Электронный журнал Юридические исследования - №9 за 2017 год - Содержание, список статей - ISSN: 2409-7136 - Издательство NotaBene
Legal Studies
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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 09/2017
Contents of Issue № 09/2017
Договор и обязательства
Sagdeeva L.V. - Free use as a limitation of exclusive rights pp. 1-13


Abstract: The idea of limitation immanently exists within law as one of social regulators of relations within society. The very fact that people should coexist, presupposes the necessity to take into account mutual interests, therefore dialectical categories of freedom and necessity and the related manifestations of freedom and limitations in law were studied by philosophers and legal theorists. The research subject of the present article is free use as an example of the institution of limitations of subjective civil rights with respect to exclusive right. The author considers the current legislation of the Russian Federation and foreign countries, legal positions of Russian courts and courts of foreign jurisdictions. The author considers the scholars’ positions on the issues of limitations of rights and title encumbrance. The research methodology is determined by the specificity of the research subject. It includes the set of general scientific research methods (analysis, synthesis, comparison). The author concludes that an exclusive right is always seen as limitless, and any limitations of right and title encumbrances (free use, exhaustion, compulsory license, prior user right and right of use after patent expiration) should be proved and can’t be interpreted broadly. Free use understanding in the legislation of the countries of Continental Europe differs from understanding in the countries of common law containing the “fair dealing” and “fair use” doctrines. However, the “fair dealing” doctrine, acting in Great Britain, Australia and Canada, presupposes the formalized list of actions, which are classified as faithful (free) use of objects of exclusive rights without author’s (or another rightholder’s) permission. To certain extent, it is akin to free use understanding within the Civil Code of the Russian Federation and legislation of other countries of Continental Europe. Besides, there’s a similarity of free use within the intellectual property institution with public easement as a limitation of property right. In this context, free use is considered by the author as a limitation of right rather than title encumbrance. 
Семейное право
Gromozdina M.V. - Legal peculiarities of division of property of spouses through judicial proceedings pp. 14-23


Abstract: The research subject is legal peculiarities of the process of dissolution of marriage and division of property of spouses, which are still urgent at the present time. The author analyzes the examples of judicial practice in disputes between spouses over division of property, complicated by investment contracts, credit obligations, etc. Besides, the author studies disputable situations the legal regime of division of property can’t be applied to. Problems, connected with the application of clause 4 article 39 of the Family Code of the Russian Federation about the recognition of belongings as the property of each of the spouses, very often become the subject of scientific discussions and legal proceedings. That’s why the author assesses the present situation in this sphere. The paper also considers the problem of possibility to settle the dispute out of court at the stage of enforcement proceedings and the problem of court approval of a settlement agreement. The author notes that the judicial practice still contains few examples of application of clause 2 article 39 of the Family Code of the Russian Federation about derogation from the principle of equality of shares of spouses in their common property in favour of the interests of children and (or) sound interest of one of the spouses. The author uses general scientific method of dialectic cognition and specific scientific methods: system, structural-functional, formal-legal, analysis and synthesis. The research demonstrates that judicial practice in division of property of spouses is ambiguous; courts have different approaches to using particular provisions of family, civil and procedural legislation. In the author’s opinion, it hampers the unification of legal proceedings on dissolution of marriage and division of property. Based on the results of the study, the author concludes about the necessity to amend the Family Code of the Russian Federation with compulsory pretrial procedure of settlement of disputes over division of common property of spouses. 
Human and state
Khachatryan M.S. - Limits of legal regulation of societal control (public integrity) pp. 24-30


Abstract: The research subject is the limits of legal regulation of societal control as one of the instruments of civil society. The author analyzes various opinions about this issue, considers positive and negative results of legal regulation of public integrity. Special attention is given to the need to formalize such a balance of interaction between society and state, which wouldn’t infringe the interests of the parties, and in which they would effectively function and develop. The author uses dialectical, dogmatic (formal logical), system, comparative, deductive, inductive methods and the formal-legal method. The scientific novelty of the study consists in the consideration of the issue about the limits of legal regulation of societal control from the perspective of correlation between the limits of activity of state and civil society. The author concludes that legal regulation of public integrity can have positive results in those countries, where civil society institutions have no lasting traditions. But such regulation should have definite limits. The author concludes that the legislator should regulate only the key moments, which underlie interaction between state and civil society, i.e. a purpose, tasks and principles of activity of subjects of societal control; rights and duties of subjects of societal control and subordinate subjects; guarantees of realization of societal control and normal functioning of public authorities, which are being supervised; responsibility of both subjects of societal control and public authorities for the violation of principles and guarantees of public integrity. 
Law and order
Semerikova A.A. - Prostitution and sexual abuse: criminological and victimological aspects pp. 31-38


Abstract: The research object is a negative social phenomenon of prostitution, which is considered as a background criminogenic phenomenon influencing the escalation of criminal sexual abuse. The author considers this phenomenon in two aspects: the victimological aspect (as long as persons providing sexual services in exchange for payment are more likely to become victims of sexual abuse than other categories) and the criminological aspect, i.e. as a negative influence of prostitution on its consumers. The purpose of the research is to define the sphere of negative influence of this social phenomenon on persons, providing sexual services, and their consumers. The empirical base of the research is the survey, which covered persons, engaged in prostitution and victims of sexual abuse, and consumers of sexual services. The author formulates victimological and criminological peculiarities. Victimological peculiarities: the main reason, which forces people into prostitution, is rather a high threshold of sexual acceptability and a distorted understanding of a norm of sexual behavior, than financial ill-being; a psychological profile of a prostitute is identical to that of a victim of sexual abuse. Criminological peculiarities: prostitution has almost no influence on a formed personality, but if a person is being formed, prostitution is a highly destructive phenomenon, which forms a destructive sexual scenario of consumption and fosters deepening and development of sexual preference disorder symptoms and other psychic disorders, which have impact on the sphere of volitional regulation of a sexual model of personal behavior. 
Финансовое и налоговое право
Ageeva A. - Information exchange and other measures on combating tax avoidance and tax fraud pp. 39-48


Abstract: The research subject is the peculiarities of harmonization of national statutory instruments in the sphere of taxation and administrative cooperation between the EU member-states. The research object is the mechanisms aimed at combating tax avoidance and tax fraud. The author studies the instruments of cooperation of the EU members, such as information exchange in accordance with Directive2011/16/EU, which includes information about taxation, declared by parent companies in relation to their subsidiaries, according to countries of location (country reports), and other measures in this field. The initial research methodology is based on the set of scientific methods, which includes the comparative-legal and linguistic methods, the method of analogy, system, logical and retrospective analysis and other general scientific research methods. The author concludes that the institutional-legal mechanism of cooperation of the EU member-states in the field of taxation is the cornerstone of combating tax avoidance, aggressive tax planning, tax default and tax fraud. Cooperation of authorized national bodies improves the effectiveness of functioning of the statutory regulations of the EU law. Information exchange and harmonization of national legislations is the example of successful development of the integration association, which is worth studying for adaptation to the conditions of Russia. 
Договор и обязательства
Makushkin V.O. - On the pledge of bank account contract rights on the ground of attachment pp. 49-59


Abstract: The research subject is the problem of application of the “court bail” concept to cash in banks. The author considers the problem in the context of the correlation of the doctrine novels and law enforcement practice with the current normative procedure and the established approaches of the doctrine to the institutions of pledge and bank account. The author gives general characteristics of a “court bail”, describes the legal nature of attachment and pledge of bank accounts, compares the subjects of attachment and pledge and reveals the problems of application of a “court bail” to cash in banks. The research methodology is based on general scientific methods of cognition: analysis, synthesis, induction, deduction, and specific methods: system-structural, formal-logical, comparative-legal analysis. The scientific novelty and topicality of the study is determined by the scientific discussion about the application of the “court bail” concept and by the absence of law enforcement practice. A “court bail” is a means of securing pledgees’ interests, but its unconditional application, based on the private nature of pledge relations, can lead to the infringement of public rights. It is especially important in relation to attachment of bank accounts of economic entities, which are used for payment for labour or compensation of damage. The results of the study can be used for further development of the “court bail” concept and changing the current legislation.  
Теория и философия права
Pratasavitski S. - A concept and a legal nature of risk pp. 60-73


Abstract: The term “risk” is contained in the conceptual framework of many social sciences. At the same time, there’s no unified understanding of the phenomenon denoted by this term. The research object of this article is the general concept of risk and its legal nature. The author generalizes various scientific views on risk, offers his own vision of this phenomenon, and formulates his position on the legal nature of risk. The author also considers the phenomenon, opposite of risk, - the phenomenon of chance. Its peculiarities in jurisprudence are also described in the article. The research is based on dialectical, logical and formal-legal methods of scientific cognition, which help solve the research tasks. The author formulates the original definition of danged and risk and relations between them. Any undesired change has reasonable ground. It includes the reason of the change and the range of circumstances forming the reason and determining its existence. The possibility of appearance of all the prerequisites, necessary and sufficient enough for the formation and existence of such a reason, is called “danger”. And the possibility of undesired change of the state of a subject, caused by danger, is called “risk”. A chance – an opposite of risk – is a possibility of desired change of the state of a subject. The author reveals the legal nature of risk through the subjective duty, and of chance – through legal permissibility, which takes a form of a legal interest or a subjective right (authority). The results of this study can be used both in scientific and practical activity. 
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