Vol 21, No 2 (2017)

Articles
Institute of the Head of State in Spain: Formation and Evolution of the Concept in the National Jurisprudence
Alexeeva T.A.
Abstract

The article is devoted to the history of the national concept of the head of state institute in Spain. The most significant works of Spanish researches of constitutional law and its history were analysis on the base of a historical approach in chronological order. The author shows the evolution of the institute of the head of state in its intertwining with its constitutional affirmation, influence of these processes over scientific research. At the same time, their predetermination is revealed by the political history of the country, in the context of which it seems useful to carry out juridical research in general and historical research of constitutional institutes in particular. The author of the article distinguishes the following periods in the scientific research of the development of the national institute of the head of state in Spain: 1) status of the king as the supreme executive body (I-III quarters of the 19th century); 2) king as the head of the state occupying the supreme position in the system of state power (the last quarter of 19 - the first third of the 20th centuries); 3) legal status of the president - the head of state in the II Republic (1931-1939); 4) institute of the head of state during the regime of personal power of the caudillo F. Franco (1939-1975); 5) institution of the head of state in the modern Spanish kingdom (1975-present). The article shows that the impulse for research of the head of state institute in Spain was given not only by the political and legal reality, but also by legal education. Therefore, educational literature has taken an important place in the Spanish historiography on the subject; it always had a high scientific level. Research of the history of the institute was mainly focused in the title of academic courses: public constitutional, public, political, administrative, constitutional law. The author concludes that there are spheres to be researched concerning the head of state institute: its concept, evolution in the Spanish constitutionalism, elements of the institute and its variants, links with related concepts.

RUDN Journal of Law. 2017;21(2):173-199
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Institutes of the French High Officials in the Governing System of the Latin Kingdom of Jerusalem in the XII Century
Lapo P.V.
Abstract

In the beginning of the 12th century the most of crusaders in the Latin Kingdom of Jerusalem were originally from France. That social particularity determined form and content of the future Crusader administration. The first ruler of the Kingdom, Godfrey of Bouillon (1099-1100), and his successors Baldwin I (1100-1118) and Baldwin II (1118-1131) based on the institutes of the French high officials, well-known to their subjects, while created new governing system. Adaptation of those institutes to the new geopolitical, economical and sociocultural conditions longed for about a quarter of a century. Analysis of large amount of legal (about 800 royal and seigniorial charters) and historical (Latin and Arab chronicles of the Crusades) sources showed the institute of seneschal was first to be adapted and mentioned in 1102 already. Six years later the constable, the chancellor and the chamberlain supposed to appear according to the several charters. And finally we meet the first evidences about the butler, the regent of the kingdom and the marshal in 1120, 1123 and 1125 respectively. The same sources also enabled looking upon changes of aforementioned institutes’ powers in comparison with their French «originals». The most important meant replace of civil authorities’ domination, typical for France, by military one because of the permanent threat to the existence of the kingdom. The constable and the marshal as his vassal became to play the first roles in the governing system; other officials took broader military powers. Along with that some French traditions (investiture of a fief when taking the office, prohibition to inherit the office, prohibition to take two offices simultaneously) were kept without any change. Such a combination of traditions and innovations let Crusader state’ high officials be more effective than the French ones.

RUDN Journal of Law. 2017;21(2):200-217
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Criteria of Justiciability in Abkhazian Customary Law
Kamkiya F.G.
Abstract

Analysis of customary law in different countries enables to see cultural context of law and by that it gives the opportunity to define character of national legal system. Different peoples’ customary rules of law are formed as a result of long-term accumulation of legal regulation experience. Value of customary law is that it was established free from some political and ideological conjuncture. Research of Abkhazian adats leads to conclusion that social order depends on balance of regulative processes consisting of external organisation by public institute of the state and internal self-organisation of the socium. The author analyses Abkhazian customary law that still plays important role in development dynamics of the social system because in customary legal consciousness the principle «that way was usual (always) in the past» is a necessary condition for regulation of important things. It is the custom that helps to juridify social relations because it has authority of rule of conduct approved by the time. That is why the author suggests paying attention to criteria of “justiciability” delimiting legal and non-legal in social regulation. She defines a list of attributes differentiating the custom without legal significance and customary rules of law that fulfill legal criteria. From this point of view Abkhazian customary law: 1) is normative one; 2) is statutory one; 3) is rational one, it provides integration (i.e. oriented to interests of bigger social entire); 4) has an attribute of goal-setting; 5) regulates the most important things; 6) is processual one; 7) is provided with sanctions and provides contribution. The author resumes modern Abkhazian positive law itself is unable to meet the challenges of legal regulation and establish the legal order. It is necessary to use the opportunities of customary legal juridification of social relations because in modern Abkhazia it can provide development of legal system by fortifying state legal institutes’ credibility.

RUDN Journal of Law. 2017;21(2):218-234
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Freedom of Expression in the Case Law of the European Court of Human Rights: Old Approaches and New Tendencies in Interpretation of Article 10 of the ECHR
Soboleva A.K.
Abstract

The article is devoted to the analysis of the European Court of Human Rights decisions on Art. 10 of the European Convention of the last decade. This research is dictated by the needs of the judicial practice on freedom of expression as well as by the needs of legal theory to clarify concepts and legal doctrines underlying the process of judicial decision-making. The objective of the research is to analyze the changes in the approaches of the European Court to adjudication of freedom of expression cases and to identify the appearance of new tendencies, which would affect the resolution of disputes in this area in future. The author stresses that the European Court along with the use of the well-established approaches and concepts sometimes deviates from them, especially when it deals with new circumstances and realities. In addition, it continues to create new concepts and elaborate new approaches, which would either broaden the previous understanding of what can be covered by Art. 10, or restrict it. Special attention is paid to the formation of positive obligations of the state under Art. 10, to cases on political speech, hate speech, protection of confidential information, duties of the Internet news portals and to cases which involve Art. 10 in conjunction with other articles of the Convention. The author argues that the case law of the European Court on freedom of expression has been developed in the same way as its practice on other articles of the Convention - while in some cases the Court acted more creative and even constructed new rights under the umbrella of the right to receive information (such as the right of NGOs to have access the state-owned information and the obligation of the state to submit it on their request), in other cases it acted self-restrictively (like in cases, involving protection of personal life of politicians, responsibility of Internet platforms for the content, publication of confidential information by journalists, defamation of politicians in fiction, etc.) The balancing exercise between conflicting rights may be made by the Court differently depending on circumstances of the case and the views of the judges who consider the case, that is why the analysis of the dissenting opinions acquires particular importance for the researchers.

RUDN Journal of Law. 2017;21(2):235-262
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Some Peculiarities of Most-Favoured-Nation Clauses in International Investment Law
Rogozina A.A.
Abstract

The most-favoured nation clause is applied in international law in a different way in comparison to its application in international trade law. The article deals with the two possible ways how the most-favoured-nation clause can be applied, namely incorporation and de facto application. First, within the framework of international investment law the incorporation of standards of investment protection from the other international agreements often leads to the full-fledged „redrafting“ of the main bilateral investment treaty, and therefore, the uncertainty as regard to the obligations of the host State. Second, there are no established criteria of likeliness for the de facto application of the clause. The author illustrates how in the absence of the normative framework the arbitral tribunals have elaborated the limits of the application of the clause. In case of incorporation the term treatment means inclusion of more favourable standards of investment protection into the text of an international agreement. In order to apply the clause in such a way, it is suffice to have the two agreements applicable to „the investors”, whereas the definitions of an investor, and therefore the personal scope of foreign investors are not the same. There are several examples of successful incorporation of standards of foreign investors’ protection from the other bilateral investment treaties. For instance, a foreign investor referred to the clause in order to raise compensation in case of expropriation, to incorporate the fair and equitable treatment standard despite of the fact that there was no such a standard in the main treaty. In one case the tribunal did not exclude the possibility to import fair and equitable treatment provision from the treaty concluded earlier than the main treaty. In case of the de facto clause application the comparison is made between the foreign investors that are in the like circumstances with the applicant. With regard to the de facto application the author discusses the likeliness criteria, elaborated by the arbitral tribunals in national treatment cases, in particular, economic and business sector, competition among foreign investors, competition between their products and services, the public policy regulation. No investor has succeeded to persuade the arbitral tribunals to apply the clause de facto, however, this new approach can find its place but requires more detailed argumentation by the foreign investor. The author comes to the conclusion that the criteria for likeness of circumstances have the priority over the criteria for likeness of investors.

RUDN Journal of Law. 2017;21(2):263-277
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The Prospects of Legal Norms Harmonization in the Field of Proprietary Rights in BRICS Countries (on the Example of Brazil and China)
Badaeva N.V.
Abstract

The article concerns the problem of prospects and ways of the legal norms harmonization in the field of proprietary rights in BRICS countries (on the example of Braziland China). The new Civil Code of Brazil adopted in 2002 was examined as the main act dealing with the rights in rem. It reflected all important changes which fixing was required in the Brazilian society during the modern period. In the field of the proprietary rights the emphasis was placed on establishment of the principle of social function of property, reducing terms of an acquisitive prescription and partial review of system of the proprietary rights in the codified act. The Chinese civil legislation is not codified yet, so Proprietary Rights Act of 2007 contents all basic provisions on the subject. This act fully fixes the social and economic features established in the Chinese society, considers traditions and customs, and also provides participants of a business community with a comprehensive protection of the proprietary rights. The law has features of the complex act as it contains a set of regulations of administrative and legal nature along with rules of the civil nature. In conclusion some proposals were formulated to reach the goal of the harmonization of BRICS countries legislation concerning rights in rem. The member-states of BRICS should understand the necessity to move to the harmonization and to continue adopting legal institutions of other legal systems with appropriate interpretation. The denial of conservatism in the determined rules may help to reach success and to harmonize the legislation of BRICS countries. The unification of civil legal regulation will give a good direction to increase the cooperation between member-states of BRICS.

RUDN Journal of Law. 2017;21(2):278-295
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Review of the All-Russian Scientific Conference “Tendencies of Development of Law in Sociocultural Space: Zhidkov Readings - 2017” (Moscow, 24-25 March, 2017)
Nemytina M.V., Mikheeva T.T., Sorokina E.A.
Abstract
On 24-25th of March 2017 the All-Russian Scientific-Practical Conference “Tendencies of development of law in sociocultural space: Zhidkov readings - 2017” took place in People’s Friendship University of Russia (RUDN University). The conference is traditionally devoted to the memory of the famous scientist, Professor O.A. Zhidkov. It was co-organized by Institute of State and Law of the of the Russian Academy of Sciences (RAS), Herzen State Pedagogical University of Russia , Association of Law Schools of Russia. The conference featured the plenary meeting, four panel sessions, two round tables and school of young scientists. During the conference different aspects of legal issues were discussed, including its methodological, theoretical and application nature. In their reports, the participants, inter alia, devoted attention to discussion trends of the development of law and legal science from the perspective of historical development, the current and future prospects. 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.
RUDN Journal of Law. 2017;21(2):296-330
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