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Regular version of the site
Of all publications in the section: 381
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Article
Сюкияйнен Л. Р. Право. Журнал Высшей школы экономики. 2010. № 4. С. 23-46.

This article analyzes the views on the relationship between law and economics. For a more in-depth study of this problem, an attempt is made to examine it from three sides (historical, economic, legal). To study the problem resourses of anthropological, phenomenological, and synergistic methods have been applied at maximum. It might be relevant to assume that the proposed version of correlation between economics and law will contribute to implementing legal and economic reforms in a more coherent and efficient way, and to creating basic conditions for the innovative development of economy.

 

Added: Oct 27, 2012
Article
Машкова Е. В. Право. Журнал Высшей школы экономики. 2012. № 4. С. 184-191.
Added: Jan 24, 2013
Article
Ромашев Ю. С., Остроухов Н. В. Право. Журнал Высшей школы экономики. 2017. № 2. С. 186-199.

The point of view that “practice” is one of the main elements of customary international law is the most widespread in the doctrine of international law, activities of states and other subjects of international law. However, there is no consensus on the characterization of customary practices, as well as mandatory requirements to it, giving such practice a special quality. Not any practice in the relations between subjects of international law can become a prototype of the customary rule of international law. The article presents the peculiarities of customary practice and constituting the contest of the practice relationships between subjects of international law, its types and forms, as well as types of activities of state bodies forming the basis of the practice. The authors detail on the requirements for the customary practice without which the custom cannot be formed. The article also clarifies the list of such requirements and proposes to include them: commonality; uniformity and certainty; sustainability (stability) and permanence (continuity); compliance with laws of social development, needs of the development of interstate relations, common interests of states. These requirements, according to the authors, are systemic, interrelated, inseparable and constitute a coherent whole. The progressiveness of practice is proposed to be referred to its important requirements, which are optional. According to the author’s position the duration in time shouldn’t be attributed to a number of requirements to the customary practice, it is only its characteristic. The author analyses the concept of “instant custom” and the possibility of its application. A customary rule, corresponding to practices in any new area of interstate relations is formed in a short period of time. The completion of the formation of customary practice is characterized by the presence of its certainty, stability at a particular stage of development of the society. However, a long-term sustainable practice is the best proof of the existence of customary practice. The article pays attention to the formation of local customary practice. It is concluded that the general practice, as a rule, passes the stage of practice of two states or a group of states. In the future, such limited practice can expand because of its positivity and conformity with the vital interests of States.

Added: Jul 27, 2017
Article
Трошкина Т. Н. Право. Журнал Высшей школы экономики. 2009. № 3. С. 89-110.
Added: Oct 16, 2012
Article
Орлов М. Ю. Право. Журнал Высшей школы экономики. 2008. № 2. С. 64-76.
Added: Oct 12, 2012
Article
Молодыко К. Ю. Право. Журнал Высшей школы экономики. 2010. № 2. С. 116-125.

The article focuses on the essential expansion of leaseholders' preferential right to purchase the freehold, which has taken place in Ukraine since 2004. The approaches by general doctrine, the Constitutional Court of Ukraine, the Supreme Court of Ukraine, the Supreme Commercial court of Ukraine and the Supreme Administrative Court of Ukraine to this legal institute are  studied. The author found out some new typical problems regarding the subject matter of article and proposes specific ways to solve them.

Added: Feb 20, 2018
Article
Богданова Н. А. Право. Журнал Высшей школы экономики. 2009. № 1. С. 79-93.
Added: Apr 13, 2013
Article
Козырин А. Н. Право. Журнал Высшей школы экономики. 2012. № 2. С. 173-189.
Added: Jul 31, 2012
Article
Нагорная И. И. Право. Журнал Высшей школы экономики. 2011. № 4. С. 120-132.
Added: Oct 23, 2012
Article
Касаткина А. С., Рудерман И. Ф. Право. Журнал Высшей школы экономики. 2017. № 3. С. 121-135.

Nowadays, the European Union has faced significant difficulties associated with the creation of a uniform mechanism for determining the personal law (Statute) of legal entities, i.e. single collision bindings to the personal statutes of companies. Attempts to achieve convergence and harmonization of national legislations in this matter have not yet been crowned with success. The purpose of this study is to analyze the provisions applied in the countries of the European Union, the criteria for determining the personal law of legal persons, as well as judicial practice aimed at the gradual approximation, harmonization and leveling of contradictions in various legal systems. In the article, using a comparative method of research, a detailed analysis of the norms of international treaties and the case law of the Court of the European Union regulating the recognition of legal personality of legal persons was carried out. The following conclusions are drawn as a result of the development of the case law of the European Union: the movement of both the statutory and actual location of the company is allowed under the law of the European Union;the establishment of a company in a state with a more liberal corporate regime is not an abuse of the institution's freedom, even if it serves to circumvent the norms of another member state in which all the company's activities will be carried out; is also not an abuse of the performance of activities not at the place of registration but at the location of the branch of the company; the receiving state is obliged to recognize that a foreign company conducts its activities on its territory, to recognize its legal personality, the settlement theory in this case does not work; the host State can not prohibit a transnational merger and its registration in its registry, if such registration is allowed when merging national companies; the company may move its statutory or actual location to another state without loss of legal personality under the law of the state of creation; the question of the possibility of maintaining the legal capacity and the law applicable to the company (state of creation) when moving to a foreign state is decided by the state of creation itself, which in this case has the right to prohibit or restrict such movement; if the company intends to change the applicable law and take the legal form of the company provided in the receiving state, the state of establishment can not prohibit the migration of the company and oblige it to be liquidated, provided that such a migration is allowed by the receiving state.

Added: Oct 9, 2017
Article
Ерпылева Н. Ю., Максимов Д. М. Право. Журнал Высшей школы экономики. 2017. № 2. С. 200-222.

Present article considers several questions of recognition and enforcement of foreign judgments on national and regional levels of legal regulation. The aim of research is to study certain aspects of recognition and enforcement of foreign judgments including categories of foreign judgments which are subject to recognition and enforcement, procedure of recognition and enforcement, grounds for the refusal of recognition and enforcement. The authors deeply scrutinized national legislation represented by the Arbitrazh Procedure Code of the Russian Federation of 2002 and the Civil Procedure Code of the Kyrgyz Republic of 2017; international treaties of regional character (e.g. Minsk convention on legal assistance and legal relations in civil, matrimonial and criminal matters of 1993; Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 2007) and legal documents of international organizations (e.g. EU Regulation № 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels Ibis) of 2012. Applying a comparative research method, the authors came to a conclusion that foreign judgments subject to recognition and enforcement are strictly defined in national legislation rather than in certain international treaties of regional character and EC regulations. Procedure of recognition and enforcement of foreign judgments has been evolving from exequatur issued by court addressed (in national legislation and certain international treaties of regional character) to its abolishing in certain international treaties of regional character and EC regulations. The grounds for the refusal of recognition and enforcement are strictly limited and include undue service of documents instituting the proceedings on the defendant not enabling him to arrange for his defence; the judgment is irreconcilable with a judgment given between the same parties, on the same subject matter rendered by the court in the state addressed or in another country; if the recognition and enforcement are manifestly contrary to public policy in the state addressed.

Added: Jul 19, 2017
Article
Ромашев Ю. С. Право. Журнал Высшей школы экономики. 2018. № 2. С. 124-148.

One of the most important issues in the law of international custom is the definition of the forms of acceptance of general practice as a legal norm (opinio juris). The lack of consensus on this issue at the international level and the common position in science results in the poor effectiveness of the legal regulation of inter-state relations. Research work often uses non-objective approaches. The present article contains separate but important theoretical provisions and proposals to address this problem. Thus, the existence of opinio juris is an inherent subjective element of the customary rule of international law, as is the existence of practices that satisfy the necessary requirements of customary rule formation. Only states and other subjects of international law participating in international norm formation process can be recognized as subjects of recognition. Such actions may be manifested in the actions of state authorities and their officials, who may act on their behalf in accordance with international law and/or the law of States. Opinio juris from the part of states is generally implemented in the course of general practice. Recognition must be exercised by legal means and be legitimate under the law of the state and its international obligations. Among the main forms of recognition, together with acquiescence, are: a unilateral statement by the head of state (government), another state-authorized official, the head of the international intergovernmental Organization, other subject of international law; the inclusion of a rule of conduct in a domestic legal instrument; the inclusion of a rule of conduct in an international treaty or other based on it, a legally binding international legal act adopted by its parties in view of these documents as acts of unilateral recognition; under certain conditions, a judicial decision in a state. The basic condition of the universal acceptance of the rule of international law is its acceptance by the majority of states (established by the world community) whose interests are most affected by the application of this rule. This requires some legal formalization, the codification of qualitative and quantitative criteria and the corresponding indicators of the formation of the customary rule of international law. The elaboration and adoption of a convention on the law of international customs would help to reconcile the differences in the positions of subjects of international law and develop a unified approach in that regard.

Added: Aug 1, 2018
Article
Шичанин М. А. Право. Журнал Высшей школы экономики. 2021.

The research is devoted to one of the fundamental legal categories – the principle of federalism. The author gives an interpretation of the word "principle" as a fundamental theoretical knowledge, as well as one of the central legal categories, shows the essence of the general legal principle of federalism in constitutional law, as well as its significance for financial and legal science. Considerable attention is paid to such a doctrinal category as fiscal federalism, and the works of domestic and foreign scientists devoted to the study of the concept and main features of fiscal federalism are analyzed. The article analyzes some aspects of the history of the origin and development of fiscal federalism in the works of scientists and economists, its influence on the Federal state structure, and demonstrates the legal component of this related category. The author's definition of fiscal federalism is proposed, and supposed distinctive features are derived.

In the course of the research, the specifics of the Russian territorial structure are touched upon, definitions of two types of territorial structure are given – federalism and Unitarianism, and it is established that there is a well-established unitary model of territorial structure in the Russian Federation. It is concluded that it is necessary to build a Federal model of government in Russia. In this regard, the study of fiscal federalism analyzed in detail the American model of building federalism and their construction of fiscal federalism, and noted that the experience of the United States can be taken into account by the Russian Federation when building a domestic model of a Federal state. In addition, a number of significant shortcomings of this model of territorial structure were noted, one example of which may be the different degree of development of the States (in the case of the Russian Federation – the regions). As a result of the construction of federalism and the creation of a decentralized model of territorial state structure, less developed regions may significantly lag behind in development. It is noted that the Russian Federation must find a solution to this problem when constructing a domestic model of decentralization (fiscal federalism).

In conclusion, it is noted that the Russian Federation has yet to create its own model of fiscal federalism and construct its main features.

Added: Aug 12, 2020
Article
Есаков Г. А. Право. Журнал Высшей школы экономики. 2016. № 1. С. 81-102.

The article is devoted to non-ordinary cases of causation in criminal law. The author starts with the critical review of general theories and blames them for their ineffectiveness in dealing with specific cases connected with the multiplicity of causes, victim’s condition, intervention of other actors. All these cases are divided into three groups, namely ‘aggregate causality’, ‘atypical causality’ and ‘intervening causality’. With regard to each group there are formulated general rules of imputation of liability based primarily on idea of conditio sine qua non and limitation of liability. The author reveals the interaction between different modes of causation i.e. transformation of ‘aggregate causality’ into ‘intervening causality’. Review of case law allows to formulate clear rules of imputation of liability distilled from philosophical and theoretical overburdened constructs. With regard to various specific types of non-ordinary causation, there are proposed as possible different approaches based either on strict adherence to objective view on causation and limitation of liability as a consequence or on more flexible approach allowing imputation of liability in morally and socially blameworthy cases. Theory and practice of common law and continental law systems are also widely used as a supporting basis for some propositions. The article concludes with proposed general rule. However, this general rule may be subjected to further clarifications and exemptions. The author also urges not to try to elaborate in future the general theory of causation applicable to the whole body of criminal law. Instead it is expected development of special rules much needed in real practice.

Added: Apr 4, 2016
Article
Полдников Д. Ю. Право. Журнал Высшей школы экономики. 2011. № 2. С. 39-50.
Added: Oct 19, 2012
Article
Баратова М. А. Право. Журнал Высшей школы экономики. 2012. № 4. С. 79-86.
Added: Jan 24, 2013
Article
Гетьман-Павлова И. В., Касаткина А. С. Право. Журнал Высшей школы экономики. 2017. № 1. С. 92-110.

Russian conflict of law rules determining choice of law applicable to marital relations related to foreign legislations came into force in 1995 and in force for 20 years. Within Russian legal doctrine the area has been researched in detail. Nevertheless, the analysis of conflict of law rules specified in the Family Code of Russian Federation remains relevant due to a large-scale reform of the norms of international private law in the Civil Code of the Russian Federation and the trends which are present in legislative regulation of international family relations in other countries. Chapter 7 of the Family Code The Application of Family Legislation to Family Relations with the Participation of Foreign Citizens and Persons without Citizenship provides a detailed system of rules determining competent law to regulate majour family relations. Most connecting factors are of bilateral nature and provides for the application of foreign laws. However, for the past 20 years international family relations experienced new regulation, which is evident in national codifications of International private law and in the European Union law. The current legislator extends the limits of autonomy of the parties in marital relations on the choice of applicable law, sets special connecting factors as to cohabitation and partnership, fixes detailed and differentiated choice of law rule. The paper concludes that Russian conflict of laws on international marital relations approved more than two decades ago requires significant update. The update is relevant to maximum transparency of volumes of conflict of law rules to make a more differentiated approach to marital relations, more detailed and arranged in categories connecting factors targeting the most correct determining the law, closest to the relation and making a decision optimally meeting specific circumstances of cases, broadening the possibility of the choice of applicable law by the parties on the issues of dissolution of marriage and family property relations. All the problems concerning children applying law the most favourable for child should dominate in conflict of laws doctrine in such circumstances.

Added: Apr 5, 2017
Article
Долотов Р. О. Право. Журнал Высшей школы экономики. 2016. № 4. С. 106-117.
Added: Dec 31, 2016
Article
Арзамасов Ю. Г. Право. Журнал Высшей школы экономики. 2010. № 2. С. 126-135.
Added: Oct 18, 2012
Article
Исаев Л. М. Право. Журнал Высшей школы экономики. 2011. № 3. С. 103-111.

At this research, the author pay attention to the one of the most actual problems of international law: the recognition by the United Nations international and regional organizations, in particular the Arab League. This article presents a detailed analysis of the relationship between the two organizations during the period from 1945 to 1960. Before the adoption of the Memorandum of Understanding on cooperation between the two Secretariats. Particular attention is paid to the strategy of the Political Department of the Arab League for its further recognition in the UN.

Added: Jan 21, 2011