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Regular version of the site
Of all publications in the section: 75
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Working paper
Antonov M. Law. LAW. Высшая школа экономики, 2013. No. 10.
The subject matter of this article is the terminology which is used in contemporary law and sociological jurisprudence to denote changes in legal regulation. Among the most fashionable terms are those of globalization and pluralism. In the author’s opinion, these two terms indicate diverse phenomena and have different tasks. Pluralism is a concept allowing the description and explication of various legal facts, institutions, relations which are not generally recognized in state-centered theory of law. Globalization is a common name for the distinctive characteristics which distinguish the present-day Western civilization from other civilizations. The amalgamation of these two different aspects into one set of methods and ideas inspired by the need to explain modernity does not lead to the formation of a new methodology or of a scientific conception. Rather globalization talks about plurality in contemporary law having another function – to describe the changing mentality, new ways of legal thinking which are growing in the Western world. These changes have repercussions in many fields of science, i.e. in a new understanding of such traditional concepts as sovereignty.
Added: Feb 20, 2013
Working paper
Brazhnik T. Law. LAW. Высшая школа экономики, 2014. No. 41.
  Abstract The present article is motivated by the growing interest in the problem of copyright limitation and the comparatively low interest in the problem of legal system connections. Despite the fact that differences in regulation have been recognised for a long period of time, there is still no harmonization in the field. Although recent research works are numerous, it is still not agreed whether common law family or continental law family is better for international use. The issue at hand is influenced by the significant importance of the internet and electronic commerce. Moreover, it addresses the more fundamental question of the division of legal systems. This paper analyses both approaches; shows doctrinal differences in copyright limitation principles; reveals the connection between regulatory frames and existing legal systems; describes the current and potential pitfalls of framework clashes; and identifies modern global legal trends. The findings demonstrate the dependence of recent legal decisions and norms on the philosophical approach applied in a country. In addition, the paper suggests different steps and models of regulatory unification. The theoretical contribution of the work can help the development of new copyright limitation schemes and harmonize international law on this issue.  
Added: Oct 6, 2014
Working paper
Leonid Sykiainen. Law. LAW. Высшая школа экономики, 2015. No. 49.
The article deals with interaction between Sharia and contemporary Russian law. The reasons of increasing interest to this issue are mentioned. The author analyses different examples of implementing Sharia norms in our countrry. Arguments for and against including Sharia norms in legal life of contemporary Russia. The author puts forward three main modes of interaction between Sharia and contemporary Russian legislation 
Added: Apr 8, 2015
Working paper
Buyanova M. Law. LAW. Высшая школа экономики, 2014. No. WP BRP 36/LAW/2014.
This study addresses issues relating to procedural and labour law regulations governing legal proceedings in labour disputes, such as re-instatement cases, in the courts of general jurisdiction. Emphasis is placed on issues relating to the time limits set for filing employment lawsuits and the manner whereby these time limits shall be counted. The study provides grounds for a proposed change in the rules of territorial jurisdiction over labour disputes and identifies issues relating to evidence relevance and evidence admissibility in re-instatement law cases. The study highlights challenges associated with the presentation of evidence by employees. Special attention is given to imperfections in the statutory dismissal procedure. The study offers a dismissal procedure for each ground for employee dismissal set forth in Article 81 of the Russian Federation Labour Code and proposes ways to streamline the labour and civil procedural laws in the context of the issues addressed.
Added: Apr 14, 2014
Working paper
Antonov M. Law. LAW. Высшая школа экономики, 2014. No. WP BRP 34.
This paper aims to analyse the philosophical premises on which the idea of unity of law (identity of legal system) is based. In the history of legal philosophy this idea found its main arguments in the presumption of totality of legal regulation. Such totality translated the philosophical tenets of holism according to which law is not limited to the positive-law rules and institutes. Law refers to the supreme values priming over the legal instruments human beings and collectives create for regulation of their mutual behaviour. This argument implies that there are highest values (that of justice, good…) under which all the social relations can be subsumed and which finally give the binding force to positive law. The author argues that this line of thought is based on philosophical objectivism and naturalism, and can easily lead to primacy of the social over the individual. To substantiate the idea of systemacity of law, one can turn to the modern debates about logic of social cohesion and construct a legal system identity as a purely intellectual hypothesis necessary for thinking about law. This integrity can be described as a unity of discourse, or as a unity of societal practices. This reconstruction of integrity of law can be extended by appealing to the basic ideas of normative philosophy of law (from Hart and Kelsen to Raz and Dworkin) and is reconcilable with the conception of normative systems of Bulygin–Alchourron.
Added: Apr 4, 2014
Working paper
Tikhomirov Y. A., Churakov V. Law. LAW. Высшая школа экономики, 2017
The law is a difficult social phenomenon determining the social life and even the international interaction of subjects. There is no uniform direction of its functioning, but it is possible to determine various parallel aspects that describe legal development. National tendencies of legal regulation predetermine the whole functioning of a legal system, which is a broad concept including not only positive regulation. This paper analyses the following tendencies: expansion of legal regulation; forms of legal regulation; institutionalization; execution of legal requirements; technical progress.
Added: Oct 19, 2017
Working paper
Borisova T. Y. Law. LAW. Высшая школа экономики, 2012. No. 04.
This article analyzes the usage of legislation as a legal source in the Russian Empire through the phenomenon of the publication of law. The author argues that the absence of separation of executive, legislative and court powers had definite negative effects for lawmaking and enforcement. The legislative politics of Russian emperors could be analyzed using Jürgen Habermas‘ concept of ―representative publicness‖ (representative öffentlichkeit): to a large extent, the tsars considered law as both an assertion of authority and a means of governing. Their actions towards strengthening legality in the state (i.e. the compulsory publication of legislation) were in essence symbolic or theatrical. In fact, since the separation of laws from executive acts did not exist in imperial Russia, the legislation was published (or stayed unpublished) exclusively for state administrators. The conflict in conceptions of legality between state and civil actors in the second half of the nineteenth century was not of a merely political nature. The article demonstrates that there was a public demand for publication of legislation; insufficient accessibility of legal information negatively influenced social and economic development in imperial Russia.
Added: Jul 20, 2012
Working paper
Ivanov E. A. Law. LAW. Высшая школа экономики, 2014. No. WP BRP 40/LAW/2014.
The Order of Malta became a subject of international law with the emergence of classical international law in the 16th century and the concept of international legal personality and since that period has always been recognised as such. However, the form of its existence has undergone a number of transformations. Today, the Order of Malta constitutes a unique subject and the nature of its international legal personality represents a great scientific and practical interest. The author is of the opinion that both theories of recognition which exist in the doctrine of international law, i.e. the declarative and constitutive theories, apply to the status of the Order of Malta. This paper analyses the nature of international legal personality and the mission of the Order of Malta as a subject of international law in the 21st century. Special attention is paid to the Constitution, the Government and the judicial system of the Order of Malta, as well as cooperation between the Order and the Russian Federation.
Added: Oct 2, 2014
Working paper
Почекаев Р. Ю. Law. LAW. Высшая школа экономики, 2018. № WP BRP 86/LAW/2018.
This paper is devoted to the characteristics of the city of New Bukhara, the “capital” of the Russian settlements in the Bukharan Emirate. It was originally established as a station on the Trans-Caspian railway but soon transformed into the Russian business and cultural center in the Emirate. It had specific status being a Russian enclave in the Bukharan Emirate which was de jure an independent state. However, the information on this city is contradictory. Some visitors stated in their notes and memoirs that it was a large city with well-developed infrastructure, others characterized it as a little settlement, “a poky hole” without any common features with towns of Russia and Europe. According to other materials New Bukhara was the real administrative center of Russian settlements in the Bukharan Emirate, while others state that it was only the residence of the Russian diplomatic representative in the Emirate. The author analyzes legal documents, other official information, notes from travelers and another contemporaries to establish a view on the real New Bukhara, to answer the question on status of New Bukhara in the Bukharan Emirate and in the Russian Empire.
Added: Dec 24, 2018
Working paper
Komyagin D. Law. LAW. Высшая школа экономики, 2015
The article discusses the nature of non-tax public revenue. The author first offers his own universal definition of public revenue. This results in the discovery of a variety of theoretical and practical problems, which include decentralized revenue, non-uniformity of non-tax revenue, and a contradiction involved in grouping certain forms of revenue together. A proposal is offered to consider public revenue in its various phases, initially as a based in national wealth, then as mobilized in the form of budget revenue, redistributed for public needs, and then administered.
Added: Dec 13, 2015
Working paper
Антонов М. В. Law. LAW. Высшая школа экономики, 2013
In this paper the author questions the role of Eugen Ehrlich’s sociological jurisprudence for the contemporary debates about sources of the binding rules which have their (ontological) foundation in the societal practices but whose validity cannot be extracted from these practices. The question about the normativity of the legal rules for Ehrlich was not identical with the thesis about the normativity of the social practices and the patterns of behavior which are capable of obtaining biding force if fixed in a legally recognized form (i.e. recognized by the legal community). As a result, the process of norm-creation requires an intellectual reconstruction of these practices and patterns by jurists, judges, and legislators who reshape the societal relations into the legal ones with the help of particular intellectual images. It is this reshaping that gives rise to the legal rules. The process of such reconstruction cannot be but intellectual, and therefore cannot be conceived of without reference to the creative work of the lawyers. Consequently, the legal rules cannot emerge directly from the societal practices. These practices in which the lawyers are engaged in or which they simply contemplate, can influence their creative activity, but cannot replace it, and thus cannot provide a mechanical transformation of the factual into the intellectual/normative.
Added: Jul 8, 2013
Working paper
Belkovich R. Law. LAW. Высшая школа экономики, 2013
The emergence of the Tea Party movement in recent years has shown that under the surface of mainstream political life in the USA there exists a different layer of ideas, which cannot be satisfactorily described in terms of the Republican/Democrat dichotomy. These ideas have their origins in the foundation of the American Republic, which owes a lot to ancient and mediaeval political theory. In the twentieth century there was a revival of these ideas in the form of the so-called “paleoconservative” movements which rediscovered their ancient and mediaeval heritage. This paper focuses on one of them, the Southern Agrarian movement, as exemplary of this radical intellectual project.
Added: May 14, 2013
Working paper
Pochekaev R. Y. Law. LAW. Высшая школа экономики, 2014. No. 43.
Mikhail Speranskiy, outstanding Russian statesman and legislator of the first half of the 19th century was the Siberian Governor-General from 1819-1821. The main result of this stage in his career was the reform of government in Asiatic Russia as well as development in 1822 of a set of codes – rules and regulations – for Siberia and its peoples. Speranskiy tried to incorporate his theoretical views on the state and law into these codifications. One of them were the “Rules on the Siberian Kirghiz” which provided reforms of the government system of Kazakhs (“Kirghiz” in the Russian pre-revolutionary tradition) of the Middle Horde which were under the control of Siberian regional authorities. The Middle Horde became a place for practical experimentation for Speranskiy’s ideas. Previous researchers have paid more attention to consequences of the promulgation of the “Rules on the Siberian Kirghiz” on the further history of Kazakhstan. This paper clarifies which specific ideas of Speranskiy on the state and law were reflected in the “Rules on the Siberian Kirghiz” and answers the question of whether they had practical importance. A substantial part of the “Rules on the Siberian Kirghiz” was, in fact, ineffective and didn’t use in practice because of lack of knowledge of Speranskiy on Kazakhs and his underestimation of their political and legal level. At the same time, authority of Speranskiy in the Russia of the 19th c. as legislator and reformer was so high that his “Rules on the Siberian Kirghiz” became actual until 1860s when next substantial reforms in Kazakhstan took place.
Added: Nov 25, 2014
Working paper
Kalyatin V. Law. LAW. Высшая школа экономики, 2012. No. 01.
The sui generis database right was added to copyright protection of databases in the Russian legislation only in 2008. In December 2010, new draft amendments to the RF Civil Code were published, substantially developing this regulation. This article examines the position of the Russian Federation regarding regulation of databases in its historical development and compares it with the relevant regulation in the European Union. While the Russian Federation generally follows the European model, there are some important specific provisions in the Russian Federation that should be taken into account by database producers and database users.
Added: Aug 27, 2012
Working paper
Yerpyleva N. Law. LAW. Высшая школа экономики, 2013. No. WP BRP 12/LAW/2013.
This article is dedicated to one of the most interesting aspects of International Procedural Law – litigation with participation of foreign persons. Author focused on a comparative analysis of Russian and Kazakh legislation concerning the regulation of international procedural relations. Article includes two paragraphs: the first one considers international jurisdiction of Russian arbitrazh courts and Kazakh economic courts on commercial matters; the second one examines the recognition and enforcement of foreign judgments in commercial matters on the territory of Russia and Kazakhstan. Author deeply scrutinized a wide range of legal documents including domestic legislation and multilateral international treaties of regional character in order to show the convergences and divergences in Russian and Kazakh law concerning participation of foreign persons in international commercial litigation.
Added: Mar 26, 2013
Working paper
Selivanovskiy A. Law. LAW. Высшая школа экономики, 2014
The disproportion of information in the stock market creates conditions for unlawful use of insider information, which, in turn, produces a negative impact on the stock market, investment conditions in the country and the economy as a whole. In Russia the institute of disclosure in the securities market does not secure provision of investor rights to obtain quality information on the issuer of securities, its group of entities, its financial conditions, as well as other important aspects, which are of principal significance for the issuer and its affiliated parties. Information disclosed by the issuer is not reliable for investors. Only a few pay attention to the disclosure of information, such information is not analysed and is hardly monitored by the regulator with regard to the obligation to report it. Issuers have no incentives to disclose information, as mechanisms of liability are ineffective. This institution in Russia does not mitigate the disproportion of information between insiders and outsiders. It leads to considerable costs for the issuers, while the level of investor protection is not increased. The rights of investors in the securities market are not protected. The whole system of the disclosure of information requires reasonable and systematic restructuring. An obligation for issuers to disclose information in good faith should be stipulated. It is necessary to abandon the attempt to foresee in legislation all possible important events, the details of which can affect investment decisions. Disclosure should be timely, correct, reliable, consistent, concise, and free from irrelevant information. A reconsideration of the system of liability for unfair disclosure is required. The CEO of the issuer shall be liable for proper disclosure. It is reasonable to consider the burden of proof of good-faith disclosure on the CEO. It is important to change the approaches to the administrative liability of the issuer (in violation of the rules of the disclosing of information fault must be presumed, lack of fault must be proved by the issuer; the statute of limitations for imposition of liability should be increased since detection of the violation within one year is often impossible).
Added: May 12, 2014
Working paper
Churakov V. Law. LAW. Высшая школа экономики, 2016. No. WP BRP 68/LAW/2016 .
The paper is dedicated to the formal investigation of regional legislation in the sphere of the regulatory impact assessment (RIA). RIA is a crucial instrument for the evaluation of the effectiveness of law. It provides a solid basis for the objective assessment of proposed regulations in the sphere of business activity. The federal form of the Russian government requires the analysis of regional experience for the further development of RIA procedure.
Added: Sep 27, 2016
Working paper
Knyaginina N., Jankiewicz S. Law. LAW. Высшая школа экономики, 2017. No. WP BRP 76/LAW/2017.
In different countries of the world the place of religion in education differs. In most of the European countries teaching of religion in public (or state-funded) school exists in one form or another. In Russia religious education can be received by the student at his or her own discretion or at discretion of the parents in the religious educational establishment. Education in public (state and municipal) organizations engaged in educational activity has a strictly secular nature. This principle is implemented in the Russian legislation and practice is most visible in disputes arising at the crossroad of religion and education as resolved by Russian courts. The most disputed issues concern the regulation of school uniform and the teaching of subjects ‘Fundamentals of Religious cultures and secular ethics’ and ‘Fundamentals of spiritual and moral culture of Russian nations’ as a compulsory subject in public schools. The court practice on the issue keeps developing, but it's analysis shows that the secular nature of education in Russia is not so undoubted as it may seem.  
Added: Oct 23, 2017
Working paper
Totyev K. Y. Law. LAW. Высшая школа экономики, 2014. No. 4.
This article is devoted to the legitimation and application of the standards of ex post and ex ante by courts and the executive authorities in the sphere of competition regulation. The postulates of ex post and ex ante are considered as legal principles. The principle of ex post is intended solely for judicial and administrative application; it has a deontological framework; it assumes that the legality of the activity of economic entities is assessed only on the basis of positive legal criteria in terms of the subjective rights violated; it is limited to a particular case. The traditional approach to the principle of ex post limits the scope of its application on the subjects and excessively expands its objects. The postulate of ex ante has a utilitarian basis which assumes the assessment of the application of relevant rules in the future. One of the main aims of the article is to refute the common view of lawyers and economists that a legislator applies principle of ex ante not being bound by principle of ex post, while it is the other way around for the courts and the executive authorities. The principle of ex ante may be applied not only in the process of the creation of new rules but also at the application stage for existing rules on economic competition. This is justified because the arguments of the courts and the executive authorities about a refusal to take into account the consequences of a decision in a particular case are not convincing.
Added: Nov 6, 2014
Working paper
Totyev K. Y. Law. LAW. Высшая школа экономики, 2014
This article is devoted to the legitimation and application of the standards of ex post and ex ante by courts and the executive authorities in the sphere of competition regulation. The postulates of ex post and ex ante are considered as legal principles. The principle of ex post is intended solely for judicial and administrative application; it has a deontological framework; it assumes that the legality of the activity of economic entities is assessed only on the basis of positive legal criteria in terms of the subjective rights violated; it is limited to a particular case. The traditional approach to the principle of ex post limits the scope of its application on the subjects and excessively expands its objects. The postulate of ex ante has a utilitarian basis which assumes the assessment of the application of relevant rules in the future. One of the main aims of the article is to refute the common view of lawyers and economists that a legislator applies principle of ex ante not being bound by principle of ex post, while it is the other way around for the courts and the executive authorities. The principle of ex ante may be applied not only in the process of the creation of new rules but also at the application stage for existing rules on economic competition. This is justified because the arguments of the courts and the executive authorities about a refusal to take into account the consequences of a decision in a particular case are not convincing.
Added: Apr 17, 2014
Working paper
Belkovich R. Law. LAW. Высшая школа экономики, 2015. No. WP BRP 50/LAW/2015.
    From the beginning of the 1980s the problem of secession has become one of the most discussed topics among the political theory scholars in Western academia. Two main groups of theories which accept secession as a legitimate and morally permissible form of political action have emerged since then: remedial (or just-cause) theories and “liberal” theories. The remedial theories regard secession as a remedy which can be used against the injustices a group suffers within a state. The liberal theories grant any territorially organised group a right to secede and form a new state if the latter complies with the requirements we usually demand of a contemporary democratic regime. What is common for both theories is their open acclaim of the right of self-determination. The study seeks to show that a theory of secession based on a self-determination principle must adopt a substantially wider understanding of secession than both of these theories can offer – a one which does not require a creation of a new state as a result.
Added: Apr 14, 2015