Проблемы получения и представления доказательств в международном гражданском процессе
The article offers an analysis of the issues of taking evidence in the transnational civil procedure. The research methodology is based on the use of comparative legal analysis. The normative base of the research includes international legal acts, Russian and foreign national legislation, case-law of foreign courts. The authors emphasize that main difficulties in the resolution of transnational disputes result from the use of different pleading models, different evaluation of evidence aspects (as substantive or procedural categories), and the absence of a universally recognized and mandatory tool of taking evidence in a foreign jurisdiction. Besides, there is nearly always a need of autonomous qualification of each evidence law institute. The research comes to the conclusion that the main issue of judicial evidence in the context of international civil procedure is whether the court may apply foreign law if the substance of the dispute or the form of the transaction are subject to foreign law. Currently the legislation and case-law of common law countries provide for provisions on the possibility to use foreign evidence law and conflict rules determining the law applicable to evidence. In civil law systems there is a common rule that procedural matters are resolved in accordance with lex fori, with a developed system of procedural conflict rules. When there is a need to obtain evidence in a foreign jurisdiction, there are two modern ways to do it: 1) to use the tools of legal assistance provided for by international agreements (whether global or regional); or 2) taking evidence directly from a foreign participant, e.g., without sending an official request in a court of a State where the evidence and/or information are. The first way is the optimal one but its effectiveness is diminished because of a limited number of relevant international treaties’ members. Probably the best methodology in the current situation would be the use of lex mercatoria tools, in particular, the ALI/UNIDROIT Principles of Transnational Civil Procedure.
The article is devoted to one of the most complicated issues in the process of ascertaining director's liability for striking an unprofitable bargain on behalf of the company - the issue of imposition of a duty to prove good faith and reasonableness of director's behavior. We analyze the essential provisions of the legislation setting forth the director's liability and the proposals for its development in order to suggest recommendations on allocation of the burden of proof.
The article contains a comparative-juridical analysis of main regulations of the Russian and Mongolian criminal procedure codes. From the more detailed analysis of individual Mongolia CPC institutions follows the conclusion, that the order of judicial process is defined sequentially and logically from judicial-technical positions, it led to achievement goals of Mongolia criminal process.
The article examines two texts in which "traces" of Protestant influence are found. The beginning is associated with the first known researchers "textbook on the theory of Russian eloquence", the so-called "Rhetoric" by Macarius of the first quarter of the 17th century. (attribution is still being debated); the stages of studying this text are briefly examined and its place outside the educational system, which by that time had not yet developed in the Moscow kingdom, is determined. A century later, courses in rhetoric and poetics became the basis of education in theological institutions. Rhetorical culture has assumed the function of education, upbringing and social regulation of society. The influence of Protestant ideas, together with the practice of rational evidence, honed in the polemics between Protestants and Catholics in Europe, is found in the works of Feofan Prokopovich. He not only read courses in rhetoric and poetics at the Kiev Mohyla Academy, but also wrote theological works, where the influence of Protestant intellectual culture is evident. The article analyzes one of the "Words" by Prokopovich "Theological teaching about the state of an intact person or about what Adam was like in paradise?" And concludes that over a hundred years the contact of the scribes with the Protestant intellectual culture has undergone qualitative changes. The method of critical analysis of the text became available to Orthodox scribes; polemics and use of the rules of argumentation; addressing the need for "experiential knowledge"; understanding of the authority of the academic community, etc. In these processes, the author sees a significant role of the Protestant "trace" in Russian book culture.
practical Handbook devoted to the problems of proof in criminal procedure of Russia, which, as a Central part of criminal proceedings, covers all of its stages and is the only legitimate action to establish a legally significant circumstances relevant to the criminal case. Based on detailed analysis of court practice discusses the features of the gathering, verification, evaluation and use of evidence to establish the circumstances of the events under investigation, the protection of individuals from illegal and unwarranted accusation, conviction and restriction of rights and freedoms, as well as the prosecution and appointment guilty fair punishment. Special attention is paid to the most typical errors, often by officials and state bodies, since knowledge of these errors allows you to avoid making illegal, unreasonable decisions to improve the quality and efficiency of the criminal procedural activities.-*/
The author substantiates the thesis that an arbitration court can reclaim from a party to the dispute evidence, that is necessary for the other party to ground its arguments and objections. If the court has reclaimed an evidence, and the party fails to submit it, such party is considered to have conceded facts, claimed by the other party.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/