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Regular version of the site
Of all publications in the section: 381
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Article
Ромашев Ю. С. Право. Журнал Высшей школы экономики. 2020. № 4. С. 194-215.

The rebus sic stantibus clause is well-known in the theory of international law and allows the parties to the agreement to deviate from their obligations in strictly defined circumstances. Most researchers consider this clause mainly in the law of international treaties and civil law. In the case of international customs, its role is rarely heard in the doctrine of international law. However, the clause has an important place in the law of international customs. In our view, the approach should be taken to ensure that the South Is a general principle of law common to both domestic law and international law. Under the influence of the Vienna Conventions on the law of international treaties, as a result of the half-century-old practice of applying their provisions to the rebus sic stantibus clause, this principle is reflected in the customary rule of international law, common to the law of international treaties and the law of international customs. The relevant specific standard of international law regarding the rebus sic stantibus clause in relation to international customs has not yet been formed. In the practice of inter-state relations, the general custom of international law should be used in relation to this clause, taking into account the characteristics of international custom. The main features of the fundamental change in circumstances that constitute a substantial basis for the consent of the parties to the obligatory international custom allowing the parties to deviate from their obligations are: the exceptional and objective nature of such circumstances; the contradiction that arises from such changes between the practices underlying international custom and the patterns of social development, the needs for the development of inter-State relations, and the common interests of States. The main consequences of changing circumstances that fundamentally change the scope of obligations under international custom still to be implemented include: the disappearance or impossibility of achieving the goal that the parties had in mind when entering into the relevant legal relations; unjustified burdens, which the party associated with international custom did not count on, recognizing the relevant international custom, including the emergence of a threat to the vital interests of that party. This approach, in our view, is appropriate to use in the interpretation and application of the general customary rule of international law in relation to international customs.

Added: Dec 24, 2020
Article
Михайлов В. К. Право. Журнал Высшей школы экономики. 2016. № 3. С. 85-94.

The following article is dedicated to the legal analysis of problems, connected to the procedure of the recognition of informational materials as extremist. On the basis of the study of legislative initiatives of great public interest, which were taken in a hurry because of negative experience of implementation provisions of the Counteraction to Extremist Activity Law, the author comes to a disappointing conclusion about legislative ban of recognition as extremist the content and quotations from Bible, Quran, Tanah and Kanjur. Inconsistencies between adopted rules of law and constitutional principles (the principle of secular state and equality of any religious association) and inconsistency of legislator’s approach are validated in the article. Author draws attention to, in his opinion, genuine, radical problems of substantive procedural character, appearing with implementation of an Article 13 of the Counteraction to Extremist Activity Law, which determines the procedure of recognition materials as extremist. Revealing the legal nature of this kind of public relations, the author comes to a derivation about necessity in consideration of this sort of cases along with those initiated by empowered state authorities, in public interest and according to the Code of Administrative Proceedings. The author displays peculiarities of this sort of cases. In particular, they belong to following groups: connected with the list of subjects (who can be an administrative claimant or defendant), dedicated to territorial and instance jurisdiction (where and in which court of the system the case should be considered in the first instance), associated with the necessity in providing security for a claim (special interim measures), concerned with consequences of sustaining a claim (confiscation of materials and sending a message), related to the procedure of appeal (competence of the parties concerned). According to everything stated above, the author suggests to remove provisions of considering cases on recognition informational materials as extremist and bring them to another chapter in the section IV of the Code of Administrative Proceedings, “Specific features of judicial proceedings on certain categories of administrative cases”, and provide line-item regulation.The following article is dedicated to the legal analysis of problems, connected to the procedure of the recognition of informational materials as extremist. On the basis of the study of legislative initiatives of great public interest, which were taken in a hurry because of negative experience of implementation provisions of the Counteraction to Extremist Activity Law, the author comes to a disappointing conclusion about legislative ban of recognition as extremist the content and quotations from Bible, Quran, Tanah and Kanjur. Inconsistencies between adopted rules of law and constitutional principles (the principle of secular state and equality of any religious association) and inconsistency of legislator’s approach are validated in the article. Author draws attention to, in his opinion, genuine, radical problems of substantive procedural character, appearing with implementation of an Article 13 of the Counteraction to Extremist Activity Law, which determines the procedure of recognition materials as extremist. Revealing the legal nature of this kind of public relations, the author comes to a derivation about necessity in consideration of this sort of cases along with those initiated by empowered state authorities, in public interest and according to the Code of Administrative Proceedings. The author displays peculiarities of this sort of cases. In particular, they belong to following groups: connected with the list of subjects (who can be an administrative claimant or defendant), dedicated to territorial and instance jurisdiction (where and in which court of the system the case should be considered in the first instance), associated with the necessity in providing security for a claim (special interim measures), concerned with consequences of sustaining a claim (confiscation of materials and sending a message), related to the procedure of appeal (competence of the parties concerned). According to everything stated above, the author suggests to remove provisions of considering cases on recognition informational materials as extremist and bring them to another chapter in the section IV of the Code of Administrative Proceedings, “Specific features of judicial proceedings on certain categories of administrative cases”, and provide line-item regulation.

Added: Oct 20, 2016
Article
Гетьман-Павлова И. В., Каримова Л. И. Право. Журнал Высшей школы экономики. 2015. № 2. С. 186-201.
Added: Sep 30, 2015
Article
Савюк Л. К. Право. Журнал Высшей школы экономики. 2013. № 2. С. 3-22.
The article undertakes a retrospective glance at the codification of growing up Russian criminal legislation with the desire to present to the future re-searchers of this problem, what was done to them, so that if the latter were able to show that they are able to ourselves. The article argues the original vector of its development – the closed full (exhaustive) codification of the criminal law provisions.
Added: Mar 7, 2014
Article
Казаков С. О. Право. Журнал Высшей школы экономики. 2014. № 3. С. 159-171.
Added: Sep 4, 2019
Article
Барышева К. А. Право. Журнал Высшей школы экономики. 2016. № 4. С. 118-129.

The article analyses the concept of the helpless state of a victim with regard to various sections of the Criminal Code of the Russian Federation, reveals differences in interpretation of the same term in  judicial practice, difficulties in the application of criminal law. The author deals with the significance of bringing the victim in a helpless state in case of crime commission; the value of the age of the victim; the sleep state as a characteristic of helplessness. There is no common legal definition of helplessness and its characteristic which can be used to all crimes including this term. The helpless state of the victim is described in Resolution of Plenum of Supreme Court of the Russian Federation «On application by courts of the Russian Federation of Criminal code in a case of sexual crimes and crimes committed against the sexual inviolability of minors» and Resolution of Plenum of Supreme Court of the Russian Federation «On application by courts of the Russian Federation of Criminal code in a case of murder». However, the helpless of a victim is an evaluative characteristic. Despite the fact that the term «helpless state of the victim» is identical in all sections of Criminal code, the content of the term differs significantly. It could be seen in a judicial practice. To avoid misinterpretation of law, to establish a uniformity of judicial practice the author comes to the conclusion about the necessity of giving detailed explanations of concepts and signs of helpless state of a victim. There are two ways to solve the problem: to make the term common to the whole Criminal code of the Russian Federation, or to use different terminology in different sections. These changes in the interpretation of the characteristic of helpless state of a victim will help to avoid difficulties in prosecution. The problem seems important, because we are talking about the crimes with aggravation, and the punishment for such crimes is much higher.

Added: Feb 11, 2017
Article
Терентьева Л. В. Право. Журнал Высшей школы экономики. 2013. № 3. С. 151-172.
Added: Sep 17, 2013
Article
Алексеевская Е. И. Право. Журнал Высшей школы экономики. 2015. № 4. С. 34-44.
Тhe author analyzes the federal law of 30.04.2010 № 68-ФЗ, comparing it with the ruling of the European Court of Human Rights. Such legal rugulirovanie positioned as a national tradition of law. On the example of a particular case, falls within the category of consumer protection, the author demonstrates the current judicial practice of applying the provisions of the same Act. Approbation of the mentioned law reveals its ineffectiveness and new violations of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The reasons for its inefficiency is the rules of law and procedural rules in the consideration and resolution of the applicants' claim for compensation for damage caused judicial red tape. Analyzing the rule of law and judicial practice of its application, author concludes. The adopted law does not meet the requirements of an effective domestic remedy for judicial red tape, set out in Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms and judicial decisions of the European Court of Human Rights on complaints against Russia. Systemic problem of excessive length of the proceedings and the enforcement of the judgment by the state has not been solved. There is an objective need to address the identified gaps requirements of Article 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, both substantive and procedural law. The practice of applying the provisions of the Compensation Act demonstrates that there are significant difficulties in the direct application of generally accepted principles and norms of international law.
Added: Feb 17, 2016
Article
Энгельгардт А. А. Право. Журнал Высшей школы экономики. 2014. № 4. С. 136-145.
Added: Mar 10, 2015
Article
Калпин А. Г. Право. Журнал Высшей школы экономики. 2010. № 4. С. 40-57.

The article covers principal provisions of the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. The study focuses on the specifics of acting legal regimes of liability for failing to preserve goods under carriage by sea and shows the necessity to make a uniform legal regulation. The article also shows wide boundaries for applying the new Convention compared to the apllicable one and the liability kept by the carrier for failing to preserve goods and for delaying its delivery. The difference has been given between negotiable and non-negotiable transport documents, and an electronic transport record has been described as an alternative to a «hard copy» document. The article is also supplied with considering issues of period of time for suit, jurisdiction, and arbitration.

 

UN Convention,   regime of liability,   expanding scope of action,   liability for failing to preserve goods,   delay in delivery,   transport document,   electronic transport record,   period of time for suit,   jurisdiction,   arbitration

Added: Oct 27, 2012
Article
Графский В. Право. Журнал Высшей школы экономики. 2009. № 3. С. 3-13.

Article is devoted to big theoretical problem, which is located on the of legal theory and constitutional law. Author particularly explores content of terms «constitutionalism», «false constitutionalism», «constitutional state», «political constitution», «rule of law» and its understanding in various periods in different countries. Article gives an analysis of impact made by legal scholars of Russia in studying this issue. Author emphasizes developing tendency in many countries towards exploration of constitutional law in collaboration with such disciplines as administrative and financial law.

Added: Apr 14, 2013
Article
Гаджиев Г. А. Право. Журнал Высшей школы экономики. 2012. № 2. С. 3-16.

Constitutional law conceptual space is part of conceptual space. The ontological structure of constitutional law consists of three layers — legal principles, positive constitutional law, traditions and practice. The third layer contains interalia constitutional law ethics. Constitutional law conceptualism is a kind of legal positivism. Constitutional law conceptualism presupposes some limited influence
in law and non exaggeration of significance of conceptual reality represented in signs and symbols as the text of the RF Constitution.

Added: Dec 11, 2012
Article
Краснов М. А. Право. Журнал Высшей школы экономики. 2012. № 3. С. 62-80.

The article tackles the following questions - what public authority institutions and to what extent they are involved in developing economic policy, to what extent the process of developing this policyis subject to the laws and ifit is necessaryto regulate it. The author also suggests conceptual and existing in modern Russia conditions of working out economic policy and the importance to follow the requirement of succession.

Added: Nov 13, 2012
Article
Гайнуллина Илюза Роландовна Право. Журнал Высшей школы экономики. 2015. № 3. С. 119-130.
Added: Oct 27, 2016
Article
Сюкияйнен Л. Р. Право. Журнал Высшей школы экономики. 2016. № 4. С. 205-222.

The article touches upon the analysis of provisions of constitutions of Arab countries concerning status of Sharia as source of legislation as well as practice of their interpretation by organs of constitutional control. Constitutions of practically all mentioned countries declare Islam as a religion of the state. Arab lawyers understand this principle in a different way. According to the prevailing view assertion of Sharia role in the legal system demands its constitutional recognition as source of legislation. Such a status is fixed in Arab constitutions in different forms. Some of them provide for Sharia is a main source of legislation using in original text in Arabic the term “main source” in indefinite form without “al” article. Some countries have already acquired legal practice of interpretation of these constitutional norms while solving claims on legislation which contradicts Sharia and its conformity with constitution. For example Federal Supreme court of UAE concluded that constitutional provision about Sharia as a main source of legislation is addressed to the legislature and not to the judicial bodies. That is why Sharia is to be understood as a material or historical source of law. At the same time on the basis of the given constitutional norm together with provisions of laws about judicial power the organ of constitutional control of UAE justified the possibility of direct implementation of Sharia norm as official source of law. Egypt has acquired its own experience of constitutional assertion of Sharia status. The Constitution of 1971 initially considered the principles of Sharia as a main source of legislation. But after an amendment adopted as a result of referendum held in 1980 was introduced the modified constitution provided for these principles were the leading source of legislation. The Supreme constitutional court decided that such constitutional provision was addressed to the legislature. As for contradicting Sharia laws which had been adopted before the mentioned amendment took place they are still affective and confirmative to the constitution as Sharia were not considered to be the leading source of legislation at that time. The role of Sharia as source of law has its own features in both Saudi Arabia and Libya. In general the place Sharia occupies in the legal development of contemporary Arab countries depends upon a number of factors. But its concrete role is determined mainly by legislature and first of all on constitutional level.

Added: Dec 27, 2016
Article
Шаталов А. С. Право. Журнал Высшей школы экономики. 2009. № 3. С. 57-74.
Added: Sep 7, 2010
Article
Леонтьева Е. А. Право. Журнал Высшей школы экономики. 2011. № 2. С. 122-140.
Added: Oct 19, 2012
Article
Берзинь О. А. Право. Журнал Высшей школы экономики. 2011. № 4. С. 133-143.
Added: Oct 24, 2012
Article
Шаталов А. С. Право. Журнал Высшей школы экономики. 2011. Т. 1. С. 65-72.

The article studies forensic methods which are a prerequisite to properly arrange the investigation of crimes connected with illegal corporate raids. Having outlined in this perspective the key directions in forensic methods, the author interprets them it as a set of organizational, legal, informational and other events specially aimed at teaching and applying expertise, guidelines on forensic studies, tools and methods in different departments of RF internal affairs bodies, i.e. investigative, special investigative techniques and analytics departments. The staff of the bodies is obliged to be involved in exposing, preventing, detecting and investigating crimes connected with corporate raids.

Added: Oct 4, 2012