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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 09/2018
Contents of Issue № 09/2018
Теория и философия права
Vinokurov S.N. - Historical Development of Representations on the Role and Content of Good Faith Doctrine in English Law pp. 1-9

DOI:
10.25136/2409-7136.2018.9.27295

Abstract: The subject of the research is the development and content of the concept of good faith in English law. The role of this legal principle has always been ambiguous and was largely determined by the content that English lawyers put into it at a certain stage in the development of the common law system. Formation of ideas about good faith included periods of its complete denial and periods of unconditional recognition at the level of doctrine and during law enforcement practice. Nowadays, the ideas of good faith in the law enforcement practice in England have become more widely applied in relational contracts and contracts that contain the obligation of contractors to adhere to this principle. The purpose of the article is to show the process of perception and development of the content of the idea of good faith in English law. The methodological basis of the research is the historical method and comparative law method, in particular, analysis of the relationship between theory and law-enforcement practice as well as features and stages of development of the object of study. The main conclusion of the study is that the doctrine of good faith has a long history in English law and its place and importance for the common law system have always been considered ambiguously. The author considers the main stages of the development of the concept of good faith from the period of its borrowing from the early canon law and Roman law up to the era of modernity. The differences in the content of good faith are indicated depending on the historical development of the law of England. The role of the idea of good faith for modern English law is highlighted and conceptual contradictions in the interpretation of the content of this principle in modern English law enforcement practice are revealed.
State institutions and legal systems
Nikitina A. - Constitutional Legal Disputes: Definition, Features, and Criteria for Differentiating them from other Kinds of Public Legal Disputes pp. 10-19

DOI:
10.25136/2409-7136.2018.9.27020

Abstract: The subject of the research is constitutional and legal disputes as a unique phenomenon of modern constitutional law. The author of the article provides characteristics of the subject, method, subject composition, objects and sources of constitutional and legal regulation. Insufficient research into the nature and specificity of legal disputes arising from constitutional legal relations has a negative impact on the legislation and judicial practice of their resolution. The purpose of the study is to identify features of constitutional legal dispute distinguishing it from other kinds of public law disputes which will allow to formulate its definition. The study is based on traditional methods of research such as analysis, synthesis, deduction, induction, system-structural and formal-legal methods, the use of which is predetermined by the subject and purpose of the research article. The author concludes that the specifics of the constitutional legal dispute is predetermined by its subject composition, subject and basis of its origin. Constitutional legal dispute is defined as subject to resolution in a procedural form established by law, constitutional-legal entities disagree about the assessment of compliance with the constitutional legal norms of acts, actions (inaction) of one of the parties to the dispute, violating constitutional rights, freedoms or competence of the other party to the dispute and (or) constitutionally protected public interests.
Goncharov V.V. - On the Relationship Between Social Control and Other Forms of Power Control (Constitutional Law Analysis) pp. 20-29

DOI:
10.25136/2409-7136.2018.9.27191

Abstract: This article is devoted to the study of the concept of public control of power in comparison with the concepts of social control of power, civil control of power, people's control of power, state control of power (both in the part that can be considered public control of power and in the part that is the self-control of the state internal control of power). The author explores the concepts of social control of power, civil control of power, people's control of power, state control of power, and also gives his own definitions thereof. He uses the following research methods: comparative law; historical; formal logical; statistical analysis and sociological survey. The paper analyzes and compares the main features of the concept of public control of power and gives his own definition thereof. The author also notes that public control of the authorities acts as the only external independent positive form of control over the powers of state and local government bodies as well as other entities that have delegated public authorities and competences. 
Договор и обязательства
Ul'yanishchev V.G., Badaeva N. - The Good Faith Principle and the Idea of Justice in Civil Law pp. 30-46

DOI:
10.25136/2409-7136.2018.9.27240

Abstract: This study is methodological in nature since it is devoted to the fundamental problem, the formation of a national civil law and order. The essence of the problem is: whether it is possible to create a rule of law by declaring several “catchy” ideas that supposedly justify it, or it is necessary to painstakingly build norms and institutions in which those ideas (of different levels) that fill the system with necessary life force are manifested. The immediate reason for the formulation of the problem was the appearance in 2012 in Art. 1 of the Civil Code wording on the need to "act in good faith" in the "establishment, implementation and protection of civil rights and in the performance of civil duties." There was a need to identify the scientific and socio-economic substantiations of this novel and, most importantly, the prospects for its value (axiological) manifestation in the law and order of the Russian Federation. To achieve the validity of the generalizations, the authors turned to a comparative legal study of the problems (appeal to Federal Civil Code of 1804, Civil Code of 1896, Swiss Civil Code of 1912; civil legislation of Italy 1942 and civil legislation of the Kingdom of the Netherlands 1994). It turned out that all the current civil codes of the continental legal system to some extent follow the direction of combining "moral and legal", the roots of which go back to Roman law. The final part of the work contains conclusions from the conducted historical and comparative legal research of the topic. According to the authors, the combination of specific rules on the application of moral concepts (“good faith”, “justice”) with the professional and responsible behavior of the legal (judicial, first of all) community can ensure an adequate level of “good faith” of participants in civil turnover.
Vronskaya M.V., Amaryan L.A. - Form and State Registration of the Commercial Concession Contract Pursuant to the Law of the Russian Federation: Actual Issues of Law Enforcement pp. 47-55

DOI:
10.25136/2409-7136.2018.9.27244

Abstract: The article is devoted to the study of the nature of the form of expression of the participants in civil turnover, and the problems of its enforcement in concluding franchise agreements, referred to in Russia as a contract of commercial concession. The urgency of the problems raised by the authors is directly related to the growing rates of growth of franchises in Russia. According to the Russian Franchise Association, Russia is the world leader in the growth of franchise companies and in 2018 in Russia 1050 franchise brands were recorded, 60% of which are brands of Russian companies. The subject of the research is the civil concession agreement as an institution of contract law in the context of identifying topical problems of law enforcement in terms of its form and validity, and in connection with this, proposals for improving civil legislation. To write this article, the authors have used general research methods (analysis and synthesis, generalization, deduction, comparison, analogy) and special research methods (comparative law and structured systems analysis). As a result of their research, the authors identify three topical problems of law enforcement including the lack of state registration of a commercial concession contract while the contract is actually executed by both parties. Particular attention is paid to the study of the legal nature of the state registration of a commercial concession contract in relation to the general requirements of its form, since the authors found that the courts in different ways qualify non-compliance with the requirements of state registration of a contract of commercial concession: in some cases the contract is null and void, others are considered valid. The novelty of the research is caused by the development of legislative proposals aimed at elimination of the the problems identified.
History of state and law
Satushieva L.K. - Development of Regulatory Systems of the Russian State in the Religious Sphere of the North Caucasus (the First Half of the XIXth Century) pp. 56-64

DOI:
10.25136/2409-7136.2018.9.25350

Abstract: The first half of the nineteenth century is the time of both military actions and civil initiatives aimed at the development of regulatory systems in various fields of life of the highlanders. The subject of the research is the regulatory system created by the Russian Empire in the North Caucasus in the field of religious life. The object of study is the process of introducing civil and military principles into life the mountaineers in the first half of the nineteenth century. The purpose of the article is to show the extent to which the Russian authorities used legal instruments to form regulatory systems in the religious sphere. The researcher has used the historical method that allowed to collect, analyze and interpret archival documents of the first half of the nineteenth century and made it possible to study the legal foundation of the religious component of the Russian Empire through time and space. This article was prepared on the basis of archival materials (both published and found in three archives: the State Archive of the Krasnodar Territory, the Russian State Military Historical Archive, the National Archive of Georgia). Despite the fact that the history of the North Caucasus has repeatedly been the object and subject of research, nevertheless, we have taken an aspect, namely: the analysis of historical documents from a legal point of view has not yet been done. Only individual works on this topic can be cited. Nevertheless, there are works in which similar problems were posed in relation to the whole of Russia. There are scientific studies and the formation of regulatory systems in the religious sphere in the South Caucasus.
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