• A
  • A
  • A
  • ABC
  • ABC
  • ABC
  • А
  • А
  • А
  • А
  • А
Regular version of the site
Of all publications in the section: 381
Sort:
by name
by year
Article
Янковский Р. М. Право. Журнал Высшей школы экономики. 2020. № 4. С. 43-77.

The article describes the key issues of legal regulation of cryptocurrency, which emerged in Russian doctrine and jurisprudence in 2015-2020. The article considers nature of “ownership” of cryptocurrency, status of cryptocurrency as an object of property rights, legal ratio of "cryptocurrency", "money" and "money surrogate" in Russian law. Author describes the chronology of legislative activity concerning cryptocurrency and related issues, marks the main milestones. The author compares the problems arising in practice with the solutions proposed by the Russian law. The structure of the article fits the purpose of the research – to determine the problems of cryptocurrency’ legal regime and to evaluate how Russian Law coped with arising tasks. The first two parts of the article are devoted to civil and financial issues of the legal regime of the cryptocurrency and to the proposed legal options. The third part of the article is devoted to the bills and adopted laws on the legal regime of the cryptocurrency. The work of the legislator has been reviewed and evaluated from various perspectives. As a result, the conclusion was made that the Russian regulator gravitates towards a prohibitive cryptocurrency policy. Such policy is determined both by the traditions of the Russian market regulation and by Russia's international obligations as a member of FATF. The author states that during the development of Russian laws on cryptocurrency, a full analysis of the consequences of the regulatory ban was not carried out, the volume of the cryptocurrency market was not estimated, and alternative bills were not considered by state officials. The courts, which could, to a certain extent, assume the role of filling the legal gap, failed to take on this role and have only noted the legal uncertainties regarding the cryptocurrency. It is expected that soon the Russian legislator will establish sanctions for violations of cryptocurrency laws and define obligations and prohibitions in the area of crypto asset issuance and trading. After that, the discussion about the nature of cryptocurrency rights and the civil law regime of cryptocurrency will be definitively closed.

Added: Dec 14, 2020
Article
Олейник О. М. Право. Журнал Высшей школы экономики. 2012. № 4. С. 51-63.
Added: Jan 24, 2013
Article
Павловская О. Ю. Право. Журнал Высшей школы экономики. 2015. № 1. С. 67-80.

This article aims to analyze the legal aspects of the implementation of the financial support of self-employment of citizens and some  of issues of law enforcement on outlined in this article topic that require detailed consideration

Added: Mar 13, 2015
Article
Резник Р. С. Право. Журнал Высшей школы экономики. 2015. № 4. С. 165-173.

The rapid development of technology leads to the deepening of globalization processes, in particular the extensive growth of e-commerce, which is becoming increasingly international in nature. The Internet provides the opportunity to remotely purchase items, not represented in the local market, which leads to the development of cross-border retail trade. From a legal point of view, one of the main problems of this phenomenon is to protect consumers’ rights in cross-border aspect. Private international law provides consumers with protection of three types: procedural, conflict of laws and substantive. Of paramount importance is the question of the international jurisdiction: the court of which country is competent to settle disputes arising from cross-border consumer contract? The special status of the consumer as an economically weaker party does not allow being limited to the general rules of jurisdiction. EU law, as the legislations of many countries in other regions of the world, contains specific procedural conflict rules that are based on certain principles establish the jurisdiction of the court of a State to hear disputes from consumer contracts. In Russia, such a regulation is missing. Thus, the Russian system of consumer protection in cross-border aspect is deprived of an essential element. For the purpose of making recommendations on improving Russian private international law, the paper discusses the content of particular articles of the Regulations of Brussels I — a fundamental act of the EU in the field of the regulation of international jurisdiction, as well as doctrinal positions of foreign scientists. The article concludes on the need to limit the autonomy of the parties in determining the jurisdiction of disputes involving contracts with consumers. The basis of the solution of procedural conflict question may be, as well as in European law, the criterion for targeted activities that solves a number of issues. At the same time, this criterion gives rise to new theoretical and practical problems that have not yet had any solution in the doctrine and legislation — the definition of directed activity per se, as well as the scope of business or professional activities that we need to know to determine the status of the consumer.

Added: Jan 16, 2016
Article
Шахмаметьев А. А. Право. Журнал Высшей школы экономики. 2010. № 3. С. 104-117.

The range of the subjects for study and research available to law students at universities and law schools has been extended over the recent years. To large extent, those newly in troduced disciplines and areas of learning cover a relatively limited scope of subjects which are related to the major, "foundation" courses. However, a development of the professional orientation in the study of law and legal research, as well as a shift towards a new frameworkof professional law education also require diversification of specific subjects. Therefore, the purpose of this article is to outline the International TaxLaw course and its potential as a separate discipline for study and research.

международное налоговое право,   международное налогообложение,   предмет и методы науки,   ЮРИСПРУДЕНЦИЯ,   International TaxLaw,   international taxation,   subject matter and methods of research,   legal studies

Added: Oct 27, 2012
Article
Шилина М. Г. Право. Журнал Высшей школы экономики. 2015. № 3. С. 78-87.

The article examines current legal issues of state economic cooperation within the frameworks of Eurasian interstate mechanisms of economic cooperation and integration. In particular, we investigated the legal aspects of cooperation among member states of the Shanghai Cooperation Organization (SCO) in the transport and logistics sector. The importance of development of transport infrastructure in the framework of the SCO is determined by its operation in the complex geopolitical and geo-economic realities.

The author explores the basic international legal instruments of the SCO, relating to the transport sector; also the latest empirical material is examined. The peculiarities and disadvantages of the legal regulation of the transport and logistics activity are identified.

The author examines the actual problem of connection of the modern Eurasian mechanisms of state cooperation in terms of the creation an efficient transport infrastructure and concludes that the latest transport initiatives of China and Russia can effectively be implemented on the basis of the SCO. Connection of the Eurasian Economic Union (EAEC) and the Silk Road Economic Belt (SREB) with the SCO as an institutionalized international organization and an effective platform for the development of coordinated decisions is expected to be optimal. The combination of these mechanisms will create a new model of economic cooperation. The construction and modernization of transcontinental transport highways seems as the basis for the practical implementation of the connection of the Eurasian integration mechanisms.

The author considers the mechanisms of international legal regulation of rail transport within the SCO. In the article the major obstacles and recommendations for the effective functioning of the railway communication are identified for the first time.

In the article international legal regulation of the automobile communication in the SCO and the current legal framework of the international road transport is investigated.

The author concludes that the existing international legal regulation of state cooperation in the transport and logistics sector in the SCO allows effective development of a modern transport infrastructure, the formation of which involves the intensification of the cooperation among states of the SCO in other fields and would stimulate economic integration of the Eurasian states.

Added: Nov 2, 2015
Article
Клементьев А. П. Право. Журнал Высшей школы экономики. 2017. № 1. С. 122-131.

The subject matter of the article is the process of harmonizing close-out netting regulation and the most important international standards in this area. Close-out netting is a contractual instrument for the termination of obligations under a range of financial transactions that is widely used in international markets. Mandatory bankruptcy rules in many countries hinder close-out netting operation resulting in the need for adopting national laws aimed at the recognition and enforceability of close-out netting. Supported by international bodies in the field of financial markets regulation, international standards for the harmonization of close-out netting legislation were adopted. The main objective of these instruments is the formation of model rules and guidelines to be used by legislators and regulators in their activities. Model Netting Act, drafted and published by the International Swaps and Derivatives Association in 1996, became the first one in a range of such documents. Subsequently, the organization has published updated model netting laws in 2002 and 2006. For eight years, these model acts were the only standards in that area and have been used for implementing netting laws in several key jurisdictions. Subsequently, renowned international organizations in the field of unification of private law joined the harmonization process. UNCITRAL Legislative Guide on Insolvency Law (2004) and UNIDROIT Principles of Close-out Netting (2013) were adopted to put close-out netting relations in order. All close-out netting instruments have similar scope (financial contracts) and are focused on the restriction of certain institutions of insolvency law, such as the prohibition of set-off shortly before and amidst the bankruptcy process, the right to challenge or reject the execution of transactions as well as imposing a moratorium on the termination of obligations. However, the UNIDROIT Principles can be considered as the most preferred tool for legislators and regulators since the document takes into account the interests of all the parties involved as well as the latest developments in the field of financial markets regulation and financial institutions resolution.

Added: Feb 19, 2018
Article
Касаткина А. С. Право. Журнал Высшей школы экономики. 2016. № 2. С. 171-185.

Nowadays, international trade is one of main types of the international cooperation to which development is now paid the special attention. In turn, sea transport considerably promoted development of international trade as the main volume of all international intercontinental transport are the share of sea vessels. It is represented quite logical that legal regulation of such ancient, and actively developing institute is characterized by complexity, existence of a huge number of collisions of national and international legal norms. The first legal acts in the sphere of the international carriage of goods are incapable to consider all questions and subtleties arising during active development of sea trade. The author considers the main problem of legal regulation of the international carriage of goods: lack of uniformity in sources of the international private marine law. Objective of this research is studying of formation and development of the main international agreements devoted to regulation of carriage of goods, having paid thus special attention to such main questions, as scope of conventions, responsibility of a carrier, the main transport documents, jurisdiction questions. In the article with the use of comparative method the author provides detailed analysis of the norms of international conventions covering the international carriage of goods by sea. Analysis of the content of norms has shown that to date, the legal regulation of international carriage of goods by sea is based on four documents: the Hague Rules of 1924, the Hague-Visby Rules of 1968, the Hamburg Rules of 1978 and the Rotterdam Rules 2008. Before the adoption of the Rotterdam Rules applicable basic legal act was The Hague-Visby Rules, which are a modified version of the Hague Rules. Based upon the above-mentioned comparative legal study the author makes a conclusion that  despite the incomplete and outdated Hague-Visby Rules, many carriers, especially the large multimodal lines already developed a mechanism of relations with its clientele by creating their own bills of lading formalities. So strange to expect that the newly issued Rotterdam Rules will be able to quickly gain a position in the legal field of sea transport, mainly because it is difficult for the major carriers to change a well-established legal regime.

Added: Aug 25, 2016
Article
Клевченкова М. Н. Право. Журнал Высшей школы экономики. 2009. № 2. С. 88-102.
Added: Oct 15, 2012
Article
Гальперин М. Л. Право. Журнал Высшей школы экономики. 2011. Т. 1. С. 44-56.

The article deals with the issues of responsibility in civil procedural law from the point of theory and methodology of the contemporary jurisprudence. The article gives a new interpretation of the system of legal responsibility and the role of the civil procedural responsibility in this system. The mechanism of procedural responsibility is interpreted through the concept of contempt to court.

Added: Oct 4, 2012
Article
Юмашев Ю. М. Право. Журнал Высшей школы экономики. 2011. Т. 1. С. 100-111.

The subject matter of the article is the EU immigration policy applied to third country nationals (TCN). The main aspects of the policy are considered: humanitarian policy, national security policy, and various legal tools of its implementation. In particular the author considers the 1951 Geneva Convention and 1967 New York Protocol relating to the status of refugees, the clauses of the Treaty on the Functioning of the EU regulating «area of freedom, security and justice» (title V), Schengen Conventions, the related acts of the EU secondary law. As to the humanitarian aspect of the EU immigration policy, its moral essence - the respect for human dignity is emphasized. The national security measures are directed mainly against illegal immigration. Finally the author comes to the conclusion that EU humanitarian efforts in the immigration policy proved to be more effective than the security one.

Added: Oct 4, 2012
Article
Юмашев Ю. М. Право. Журнал Высшей школы экономики. 2011. № 1. С. 100-111.
Added: Jan 11, 2012
Article
Ромашев Ю. С., Остроухов Н. В. Право. Журнал Высшей школы экономики. 2016. № 1. С. 149-165.
The increasing migration of population in the world is one of the urgent international problems. States make efforts to counter the illegal migration and to help people seeking asylum. This problem is the most challenging to tackle in the sea. The article reveals the contents of international cooperation and the role of international law in this field. The specific features of tackling illegal migration are analyzed within the various marine spaces: in inland waters, in the territorial sea and in the open sea. The issues of international cooperation on suffering refugees and other migrants in danger on the sea have been studied as well. International legal and organizational issues facing the world community are introduced and their separate Law in the Modern World solutions are offered. In the authors’ opinion, the activities of states regarding migrants should be carried out in compliance with their legal status and particular situation. In any case, the migrants’ status must be defined not on the sea but on the shore. If some people are in danger, they must be helped notwithstanding the legal status of the persons being rescued. Measures of criminal liability and other measures according to the legislation of states and international commitments must be applied to illegal migration organizers. It is important that the rules of international law, international organizations and international bodies recommendations that deal with the problems of migration should be carried out at the national level by means of upgrading related laws. It is also important to work out and to upgrade the subordinate regulatory legal acts concerning the questions of illegal sea migration counteraction, measures taken towards refugees and other asylum seekers, being present on board of the ships in distress. Accordingly, the issue is to be solved as to the attitude of states towards the migrants on board of the watercraft that do not comply with the seafaring security requirements that means that they are potentially in danger.
Added: Apr 10, 2016
Article
Кашанин А. В. Право. Журнал Высшей школы экономики. 2010. № 1. С. 114-124.
Added: Oct 18, 2012
Article
Батусова Е. С. Право. Журнал Высшей школы экономики. 2017. № 1. С. 132-143.

The author proposes three models of legal regulation of collective redundancies in foreign countries. They are characterized by both common and specific features. The common features are fixation of the criteria of collective redundancies; preliminary consultations with trade unions or other representatives of the employees; notification of the state body on the upcoming collective redundancies; a notification of the trade union collective redundancies; offer by the employer to the employee available for transfer and the opportunity to be retrained. In turn, the characteristics are determined by the volume of guarantees for employees in the sphere of collective redundancies. They range from the minimum to the maximum. The legislation of the countries of the first model is characterized by an emphasis on the employer’s interests in the sphere of legal regulation of collective redundancies. It is shown in the absence of statutory rights to the preferential right to stay at work and the right to re-employment. It substantially weakens the protection of dismissed employees. Legal acts of the countries of the second model are fixed peculiar to securing maximum guarantees in collective redundancies: the preferential right to stay at work for some categories of employees and the right to re-employment. The legislation of countries of the third model is on border of the two concepts — flexibility and rigidity in the legal regulation of collective redundancies. It establishes guarantee for employees and employers in the field of collective redundancies. The level of guarantees for employees in the third model in collective redundancies is higher than in the legal acts of the first model, but lower than in the second one. It could be concluded that the labour legislation on collective dismissals of foreign countries is always in dynamics and aims to achieve a balance of interests of employees, employers and the state.

Added: Jul 9, 2017
Article
Салыгин Е. Н. Право. Журнал Высшей школы экономики. 2013. № 3. С. 12-35.
Added: Nov 15, 2013
Article
Нагорная И. И. Право. Журнал Высшей школы экономики. 2016. № 2. С. 223-234.

The paper studies the doctrine of extenuating circumstances which originated in African Community of Nations. This doctrine developed as a response to the mandatory death penalty for murder and some other crimes in common law countries. The doctrine implies that the defendant can avoid death penalty if certain circumstances reduce his\her moral blameworthiness as distinct from the legal culpability.The author examines extenuating circumstances in practice of African courts. The paper criticizes the doctrine under consideration which led to its abolishing or modification in various countries. There are such disadvantages of the doctrine as: laying the burden of proof on the defendant; the need of confessionin order to avoid death penalty; the inability to take into account circumstances that did not exist at the time of the crime (repentance, health deterioration etc.). This leads to the conclusion that todaythe complete abolition of the mandatory death penalty is required. The author considers moral blameworthiness in the Russian criminal law science. The conclusion is that this category is fundamental to conceive the social danger of “conventional” crimes (murder, robbery, rape, etc.). However, in the case of relatively new criminal prohibitions, including in the economic sphere, the awareness of the social danger implies understanding of unlawfulness of behavior and the lack of good faith. The lack of goodfaith and moral blameworthiness are considered as preconditions of criminal culpability. Being fixed incriminal law, they facilitate to identify the degree of guilt within the framework of a particular form ofguilt if considering mitigating and aggravating circumstances in the Russian Criminal Code. Mitigating circumstances can be both related to the degree of guilt of the perpetrator and not associated with it. Inthe former case, they are a reflection of justice, in the former — of mercy. Aggravating circumstances should be associated with the degree of guilt of the perpetrator (or previous criminal record). The justice and the mercy should be adequately reflected in the rules of the criminal law. Returning to the concept of moral blameworthiness and good faith is needed to evaluate the current criminal law rules and formulation of new ones.

Added: Jul 18, 2016