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ГЛАВНАЯ
> Журнал "LEX RUSSICA (РУССКИЙ ЗАКОН)"
> Содержание № 06, 2009
Выходные данные сетевого издания "LEX RUSSICA (РУССКИЙ ЗАКОН)"
Номер подписан в печать: 1-12-2009
Учредитель: Даниленко Василий Иванович, w.danilenko@nbpublish.com
Издатель: ООО <НБ-Медиа>
Главный редактор: Петров-Гималайцев Петр Артемьевич, доктор культурологии, asmorkalov@mail.ru
ISSN: 1729-5920
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Содержание № 06, 2009
Сокольская Л.В. - Виды правовой аккультурации |
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c. 1287-1296
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Аннотация: 1. On the form legal acculturation can be:
– an expantion, which expects forcible unilateral obtrude society or his
part determined element legal system other sociuma;
– an reception, under which define the unilateral process of the issue
element legal system sociuma-donor with obligatory their assimilation sociumom-
reception;
– an assimilation, presenting itself process and result interaction, under
which occurs full or practically full loss of the suit culture sociumom-reception
and so full assimilation of the culture sociumа-donor;
– an interference, under which understand the process and result interaction,
where legal systems can actаas the donor and in swing; societyreception.
2. On territory of the spreading she is characterized as:
– universal acculturation sooner is certain whole-ma vague ideal, than
reality;
– regional acculturation became the reality. For instance, regional european
legal integration distinctly reveals itself in history to prospect.
3. On method of change process of the interaction she can be:
– voluntary, under which socium, enterring in contact, strive to more
deep integration on base of the transformations their own legal sistem;
– forced expects the violence, obtrude sociumоm-donor of its legal system
or her element socium-reception;
– compelled by caused mastery (for instance, economic, have political)
dominant sociumа on subordinated that brings about necessary confession of the
last row legal institute main.
4. On result of the process of the interaction legal acculturation possible
divide into:
– an adaptation, which expects the get fat or practically get fat loss
sociumоm-reception its suit culture (the cultural specificity) and full assimilation
of the new culture sociumа-donor;
– a transformation, as a result which occurs the partial , change of the
right sociumа-reception at conservation their own base devil;– an interference, connected with cultural change each contacting
sociumа;
– an integration (literally association in integer of some parts) expects
the mutual adjustment in process which appear new cultural-legal systems, new
lifestyle;
– annihilation – mutual destruction cultures contacted socium. As a result
of mutual destruction, as a rule, will be born new socium, which in the following
will form the qualitative new culture.
5. Depending on facilities used in process legal acculturation:
– legislative – by means of legislation;
– usings of the right – by means of joint legal activity, which brings
about shaping cognate , usings of the right practical persons;
– contractual – by means of conclusion of the agreements legal on cooperation
agreements on legal help;
– doctrine – a quotient by way.
6. On depth of the influence acculturation can incidences-cotton wool or
separate rates, or integer institutes and branches so she can be:
– full, which expects not only external, but also internal uniformity;
– partial, which is limited by achievement only external monotony i.e.
occurs the perception separate legal institute.
7. Depending on type of the cultures contacted socium distinguish:
– traditional acculturation, which exists at interaction traditionallyreligious
and usually-legal cultures;
– mundane, resulting from interaction \"state\" legal cultures;
– an between type, which appears at interaction of the cultures different
civilization (east and west civilization, traditional and modern society).
8. On degree of openness of the process of the interaction her possible
subdevides in:
– an openning, connected with legal expantion and рецепцией and, as
rule, coverring sphere publicly-legal institute;
– hiding (latent) acculturation, connected with assimilation and interference
and coverring sphere quotient right.
9. Depending on amount subject perceiving cultures-but-legal traditions:
– mutual – a voluntary interaction, mutual exchange cultural value.
– unilateral – a voluntary borrowing.
10. Shaping united legal space different way occurs In process legal acculturation.
So in envybridges from ways of the realization legal acculturation it
differs on:
– a modernization – within the framework of which, possible select following
about-cession: development of the small group modernized (overtaking)
state; the overtaking development, in the course of which lagged behind overtake
gone onward; the attempts modernized state to give the answers to new call
on way инноваций;
– internation– given way intensifies the influence of the external factor
on development of the national legal system;
– an unification – under which exists process of the production uniform
rates of the legal regulation determined public relations, expecting removal difference
in regulation cognate or related phenomenas and creating miscellaneous
level universal standard of the acts
11. In dependencies of the directivities of the process legal acculturation
she can be
– a straight line – as a result of invasions, colonizations, migration;
– indirect – through legal value, rates, institutes, judicial practical person,
mass media.
Агузаров Т.К., Чучаев А.И. - Охрана власти по Русской Правде, уставам и уставным грамотам |
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c. 1297-1316
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Аннотация: In literature there are two different points of view on the Russian statute
at large. The first is that in the Russian statute at large (Russkaya Pravda) there
were no crimes against public officers. The other one is that the Russian statute
at large contained corresponding rules. Authors suppose that the necessity of
power protection was already predetermined by the existence of the state itself.
Based on the analysis of norms of the Russian statute at large’s Short edition, it
is proved that that time physical integrity of the princely public agent was the
object of special criminal protection. In the article two parts can be nominally
detached. In the first part it is said about taking life of the victims, specified
there, on personal grounds. In the second it is about taking life of victims in connection
with their official duties. Such conclusion is also based on the comparison
of punishment for given crimes.
Special attention is paid to analysis of art. 19–23 Russian statute at large
(Yaroslavichi’s statute at large) because, firstly, they are dedicated to protection
of the persons serving to the prince. Secondly, they form original criminal institution
of Old Russian legislation. While analyzing of the rule of art. 21, which
has different interpretations (firstly, about definition of ognishanin’s (head of
prince\'s administration) criminal status, authors affirm that during its assessment
first of all it is necessary to proceed from two points: a) the article fastens the
principle, produced by the custom – right to kill the thief on the scene of a crime,
if it was committed at night. Therefore, the aim of the rule is to restrict gibbet
law; b) the article’s formulation and correlation of certain phrases suppose appearance
of a new person who is by no means designated in the article. Moreover
the article is necessary to be estimated in the aggregate with two previous
articles. In this case legislator’s logic is understood: in the legal monument rules
which provide intensification of punishment according to circumstances of
committed infringement on feudal administration’s representative were sequentially
given.
In Russian statute at large’s Vast edition the number of rules about responsibility
for infringement on life increase considerably in comparison with its
previous versions, the content of earlier known rules changes essentially, new penal prohibitions appear, foundations of legal materials’ abstract description are
laid.
Thereby the Russian statute at large singles out two types of infringement
on life and de facto means two different objects of criminal protection: life
and activity of authority, which also seizes a person as bearer of specific power
authorization. Infringing on victim – the representative of a palace-patrimonial
government system, – the offender ipso facto breaks the order of governance,
peculiar to early-feudal society.
Prince and his administration executed justice at the same time with administrative
duties. Since earliest times legal procedure had public character.
The status of prince’s power representative, who executed justice, strictly reflected
his criminal protection. However, it should be noticed that such situation
was typical not only for Russian law.
In Novgorod and Pskov judgment credentials the indication on the social
trend of a crime is met for the first time. In such acts it is emphasized that the
crime causes harm not only to a private person, but also to the state.
Жаворонкова Н.Г., Максимов Е.Л. - Обеспечение экологической безопасности в контексте Стратегии национальной безопасности России |
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c. 1317-1328
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Аннотация: This article deals with current problems of ecological safety in the Russian
Federation. Facts from various sources demonstrate how important it is to
provide for ecological safety of the Russian Federation. They also speak about
ecological problems, generally unfavourable situation, related to the environmental
protection and efficient use of natural resources of the Russian Federation.
The State report “On the protection of Environment of the Russian Federation”
is one of the sources of such information. The report is annually submitted
by the Ministry of natural resources and ecology of the Russian Federation
alongside with other ministries, services, agencies and organizations.
The place and significance of ecological problems among the so-called
“global” problems is proved by the fact, that anyway nearly all “strategic”
documents of the last decade include sections related to environmental protection
and efficient land use.
One of the recent examples– the Decree of the President of the Russian
Federation of May 12, 2009, No. 577 “On the Strategy of the National Security
of the Russian Federation till 2020.”
The article contains the analysis of the above mentioned document, that
for the first time specifies and assesses many political and social processes both
in the world and in the country. It also identifies national interests and priorities
of national security.
In addition, the authors the of the article express their opinion on the
changes in the approaches to the protection of environment as the element of
national security in the light of new Strategy. They emphasize substantial shift in the priorities and assessments of threats to national security. In conclusion, the
authors stress that problems of “ecological safety” are far from being in the focus
of political and state priorities.
Комягин Д.Л. - Расходы на национальную оборону в бюджетах бюджетной системы Российской Федерации через призму судебной практики |
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c. 1329-1340
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Аннотация: In the article the content of the expense liabilities in the field of the national
defense is described in detail. The list of indicated expense liabilities is
prepared with the help of the analysis of normative acts, regulating the relations
in the field of defense.
The contradiction, which exists between the budgetary legislation and
the court practice in the field of interbudgetary relations, is shown.
According to the budgetary legislation the expense liabilities of one
budgetary system level can not be passed for execution to the budget of the other
level; it reflected in the principle of budget independence. Differentiation of the
expense liabilities means that the Russian Federation is not responsible for the
expense liabilities of the Russian Federation subjects and vice versa – the Federation
subjects and municipal formations are not responsible for the Russian
Federation liabilities. Under such approach it is taken as a dogma that the expenses
for the national defense should be financed exclusively from the federal
budget.
Completely another construction was realized in the budgetary scheme
of the USSR, which was characterized by the high level of centralization and
stability. The USSR budget system was combined by the state budget, through
which expenditures and revenues were redistributed; the budgetary system in
whole was balanced. There was no need of either expense liabilities division, or,
all the more, the development of the interbudgetary relations complex conception
and budgetary federalism.
According to the specialists, today the unitarism tendency in Russian
budgetary system development exists too, in the form of reaction to the negative
consequences of independent budgets. The unity and mutual budget responsibility
are used abroad, for example, in the Federative Republic of Germany, where
the principles of harmonization and subsidiary responsibility in the budget system
are used.
The practice of the Constitutional Court of the Russian Federation acts
on the premise that the Russian Federation budgets or municipal formations are
the part of the Russian Federation financial system together with the federal
budget, that means the responsibility to allot the financial aid from the federal
budget in case of insufficient revenues of subordinate budgets to provide their
expense liabilities. This position is consequently formulated in the whole range
of resolutions of the highest judiciary authority of the country.
In the article the author’s thesis is substantiated that expenses for the national
defense, as especially important expenses, providing the realization of the defense state function, can be covered at the expense of all the budgets of Russian
Federation budgetary system. Its suitability is supported by the wide range
of different expenses for the national defense, including some “non-military expenses”
such as accommodation assignment. Using all the resources of all the
budgets of the Russian Federation budgetary system might allow meeting the
challenges of the defense more effectively.
Ветрова Г.Н. - Решения в механизме правового регулирования уголовно- процессуальной деятельности |
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c. 1341-1364
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Аннотация: Procedural form of action implies a certain order of procedure actions
and a special way of their registrating – creating special procedural acts (documents).
Procedure decisions are to be pointed out.
Every stage of criminal legal procedure implies acceptance of certain
types of procedure decisions. Their peculiarities are determined by the tasks
solved at different procedural stages.
The article analyses peculiarities of decisions taken at different procedural
stages according to given tasks of the stage of the procedure. The author
regards lawfulness and validity requirements concerning different kinds of decisions.
Special attention is paid to the analysis of decisions, which are taken during
the judicial investigation monitoring.
The article also deals with the problem of law procedure violations and
their consequences. The classification of law procedure violations and pointing
out critical ones is essential for solving problems of the consequences of these
violations and choosing ways of eliminating judicial mistakes. Once a procedural
violation is considered essential the lawfulness and justice of any final decision
including the sentence is doubted.
Legislation development towards the differentiation of procedural forms
needs more detailed legal regulations of issues concerning the contents of the
decisions taken in different procedures.
It is desirable to define lawful grounds and conditions for making decisions
taking into consideration different types of legislation. It is also desirable
to solve the problem of lawfulness and validity monitoring. The article suggests
measures aimed at guaranteeing the lawfulness and justice of the sentences in
the course of simplified legal procedure.
Ордина О.Н. - Основные положения, касающиеся решения проблемы системы кодификации административного законодательства России |
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c. 1365-1379
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Аннотация: Federal laws adopted by the State Duma are submitted for examination
by the Federation Council. Law is a system of rules established by the state. The main aim of law is
to consolidate and safeguard the social and state system and its economic foundation.
The system of law in our country consists of different branches of law.
Laws of Russia confide to Constitution of Russia, federal constitutional
law, federal law and law of subject of Russian Federation.
The Constitution sets basic from of government: tree separate branches,
each one having powers (“check and balances”) over the others. The Constitution
has been repeatedly amended to meet the changing needs of the nation, bat
it is still the “supreme law of the land.” All governments and governmental
groups, federal, state, and local, must operate within its ruidelines.
The federal and state governments formed under the Constitution.
Lawmaking cannot come to an end at a certain stage by virtue of development
of social, economic and political relationships that require legal regulation.
Dynamism of the sources of the Russian administrative legislation, its
changing and improving, passing of new acts, making amendments to those and
reversal of obsolete law make it necessary to organize the entire set of the existing
administrative regulation into a definite scientifically grounded system.
That is during recent years the systematization by which the activity of
the relevant governmental authorities in terms of regulation of the legislation is
usually is of great importance in Russia in the context of forming of the new system
of the sources of the Russian administrative legislation. Codification is the
main form of systematization aimed at creation of consolidated or integrating
acts regulating social relations in a new way and replacing the previous legislation
or creating absolutely unknown acts missing in the legal system.
From the moment of adoption of the Russian Constitution in 1993 there
appeared the necessity to revise the entire existing administrative law matters
with a view to clear out a large quantity of actually dormant but formally still not
void administrative acts and to create the new ones consolidating the separated
existing regulations.
Administrative legislation is uncodified to utmost extent. Currently there
exist a large number of non-interrelated rules of the administrative laws that are
contained in different sources adopted by the authorities of different levels. Interaction
and coordination on these rules are not regulated, often resulting in
contradicting and duplicating.
For the purpose of implementation of the principle of democratism it
would be expedient to separate the whole group of the rules regulating the administrative
legal status of citizens as an independent section and to issue a unified
codified act covering these matters.
Трофимов В.В. - Принцип взаимности как основное начало договорного права: теоретическое конструирование |
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c. 1380-1398
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Аннотация: The article stresses out the importance of understanding the phenomena
of a contract not taken as a dogma of policy or law history, but also taking into
consideration the viewpoint of its basic ideas (principles) which possess the potential
of practical implementation of its legal ideal. It is stated that the development
of principles (basic elements) of contractual right as well as its “disclosure”
within the system of the present legal norms can be considered to be one of
the key trends of civil law researches.
The legal basing is made on a general theory (from the viewpoint of law
theory) for using the word-combination “reciprocity principle” as a definition of
a lawful conception, at this, the answer is given to the question whether to consider
“reciprocity” to be the principal legal element in general and contractual
juridical structures, in particular.
The basic features of “reciprocity” as a main element of social-legal relations
are determined: two-sidedness, tie-up of actions and moves of members
of correspondent relations, mutual orientation of carried out actions which can
be primary or a response one.
Attention is attracted to the fact that the reciprocity principle and connected
with it equivalence principle have deep social roots and due to this private
law (and its basic institutes) should show the basic social rules, actions
within the system should be mutually balanced and equivalent.
This principle is compared with the causa (basis) of a contract. It is determined
that general basis of “reciprocity” actually makes it possible to disclose
(synthesize) causa (basis) of a contract.
The principle of equivalent reciprocity or mutual equity (iustitia commutativa),
as it is stressed in the article, is really possesses the correspondent keyrole
in systems of private-legal regulations. In the systems of modern contractual
rights (national (including rights of the Soviet period), foreign, international)
reflection of this principle can be found as well as its efficiency and practical
application.
To confirm the initial hypothesis of meaning of reciprocity in the system
of contractual right the article also gives analysis of juridical constructions
known since Roman legislation and updated juridical constructions: “fair price”
(iustum pretium), “excessive loss” (laesio enormis), “mutual fairness” (iustitia
commutativa), “counter satisfaction” (“consideration”), which show in their own
forms the discussed principle legal origin.
As a result it is stated that the intention to make the ground for legal nature
of a contract on the position of justice, consideration of mutual interests has
always been the main goal uniting different trends оf developments of contractual
theories. The modern Russian science of contractual right is evolving within
the same parameters.
Калиниченко Ю.А. - О некоторых вопросах, связанных с рассмотрением судами дел по заявлениям военнослужащих об оспаривании действий (бездействия) органов военного управления, воинских должностных лиц и принятых ими решений |
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c. 1399-1403
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Аннотация: The article is devoted to problems related to filling and proceeding of
claims and other applications of military servants. Many claims are filled due to
problems with provision of rations to military servants. Participation of military
servants in counterterrorist operations on the territory of the Chechen Republic
resulted in a range of claims related to payment of allowances and compensations.
The most frequently appealed category of regulations is regulations of
military administration bodies, especially orders and directives of military officers
and commanders. In connection with this the Order of the Minister of Defense
of the Russian Federation No. 200 “On approval of the order of payment
of military compensation to the Armed Forces of the Russian Federation” (also
referred to as the “military financial code”) is considered. To the author\'s mind,
claim of at least one military servant contesting illegal actions of any officer or
commander after entry of judgment into legal force shall lead to prohibition of
application of such act to any military servants of the military unit whose rights
are violated by this act.
Сойфер Т.В. - Гражданско-правовой статус религиозных объединений |
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c. 1404-1428
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Аннотация: This article is concerned with the research of legal status features of religious
associations as civil matters participants. Author puts into practice historical
– legal analysis of the legislation development on religious associations,
discover the modern state of legal relationships regulation, arising in connection
with creation and activity these organizations. It is thus marked inconsistency of
legal regulation, consisting in that the public and religious associations admit a
uniform organizational-legal form of noncommercial legal bodies , but for them
are established a different legal regimes. In this connection there are two probable
positions: 1) religious association – is a specific version of public associations;
2) public and religious associations are diverse concepts and they can not
be corresponded as general and private. In result it is formed a conclusion about
presence at religious organization the special signs, which testify its recognition
importance the independent form of noncommercial bodies.
This article is also focused on the legal status specificity of different
kinds of religious associations, an opportunity to create them are providing by
law: religious groups, local and central religious organizations, establishments
and organizations created by central religious organizations. On the basis of their
essence and structure research the way of create and activity express ones views,
that in special legislation the term religious association is using as generalize
meaning not the organizational – law form of legal body, it means some organizations
of different nature law, for example to a religious associations, representing a voluntary citizens association which unreasonable belonged to religious
establishment, being on character the unitary.
Author turns attention to occurrence and termination of religious associations
as civil law subject. A circle of persons are investigated capable to act as
founders and participants of religious organization of different kinds, demands
made to their, feautures of the state registration as legal bodies the bases and an
order their liquidation.
In article scrutinizes the main ways of religious associations property
formation, including gratuitous transfer in their property or using the state property
or municipal property of religious appointment, are defind conditions, order
and limits of realization enterprise activity by religious associations it is direct
and through created commercial legal bodies.
Ищенко Е.П. - Смертная казнь: прошлое, настоящее, будущее |
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c. 1429-1448
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Аннотация: The article notes that the thought-out system of criminal and legal sanctions
is an important tool of crime control. Such modern purposes of applying
this system which concern the general and the private prevention are considered
in this article, the brief retrospective of application of death penalty since 1397
when it was fixed in the Dvina Judgement Certificate and its subsequent legislative
regulation in the Pskov Judgement Certificate of 1467, the Code of Laws of
1467, the Code of Laws of 1550, the Council Code 1649, the Military Field
Code of 1812, the Criminal Code of 1903, the Soviet period legislation and up to
the present day, which allowed stage by stage to track the tendency to reduction
of its application in our country and abroad, as well as criminal consequences of
waiving it as a higher measurement of punishment, is made. Further the author
analyzes the position which developed in the Russian Federation after introduction
of the moratorium on capital punishment, compares main arguments of opponents
(abolitionists) and supporters of capital punishment (conservatives),
concerning its sociopolitical, moral, religious, historical and cultural, ethic, legal
aspects, in particular such as contradiction of capital punishment to the ideas of
civilization and progress, Christian dogma, its low preventive value, danger of
making a fatal mistake at condemnation of an innocent person, etc. The author
directs attention to negative consequences of an effect of the moratorium on
capital punishment in the Russian Federation, its replacements with life imprisonment
and referring to positive experience of such countries as the USA, Japan,
China, Saudi Arabia, which apply it for fulfillment of the most grave crimes
against a person, the author makes a conclusion that the moratorium on capital
punishment in our country mismatches the imaginations of the majority of the
Russian citizens concerning justice and humanity, they consider it as a connivance
of the most notorious offender, the indifference to victims of their evil
deeds that is why taking into account difficult conditions of the Russian society’s
life now it should be cancelled as fast as possible since the death penalty is
still necessary.
Россинский С.Б. - Проблемы конкуренции предварительного и последующего судебного контроля за производством следственных действий в жилище |
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c. 1449-1468
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Аннотация: The subject of this paper is the study of one of the most important issues
of criminal procedure today – the mechanism of judicial review of the activity of
inquiry and preliminary investigation bodies with respect to the constitutional
right to immunity of residence.
Thus the critical analysis of different views of the problem and the author’s
own guarantee of the right to immunity of residence in criminal justice.
However the author believes that the judicial review shouldn’t be idealized and
that this instrument of criminal procedure (including the ensuring of the right to
immunity of residence) is far from being absolutely perfect and contains a lot of
unsolved procedural and practical issues.
One of the most important problems pointed to by the author is the so
called competition between the preliminary and subsequent judicial review as
two independent forms of ensuring legality while conducting investigatory actions.
Incidentally, in the modern criminal procedural legislature “competition”
is won by the preliminary judicial review; it is this type of review that takes priority
over other mechanisms of ensuring the right to immunity of residence.
However, neither the international standards of human rights ensuring, nor the
provisions of the Constitution of the Russian Federation are the sources of this
priority.
The author comes to the conclusion that the above mentioned priority is
only accounted for by the legislator’s intention to once again demonstrate the
Russian Federation’s transition to the entirely new theoretical foundation of
criminal justice based on the absolute priority of human rights. At the same time
thus created mechanism of judicial review has a certain number of essential
flaws amounting to two important problems.
The first of them consists in creating additional legal obstacles for quick
and efficient criminal investigation at the initial stage. In order to overcome such
obstacles preliminary investigation officers often either avoid conducting a
number of investigatory actions or abuse the opportunity of conducting such actions
in situations of urgency, which only results in aggravating the risk of limiting
the right to immunity of residence.
The second problem, in the author’s opinion, consists in the fact that the
preliminary judicial review during the examination, search of the premises or a
seizure from them is conducted secretly and thus makes the adversarial procedure
impossible. That, in its turn, by no means conforms with the idea of realisation
of judicial power and in fact turns judicial review into a kind of administrative
procedure. The author’s analysis of various statistic data leads to the conclusion
that this kind of pocedural mechanism is extremely ineffective. Moreover,
in his article the author motivates his point of view that this mechanism gives
rise to further unsupervised activity of inquire and preliminary investigation
bodies.
As a result the author makes a conclusion about complete practical incompetence
of preliminary judicial review as far as ensuring the right to immunity
of residence is concerned. The author sees the way out of the situation in
substituting subsequent review for preliminary review. It is the mechanism of
subsequent review, according to the author, that will be capable of creating real
guarantees for ensuring the right to immunity of residence in criminal justice.
Бекяшев К.А. - Современный международно-правовой статус архипелага Шпицберген |
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c. 1469-1477
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Аннотация: The article contains the analysis of the actual international legal status of
the Spitsbergen archipelago. The archipelago was discovered by Russian seafarers
in the XIII century. Norwegian hunters appeared there in the XVIII century.
The actual international legal status of the Spitsbergen archipelago was
determined by the 1920 Treaty. In 1922 Norway officially claimed the Spitsbergen
a part of the Norwegian territory. Simultaneously the Mining Code was
adopted. 41 state including the Russian Federation is a party to the Treaty.
In the legal sense the archipelago belongs to the territories with a special
regime. Actually this is the only state land territory in joint use.
According to the Law on the Spitsbergen the archipelago falls under the
Norwegian jurisdiction.
In June 1977 the Norwegian government set a 200-mile fish protection
zone around the Spitsbergen. In accordance with this law Norway exerts the control
over fishing in the zone. The zone was officially recognized by Finland and
Canada only. The USSR and later on Russia did not officially recognize this
zone.
According to the Norwegian rules during the fishery in the Spitsbergen
zone captains of Russian ships must take Norwegian inspectors on board and
assist them in carrying out their inspections.
Norwegian inspectors as a rule impose a fine on Russian ships, which is
two or three times more than the same sanctions against fishermen from the EU
countries. Many Russian ships are arrested and fines are imposed on them.
In order to bring the situation back to normal the author of the article has
elaborated a number of recommendations, among them signing a bilateral
agreement on the preservation and rational use of resources and the organization
of the joint control over ships. It is also recommended to turn to the International
Tribunal for the Law of the Sea (ITLOS) with an action of the legitimacy of setting
the fish protection zone around the Spitsbergen by Norway.
Скачков Н.Г. - Правовые режимы страхования морских перевозок, выполняемых в специфических условиях (аспекты клубной P&I практики) |
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c. 1478-1488
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Аннотация: Local political conflicts definitely have an impact on the insurance of
sea transport operations. This action on the system of loss estimation is conclusive.
Depositary funds only promote mechanical distribution of charges. Such
procedure frequently compromises an optimal solution to the insurance incident.
The adequate insurance covering under military risk conditions is difficult to
realise.
In this case, the reimbursement on insurance deficiency should not cause
an overpayment for risk. The fresh approach to maintenance a category of danger
involves the universal thesis about certainty of damage what mediates all
stages of charge of a paid coverage.
Each member from 12 Associations P&I of a mutual insurance reffering
shipowners is an independent unit. Therefore the method of attack to the factor
of danger can be various. This or that club assigns the military risks to that of
liquidity. In so doing compensation of actives only approaches military risks to
the obligations under indemnification. It is difficult to doubt about their relation
to legal insurance. At the same time the guaranteed payment in terms of the insurance
policy is not included into the concept of extreme covering. This circumstance
extremely affects procedure of averaging of damage and fair estimation
of an insurance case.
In this connection, any of the concepts about an increase of financial
stability of great risks offered by clubs deserves attention. Insurance brokers
overcome an uncooperative altitude to risks from the commission, despite of
excessively high level of deduction of the insurance premium. The sphere of a
covering of reinsurance pool gets big definiteness.
The coordination of insurance payment sizes also undergoes deformation.
At no time insurance singles are identical. The affinity to danger will make
useless any calculation methodology, expressing a favor of potentially flexible
parameters and plurality ways of attraction relative to free actives. Unfortunately,
other clubs prefer to take advantage from compensation due to the responsibility
for a delay, having generated separate group of obligations on “all
risks” classification. The consolidated point of view has not developed yet.
Therefore the differentiation of an insurance coverage serves as reliable demonstration
of loyalty to the available limits of compensation. It is obvious, that if
such concept of local damage will prevail finally the key details of insurance
covering will not resist.
The commonness of concepts will favor situation, and at the same time
will not slow to the affect of constancy of the insurance interest. Finally the insurance
premium will overcome aspiration to momentary bias. Then both the
payment of debt from an overpayment and action manufacture from the reporting
become the uniform mechanism. Otherwise, reinsurance protection methods based on expenses and charges could not level a difference between the insurance
rates.
Калиниченко П.А. - Понятие и принципы стратегического партнерства между Россией и Европейским Союзом (юридический анализ) |
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c. 1489-1506
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Аннотация: The relations between Russia and European Communities have passed
the way from state of “useless indifference” through relations of “partnership
and cooperation” to modern relations of “strategic partnership” during two last
decades. There is no doubt that is a practical achievement in mutual relations.
Existing relations of strategic partnership mean a high level of the relations between
Russia and the European Union (EU). The Paradox consists in that the
term “strategic partnership” is not defined legally. It is not clear what type of the
legal regulation should cover these relations in the future.
The term “strategic partnership” means the relations of partnership,
which the Parties consider prior, synchronizing common actions. Practically for
Russia, they are a real prior relations predestined by unalternative economic dependency
from the European market. There is a doubt concerning a prior nature
of the relations for the EU. The European law sets other privileged forms of the
relations with the third countries, in particular, “association” and “neighbourhood.”
The partnership, as a form of the relations between Russia and the EU, is
defined legally by the objectives and principles of the Partnership and Cooperation
Agreement between Russia and the EU 1994 (PCA). Obligations of the Parties
to follow the values and principles, on which a modern development of civilized
society is based, are put in the ground of the partnership. The “strategic
partnership” is characterized by its aims and objectives stated in Joint statements
of the Russia-EU High Level Summits. In this context the “strategic partnership”
means the relations of partnership, complemented by the purposes of the regional
security and by practical objective to build the Four Common Spaces between
the Russia and the EU. Furthermore, the term “strategic partnership” is
also used for the relations between the EU and other third countries, as well as
between Russia and other countries.
This article deals with a legal analysis of concept and principles of strategic
partnership between Russia and European Union. Author considers a legal
sense of the strategic partnership as modern level of legal relations, analyses
etymological, teleological and comparative aspects of the strategic partnership,
makes a definition of the strategic partnership from the legal point of view. Also
the article contains definition, analysis and classification of principles of the
strategic partnership between Russia and EU, specified in the Basis Russia–EU
agreement, and in other documents on their mutual relations.
Кислухин В.А. - Правотворчество в сфере противодействия торговле людьми в Нидерландах и роль полиции в этом процессе |
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c. 1507-1518
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Аннотация: The trade phenomenon “the live goods” for the purpose of sexual operation
of women and children falls outside the limits frontiers and gets transnational
character. Today interaction between law-enforcement structures of the
sovereign states is one of priority directions of struggle against the organised
crime. Many scientists come to conclusion about necessity of studying of an advanced
experience on preventive maintenance and suppression of the offences
connected with sexual operation of people. On the basis of studying of positive
experience of the various states in struggle against a human trafic there is possible
a working out of optimum strategy of effective influence on a criminal situation.
Russia acts for today as the supplier of young women on the markets of
sexual services in various areas of the world. The criminal legislation of Russia
establishes strict legal responsibility for a human trafic, including for the purpose
of sexual operation. The Russian Federation has joined and carries out
norms of the international legal certificates forbidding a human trafic and their
sexual operation. However in the conditions of a global economic crisis presence
of a wide social base in the form of a great number of jobless people, childrenalcoholics
and addicts does not allow our state in necessary measure to cope
with this promptly developing branch of criminal business. Habitual methods of
law-enforcement structures of Russia on revealing, registration, to preventive
maintenance and prostitution suppression any more are not effective. In connection
with this problem experience of legal creativity of state structures and a police
role in realisation of standard instructions in sphere of counteraction is represented
interesting for studying to a human trafic in such European state, as
Kingdom of the Netherlands. The prostitution history in the Netherlands totals
some centuries. Attempts of the authorities to achieve prostitution prohibition
invariably provoked occurrence of corruption, extortion from outside officials,
police. After almost three hundred years of struggle against prostitution the state
has gone on its legalisation. Since October, 1st, 2000, in the Netherlands the law
cancelling an interdiction for the maintenance of brothels and other places for
employment by prostitution has come into force. Prostitution has been equal to
usual enterprise activity. Prostitutes are obliged to receive now registration of
the business and to pay to the state taxes. They have the right to place advertising,
to use a legal aid, to receive social benefits, to consist in trade union. The
control over correct execution of the legislation on prostitution is assigned to
police. The police of the Netherlands is a component of a civil society. It provides
protection and safety of inhabitants of the country. In sphere of a human
trafic the police conducts the basic struggle against illegal souteneurs and prostitutes
who do not wish to register the business. The legislation of the Netherlands
provides strict legal responsibility for such persons.The legislation of the Netherlands
provides strict legal responsibility for sucIn the Netherlands are developed
and effective programs of protection of victims of a human trafic operate. In each police station brochures and posters in which the rights of the women who
have become by victims of sexual operation are listed are placed. At local level
municipalities are engaged in prostitution regulation. For example, in Amsterdam
and in Arnhem the power have taken away for employment by prostitution
special “zones” on suburbs of the cities. In these “zones” of the prostitute under
supervision of police and physicians are engaged in the business. Results of sociological
researches in human trafic sphere have formed for the government of
the country a basis for working out of the bill establishing new Regulations of
prostitution. Infringement of these rules involves strict legal responsibility for
owners of brothels, prostitutes and their clients. Now the bill is on the coordination
in parliament committees. Thus, the government of the Netherlands constantly
improves the legal base directed on struggle against a human trafic. In the
Russian Federation the measures directed on struggle against a human trafic too
are taken. However visible results in the decision of this problem did not manage
while to achieve. For the problem decision carrying out of the whole complex of
the actions including working out of effective kinds and directions of lawenforcement
activity is required. The political will of heads of the country is
necessary for carrying out of these actions.
А.В. Водолагин - Десакрализация власти Исаев И.А. Господство. Очерки политической философии |
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c. 1519-1522
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Аннотация:
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