words: law, rule of law, ruling elite, civil society, conflict
Gribakin A. V. (Yekaterinburg) The natural right of people: from wordly illusions to science
The scientific significance of the concept of natural rights of people is denied. The author methodologically shows the way of study of processes of formation of individuals with rights with responsibilities.
Key words: the individual, rights, duties, natural, right-duty, ideologeme
Gribakina Eh. N. (Yekaterinbirg) Corruption in the space of hidden objective reality
An original point of view that corruption is a phenomenon of of hidden objective reality and its elements are functioning as pre-law is presented.
Key words: cryptation reality, corruption, tyranny, patronage, non-legal appropriation, «structure of the initial class formation»
Konovkin E. S. (Yekaterinburg) Extra-legal regulation and authoritarian tendencies
The essence of the legal and extralegal regulation and the relationship of the latter with authoritarian tendenciesis considered. Extra-legal regulation is interpreted as a departure from following the accepted norms of law.
Key words: law, «the right of the strongest», extra-legal regulation, ruling class, «tug» of rights
Emelyanov B. V., Ionaytis O. B. (Yekaterinburg) «...on the Russian soil there is no shadow of law» (about the censorship policies of Nicholas I)
The censorship policy in respect of the national philosophy during the reign of Nicholas I is considered.
Key words: Russian philosophy of the XIX century, censorship, censorship statute, censorship fate of the Russian philosophy of the XIX century
Shtifanova E. V. (Yekaterinburg) The problem of social solidarity and understanding of freedom in the Russian context
The classical theory of mechanical and organic solidarity of Durkheim in the context of understanding and realization of personal freedom by the Russians is considered.
Key words: mechanical solidarity and organic solidarity, societal freedom, personal freedom, positive and negative types of freedom
COMPARATIVE JURISPRUDENCE
Chen P. (Hong-Kong) The evolving role of the Chinese judge in civil fact-finding
The article deals with the background and the main stages of modification of the Chinese civil procedure law concerning the role of judges in the process of establishing the facts of the case. On the basis of jurisprudence the author assesses the effectiveness of the changes in the CPC, the conclusion about the need to continue reforms to strengthen the fundamental principles of civil procedure is made.
Key words: establishing the facts of the case, Civil Procedure Law of the People’s Republic of China, Some Provisions of the Supreme People’s Court on Evidence in Civil Procedure
Sorochenko A.V. (Kiev, Ukraine) The legal status of shareholder agreements in Ukraine
The article is devoted to the study of the legal nature of shareholders' agreements, as well as specific problems relating to the conclusion of shareholder agreements in Ukraine. Changes in the law of Ukraine in order to improve the legal regulation of joint-stock companies activities are proposed. A study of the legal nature of shareholders' agreements in foreign countries (Russia , USA, Germany , Switzerland) is made.
Key words: shareholder agreements, corporate rights, mechanism of realization
ELECTION LAW AND PROCESS
Makartcev A. A. (Novosibirsk) The legitimacy of the elections: the mechanisms of legal securing
The article explores the means of the electoral process ensuring the legitimacy of the elections. Based on a critical analysis of changes in the electoral legislation of the Russian Federation the author makes assumptions about the future development of the Russian electoral law and makes proposals to improve the legislation.
Key words: legitimacy, legality, right to vote, elections, nomination and registration of candidates (lists of candidates), senior official of the Russian Federation , member of the Federation Council
CRIMINAL LAW AND PROCEDURE
Bavsun M. V., Veklenko V. V. (Omsk) Ideological foundations of criminal law
The paper is devoted to the influence of ideology on the formation of means of criminal law effect on crime. Special attention is paid to the dependence of its main indicators from the dominant value system in society. Based on the analysis it is concluded that ideological basis needs to be consolidated in the text of the criminal law.
Key words: ideology, criminal law, crime, value system
Perepechina I. O. (Moscow) Analysis of statistical data on crimes committed by medical professionals against life and health
The analysis of statistical data on crime in the Russian Federation for the past 15 years for crimes against life and health, committed medical professionals in the course of their professional activity. It is shown that the available statistics do not reflect the state of affairs.
Key words: crimes medical professionals, statistics, state of crime, criminal record
Grigoryev A. I. (Yekaterinburg) Admissibility of explanations as evidence in criminal case
The author draws attention to the order of giving and receiving explanations of citizens and officials at checking the reports on committed or planned crimes during realization of operational-search activity, in administrative process and use of these documents as evidence in criminal cases.
Key words: interview, explainations of citizens and officials, checking reports on crimes, operational-search activity, administrative process
CIVIL LAW AND PROCEDURE
Osipov A. A. (Miass) On some problems of personification of public authorities in civil matters by the example of the Bank of Russia
The article addresses the selected questions of civil-legal status of the Bank of Russia, the problem of its legal personality, an analysis of different approaches to its understanding is presented. On the example of the legal status of the Bank of Russia special attention is drawn to adoption of a construction of «legal person of public law» in the Russian legislation. In the end of article the author offers his vision of the designated problem.
Key words: Bank of Russia, civil status of the Bank of Russia, legal person, legal person of public law
Potapova N. V. (Yekaterinburg) The marriage contract: information securing of the interests of creditors and other third parties
The author examines the question of the need to register the marriage contract in respect of marital property and property rights as a way of informing creditors and other third parties on the property relations between the spouses. The conclusion is made on the need to strengthen the responsibility of spouses for information concealment about the existence of a marriage contract or its misrepresentation.
Key words: marriage contract, information provision, creditors' rights, responsibility of the spouses, property relations, information concealment, registration of marriage contract
LABOUR AND SOCIAL LAW
Shaykhatdinov V. Sh. (Yekaterinburg) On the fixed-term employment contracts for municipal service
The regulation of fixed-term employment contracts for municipal services is considered. It is stated that these issues should be resolved on the basis of the provisions of the Labor Code on the fixed-term employment contracts with taking into account the specific character of municipal service. Attention is drawn to cases where the fixed-term contract is required, as well as to cases where the fixed-term employment contract may be concluded.
Key words: municipal service, municipal employee, person replacing municipal service post, fixed-term contract, age limit for municipal service
Davletgildeev R. Sh. (Kazan) International legal cooperation of participating states of the Commonwealth of Independent States in the field of labour migration at the present stage
International legal cooperation in labour migration continues to maintain its value for the CIS, which is confirmed in the program documents of the Commonwealth, and is reflected in the new international agreements, acts of model legislation. This article is a review of the current international legal regulation of labour migration in the CIS and Eurasian Economic Community.
Keywords: international legal cooperation, labor migration, Commonwealth of Independent States, Eurasian Economic Community, international legal regulation of labor migration, organized collection of foreign labor
PROBLEMS OF JURIDICAL EDUCATION
Rusinov R. K. (Yekaterinburg) Formation of critical thinking of jurirical universities students
The article raises the problem of the formation of critical thinking in students to meet modern educational standards. Understanding of critical thinking and its techniques is proposed. The examples of the use of critical approaches to teaching various legal disciplines are given.
Key words: critical thinking, Kant, legal education, research activity
PAGES OF HISTORY
Kodan S. V. (Yekaterinburg) External history of law in Russia's jurisprudence (the second quarter of XIX - early XX centuries)
A characteristic of the formation and development of foreign law as a source study section of the Russian legal science is presented. The appearance of the external history of legislation as a trend in jurisprudence and its transformation into a scientific and academic discipline – the external history of law are shown. Particular attention is paid to the place, role and content of the external history of law as a source study section in the history of law of Russia.
Key words: jurisprudence, source study, history of state and law, sources of law, sources of knowledge of law
Smykalin A. S. (Yekaterinburg) The historical way of constitutional development of the Russian Federation (in documents and materials)
In a series of materials rare documents that describe the individual steps of the constitutional regulation in the Russian Federation are presented. The first article is devoted to the 1993-1998 years - the period of entry into force of the new Constitution and the beginning of a new nation-building.
Key words: Constitution of the Russian Federation, Constitutional Court of the RF, constitutional construction
MUSEUM OF SLI - USLA HISTORY
Zipunnikova N. N. (Yekaterinburg) Institute weekdays: education and training-methodical work in 1931