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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 12/2018
Contents of Issue № 12/2018
State institutions and legal systems
Valiev R.G. - On the Corruptogenic Status of Law-Enforcement Discretionary Powers pp. 1-10

DOI:
10.25136/2409-7136.2018.12.28460

Abstract: The subject of the research is the adequacy of such markers of corruptogenic discretionary powers as the scope and definition of competence based on the 'be eligible for' formula established by the Guidlines on Anti-Corruption Expertise of Legal Acts and Draft Laws'. The use of the aforesaid markers in the expert activity creates a problem because expert's statement must designate the kind of way to eliminate corruptogenic factors that, in fact, must eliminate the possibility of actions of an actor. This creates the need to clarify the status of law-enforcement discretionary powers in terms of their legal nature. The methodological basis of the research is the formal law method and technical legal approach to the analysis of legal acts that underline the legal institutionalization of the anti-corruption expertise. The method of expert's statement modelling has proved to be useful for this research, too. The aforesaid research methodology has allowed receive the following research results. As part of the analysis of the legal nature of law-enforcement practice, the author has discovered the contradiction between the legal institutionalization of the corruptogenic status iof discretionary powers and their legal nature. In the course of the research the author has discovered patterns of the legal institutionalization of law enforcement discretionary powers and has found out that their legal nature is immanent to the essence of law enforcement practice. The researcher has also proved that such markers of the scope of discretionary powers as the absence and uncertainty of conditions or grounds for the enforcement decision-making process just as the definition of the competence based on the 'be eligible for ' formula do not fully relieve from corruption potential. The patterns described by the researcher raise questions about the absolute priority being given to the corruptogenic status of discretionary powers. To improve anti-corruption measures in the law-enforcement practice, the author underlines that it would be useful to shift the emphasis towards optimization of their application procedures. 
Damm I.A., Shishko I.V. - Prevention of Corruption Risks During State Final Certification at School or University: Legal Aspect pp. 11-29

DOI:
10.25136/2409-7136.2018.12.28548

Abstract: The subject of the research is the legislation about education and anti-corruption measures as well as local regulatory acts of higher education establishments. The authors of the article analyze the current state of the legal regulation of the state final certification procedure carried out at schools or universities (federal universities) for the purpose of discovering corruption risks. The authors focus on the discovery of corruption risks at each stage of state final certification (preparation, conduction, follow-up of results, and appeal) and development of prevention recommendations. In the course of their research the authors have used the dialectical research method as well as structured systems approach, comparative law, formal logic and others. The results of the research demonstrate that the preventive anti-corruption potential of local acts regulating the state final certification procedure at universities is way below the established procedure of state final certification (Unified State Exams at schools). The authors describe the main corruption risks that may arise at different stages of state final certification at school or university and make suggestions on how to improve the legal regulation of state final certification procedure taking into account the successful experience of the legal regulation of the aforesaid certification procedure. 
Договор и обязательства
Shukhareva A.V. - Bad Faith and Awareness as the Proving Circumstances During Ivalid Transactions pp. 30-35

DOI:
10.25136/2409-7136.2018.12.27400

Abstract: The subject of the research is the most recent trends in the court interpretation of the concepts of good faith during challenging of transactions. Shukhareva analyzes the correspondence of the concept of good faith to the definition of awareness. She also analyzes different types of invalid transactions that imply the awareness fact as the proving circumstance. The author examines consequences of invalid transactions when it has been proved that the counteragent was aware of the bad transaction. The author also analyzes the practice of challenging the transaction during bankruptcy, in particular, transaction with unfair preference as the type of invalid transaction when a counteragent was aware of the bad transaction. In the course of the research the author has applied the following research methods: analysis and synthesis, systems approach, structural functional and formal law methods. The results of the research prove that the awareness of the bad transaction is often identified as the bad faith of a party and incurs associated legal consequences. The author of the article concludes that awareness may be also the ground for 'tightening' civil responsibility of the 'aware' party. The author also states that sometimes courts need to establish objective good faith as the criterion of awareness, the latter being an element of subjective good faith. 
Семейное право
Reznik E.S. - From the Project to the Implementation: Waiver of the Exclusive Surrogate Miother Right pp. 36-48

DOI:
10.25136/2409-7136.2018.12.27300

Abstract: The subject of this research is the legal provisions that regulate relations arising in the process of resolving the issue about the transfer of a child by a surrogate mother to genetic parents as well as Clause 31 of the Resolution of the Plenum of the Russian Federation Supreme Court of May 16, 2017 On Implementation of Laws By Courts Viewing Trials on Origin of Children. In his research Reznik raises questions about the absence of appropriate legal regulation of relations in the sphere of surrogate mothership, changes in the approaches of courts to the resolution of disputes when a surrogate mother refuses to transfer a child to genetic parents, and the need to take into account terms and conditions of a dispute in each particular case. The author also compares the draft and the current Resolution of the Plenum which is, in fact, aimed at waiving the exclusive right of a surrogate mother to make a decision about the transfer of a child. In the course of the research the author has applied the following research methods: analysis and synthesis, formal law, comparative law and hermeneutical methods. As a result of the research, the author emphasizes the need in fast and full solutions of the problems that may arise in the process of surrogate mothership including changes in the legal provision about the exclusive right of a surrogate mother at the legislative level. Reznik underlines that the situation when courts issue decisions which in fact violate the legal provisions, for the sake of the balance of interests between the parties, society and government, is unacceptable. The novelty of the research is caused by the fact that the author  analyzes changes in the approaches to the problem of ensuring the balance of interests when a surrogate mother transfers a child to genetic parents, provides arguments for these changes, and makes conclusions based upon them. 
Practical law manual
Polezhaev O.A. - The Mechanism of the Emergence of the Property Developer's (Land Owner's) Right to the Construction Erected pp. 49-54

DOI:
10.25136/2409-7136.2018.12.20620

Abstract: The article is devoted to the procedure and conditions of the emergence fo the property right to a newly erected construction. The author of the article makes a conclusion that the current legislation sets forth a number of requirements for a property developer, the kind of requirements that put the developer at disadvantage and deteriorate their right of property. As a result, the mechanism that explains the emergence of the right to a construction becomes quite unclear and court practice faces additional difficulties. As a conclusion, the author of the article emphasizes the need to improve the current legislation. In the course of this research the author has used both general research and special research methods, in particular, formal law and comparative law methods. The main conclusions of the article is the statements that the legal mechanism that explains the emergence of the right to a newly erected construction in Russian law has nothing in common with the classical principle 'superficies solo cedit' because it imposes additional requirements on a land developer. As a result, the ownership right is limited. 
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