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Regular version of the site
Of all publications in the section: 294
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Article
Михайлов В. К. Закон. 2019. № 4. С. 83-91.

The present article is, according to the author’s intention, a continuation of the research in this direction and is presented as a regular publication from a series of works devoted to various areas of regulation of the status and activities of judges in the context of ensuring their independence.[1]

The significance of the principle of independence of the judiciary while exercising its main function - justice - for a state that has declared itself legal and democratic, striving to truly respect the rights and freedoms of citizens, is difficult to overestimate. Its presence and reasonable implementation contributes to objective and impartial justice, which, generally, is proclaimed as the main goal of each new reform of the judicial system. However, the changes of the last years, introduced into the judicial system, were mostly aimed at strengthening institutional independence, leaving unattended the individual independence - the judicial one. Experience has shown, that they are closely interrelated with each other and are not separately achievable.

Therefore, there comes a special meaning of the other stage of formation of the judiciary, which is the main one, namely, the process of empowering as a judge those candidates who meet the established requirements. This procedure has a multi-level structure, consisting of both a number of formally fixed verification measures and filters, as well as restrictions that are not directly provided by law, but are actively applied in practice.

The investigation identifies problems of organizational character related to the order of formation of bodies of the judicial community and of functional character, revealing the ambiguous nature of the procedure for vesting judicial powers, and this research also formulates proposals for overcoming current problems in order to strengthen the guarantees of judicial independence.

 

[1] First work from a series if works: Mikhaylov V.K.  Some requirements for candidates for the post of a judge as a threat to the independence of the judiciary // Court Administrator.  2019. № 1. P. 3 - 7.

Added: Apr 27, 2019
Article
Будник Р. А. Закон. 2016. № 10. С. 166-174.

This article is dedicated to analysis of preconditions for development and worldwide use of Creative Commons (CC) license system. CC licensing system is based on legal formula of author’s right protection called «some rights reserved», which is deferent to standard legal formula of copyright as known as «all rights reserved». We provide the description of CC licenses’ terms, their purposes and the legal classification of licenses. We describe the status of adaptation of CC licenses to the legislation of different countries. It is noted that among domestic lawyers is an ongoing debate on correlation of CC licenses rules to the Civil Code of Russian Federation. It is shown that recent supplementation of Russian Civil Code by the novel institute called «open license» in the Article 1286.1 is nothing other than an attempt to receipt all the CC license system in the form of one generalized rule of law. We have emphasized the positive impact of the novel rule on the character of Russian intellectual property rights legislation. We have fulfilled a detailed analysis of low efficiency of the open license instrument in its present form for practical use at present and underline the lack of the situation’s improvement prospects in future. The author proposes to implement the CC licensing system to the national legislation on intellectual property rights in full fledge form without exception by the direct reference to official text of CC licenses in Russian language.

Added: Aug 3, 2017
Article
Фокин Е. А. Закон. 2019. № 7. С. 159-166.

The present paper tries to confirm or refute the hypothesis about Russian commercial procedure as a type of professional legal process. An interim conclusion is made that the position according to which a professional judicial process is a process oriented to professional participants is conservative. Instead of this position, the author puts forward and substantiates the thesis that the main feature of a professional judicial process is effective procedural cooperation between the court and the persons participating in the case. At the same time, the analysis of commercial courts practice conducted in the article leads to the conclusion that the court and the parties have a rather formal cooperation, which is extremely difficult to recognize as effective. This circumstance indicates that it is premature to consider the Russian arbitration process as a professional judicial process. According to the results of the study, it was concluded that in order to give the commercial procedure a professional character, it is necessary not only a fundamental change in the approaches of judicial practice, but also a fundamental change in the general psychology of the cooperation between the court and the parties.

Added: Jun 6, 2019
Article
Ильин А. В. Закон. 2016. № 4. С. 38-46.

Judicial expenses became subject to the Plenary Resolution of the Supreme Court for the first time. The author attempts to find in the explanations of the Supreme Court any leading idea or general principle which would allow to cover all proposed explanations. The interpretations put by the Supreme Court are analysed in the context of various theories defining the nature of court costs: the procedural theory, the theory of damages, and the theory of the actual procedural behavior.

Added: Jul 12, 2017
Article
Иванова Е. В. Закон. 2004. № 7.
Added: Dec 9, 2013
Article
Тотьев К. Ю. Закон. 1997. № 12. С. 14-21.
Added: Oct 23, 2010
Article
Фогельсон Ю. Б. Закон. 2019. № 4. С. 160-173.

The article presents the results of the assessment of domestic civil law and legal consciousness of Russian lawyers from the standpoint of a functional approach to law. This first theoretical part considers historical roots of dogmatism in Russian legal consciousness and shows that dogmatism, which is closely connected with the super positivist approach to law, is still imprinted in the minds of domestic civilists. The functional approach to law is described as a necessary addition to legal dogmatism and an opposition to positivism, as well as the essence of the social impact of law. These theses are empirically confirmed in the second part of the paper. The author considers the principle of good faith, standards of proof, protection of possession, recovery of damages, compensation for harm to life and health, etc., and proves that in these key areas of civil law the dogmatic approach still prevails or significantly hinders the effective operation of such civil law instruments.

Added: Mar 10, 2019
Article
Фогельсон Ю. Б. Закон. 2019. № 6. С. 159-170.

The article provides continuation of a study on the assessment of Russian civil law and legal awareness of Russian jurists from the standpoint of a functional approach to law. In the first part of the study, the main theoretical implications of the functional approach to Russian civil law were examined. Here the theses expressed in the first part are confirmed empirically. The material constituting the empirical part of the study consists of several episodes from the life of modern Russian civil law. This article presents three of such episodes - the supremacy of the Civil Code, the principle of good faith and unfair contract terms.

Added: Jun 15, 2019
Article
Гальперин М. Л. Закон. 2018. № 5. С. 103-108.

In the present article author analyses the key problems of the development of the international justice in conjunction with international law and policy. Using the European Court of Human Rights as example, he demonstrates the trend of development of international jurisdictional bodies. Upon author’s view, the balanced development of the international law as well as the vitality of the existing mechanisms of the international protection of human rights are impossible in the absence of the effective dialogue between national and supranational courts.

Added: May 25, 2018
Article
Есаков Г. А. Закон. 2018. № 2. С. 133-143.

The Article is concerned with recent history of relations between Russia and the Rome Statute. Such history began in the 1990s, during the preparatory stages for the Statute’s enactment, and officially ended in 2016. During this period of time, there were changing attitudes to the Statute, attempts to ratify it, proposals to change national legislation with regard to international crimes. The author concentrates on official positions as to the Statute and connected scholar and political views. The main assumption proposed in the Article is that the relations with the Statute (and of course with the International Criminal Court) were subject for political considerations. There were no significant legal and public discussion as to its ratification, implementation or rejection. Despite the formal rejection of the Statute to this moment, it surely will influence at least scholar discussion on international criminal law matters in the future.

Added: Aug 15, 2018
Article
Иванов А. Ю., Каталевский Д. Ю., Лианос Я. Закон. 2016. № 5. С. 49-66.

The paper explores the competition dynamics of the global seed market. It documents the economic concentration of the sector, in particular the M&A activity of the major seed companies and their reliance on complex intellectual property strategies in order to offer a one stop shop solution to farmers. Recent merger activity in this sector (the Monsanto bid to buy Syngenta, the DuPont and Dow merger deal, ChemChina’s bid to buy Syngenta) illustrates its rapid transformation from an already concentrated industry to a tight oligopoly on a global scale. The increasing global consolidation of this industry raises new challenges for competition law enforcement authorities dealing with the emergence of new powerful actors at the factor of production (input) level, in view of the broader concerns animating public policy in the food sector and the existence of a nexus of international commitments for biodiversity, sustainability, the right to food etc. By exploring this under-studied but fascinating area of competition law enforcement we open the debate over the inclusion of broader public interest concerns in competition policy and the consideration of its distributive impact from a global perspective.

Added: Jun 15, 2016
Article
Ильин А. В. Закон. 2019. № 6. С. 132-138.

Currently, the criminal procedure law allows for the interrogation as a witness in a criminal case of a person who is not an attorney, who previously participated in a civil case as a representative of a citizen who has the status of a suspect, accused (defendant, convicted) in this criminal case, about the circumstances that became known to him in the provision of legal assistance to the latter, despite the fact that in other types of proceedings the interrogation of such a person as a witness is prohibited. The article argues from the standpoint of universal legal values, including the right to judicial protection and qualified legal assistance, the need to extend witness immunity to any representative, since such immunity cannot be associated with the regime of attorney client privilege, but on the contrary, the regime of attorney client privilege is only a consequence of the idea of the need to protect the confidentiality of information, the disclosure of which causes irreparable damage to the activity (the relationship) in which this information becomes known to another person.

Added: Jun 25, 2019
Article
Галкова Е. В., Башкатов М. Л. Закон. 2016. № 2. С. 79-91.
Added: Jun 21, 2016