The paper studies one of the most topical issues arousing in international private law, i.e. international abduction of children by one of the parents. The first part of the article analyzes the majour provisions of the Hague Convention of 25 October 1980 on the civil law aspects of international Child Abduction (hereafter Convention); reveals the majour concepts of the Convention (abduction, rights of custody, right to access, Central body), specifies the conditions under which a child transferred to another country may
be returned to the country of his regular residence and the cases when returning a child is impossible. The second part of the article studies the issues of applying the Convention in the EU, in particular two legal regimes established for the interaction between EU countries by the EU Council of November 27 2003 no 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility which operates in the EU and other countries (case study of Russia). Case practice is studied as to the decisions of the European Court of Human Rights on abducting children. The case of Irina Belen’kaya shows the issues which used to arise before Russia joined the Convention and caused by the impossibility to enforce a foreign judicial decision in Russia and in France and the obstacles for an effective protection of children’s interests, shows the role of the Central body which is the Ministry of Education and Science. Some circumstances have been
specified as they hurdle the efficient implementation of the Convention in Russia, i.e. inconsistencies of some provisions of the Russian legislation with Convention (differences in the concepts of abduction, custody, lack of the definition in the Convention for the place to ordinary residence. Attention has been drawn to recent changes after Russia has joined the Convention on the Civil Aspects of International Child Abduction (Federal law of May 5, 2014 No 126-FZ).
As a rule registered trademarks are not copyright. But in some cases they are - if trademarks are original. In these cases the problem of delimitation arises. To avoid the troubles, thetrademark applicants, as recommended, obtain a written consent from copyright owner concerning the use of his or her copyrighted work as a trade mark. This document must also provide waving moral rights concerning copyrighted work. Article 1483 (point 9) of the Civil Code of the Russian Federation provides that the trade mark, which includes copyrighted works, widely known in the Russian Federation, can be used with the consent of copyright owner only.
Oral international treaties can be attributed to one of the sources of international law that are less studied in the legal sciences and rarely used in the practice of interstate relations. Therefore, in the presented article on the basis of dialectical method of research, use of general scientific methods of research, as well as such private scientific methods as: historical legal, comparative legal, method of legal modelling and legal forecasting, the results of the study of legal nature of oral international treaties are presented. The work shows the advantages and disadvantages of such treaties and their attitude to them in the doctrine of international law. The issue of increasing their role in regulating interstate relations is raised. Ordinary and treaty rules of international law governing the process of conclusion, action, amendment, termination of oral international treaties and other matters related to their functioning are considered. The history of formation of oral international agreements are described, their examples are given. Similarity and distinction between oral and written international treaties, interaction of oral international treaties and domestic law are shown. The correlation of the term “oral international agreement” with such terms as “gentleman’s agreement”, “verbal agreement”, “verbal arrangement” is revealed. The requirements to be satisfied by modern oral international treaties are substantiated. Among them: conformity of oral international treaties with universally recognized principles of international law (as well as for written international treaties of UN members), non-contradiction of the UN Charter, as well as the legislation of its States; their conclusion within the powers of officials provided by national legislation, international customs or international treaties of the States concerned. It is shown that the intention of the parties to conclude a legally binding oral international treaty, the conviction of States and other subjects of international law in its legal force are the main signs that allow to distinguish this kind of Agreement among other agreements in the international arena that are not legally binding. An oral international treaty proposes to understand the legally binding international agreement concluded between States, other subjects of international law by their authorized representatives orally and regulated International law, regardless of its specific name (“oral international treaty”, “verbal agreement”, “gentleman’s agreement”, etc.) and its possible further documentation, designed to regulate inter-state relations and enforced force of the constituent entities of international law.
Legal system is a concept embodying the multifacetedness of law, i.e. its internal architecture (elements of law which are complex systems per se), correlations within the system, interaction of law with other parts of socium. Legal system has been the subject matter both of law and sociology of law. Each of the sciences has developed its own approaches to this phenomenon, which do not tend to cross. Each science makes its own path not addressing the achievements of the interdisciplinary discipline. Sociology of law doctrines are considered by the author as the instruments to widen the cognitive borders of the traditional for lawyers positivist approach to law, to discover topical research perspectives. On the basis of the views of T Parsons, D. Black, N. Luhmann, P. Bourdieu, the article develops the methodology of the social approach to legal system, reveals its advantages and disadvantages. Sociologists are used to shifting a significant role in functioning legal system to legal professionals. They focus on the contradictions in the relations between legal framework (legal system, normative system etc.) and politics. The views of sociologists are extrapolated to the current reality of Russian legal system. Its majour issue is seen in the imbalance between law and politics as the ruling elite imposes a beneficial for it structure of legal system on society, intervenes in legal communication including judicial enforcement of courts and law enforcement agencies. The majour attention of lawyers should be drawn to ensuring their relative independence, widening the autonomy of legal framework and legal communications, and building up their authority when adopting paramount legal acts. This is the only way to create a prerequisite to tackle the problems which the legal system of Russian society is facing. The article covers the current empirical legal approaches suggested by sociologists as well as the causes for such research, results, perspectives and possibilities to engage jurists in such studies.
In times of economic instability, organizations are looking for minimization costs and increase its efficiency. The legal regulation of labour offers the possibility of conducting a probation at the beginning of employment to check the employee's labour qualities and compliance with the work. The employee could also evaluate the working conditions at the new employer. Probation is attractive for the employer as a simplified and cost-effective way to dismiss employees. The employer has the right to select permanent employees who have successfully passed the probation, since employees on probation are subject only to minimum labour standards. The aim of the research is a comprehensive analysis of the problems of the balance of flexibility and rigidity in employment legal regulation in foreign countries in order to develop recommendations for optimizing probation labour legislation. The methods of research are analysis and synthesis, abstraction and generalization. The existing features of legal regulation in the main legal families affect the legal regulation of labour in foreign countries, which is important from the point of view of finding a balance between the interests of employers and employees in terms of flexibility and rigidity of legal regulation of labour. The article considers two main models of legal regulation of probation abroad. They are characterized by both general and special patterns. Common patterns include: lack of a state legal definition of probation; consolidation of a single list of criteria for legal regulation of probation (duration, rules for its changing and termination); prevention of discrimination and consideration of the legal status of special subjects to eliminate it and improve position in the labour market. Special patterns are associated with the mechanism of fixing the maximum period, certain types of employment contracts, concepts of legal regulation of labour, existing other legally fixed periods of work that can affect the legal status of an employee on probation. The result of the analysis was the development of proposals for improving the legal regulation of labour in terms of solving the problems of flexibility and rigidity of legal regulation of labour.
Article contains an analysis of problems of access to information about state and municipal orders and purchases, The sphere of state orders is financed from state budget and needs in legal regulation which may maintain principles of competition, transparency and controls. Therefore legal norms regulating access to such information play an important role. They permit to lower threat of corruption in this sphere.
ИНФОРМАЦИЯ, ГОСУДАРСТВЕННЫЕ И МУНИЦИПАЛЬНЫЕ ЗАКАЗЫ, КОРРУПЦИЯ, ЗАКУПОЧНАЯ ДЕЯТЕЛЬНОСТЬ
The article covers peculiarities of legal regulation of the actions of shareholders’ and governance bodies’ of a corporation during the pre-bankruptcy period including restrictions for carrying out of special corporate actions and subsidiary duties imposed on members of governance bodies within this period. Whereas the term “pre-bankruptcy period” is not exactly legal and is frequently used in terms different from signs of insolvency, the authors describe separately legal consequences of anticipation of bankruptcy and consequences of appearance of formal signs of insolvency and grounds for legal action. The research contains aspects of correlation of corporate and insolvency legislation in order to reveal not sufficient legal regulation of special issues where ambiguity of contents of rights and duties of participants of corporate relations cause risks of adverse effect such as liability or invalidity of a bargain. The article introduces examples of confusion of facts reflecting legal signs of insolvency and those irrelevant to them as a result of insufficient attention to distinction between them in legal acts. The most important problems in this sphere of regulation are the following: the exercising of the right and carrying out of the obligation to file a bankruptcy petition, uncertainty in the issue concerning a proper body responsible for making this decision, the absence of defined terms of filing pf the petition, ambiguity of the grounds for refuse to pay dividends within pre-bankruptcy period and violent construction of the notion “signs of insolvency” for this purpose, unequal protection of the creditors’ rights in case of restriction of shareholders’ rights to demand acquisition of their shares by the corporation. The essential task of the legislator seems to be consideration of the specificity of corporate relations during the pre-bankruptcy period and providing the guarantees of inadmissibility of bearing risks of violent construction of legal provisions by any of participants of these relations.
The article considers the issues related to the legal regulation of establishing enterprises with 100% Russian capital and Russian-Chinese enterprises on the territory of the People’s Republic of China. The establishment of enterprises with 100% Russian capital is studied on the example of a company with limited liability. This legal form is most frequently chosen by Russian entrepreneurs as it is identical formally to the widespread in the Russian Federation limited liability company. However, despite the similarities, a limited liability company in China and a limited liability company in Russia have a number of substantial differences which have been identified in the comparative analysis of the principal legal characteristics of these entities and are seen in a different order of formation and the size of the share capital, organization of management etc. These differences should be taken into account by Russian investors to minimize risks and avoid misperception on the legal aspects of doing business in China. The paper also discusses regulatory features of establishing joint Russian-Chinese enterprises which are of two types — contract (cooperative) joint ventures and share joint ventures. The conducted research allowed revealing the advantages and disadvantages of each form of doing business in question by Russian businessmen in China. For example, establishing an enterprise with 100% Russian capital is quite a lengthy and costly (a large size of the authorized capital) process, but the advantages are a convenient control system with the possibility of delegating powers to the employees, the ability to select the co-founders irrespective of nation, in addition to Russia, the risk of loss of property only to the extent of the share in authorized capital makes it attractive for Russian investors. In case of unwillingness or lack of financial ability to run an individual business, China’s domestic investors may join such a venture selecting one of the two types of joint ventures. Share joint ventures run is subject to the law. Contractual joint ventures are largely governed by the agreement on contractual enterprise.
Aim of this research consists in identification of a role and opportunities of the Law in economic development ensuring. The carried-out analysis allows to claim that the effective mechanism of legal regulation serves as a powerful factor of economic growth. In the context of implementation of national projects it is necessary to overcome a gap between the legal purposes and results and to provide effective legal administration. Thereby it is possible to strengthen forecast and analytical activity and overcoming risks, to designate the clear bases for elaboration and implementation of legal acts in the field of economy. Implementation of legal prognostication practice and diagnostics of risks allows to implement opportunities for reliable planning of legal development in the economic sphere. Authors prove that successful economic activity is influenced by the coordinated use of private law and public law regulators in business activity, on the one hand, and dynamic administrative regulation due to new information technologies, on the other hand. Thereby that correlation between legal regulation and economic activity that contributes to the economic development and the high results is reached. At the same time, it is noted that the exaggeration of the market mechanisms role has led to a clear underestimation of public administration. Authors make specific recommendations for reorganization of the public administration system in the field of economy, suggesting to adopt federal laws on executive authorities and on the legal acts system. The structure of legislation does not allow to consider the increasing complexity of the relations that becomes visual on the example of digital economy. It leads to mixing of public law and private law regulators. Large understanding of digital economy includes also reform of public administration, for the purpose of increase in its efficiency and effectiveness. In spite of the fact that the law quite conservatively belongs to emergence of new subjects and objects, it begins to adapt to the digital transformations assuming a big part of technical and legal norms, self-regulation. As a result more and more opportunities for inclusion of social norms in the mechanism of legal regulation are created.
The area of legal regulation related to customs norm formation isn’t clearly designated and sufficiently examined in the doctrine of international law. Also, there is no unified point of view on its title. A variety of terms can be met in scientific studies. The author proposes to entitle this area of international law as “law of international customs” — the most accurate term, corresponding to its content. The article reveals the role and place of the law of international customs in the international legal system. The differences and similarities of this institute of international law in relation to the law of treaties are shown. Scientific doctrines on the content and development of this institute of international law are also considered. The author shows which rules are lying on the basis of customs norm-formation and substantiates his position on this issue. The object and the subject of regulation of the law of international customs are clarified. The question of norm-formation and its stages is examined. The article reveals influence of treaty rules, decisions of judicial and other international bodies on the process of custom normformation. Questions over necessity of the codification of this process, development of appropriate criteria relating to the formation of international custom and its norms are risen. The author proposes to develop relevant draft articles, adopting them as a UN resolution, and then to sign a Convention on the Law of international customs, which should fix currently established customary rules of international law, and also new treaty rules aimed to streamline the custom norm-formation, giving it more rigorous, systematic view. The state of scientific researches in this area and the ways of their further development are shown. Separate formulations of the law of international customs are presented. The author gives definition of the law of international customs, which is proposed to be understood as the institute of international law, including a set of customary rules of international law regulating interstate relations in the questions of international custom establishment, its validity, amending and termination of existence, the conceptual apparatus in this area.
The article deals with an understanding of the right to strike as a human right, which was formed during the 20th century, its place among human rights, normative regulation of the right to strike at the international and national levels, as well as its role in labor relations and employment law. The centerpiece of the article is the study of crisis recognition of the right to strike, caused by the Employers' Group’s statements at the International Labour Conference in 2012. During this conference, the representative of the Employers' Group has notified that they refuse to discuss the list of countries, selected from the report of the Committee of Experts and earlier approved by tripartite partners, not fulfilling obligations arising from ratified Conventions, at the Committee on the Application of Standards of the International Labour Conference,
This statement was motivated by the fact that the right to strike is not expressly recognized in the Convention #87, and the Committee of Experts, when making conclusions about the violation of the right to strike by some states – ILO members, has gone beyond his mandate. This raised the question not only on the recognition of the right to strike, which was developed during decades, but also about the mandate of the Committee of Experts as a whole. To understand the scope of the modern recognition of the right to strike, the history of the adoption of the ILO standards concerning the right to strike, and discussions on the content of standards are investigated. The article analyses how the interpretation of the Convention №87, developed by the ILO supervisory bodies, particularly by the Committee on Freedom of Association and the Committee of Experts on application of Conventions and Recommendations; explores limits of the mandate of mentioned bodies in interpretation of the conventions’ content; the role of Employers', Workers’ and Governments” groups in the recognition and development of these interpretations. Efforts undertaken inside the ILO to overcome this crisis are also being explored.
The article discusses the construction of the right of the necessary road as a restriction of ownership in the interests of a neighbor. This right is not known to the Russian law. Proposals for its introduction were made in the last century in the process of discussing the draft of the Civil Code of the Russian Empire. The construction of the necessary road law is widely used in many foreign law and order as neighborly law along with a private easement. Foreign doctrine and judicial practice distinguish between a private easement and the right of the necessary road as neighboring law. The relevance of introducing the construction of the necessary road law into the domestic law and order is due to 103 Irina Emelkina. The Right of Access to Public Road as a Restriction of Property... Р. 84–104 the modern reform of Russian property law. An extensive judicial practice testifies to the practical need of this institution in our country, which shows the insufficient design of private and public easements to regulate relations between neighbors when establishing the right of passage (thoroughfare) to a public road. The article reveals the concept of the law of the necessary road as neighborly law, its essence, the conditions for establishing, delimiting from the property easement, determining the fee and exemption from it. The prerequisites for the introduction of this design into current Russian law are justified. The purpose of the article is to justify the need to develop the institution of the necessary road as a restriction of ownership in the interests of a neighbor (neighborly law) in Russian civil law. Based on the study of Russian doctrine and jurisprudence, a number of conclusions and proposals are prepared regarding the essence of the right of the necessary road as a neighbor’s law and the need to separate it into a separate civil law category. The methodology of the paper is based upon general research ways and means (analysis and synthesis, induction and deduction, a system analysis method) and upon methods of legal science (including comparative law, systematic, teleological and historical interpretation of legal norms).