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Regular version of the site
Of all publications in the section: 381
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Article
Маркунцов С. А. Право. Журнал Высшей школы экономики. 2016. № 4. С. 31-42.
In the beginning of the article analyzes the trend of increasing in the Сriminal code of the Russian Federation the number of criminal law prohibitions, constructed using administrative prejudice. Currently in the Special part of the Сriminal code of the Russian Federation contains nine articles that contain such prohibitions. It is noted that all introduced criminal law prohibitions with administrative prejudice different in its design features. With the implementation of some of them in law enforcement practice, serious difficulties arise. It is concluded that the use of administrative prejudice in the design of criminal law prohibitions should be scientifically substantiated. At the same time along with the practical problems of application of the relevant criminal law prohibitions, there is a problem in the understanding of administrative prejudice. In the doctrine of criminal law, some scholars in determining administrative prejudice trying to do exclusively concepts of criminal law (sectoral) concepts, others scholars are using mostly theoretical constructs. Defining administrative prejudice, the scientists also different emphases in the understanding of its legal nature and essence: in the main, see it as a phenomenon exclusively of law enforcement practice, or primarily as a phenomenon of legal (legislative) techniques. Administrative prejudice is determined by the concept of "prejudicially (legal) relationship", "specified relationship", "part of the process of proof", "legal rule", "a special way of verification of the facts", "legal" elements of crimes", "the reception of legal technique", etc. According to the author's best is a consideration of this legal phenomenon as a special means of legal techniques along with the legal axioms, presumptions and fictions. This understanding of administrative prejudice reflects its specificity in a narrow sectoral sense, however, it is a legal phenomenon can be defined in a broader sense, reflecting primarily its cross-sectoral nature of the position legal (criminal) policy. From the position of the approach the scholars point out that administrative prejudice is a "special relationship of criminal and administrative law", "means of criminalization and decriminalization", "means of prevention of crimes", "means of combating criminality", etc.
Added: Feb 25, 2017
Article
Жалинский А. Э. Право. Журнал Высшей школы экономики. 2011. № 4. С. 23-32.
Added: Dec 29, 2011
Article
Кузнецов Д. Л., Василевская Т. Ю., Луконин С. А. Право. Журнал Высшей школы экономики. 2011. № 3. С. 126-134.
Added: Oct 23, 2012
Article
Михеева И. В. Право. Журнал Высшей школы экономики. 2013. № 3. С. 49-60.

The article is devoted to the characteristics of the legal regulation of the rendering of state services and of the realization of functions by the executive bodies of the constituent members of the Russian Federation. It is emphasized on the correlation of the categories of “functions of authorization” and “government services”. The author stresses the duality of functions of authorization, which are implemented in the framework of the provision of government services. The article contains the analysis of the regional legislation and practice of law enforcement in a given context.

Added: Oct 6, 2013
Article
Гальперин М. Л. Право. Журнал Высшей школы экономики. 2015. № 2. С. 202-225.
Added: Aug 6, 2015
Article
Вишневский А. А. Право. Журнал Высшей школы экономики. 2010. № 4. С. 47-59.

The article is an analysis of the specifics of system in canon law. The author proves (based on the history of western canon law), that system of canon law cannot be assessed with the criteria applicable to secular law. Systematized secular law is a system of the secular law per se, while the system of canon law is a legal expression of systematized theology.

 

Added: Oct 27, 2012
Article
Вишневский А. А. Право. Журнал Высшей школы экономики. 2010. № 4. С. 47-60.
Added: Nov 24, 2010
Article
Кривогин М. С. Право. Журнал Высшей школы экономики. 2017. № 2. С. 80-89.
Added: Oct 29, 2018
Article
Кузнецов Д. Л. Право. Журнал Высшей школы экономики. 2009. № 1. С. 94-98.

Status of deans and heads of chairs in educational establishments is of crucial importance for the efficient functioning of universities. The author argues that after reforms in labour and education legislation the peculiarities of their positions are not fully realized. Collisions and blanks in normative legal acts cause considerable complications in its implementing.

Added: Apr 13, 2013
Article
Беседина О. С. Право. Журнал Высшей школы экономики. 2016. № 1. С. 72-80.

The recent amendments to the civil law show an evident trend of strengthening the influence of civil law in the exclusive jurisdiction of labour law. Increasingly, judicial practice resorts to some conditions of labour contracts with the principals of a company based on the federal laws On Limited Liability Companies and On Public Companies to rule major transactions and related party transactions valid. At that, recent Article 53 of the Russian Federation Civil Code in point 4 stipulates that the relations between a legal person and the persons belonging to it are subject to the code and other laws on legal persons, which provided grounds to some civil law experts consider such practice legal and justified. However, Chapter 43 of the Civil Code on the features of legal regulation of the labour of the head of a company and the members of collective executive body of the company remained unchanged. In turn, the rules of the latter as well as of the Civil Code in general do not provide for the ways of challenging employment contracts due to interest and violating the rules of entering into a major transaction. The paper stresses the contradictory nature of the case practice on challenging labour contracts with the principal. Another example of interpreting civil law is challenging the conditions of labour contract within bankruptcy cases. The Federal Law On Insolvency (Bankruptcy) makes it possible to apply to labour contract the rules on invalid transaction under the law and civil legislation. The paper shows the priority as to bankruptcy law the provisions of legal legislation which do not consider labour contract invalid and hence do not require charging salary from the employees. The issue is proposed to be solved by amending the legislation. In particular, rendering an employment contract invalid and its legal consequences should be specified in the Labour Code.

Added: Nov 17, 2016
Article
Жукова Ю. Д., Пирогова Е. С. Право. Журнал Высшей школы экономики. 2020. С. 1-15.

The article is devoted to the analysis of the problems concerning the definition of the grounds of subsidiary liability of those who are responsible for initiation of the insolvency process by filing the debtor’s petition. The emphasis is put on the results of the bankruptcy legislation reform of 2017: the research covers court practice over the period of last three years; gaps and controversies of the renovated legislation revealed by representatives of the legal doctrine. One of the key aspects of the research is the correlation of the novels of bankruptcy legislation with the basic current rules regulating corporate relations. The role of the director of the corporation is examined in correlation with other bodies or controlling persons who directly influence his / her decisions regarding filing the bankruptcy petition or refraining from doing this. The authors highlight the ambiguity of the situation when there are two or more chief executive officers who can potentially represent opposite positions of different shareholders within the pre-bankruptcy period. Special attention is given to the problem of non-logical correlation of powers of the chief executive officer and the general meeting of shareholders authorized to make a decision on the liquidation of the corporation. The formal absence of grounds of liability of the members of the collegial bodies of the corporation and controlling persons (such as shareholders putting pressure upon the director in order to avoid the initiation of the insolvency process at the stage of the occurance of the debtor’s obligation to file the petition) seems to be a major gap in current legislation. The authors are demonstrating the necessity of spreading liability on the informed members of the board of directors and controlling persons, non-acting or acting against filing the petition. Also the research presents the analysis of the legal barriers for imposing the initial obligation to make a decision to file a bankruptcy petition on the collegial body of the corporation, such as uncertainity of the scope of persons liable for non-using the right to request to convene an extraordinary meeting of shareholders; ignorance of the role of the board of directors in the corporation; lack of attention to differences in the scope of powers of the general director in a joint-stock company and a limited liability company; impossibility to demand to vote for liquidation; unreasonably shirt terms of convening an extraordinary meeting under the new rules of Bankruptcy Act. The authors are proving that the scope of liable persons should depend on the type of the corporation. The conclusions concerning the limits of shareholders’ liability are suggested as well.

Added: Nov 10, 2020
Article
Касаткина А. С. Право. Журнал Высшей школы экономики. 2011. № 3. С. 94-102.
Added: Sep 19, 2012
Article
Петров А. Я. Право. Журнал Высшей школы экономики. 2017. № 2. С. 90-101.

The doctrine of liability is still not quite elaborated in the Russian science of labour law. Besides, its conceptual model is missing under the Russian Federation labour law. The author attempts to bridge the lacuna in legal science.

Added: Feb 22, 2018
Article
Калпин А. Г. Право. Журнал Высшей школы экономики. 2009. № 1. С. 51-62.
Added: Oct 15, 2012
Article
Барышева К. А., Максимов Д. М. Право. Журнал Высшей школы экономики. 2020. № 3. С. 4-26.

In July 2019 a landmark event took place in Private International Law, associated with the approval of the final text of Convention on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters . For more than 10 years The Hague Conference on Private International Law has not introduced new conventions . Russia actively participated in the final procedures and sent a governmental delegation to the 22nd diplomatic session of Conference mentioned to sign the final act of the session . The prospects for signing and ratifying the Convention by key participants of international trade and by countries where civil relations are localized are still the questions of the future . The article presents an analysis of the provisions of the Convention and the possibility of implementing international law into national legislation . In the Russian law there is no efficient system of fraud detection from the parties of civil or arbitral proceedings and countermeasures to it for the court . The term “fraud” used in the Convention has no comparable in the Russian legislation and case law if fraudulent acts of the party resulted in misjudgment came into force . Reviews of such judgment or retrial are practically impossible . This weakness of the Russian law is truly sensitive in cases of recognition of foreign judgments obtained by fraud . Legal regulation vacuum can be caused by Russian accession to the Convention which recognizes a possibility of defected judgments, but Russian court has no means of detecting these defected judgments, which throws doubts on the whole procedure and result of recognition and enforcement of foreign judgments in Russia . In the present article the authors raise key challenging issues of finality of judgments and possibilities of their revision in future, point at non-readiness of the Russian law for accession to the Convention, at significance of this institution of judgments obtained by fraud and at inadmissibility of exception of this institution in case of ratifying Convention .

Added: Sep 27, 2020
Article
Комягин Д. Л. Право. Журнал Высшей школы экономики. 2019. № 4. С. 52-71.

The article investigates issues relative to the unique experiment carried out today in Russia in unifying the collection of all obligatory payments. It analyzes legal aspects of this approach and presents variety of methods for collecting obligatory payments. Notions of budget revenue, sources of revenue are consistently considered. Special attention is paid to the forms and practices of tax and other obligatory payments farming. The article concludes that budget legislation actually specifies various fiscal charges as sources of budget revenue. It describes that the real source of public revenue is assets and resources being the national wealth. Historical examples show that despite the generally accepted denial, tax farming is a normal method and can be applied along with state regalia (monopoly) and tax administration. The cases when tax farming is transformed into a state monopoly or excise and vice versa are not rare. Tax farming has continued to this day referred to as parafiscal charges, quasi taxes. The number of such obligatory payments is constantly increasing and their legal regulation is causal. This situation creates a problem of uncertainty in the tax burden. But the tax farming as the method of mobilizing of public income can be useful at the same time. The negative attitude about tax farming is connected with the historical prerequisites and related to the large-scale abuses that have occurred and their consequences. The danger is in the huge power that tax farming contractors can obtain, which happens when the buy-outs are centralized across a region or state. The article proves that the risk of abuse increases significantly with large concessions, and is much lower with small concessions, the latter are often more convenient in terms of organization than excise or direct taxes. Moreover, small (local) purchases can perform the task of controlling and regulating any economic activity, developing new types of entrepreneurship, and are also useful for solving other public tasks.

Added: Jan 7, 2020
Article
Чаплинский А. В., Лебедев А. О. Право. Журнал Высшей школы экономики. 2009. № 4. С. 33-39.
Added: Jan 20, 2010
Article
Гармаев Ю. П., Иванов Э. А., Маркунцов С. А. Право. Журнал Высшей школы экономики. 2020. № 4. С. 106-128.

Since the beginning of the 21st century, companies from various parts of the world have been actively implementing an anti-corruption compliance. This process did not leave aside Russian, primarily large, enterprises. Under their influence, the implementation process gradually started in small and medium size enterprises that often act as suppliers or service providers

The role of anti-corruption compliance as a mechanism for protecting companies from corruption offences and other misconduct should be not underestimated. At the same time, the authors noted that many largest international enterprises that invest enormous funds in designing and implementing compliance programmes are not able to prevent wrongdoing of managers, employees and third parties. As a result, these enterprises pay huge penalties to resolve anti-corruption laws violations.

Based on the results of the study, the authors come to the conclusion that anti-corruption compliance should not be limited to a set of management processes and formal standards. Anti-corruption compliance programmes and training should have a meaningful filling aimed at preventing corruption offences.

The article proposes and substantiates the idea of developing an interdisciplinary concept of anti-corruption compliance in the Russian Federation, based on the use of the achievements of the sciences of international law, criminal law, criminal procedure law, criminalistics and investigative activities.

Added: Oct 6, 2020
Article
Ялбулганов А. А., Бирюлин Е. В. Право. Журнал Высшей школы экономики. 2011. № 4. С. 144-153.
Added: Oct 24, 2012