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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 12/2013
Contents of Issue № 12/2013
Judiciary reform
Prizhennikova A.N. - Alternative dispute resolution: topical issues. pp. 1-10

DOI:
10.7256/2305-9699.2013.12.1028

Abstract: Mediation is recognized as one of the procedures for alternative dispute resolution. The mediation procedure is the most accessible, and it is aimed at the search for the mutual understanding.  Currently in Russia there is a public discussion on whether mediation may be applied to public law disputes, and, more specifically, in the tax cases.  The peaceful settlements on such cases may include recognition of the situation in question by the parties, agreement of the parties, qualifying the deal concluded by a party to the case, his status, or t type of his activities, total or partial refusal to sustain a claim, including the situations, when it is due to the parties reaching agreement upon the evaluation of the situation in whole or in part. The Recommendation of the Committee of Ministers of the Council of Europe of September 5, 2001 N. Rec. (2001)9 on alternative means of dispute resolution between the administrative bodies and private persons refers to the active use of conciliatory procedures in public law disputes. Based upon the analysis of the foreign experience the author draws a conclusion that such a procedure may be used in all of the spheres of law, including administrative relations.  The author considers that our society needs mediation.  This procedure should be popularized.
Public communications
Tolpegin P.V. - Comprehensible government as a new format for the dialogue between the citizens and the government. pp. 11-22

DOI:
10.7256/2305-9699.2013.12.1000

Abstract: The article concerns "comprehensible government" as an "open government" project, which is one of the instruments for the open state bodies, municipal bodies and their officials. "Comprehensible government" presupposes  choice of measures for the legislatively and procedurally guaranteed provision of accessible information by the federal executive bodies to the general public.  The topicality of the project is due to the lack of understanding of the modern government actions and its policy by the general public, which in combination with the "legal nihilism" phenomenon has a negative impact upon the reforms by the state.  The incorrect interpretation of the state policy measures by the citizens makes the people vulnerable to protest attitudes, rumors, and it also supports false social stereotypes of totally corrupt and non-transparent government. The article describes the approach towards implementation of the "comprehensible government" project, as well as some topical problems in this sphere.  In addition to being highly politically and socially topical,  the author provides a skeptical evaluation of full-scale implementation of this project.
Human and state
Vakhrameev R.G. - Legal regulation mechanism for the constitutional right to information pp. 23-34

DOI:
10.7256/2305-9699.2013.12.9854

Abstract: The article is devoted to the implementation of the constitutional right to information, it discusses the mechanism of legal regulation of this right through the prism of access to information on the activities of state government and municipal bodies.  The article contains references to the most topical problems in the regulation of the right in question, as well as the latest legislative and practical tendencies, having to do with the further legal regulation of relations among the peole with regard to information.  The article provides analysis of legal regulation mechanism, and specific elements are singled out. The author also compares the forms of implementation of the right to information and mechanism of its legal regulation.  As the means to solve the practical problems  the author offers to amend the Russian legislation, including the legislation having to do with the responsibility of the officials.  The author then makes a conclusion on the dependency between the amount of information and the status of subject requesting such information, as well as the regime of the requested information.
History of state and law
Belkovets L. - Through "pride and prejudice". the Count von Brockdorff Rantzau and formation of Soviet-German diplomatic relations. pp. 35-94

DOI:
10.7256/2305-9699.2013.12.1001

Abstract: The article based upon the documentary data, diplomatic correspondence and memoirs of German and Soviet diplomats provides the study of revival of the Russian-German diplomatic relations after the 1st World War.  It is centered upon the activities and position of the Head of the German delegation at the Versailles Peace Conference and the first  Ambassador Extraordinary and Plenipotentiary of the new Germany in the Soviet Russia - Count Ulrich von Brockdorff Rantzau. He was the one who formed the friendly course of German diplomacy towards Russia (USSR), as provided in the Consular Convention and the Trade Treaties of 1925 and 1926, the Treaty of Alliance between Russia and Germany. The author offers his somewhat original concept of hte events regarding the formation of the relations between Russia and Germany, the policy of the Bolsheviks, who either sold off to German or saved Russia from falling apart and the pieces of its territory being taken away by the imperialist lands. The author shows the process of overcoming the prejudice against the Soviet Bolshevik Russia by the German diplomats.  It was supported by the procedure of Versailles Peace Treaty developed by the victorious Entente states , which was derogatory for the losing parties.  The relations supported by the 1922 Treaty of Rapallo.
Practical law manual
Akhrameeva O.V. - Unobvious obstacles in achieving the goals of injunctions. pp. 95-113

DOI:
10.7256/2305-9699.2013.12.1033

Abstract: The article concerns injunctions as one of the key institutions of the arbitration process. These measures guarantee future enforcement of a judicial act, and at the same time they preserve the positions of parties to the process in the status prior to when the process was started.  However, the fast decision-making in the sphere of temporary limitations to some acts may cause inpredictable circumstances, and it may be contrary to the goals and aims of injunctory measures. The author analyzes the legislative requirements and the guidelines of the higher judicial instances regarding claims (requests) for application of injunctions, and provides examples based on judicial arbitration practice. Additionally, the author analyzes the sphere of land relations in order to show examples of obstacles in the implementation of injunctions according to claims of the parties.  The author makes a conclusion that fast decision-making on such claims may lead to abridgements of rights of third parties, and it may be proven by the judicial practice.  The author shows the correlation between the public and the private elements in regulation of land relations, and the author considers that the judges should take into account the interests of an indefinite range of persons, when making a decision on the claim for the application of an injunction. 
Khokhlov V.V., . - Specific features of judicial medical expertise on "medical cases" at the current state of development. pp. 114-121

DOI:
10.7256/2305-9699.2013.12.9978

Abstract: In cases regarding responsibility of medical staff for failure to properly perform their functions the investigators and the court have to face a number of special issues, especially correct diagnosis and course of treatment of the patients and the causal link between these factors and the grave negative consequences of medical mistakes.  In the late years more and more doctors are brought to responsibility for professional offences, and preliminary stage-by-stage analysis of information obtained by the investigation on these issues becomes especially important. The author notes that often bad quality of examination complicate decision-making in the sphere of evaluation of uncovered offences, and requires judicial medical expertise by a commission of experts, even in the cases when it could have been avoided. The author notes that in order to have an objective evaluation it is reasonable to assign expertise to be performed in another region, which has a medical higher education institution and traditionally good quality of such expertise, and it is also necessary to guarantee the payment for the work of experts and non-staff medical specialists. The author also states that it is almost impossible to obtain an objective evaluation from local healthcare specialists in the regions where there are no higher medical institutions due to the corporate loyalty.
Zemskova E.Y., ., ., . - Polymorphism of nucleotide sequence as a source of improvement of information quality for the str-markers of the autosomal human DNA. pp. 122-126

DOI:
10.7256/2305-9699.2013.12.9973

Abstract: The search for the ways to improve efficiency of molecular biological identity analysis is one of the topical vectors of development of the modern judicial medical genetic analysis.  Transfer to alternative (more informative) methods of studying of previously known molecular markers may be the solution of this problem.  For example, defining the polimorphism lengths of amplified fragments by      capillary electrophoresis is a classical approach towards the studies of short tandem repeats of the human DNA.  At the same time, it is know that most of spheres of human genome have sequence polymorphism.  However, the elctrophoretic separation of the DNA fragments fails to give information on the polymorphism of this type, since it allows only to establish the length of analyzed amplicon. An ideal method for the polymorphism analysis of sequence in any DNA fragment is its direct sequencing. However, it is a long and labor-intensive approach, and it precludes any large-scale studies in this direction.  As an alternative to direct sequencing may be found in mass-spectrometric analysis of amplified DNA fragment. High degree of precision of defining molecular mass of amplified fragments allow both to define the length of a fragment, which is being studied, as well as deviations from the expected (known) base composition. The allel "breakdown" effect in STR-locuses into several options of forms (classic and including SNP) may guarantee greater information value of an expert opinion.
Legal and political thought
Alpatov A. - Epystemology and ontology of law. pp. 127-194

DOI:
10.7256/2305-9699.2013.12.1021

Abstract: This study is aimed at analysis of law in its two key aspects: as a sphere of knowledge and as a type of social practice. From the standpoint of the traditional aspect of philosophical scientific studies (epistemological studies) the attention is focused at the final product of scientific activity, which is the system of scientific legal knowledge, its structure and genesis. Special attention is paid to the tendencies of development of scientific knowledge, first of all, within its inherent inner logic in relation to social and cultural reality. The structure of legal knowledge from the standpoint of its contents is analyzed in regard with differentiation of scientific research programs and the scientific directions, schools and traditions based on these programs.  The study of specific scientific research programs is based on their nucleus, which includes basic settings, forming the culture of legal reality or their ontology. The main goal of the study is to uncover the main directions of development of law, its structure and correlation with other basic social phenomena, to form and substantiate the philosophical basis for the optimum system of all of the said relations. The author attempted to systematize the views of legal scholars on the nature of law and he offers his own contours towards its understanding.  Special attention is paid to clarifying the contents of natural law and its correlation with the positive law. Novelty of this approach is due to the fact that natural law is discussed through the patterns of physical and social reality. At the same time its correlation with the positive law has a complicated hierarchy and structure.
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