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Regular version of the site
Of all publications in the section: 381
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Article
Петров А. Я. Право. Журнал Высшей школы экономики. 2016. № 1. С. 58-71.

The labour law theory lacks a properly developed doctrine of the institute of legal protection (norms and subinstitutes). Besides, there is no conceptual legal model for the institute of security and hygiene of labour. The author attempts to complete the blank in legal science. The methodology of the paper is a legal theory as a fundamental regulator of public relations, doctrinal concept of the institute of labour protection (safety and hygiene of labour) in Russian labour law. This is the first attempt in Russian labour law to examine the institute of protection and hygiene of labour not only in terms of the current approaches but also the draft of the federal law On Security and Hygiene. The paper concludes thatthe institute of protection of law did not initially (in 1918) met the conceptual idea, content and purpose to promote to saving life and health of employee. Currently, it is not justified to include the institute of Protection of Labour in part X of the Code. It is evident that the norms of ensuring life and health of employees require revision in RF Labour Code part IV, i.e. following the institute of Labour agreement — the central concept in Russian labour law. It is paramount: 1) to give a new title to part X of RF Labour Code, i.e. Security and Hygiene of Labour; 2) Art. 209 the Code determines the concept of labour security and hygiene of labour; 3) to arrange in chapter X of RF Labour Code to regulate security and hygiene of labour. Chapter X of RF Labour Code Security and Hygiene of Labour requires a brand new content. Hence, all the legal doctrines — both Soviet and Russian — on the institute of labour protection await revision.

Added: Mar 5, 2017
Article
Арзамасов Ю. Г. Право. Журнал Высшей школы экономики. 2019. № 5. С. 4-31.

This article examines the experience of introducing and conducting an assessment of the regulatory impact in modern Russia. Revealed the reasons for the popularity of the assessment of the regulatory impact. It was noted that the main factors of such an active introduction of the assessment of the regulatory impact institute in Russia are the low quality of regulatory legal acts and pursuing a policy of careful spending of funds from both the federal and regional budgets.  The analysis of the findings on the conduct of the assessment of the regulatory impact, made by the Ministry of Economic Development of Russia and the regional ministry from the standpoint of identifying legal risks. The concept, types, causes of the genesis of legal risks are researched. The author's concept of legal risks is proposed. The role of legal modeling in identifying legal risks is defined. The experience of identifying legal risks through the assessment of the regulatory impact in European Union and in continental Europe has been studied.

             It was concluded that there was a tendency towards convergence towards homogeneity of the objectives of conducting the assessment of the regulatory impact, since many countries of continental Europe in the national legislation institutionalize the determination of social and environmental consequences when conducting a prospective assessment of draft regulatory acts.

              The proposal to change the approaches to the assessment of the legislation applied in Russia is justified, it is proposed to include the financial and economic rationale in the structure of the implementation of the assessment of the regulatory impact. It was also proposed to conduct the assessment of the regulatory impact for all, without exception, drafts of normative legal acts and state programs.

Added: Feb 20, 2020
Article
Бычкова К. М. Право. Журнал Высшей школы экономики. 2015. № 3. С. 145-156.

One of the most problematic matters of the bankruptcy procedure is a fair distribution of the cost of the debtor's assets among the creditors under liquidation of the debtor. The issue becomes particularly complex for foreign creditors, who often do not have sufficient knowledge about the legal regulation of bankruptcy abroad. In this regard, it seems urgent the question of distribution priorities in foreign legal systems. In this article, the author analyzes the legislation and jurisprudence of France regarding the order of "pre-commencement" creditors’ claims settlement. At present, in this branch of law, a number of reforms have occurred and need to be scrutinized. The most part of Russian studies devoted to bankruptcy proceedings in France do not cover this field. In this study, the author describes the differences between the "pre-commencement" and "post-commencement" creditors, as well as considers the conditions for the recognition of several claims as privileged for the purposes of distribution of property of the debtor. Further, the author examines in detail the sequence established by the legislator concerning the distribution priorities as to the "pre-commencement" creditors, depending on the nature of the property (movable or immovable) to distributed. Finally, the paper presents the methods, which allow creditors to obtain satisfaction of their claims beyond the statutory priority, that is, in a preferential order. Based on the study the author concludes that there exists an economic component of the legal regulation of bankruptcy in France. By introducing certain institutions, the legislator can regulate (stimulate or repress) the activity of several businesses. At the same time, since under liquidation the purpose of the bankruptcy procedure is primarily an equitable distribution of the value of the debtor's assets among creditors, the priority of their claims is an essential characteristic of this branch of the law of a particular state. The results of this research and the conclusions may be used both by practicing lawyers to determine the status of a particular claim against the debtor and by scientific researchers in the study of various approaches to the concept and the legal regime of the "pre-commencement" claims.

Added: Oct 8, 2015
Article
Панова И. В. Право. Журнал Высшей школы экономики. 2017. № 1. С. 32-41.

The paper presents the historical aspect of the development of administrative justice in Russia. A wide historical period is studied beginning with the pre-revolutionary period and ending on the present stage. Besides, the paper analyzes historical and legal documents on the issues under consideration to generalize. The author points out that Russia has a rich experience of the institute of administrative justice. The history of the development of domestic legislation administrative proceedings and administrative justice can help in reforming the modern legislation in this area as the mistakes of the past must not be forgotten and repeated in the future. The paper emphasizes that the current administrative procedural legislation provides for two procedures of reviewing decisions on administrative offences: prejudicial and judicial. At that, the choice of a specific grievance procedure of a decision on a case on administrative offence is provided to a person brought to justice on administrative case (delinquent). The history of administrative justice clearly shows the fact: until now no even generalizing view to the nature of the institution of administrative justice has existed. No definitions are shaped for fundamental concepts of administrative process, administrative and jurisdiction case, administrative dispute, administrative justice, administrative legal proceedings etc. the same may be said on the subject matter, content and scope. The main objective of administrative justice in any country including Russia is creating an opportunity to establish relations between the subject without authority and public power on a clear, expedient and legal basis. The development and improvement of administrative justice is an important guarantee of rights for the subject without authority, a significant step as to implementing administrative reform in Russia. It should be noted that the ideas on establishing the system of administrative justice which would promote to the implementation of the RF constitution provision on the operative access to justice but will free courts from irrelevant functions, which is justified and topical in the contemporary legal setting

Added: Jul 30, 2017
Article
Михеева И. В., Логинова А. С. Право. Журнал Высшей школы экономики. 2017. № 4. С. 202-215.

The article is devoted to the study of law in the field of consumer rights protection in Russia and China. The authors highlighted problems in the sphere of consumer protection in trading service of the Russian Federation (hereinafter - the RF) and the People's Republic of China (hereinafter – the PRC). The article presents a comparative analysis of the legislation of two countries, identifies prospects and development trends of the Russian and Chinese legislation in the sphere of consumer protection. A comparison of the provisions of the RF and PRC legislation in the sphere of consumer protection in trading service is of particular relevance. The main goal of this comparison is to remove gaps in national legislation, improve its provisions according to the PRC legal practice.

The authors of the proposed article make conclusions that despite some differences in formulation, the scope of the Russian and Chinese laws are practically identical. The study of the Chinese law rules leads to the conclusion that in the scope of the legislation can be added to the relations that are associated with the purchase and use of goods, performance of works or rendering of services. Consumer protection legislation varies periodically. Currently it is modernizing.

 In order to improve the mechanism of consumers' rights protection in Russia, the authors suggest to fix the mediation usage at the legislative level, as it is in the PRC. The introduction of this procedure will also contribute to the development of the movement in defense of consumers' rights, strengthening the role of civil society organizations. We deem it expedient to add mediation provision in the sphere of consumer protection into the Law of the Russian Federation on the Protection of the Consumers' Rights. Also it is essential to strengthen the role of consumer associations in this procedure.

Added: Mar 14, 2017
Article
Терехов К. И. Право. Журнал Высшей школы экономики. 2011. № 4. С. 52-60.
Added: Oct 23, 2012
Article
Саблина М. А. Право. Журнал Высшей школы экономики. 2016. № 4. С. 129-139.

The legislative definition of ‘inciter’ is subjected to a critical analysis. Such ways of involvement persons in crime committing as abetment, recruiting, bribery, threat, enforce and their relationship to each other are examined. It was established abetment and enforce are single-level terms, which are species in relation to involvement. Free will of an incited person is a criterion for distinguishing. Recruiting and bribery meet the criteria for abetment and based on a material gain promise. The threat, in turn, reflects the essence of enforce. A number of legal technique shortcomings in the design of particular Specific Part provisions of the Criminal Code which violate consistency using of the considered conceptual construct are noted. The author’s version of p. 4 Art. 33 of the Criminal Code, taking into account the formed terms hierarchy, is offered. The possible qualification ways of actions both covered by a specific article of the Criminal Code and coincide with the complicity institute provisions are considered. There is the absence of uniformity in the approach both on the level of court practice and opinions among the scholars. The views expressed in the scientific community predominantly relate to specific crime components or groups of crimes. It’s emphasized the need for a single principle, universal for all situations. The author concluded that the exclusive using of a specific article unnecessarily, because in some cases it provides a smaller penalty than can be assigned to an inciter by using of an article according to which he can be considered as an accomplice. Another option would be an application of the cumulative crime institute. However, this qualification model is unacceptable because it violates the principle of fairness in sentencing. In this regard, the only solution capable of ensuring uniformity in the enforcement is the exception of legally defined crimes which duplicate provisions of incitement from the Special Part of the Criminal Code. The provisions of Chapter 7 of the Criminal Code of complicity should be used in such situations.

Added: Jan 7, 2017
Article
Гетьман-Павлова И. В. Право. Журнал Высшей школы экономики. 2013. № 1. С. 38-63.
Added: Apr 12, 2013
Article
Назмутдинов Б. В. Право. Журнал Высшей школы экономики. 2012. № 4. С. 163-176.

The author considers the definitions of state in the works of eurasianism ideology leaders, i.e. N. Trubetskoy, N. Alexeyev and L. Karsavin and compares their views with the conceptions of Russian and foreign scholars. Having revealed the features of state specified by Eurasianism ideologists, the author makes a conclusion on the inner controversy of state and law views expressed by the representatives of classical Eurasianism.

Added: Jan 24, 2013
Article
Петрачков С. С. Право. Журнал Высшей школы экономики. 2011. № 3. С. 87-93.
Added: Nov 15, 2011
Article
Петров А. Я. Право. Журнал Высшей школы экономики. 2015. № 2. С. 61-75.

   In science of the labor law the conceptual framework of labor protection (definitions and terms) and, first of all, from a position of the international labor law isn't developed in a due measure. Moreover there is no conceptual legal model of safety and occupational health, her conceptual basis. Therefore the author has made an attempt to meet this lack in science.    Methodological basis of article is the doctrine about the right as the fundamental regulator of the public relations, the doctrinal concept about concepts (definitions, categories) of the labor law of Russia.    Scientific novelty. For the first time in science of the labor law the concept of protection, safety and occupational health not only from a position of the international labor law and modern theoretical approaches, but also the draft of the Federal law "About safety and occupational health" reveals.

Added: Feb 29, 2016
Article
Буянова М. О. Право. Журнал Высшей школы экономики. 2016. № 4. С. 198-204.
Added: Jan 20, 2017
Article
Харитонов М. М. Право. Журнал Высшей школы экономики. 2019. № 3. С. 52-75.

The article is devoted to the definition of the concept of “sexual harassment” and the evaluation of mechanisms to counter this phenomenon in labor relations. The need for these mechanisms is due to the fact that in labor relations, their very infrastructure is inherently conducive to harassment, as the victim is usually in the service and (or) “space-time” dependence on the offender. Service dependence is due either to the direct administrative subordination of the victim to the source of the harassment, or to the fact that it can affect her career and other benefits associated with the work. The “spacetime” dependence is due to the fact that the victim cannot effectively avoid contact with the source of the harassment by changing his or her location or time in a particular place, because of his or her job responsibilities, he or she must be in a particular place at a particular time. It is considered definitions of harassment behavior and proposes four types of possible forms of harassment: assault, coercion, use and demonstration, considers the generalized practice of the United States on the qualification of behavior as a harassment and analyzes the norms of Russian law in terms of the availability of adequate means to counter this threat. It is established that the current criminal, civil, administrative and labour legislation now does not contain effective methods of protection against most forms of harassment. The author suggests regulatory incentives for more active involvement of the employer in countering harassment within the framework of labor relations (for example, the possibility of removal of the offender from work, transfer him to another job, dismissal for harassment as a gross disciplinary offense) and regulatory mechanisms for protecting the victim of harassment by means of labor law: the employer’s obligation to provide leave at the request of the victim, transfer it to another available job; the right not to be employed if the employer fails to take measures to protect the victim from harassment, while maintaining the average earnings during the absence

Added: Nov 19, 2019
Article
Янкевич С. В., Вишневский П. Н. Право. Журнал Высшей школы экономики. 2013. № 2. С. 85-95.

The term «beneficial owner» is interpreted in the article in the context of international, foreign and Russian tax practice. The different interpretations of the term «beneficial owner» incorporated in international treaties, national legislation and case law are shown. The international bonds issuance by Russian lenders is given as an example in which the authors demonstrate the problems arising out of the application of this term in Russia.

Added: Jul 21, 2013
Article
Савюк Л. К. Право. Журнал Высшей школы экономики. 2009. № 2. С. 10-19.
Added: Oct 15, 2012
Article
Савюк Л. К. Право. Журнал Высшей школы экономики. 2012. № 4. С. 19-38.

The article represents the retrospective view of J. Bentam’sideason the state, law, moral and their historical dependence. The assumption is made on the relevance of the thinker’s ideas to modernize the political and legal life in Russia including those on legal laws.

Added: Jan 17, 2013
Article
Панова И. В. Право. Журнал Высшей школы экономики. 2015. № 4. С. 91-102.

The article concerns interesting and important issues of compensation for harm caused by illegal actions of administrative bodies. The article focuses on the current aspect of the issue. The paper proposes necessary amendments to the legislation related to the issues raised in the article. In particular, the paper proposes amendments to the legislation, for example the supplement of Art. 2 in the Law of the Russian Federation from 27.04.1993 N 4866-1 On appealing against the actions and decisions violating the rights and freedoms of citizens’ may be supplied with the provision that citizens have the right to file application for damages or losses caused by illegal actions of administrative bodies in the event of denial letter regarding the implementation of pre-court dispute resolution by an official. The author also proposed to supply Art. 6 of the Law of the Russian Federation from 27.04.1993 N 4866-1 On appealing against the actions and decisions violating the rights and freedoms of citizens with the provision under which in cases established by law, when considering a complaint for damages (harm)caused by unlawful actions (inaction) of an official, court must take into account the obligation to complywith the order of pre-trial dispute resolution procedure for damages (harm) to a maximum of 100,000 roubles. Russian law 27.04.1993 N 4866-1 On appealing against the actions and decisions violating the rights and freedoms of citizens may include a rule under which unlawful conduct of an official who would not pay damages shall responsible. The author shows the necessity of the changes in the Arbitrazh and Civil procedural Codes of the Russian Federation, the Russian Code of Civil Procedure concerning the cases when an appropriate subject doe s not voluntarily pay the damages caused by unlawful actions (inaction) of officials, the amount to be raised through the courts, can be increased. The author concluded that legislation should encourage compensation in administrative procedure, as opposed to large financial costs in the courts.

Added: Feb 21, 2017
Article
Янкевич С. В. Право. Журнал Высшей школы экономики. 2015. № 4.

The taxation system in South Africa in recent years is undergoing significant changes. The basis for reformation of administrative and judicial ways for settlement of tax disputes became Tax Administration Act of 2012. This article analyzes the legal regulation of ways of resolving tax disputes in South Africa.

The first instance to resolve conflicts between taxpayers and tax authorities is Tax Board which is the administrative body in the structure of the South African Revenue Service. Tax Board consists of a chairman, a certified accountant and a representative of the business community. In the case of dissatisfaction with the decision of the Tax Board participants of tax relations have the right to appeal to the Tax Court. The system of tax proceedings was established in accordance with the Constitution of South Africa of 1996. Tax Courts are located in four cities; this fact according to experts entails additional costs for taxpayers, complicates access to specialized justice, therefore, worsen the position of taxpayers. Decisions of the Tax Courts may be appealed to the provincial division of the High Court. These courts can confirm the assessment of the liability of taxpayers, cancel the decision of the Tax Court and take a new decision, or refer the case to the Tax Court with the requirement to re-hearing it in the new composition of judges. Finally, taxpayers are entitled to apply to the Supreme Court of Appeal, whose decision shall be valid precedent and, as a rule, not be appealed by taxpayers. However, the Constitutional Court of South Africa has the right to review the decisions of the Supreme Court of Appeals. Currently, however, contrary to the requirements of the legislation there isn’t the procedure for review by the Constitutional Court of South Africa.

Particular attention is paid to alternative methods of resolution of tax disputes, f. e. mediation and arbitration. Under the author, the most interested is the institute of Tax Ombudsman, established in 2012. The Tax Ombudsman should deal with complaints by fair and cost-effective measures. This method of resolving disputes is designed as a simple and affordable for taxpayers who have legitimate complaints related to administrative cases, poor quality of service, or the inability of the South African Revenue Service to respect the rights of taxpayers.

Added: Oct 20, 2015
Article
Батусова Е. С. Право. Журнал Высшей школы экономики. 2016. № 3. С. 159-171.

Globalization in the economy affects the legal regulation, in particular the legal regulation of labour as one of the main business costs are the costs associated with employees, in particular wages, salary, other payments. Besides, investors are attracted by the ability to respond quickly to the changing situation in the economy. It depends in particular on the possibility to dismiss those employees abundant for enterprise development. At the current stage of world economic development, lawmakers have faced the challenge to maintain the attractiveness of local labour law for employers and at the same time strengthen the protection of labour rights, in particular termination the employment contract without employee's fault. Foreign lawmakers solve this issue in different ways. The purpose of the legal regulation is balancing the interests of employer and employee. The means of ensuring that balance differ. In particular, it depends on the specific legal regulations in each country. The criteria for the comparison were as follows: the form of preventing the termination of the employment contract; criteria for determining the notice period; the presence or absence of state authority notice of the employees; the need for coordination dismissal of employees with the state body. The main provisions of the procedural requirements for individual dismissals in Austria, France, Germany, Spain, Canada, Romania, France, Switzerland were analyzed. The legal regulation of the termination of the employment contract by the employer without the employee's fault in foreign countries is characterized by the following common features: the right of an employer to dismiss an employee on the grounds stipulated by the legislation in compliance with a specific procedural requirements; the lack of a disciplinary offense as a reason to disciplinary action, under which an employer may take such kind of disciplinary action as dismissal; the presence of notice to the employee to be dismissed. The analysis of legal regulation of terminating the employment contract allows selecting three models: the country with prevailing regulatory flexibility over rigidity;

Added: Mar 12, 2017