Электронный журнал Юридические исследования - №10 за 2013 год - Содержание - список статей - ISSN: 2409-7136 - Издательство NotaBene
Legal Studies
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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 10/2013
Contents of Issue № 10/2013
State institutions and legal systems
Lazota L.A. - General image of the structure of the trade law sources in the BRICS states. pp. 1-11


Abstract: Comparative legal studies in the sphere of trade law of the BRICS states is an important instrument allowing to form a systematic image of the legal systems of these states. This is not a simple issue, since the states within the group represent three legal families - the Roman - German (Russia, Brazil), common law (the Republic of South Africa, India), and socialist (China). The comparative legal studies allow to apply legal instruments in the sphere of trade law in order to evaluate scientific and practical issues.  The comparative method is often used in the trade law, fore example, when the international system and a domestic legal systems are compared in order to harmonize material legal norms, regulating trade turnover, and to gain an image of international legal entreprenerial customs and general principles of trade law.  Additionally, the comparative legal studies allow to popularize legal knowledge and internalize it by the legal subjects of the BRICS states. 
Babin B. - Proprietary right of peoples: international and national dimensions pp. 12-34


Abstract: The goal of this article is to define international legal contents of the proprietary right of peoples and to find mechanisms for improvement of relevant national and international institutions. These goals may be achieved thanks to critical and comparative analysis of  legal sources, as well as the doctrines. It is being proven that international law recognizes the possibility for the proprietary rights of the peoples, as collective public rights, having both public and private law implementation mechanisms. Then, it does not provide the criteria for distinguishing state (and other public) property from the property of the people.  Such a right is being recognized in the national systems through political and legal declaration, and its correlation with the generally accepted system of distinguishing between public (state) and private property is weak.  Understanding the violations of the natural rights of nations by making all public resources belong to the state, the law-makers search for various compromises, and most of such compromises are not practically proven to be efficient.   In the opinion of the author  property of the people should apply to any public resources, having no individual owner or beneficiary, and being valuable for the implementation of collective rights of the people. It is established, that implementation of the right of the people to own, use and dispose of such property should be implemented by it directly, and the public government is only empowered to form the mechanisms for such implementation, but not to gain profit from it. It is also stated, that the public government may not make property of the people become state, municipal or private property without due expression of will and efficient compensations. The people also do not bear the risks of private economy and state administration activities, including the foreign debt of the state.  
Shchuplenkov O.V., Shchuplenkov N.O. - Constitutional bases for the freedom of information in Russia pp. 35-92


Abstract: In this article the author analyze the causes, preventing the implementation of priority social, economic and political goals in achieving the democratic state. They discuss their elements, regarding legal causes as legal norms failing to meet systemic requirements; social causes as including conflicts between neo-liberal reforms and social views of the Russians; spiritual and educational causes including low legal culture, lack of even elementary legal education, organizational causes including unsatisfactory control of the state over implementation of the existing and newly issued legal acts. Finally, the authors consider that the unsolved legal conflicts become one of the forms of legal contradiction, undermining the bases for the sustainable development.  Consequently, establishing the socially important information, establishing its key elements and role may be achieved by combination of general scientific data of information, and social information, first of all, together with the special legal notions on this type of information, as provided for mostly in legal definitions, lists of generally accessible information, legislative acts and other legal forms.  
Transformation of legal systems
Volokh V.A., Volodin E.V. - Novel features of the labor migration legislation: positive and negative features. pp. 93-103


Abstract: In the article "Novel features of the labor migration legislation: positive and negative features" the authors V.A. Volokh, and E.V. Volodin analyze one of the most topical current issues, that is the problem of establishing the need and quotes for the necessary number of foreign migrant workers brought to the Russian Federation.  Most of the experts including the authors of this article often noted the need to include significant changes into the existing order for the establishing the need and quotes according to the Government Resolution of December 22, 2006, N. 783. From January 1, 2014 the new rules adopted by a Government Resolution of September 12, 2013 N. 800 "On approval of the Rules for Proposition Preparation for Establishing the Need for Involvement of  Foreign Workers, Approval of Quotes for Provision of Invitations to Enter the Russian Federation for the Working Purposes and Quotes for Working Permits for Foreign Citizens". However, in the opinion of the authors, these Rules exclude direct participation of employers in the formation of propositions on the need to involve foreign workers, and this function is transferred to executive bodies. The existing situation requires the Ministry of Labour and Social Security to urgently form and approve the provisions for the formation of the need for foreign workers, including priority qualification groups, quotes for the invitations to enter the Russian Federation for the foreign citizens for the working purposes, quotes for working permits for foreign citizens, distribution of the said quotes, making their amount larger or smaller, and establishing the reserve for the quotes.
Law and order
Zhidkikh A.A. - Legal regulation and practice of participation of the foreign prosecutors in law-making. pp. 104-130


Abstract: The article is devoted to analysis of constitutional and legislastive regulation, as well as practical implementation of the competence of foreign prosecutors in the sphere of national law-making.  The author analyzes forms of such prosecutor activities, singling out specific features and general matters within the framework of participation of prosecutors in the law-making. The author formulates a number of conclusions, including the following.  Participation of prosecution in the law-making process is an accepted practice in many foreign states. Such an activity of prosecutor is due to historical and legal traditions of a state withina  specific legal family.  Participation of prosecution in law-making is present mostly in those states, where it is recognized as an independent government body. Currently, one may refer to its aim to protect human rights and public interests as a general pattern. Many form of participation of such state institutions in the formation of national legislative system include propositions on drafting legislative acts, use of a constitutionally provided right of legislative initiative, direct participation in legislative drafting, legal expertise of drafts of normative legal regulations, use of the prosecutor response measures and claims in court in order to recognize certain legal norms unconstitutional or unlawful.
Human and state
Shcherbanyuk O.V. - Sovereignty of people as a guarantee of human rights and freedoms of the person and of the citizen pp. 131-148


Abstract: The author of this article analyzes sovereignty of the people through the prism of human rights and freedoms of the person and of the citizen. Since the modern democracy is based upon the idea of sovreignty of the people, the author proves that the theory of sovereignty of the people may be positively regarded as a constitutional legal doctrine of supremacy of rights of the people, priority of human rights and freedoms of the person and of the citizen, supremacy of the people as the source for the public power, having various state and legal forms. Based upon the scientific analysis, it is established that only a sovereign democratic state may guarantee political right of the person and of the citizen, and based upon the study, the author establishes the ways to solve the problems in the sphere of constitutional legal guarantees of rights and freedoms of a person, formation of an efficient constitutional process.  The author also uncovers the causes of contradictions and conflicts in the legislative system, forming obstacles for implementation of lawful rights and freedoms.  
History of state and law
Krasnyakov N.I. - Modernization of the Empire government institutions in Russia in XVIII - early XIX century. pp. 149-174


Abstract: The article includes analysis of stages, vectors and contents of the development of the Empire administrative institution in the period since XVIII till early XIX century. The author singles out the tendencies: unification, centralization, bureaucratization, autonomous functioning in some regions within territorial and branch-related implementation levels.  The author then makes a conclusion on practical consideration of existing territorial and legislative statuses of the regions prior to their annexing to the Russian Empire. And it is only in the epoch of Catherine the II that the traditional measures - centralization and central concentration of government - are eased, however, the direction towards support of absolutist state remains. The author evaluates Ministry Departments, which became independent central government bodies in early XIX century as being overly centralized and making government overly official and bureaucratic.  As a result, the lack of clarity in competence of government institutions, as well as the right of Governors General and Governors to address the Monarch directly, lead to misalignment in the functioning of the state mechanism.
Practical law manual
Badikov K.N. - Practical vector of psychodermatoglyphic method in diagnostics of criminal behavior. pp. 175-191


Abstract: Integration of the Russian Federation into the global community is impossible without providing for greater efficiency of crime investigation. Introduction of innovative methods into the forensic tactics is related to the individual approach to personality.  An important quality of dermatoglyphic expertise within the trasology framework is their diagnostic vector and the possibility for the formation of psychological profile.  The Russian psychological science evaluates the behavior from the psychopathology standpoint or from the standpoint of social and psychological status of a person.  The psychodermatoglyphic studies regard deviant behavior within the integral approach to psychological processes and conditions.  Evaluating a personality as a complicated integrated system, one may find deviant behavior showing itself in certain dismorphological markers - certain dermatoglyphic characteristics.  The said approach shows correlation between biological and social behavior elements (including deviant ones), and it also shows unity of morphology and psychology of a person. As a result, the integration of the "central nervous system - morphology - behavior" gains special value for psychodermatoglyphic expertise, and it is due to functional bilaterization of brain from the standpoints of hemodynamics and specialization of brain hemispheres within the ontogenesis framework.
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