No 2 (2016)

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Articles
The universal/contextual in rating the freedom by law
Chestnov I.L.
Abstract
The author formulates a post-classical approach to the determination of freedom and its measures. Law as universal measure of freedom is the ultimate abstraction. The specific content of legal measures of freedom is contextual. The meaning of the concept of «freedom» is determined by historical and socio-cultural frameworks and legal policy. The concept of «freedom» fills with concrete meaning through the definition of its measures, including the law, in each particular situation. Measuring of freedom is always «arbitrary» to the previous norm adopted another measure of freedom. In the act of legal innovation the measure of freedom will obtain social recognition. The universal exists in law as formal abstraction. The universal in law is the functional significance of law - ensuring the survival of the society. Formal abstraction as the essence or goal of law fills with specific content in the context of time and place. The universality of law as a measure of freedom is its social purpose. Among all nations and peoples and at all times, the constitutive norms always existed and exist for the appropriate society. They should be called law. The universality of law as a measure of freedom is a priori condition of the possibility of human, social and legal existence. It can be filled with particular content only in appropriate historical and social cultural context. Legal policy determines legal measure of freedom in post-industrial society. Legal policy is the activity of the ruling elites and reference groups to form the system of law, organization of social (legal) control and operation of the population on the reproduction of legal reality. Subjects of legal policy are: 1) the ruling elite and reference group who produce the new legally relevant maxim of law; 2) the masses who legitimize legal innovation or refuse to accept it.
RUDN Journal of Law. 2016;(2):9-19
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Situation in the Russian science of law: are there basic concepts?
Nemytina M.V.
Abstract
The article is devoted to problems of modern Russian science of lawfound itself between XXth and XXIth centuries in difficult situation of overcoming the narrow frames of legal positivism and etatism, searching new methodological basis and integrating into worldwide scientific space. The article substantiates the term «science of law» itself which simultaneously means in Russian «legal science», «legal education» and «legal practice» and underlines by this their interconnection and mutual conditionality. The author observes legal trends determined Russian legal science condition and perspectives in the post-Soviet period. She also presents evolution of understanding the essence of law in works of the leading Russian scientists. The author explains overmentioned situation in legal science by using scientific basing of the culture as human vital activity overbiological programme, and legal culture as phenomenon which condition is determined by previous experience of legal sphere social development. In characteristics of modern legal science the accent is made on development of socially directed concepts which admit not only state, but also another public corporations, their considerable role in the modern society and possibilities of lawmaking activity. The author emphasizes peculiarities of development of the Russian legal system and culture, and illuminates problems of the science as a knowledge system and social institute. Following to the imperative scientific principle «from general to the special» the author asserts that if one does not define general approaches to the law on doctrinal level, decision of special legal problems will hardly produce visible results. While talking about important to the author tendencies of development of the Russian legal science in the post-Soviet period she marks that among different approaches sociological conceptions connected to search of regulative systems of legal type inside the society begin to acquire vogue. The golden thread of the article is idea that scientific legal society should compound approaches to the law and define the paradigm of legal researches answering to social interests and requirements.
RUDN Journal of Law. 2016;(2):20-35
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The socio-interactive nature of legally protected interest and its role in the process of the formation of the elements of law matter
Trofimov V.V.
Abstract
This article discusses and describes the role of the legally relevant social interests in the process of formation of the elements of law matter. The connection between social media and the procedure of legal regulation is stated. It has been determined that social nature of law starts its immediate performance in the amount of those social interests which demand for the necessity of their regulation via statutory power. On the basis of the analysis of national works in the field of juristic doctrine, the term “law matter” is introduced as the most distinctively revealing the inner structure of the right, the accumulation of the means of the right which have a regulating impact on social interactions. The significant role of interests in social and law development is highlighted as these are the interests that predetermine the social and law dynamic pattern (a dialectic of the form and content of the right). Interests are considered as the intermedium between the subjective stage of the regulating right formation process and an objective one, since the interests are connected with the subjective knowledge of objective factors which are at the forefront of the right formation process. Various interpretations of the notion of interests are presented. The description of interests in the context of social interaction is emphasized. The socio-interactive nature of the legal interests arising in the course of continuous social interaction is justified. Basing on the etymology of the term but not exclusively, it has been asserted that the interest is initially a socio-interactive phenomenon which recurs in the processes of social interaction and presents the initial ontological (life) base for the right (the right regulation). The appearance of economic interests which are needed to be legally regulated in the process of interaction among corresponding bearers of economic interests is given as an example. The similar example of law significant interests reproducing is found amid the political interaction (the interaction of authorities and society).The dependence of the nature of the social and legal interests and legal expressing their type forms is established. Thus, it is proved that the relation of the conflict type influence the formation of negative legal means (prohibitions, abeyance, sanctions) the aim of which is the demarcation of conflicting parties, lowing the level of tension in social systems. On the other hand, it can be noticed that the situations of social cooperation (where social interests are mostly in agreement) stipulate the system of positive legal means (permission, incentives, encouragement) which contribute to the united relations in the society. The significance of timely revelation of legally important social interests resumed being one of the problems of modern legal policy.
RUDN Journal of Law. 2016;(2):36-49
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Judge as a new sovereign: voluntaristic interpretation theory of M. Troper
Timoshina E.V.
Abstract
The paper presents, that realization of rule of law state concept, which supposed judge to be independent neutral instance, has had sudden side effect, unexpected costs. Author considers, that it is due to tendencies of judicial power sovereignization, being discovered in constitutional justice sphere, that lead to radical politicization of judgment, especially in competition of human rights situations. The process of judicial power sovereignization and politicization of judgment is supported by judicial activity ideology, which constructs new sovereign - the judge, and tries to put it in place of eliminated sovereign of classical (Austin’s) juridical positivism and to assign him all attributes of the sovereign of classical political doctrine. The aim of this process is to substantiate changes to constitution, which are invented beyond provided procedures. Author considers, that realistic (voluntaristic) interpretation theory of modern French constitutionalist M. Troper supposes doctrinal substantiation for constitutional judgement sovereignization tendency. On the basis of Troper’s judicial authority construction author comes to a conclusion, that this construction includes main features of the political sovereign: 1) constitutional norms are stated by will expression act of constitutional supervision authority; 2) by realizing constitutional founding authority, it determines its own powers independently; 3) the decision of constitutional interpretation subject holds legal validity irrespective to its normative justification and contents; 4) constitutional justice authority is not a subject of legal responsibility. Author concludes that Troper’s realistic theory of interpretation, representing the legal-positivist tradition, attempts the return of the sovereign in modern theoretical and legal discourse, disguising his discredited image in «white clothes» the main attribute of the rule of law - independent judiciary. However, the people is recognized as the subject of sovereignty in the modern rule of law state, therefore, believes the author, the arbitrary establishment of the constitution by the constitutional supervision authority, arrogated to itself the constituent power, is not an act of interpretation, as suggested by Troper, but an act of usurpation of sovereignty.
RUDN Journal of Law. 2016;(2):50-61
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The principle of formal equality in the system of principles of the law of international organizations
Dorskaya A.A.
Abstract
The article considers the correlation of general principles of law, the principles of international law and the principles of aw of international organizations. It is shown that the system of principles of law of international organizations are quite ambivalent, therefore, specialists interprets them in different ways. The principle of formal equality is extremely significant in this regard. Some researchers consider formal equality as essential characteristic of law in general, while others disagree. In the article the principle of formal equality is considered as a basis for the development of the law of international organizations. Such principle as sovereign equality of the states and respect of the rights inherent of sovereignty is analyzed as derivative of the principle of formal equality. In article it’s shown that only from the XX century it’s possible to speak about the principle of formal equality as the principle of the law of the international organizations. Since that time the violation of this principle practically always led to armed conflicts and refusal of the purpose for the sake of which the international organization was created. As an example, the author is illustrated the activity of League of the Nations. The violation of the principle of formal equality led to the fact that the main task of this organization - the prevention of the Second World War - was not solved. It is also considered the acceptable of legal limits of the principle of formal equality in international organizations. It can be the use of informed decision as a result of voting in some international organizations, i.e. the specialized agencies of the United Nations (UN) as the International Bank for Reconstruction and Development (IBRD), the International Monetary Fund (IMF), The International Finance Corporation (IFC), and the International Maritime Satellite Organization Inmarsat. The second acceptable legal limit of the principle of formal equality is the preferred position of the Russian Federation, the USA, The United Kingdom of Great Britain and Northern Ireland, the People's Republic of China (PRC) in the United Nations Security Council. These are the states that played the key role in the defeat of fascism during the Second World War.
RUDN Journal of Law. 2016;(2):62-72
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To the question about planning the control activities of the state
Kudilinskiy M.N.
Abstract
The article deals with the problem of planning in the process of public authorities of their supervisory powers. The various points of view on referring to the organization and planning of the preparatory stages of the audit process are analyzed. Three aspects of the preparation of bodies of state control and supervision bodies of the municipal annual plan of scheduled inspections of legal entities and individual entrepreneurs are represented: 1) compliance with the rules on the frequency of checks on the same subject; 2) records of scheduled and unscheduled inspections in relation to a particular subject over the last three years; 3) assessment of risk of harming as a result of the activities of the audited entity. It is noted that planned to conduct monitoring activities should be provided in the personnel, organizational, financial and other respects; it is beyond question and does not need justification. The author comes to the conclusion that the planning stage is a self-monitoring activities of the state, the following tasks: 1) compliance with the rules on the frequency of inspections; 2) accounting control load on the particular audited entity; 3) consideration of the potential danger from the activities of the audited entity. 4) ensuring the effectiveness of the internal management in the organization of the controlling body of work; 5) ensuring continuity of sequencing effects on controlled areas of public life; 6) provision of inter-agency coordination; 7) informing the stakeholders about the planned audits. The author concludes that the supervisory bodies have an impact on society by the fact of its existence and functioning, even if a significant portion of the subjects is not subject to control measures, and on the other hand, the supervisory body work should cover all categories of audited entities by geographic, substantive or other criteria.
RUDN Journal of Law. 2016;(2):73-80
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The antitrust legal regulation of the gas industry in the European Union
Volkov A.K.
Abstract
In the article, the author focuses primarily on the general rules of EU antimonopoly regulation, inter alia: the dominant position, the anti-competitive agreements and the State assistance. The author also specifies of special features of the regulation, as well as its practical regulation. In the second part of the article, the researcher analyses the specific antitrust norms, applicable to gas industry in the sectors of gas transport, distribution, storage and commerce. The author points that today the antitrust law became the basic instrument of the gas industry development. The application of the common rules became habitual and gets the gradual character. At the same time, the doubts on the necessity of the antitrust law existence still exist. The application of the specific antitrust norms give rise to more doubts. Possibly because of the lack of the practice of the realization of the EU legislation, may be it is too early to make the conclusions about the effectiveness of the antitrust legal regulation. Already, there are propositions of the elaboration of the new directives. However, while implementing future reforms concurrence should not be achieved through the establishment of the new barriers on the market. The measures like unbundling, the regulatory access to the infrastructure themselves present the restrictions of the freedom of the entrepreneurship. Consequently, more actual is not the adoption of the new directives but the deregulation. The diminution of the States interference will allow to retain the incitements for the monopolist and to eliminate the barriers of the entrance on the market. The author comes to the conclusion that if the adoption of the new acts is inevitable for the legislator, the institutions should, first of all, proportion the goals and measures of their achievement and, secondly, secure the balance between the importance of the concurrence developpement and the energy efficiency, keeping in mind the deficit of this resource.
RUDN Journal of Law. 2016;(2):81-104
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Trends of development of financial and legal basics for market self-regulation of investment securities
Troekurov P.S.
Abstract
The article investigates the activities of one of the most dynamically developing institutions - self-regulating organizations (SROs) in the investment securities market. The mechanism of the securities market regulation in the United States and the UK is analyzed and the differences between them are defined. There are two types of SROs in the securities market of the USA: with voluntary and compulsory membership. SROs do not only develop standards and rules, but also carry out functions that are similar to the licensing of professional activity in the stock market. It is shown that in the UK since 2001 the self-regulating status of organizations in the stock market in fact has been abolished, and they have survived only as professional associations. It is concluded that the system of regulation of the Russian stock market has borrowed a lot of decisions and principles of the legislation of the USA and the UK. It is substantiated that the reform of financial regulation in Russia has required the revision of the current legislation in the field of SROs in the financial market and the creating of a two-level mechanism for regulation (governmental and SRO’s). The key innovations for SROs in the securities market introduced by the Federal law from July 13, 2015 No. 223-FZ "On self-regulating organizations in the sphere of the financial market and on amendments to articles 2 and 6 of the Federal law "On amendments in separate legislative acts of the Russian Federation" are defined: the re-introduction of the principle of compulsory membership in the SRO, while maintaining the licensing of professional activities of these subjects along with compulsory member of the society in their SRO; the limitation on the number of SROs (merger of not less than 26% of the total number of financial institutions engaged in appropriate activities); determination of the requirement of a common core of standards for all SROs, uniting the subjects of similar activity; control functions delegation by the Bank of Russia to separate SROs defined by the Bank of Russia. It is concluded that in the result of the imposed changes to the Law on SROs the securities market should become transparent, coherent, effectively functioning and stable, complying with the rights and legitimate interests of retail investors and creating conditions for reducing risks of individual investments.
RUDN Journal of Law. 2016;(2):105-119
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Legal category of «information resources»: conceptual aspects
Yastrebov O.A., Shmeleva S.V.
Abstract
In the article analyzes conceptual approaches to the study the content of the term «information resource», undefined in current Russian legislation but, however, used in some regulations. The authors pay attention to the specific content of information law basic terms basing on the evolutionary stages of formation of the appropriate categories. They note that research of «information resource» concept specificity should be founded on analysis of its legal nature, and supposes constructing the conceptual line based on «information» category. Analysis of the definitions given in various sources enables to state that structure of information resources includes any arbitrary information, or its subset, and different authors sometimes use incommensurable criteria to highlight it. The article justifies the necessity to improve state policy concerning information resources as well as facilities and processes related to the latter. It is argued that clear legal regulation in sphere of information law and inclusion of the notion of «information resource» to the current information law will ensure stability of Russian information complex government. It is caused by the fact that the rapid development of the global information network currently enables data transmission to almost unlimited distances in large enough volumes and in the shortest possible time, which is followed by the necessity to improve public policy concerning information resources as well as facilities and processes related to the latter. The authors note the need to minimize the cross-use of information and legal definitions in the system of legal regulation of public relations at the present stage and the further improvement of the conceptual and theoretical basis of informatization in Russia.
RUDN Journal of Law. 2016;(2):120-128
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The concept and structure of «Sports product» in sports law
Ponkin I.V., Ponkina A.I.
Abstract
The article is devoted to one of the key concepts in the field of sport and sports law - the concept of «sports product». Many defects of legal regulation in the field of sport today determined the lack of proper understanding and due consideration of a number of specific characteristics of sport, the unique phenomena (including sports product as the phenomenon), defining a specificity of this sector. Sports products are very numerous and varied. But that sports competitions are the attractor (point of convergence) of the totality in the field of sports a variety of products. The article shows that the relations in the field of sports industry has 3 main elements: consumers of sports products, actually sports product, suppliers (including intermediaries) of sports product. The article presents the author's definition of «sports product» concept. The article presents the author's description of the types of sport products (sports product is described as an integral concept). The authors note that the concept of «sports product» includes the following items: 1) Intangible sports products, 2) physical sports products, 3) mixed (material and non-material nature) sports products. The article shows the main sports products are formed, produced and / or supported by the state within the framework of public administration process. This article describes the features of sports-entertainment products and sports information (as a kind of sports product). The nature of sporting competition as a sports-entertainment product essentially is mostly unpredictable, which actually attracts the consumer of this product, providing not only entertainment, but also a certain intrigue, uncertainty. Sport is increasingly becoming a product of the entertainment industry. And it is important to take into account and reflect in the law the existence of the sport variety of sports products.
RUDN Journal of Law. 2016;(2):129-137
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Review of the All-Russian scientific-practical conference «Interests in law» held at the Law Institute of Peoples’ Friendship University of Russia (on March 25-26, 2016)
Lapo P.V., Sorokina E.A.
Abstract
On 25-26th of March 2016 all-Russian scientific-practical conference «Interests in law» took place in People’s Friendship University of Russia. It was initiated by the Department of theory and history of state and law and co-organized by Institute of State and Law of the RAS, Plekhanov Russian University of Economics, Gerzen State Pedagogical University of Russia, Association of Law Schools of Russia. During the conference different aspects of problem of interests in law were discussed, e.g. influence of the interests on the evolution of law and society in different periods of their history and development, communication of legal contact subjects as carriers of subjective rights and obligations, interdependence of and interaction of public and private interests in lawmaking, law enforcement and law schools’ educational process. Present review includes general conception of the conference, participants’ main ideas and fragments of their speeches mirrored to certain extent the level of comprehending the conference’ main problem by scientific society of Russia and neighboring states.
RUDN Journal of Law. 2016;(2):138-150
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Liav Orgad: The cultural defence of nations. A liberal theory of majority rights
Abashidze A.K., Ilyshevich M.V.
Abstract
The article is a review of the scientific monograph of Liav Orgad «The cultural defence of nations. A liberal theory of majority rights» (Oxford, University Press, 2015. 273 pp.). The present review summarizes the provisions, in which the author of the monograph under review analyzes the approaches of modern states to address the problem of preservation of national identity in the face of the threat posed by large migration flows. It also offers an assessment of the conclusions made by the author of the monograph under review as a result of observing of national legislation from the standpoint of constitutionalism, in particular, coming to the conclusion that in the present conditions developed states are often «forced» to abandon the democratic values, which in itself is absurd. The author of the monograph under review also makes an attempt to justify the need to protect «the rights of the majority», along with «minority rights», relying on fundamental international instruments for the protection of human rights, which is also reflected in this article. The monograph endeavors to define the concept of «national identity» and what it means for each individual state using the example of such as the United Kingdom, Germany, France, the Netherlands and the United States of America - this review provides a summary and critical evaluation of key points put forward by the author of the monograph under review in this regard.
RUDN Journal of Law. 2016;(2):151-153
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RUDN Journal of Law. 2016;(2):154-157
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