No 4 (2017)
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CIVIL LAW AND PROCEDURE
6-14 648
Abstract
The right to protection is one of their fundamental human rights. In this context, the Institute of advocacy plays a critical role in the implementation of this right. The role of Institute of advocacy in protection of human rights in countries around the world, including in international organizations, as well as in the Republic of Azerbaijan, is of great importance. Advocacy is the most important legal institutions of any state, standing on the protection of the fundamental rights of citizens and their associations; represents a sign of civil society as a sign of legal protection of citizens. There is an analysis of national and foreign doctri-nal sources and acts of the Council of Europe and the European Union, international treaties concerning the right to protection in General and of the legal profession in particular in present article. Considerable attention is paid to the review of the legislation of the Republic of Azerbaijan in this sphere. According to the results of the analysis, the authors make conclusions and give suggestions for further improvement of legal regulation of the legal profession.
15-24 271
Abstract
This paper is focused on legal relationship arising between new real estate and its developer from the actual real estate construction to state registration of rights. Analyzing the legal content of the developer’s right to the new realty, and identifying its inherent characteristics and unique features, the author comes to the conclusion that such a right should be qualified as a property right. This right arises irrespective of the act of state registration of rights and coincides with the appearance moment of the realty as a separate object of civil rights. In the analysis of the developer's right, the author uses the sociological method of legal understanding, which allows to reveal objectively existing features of social relations and ensure their legal qualification. The novelty of this study is in the fact that the legal relationship arising between developer and real estate before state registration of rights was not subjected to detailed research. The author revealed that from the creation moment of realty and to registration the developer in relation to the object has the right containing proprietary nature; fixing the absolute control over the object; endowed with powers of possession, use and disposal; complete discretion, means of protection of rights, risk of property loss and the burden of its maintaining.
25-30 469
Abstract
The article explores the issues related to ensuring the legal protection of intellectual property objects at the international level which were obtained in the process of space activities carried out by states within the framework of space projects. The author emphasizes the absence of a single international document establishing general provisions for the legal protection of such objects, including a system for resolving international disputes arising in this area. The solution of these issues is carried out within the framework of bilateral and multilateral agreements on the implementation of specific space projects. In the author's opinion, such processes of legal integration as harmonization of the national legislation of the interacting countries, as well as standardization of the terms of agreements concluded in the field of protection of intellectual property rights and confidentiality of information become essential for the creation of such a system.
31-42 434
Abstract
The modern world has already become characterized by the presence of destabilizing threats, such as international terrorism, organized crime, drug trafficking, money laundering, illegal migration and other forms of crime. Realizing such threats, most countries of the world seek to join efforts to confront them. It is not surprising that cooperation between Belarus and Russia in the field of law enforcement takes a special place in the security system of the Union State. The article gives a detailed analysis of the acts of the Union State in mentioned sphere, and also presents an overview of cooperation of security authorities of the Member States, the forms of cooperation and methods for its implementation.
COMPARATIVE LAW
43-51 236
Abstract
The article states the growing role and importance of public procurement in a market economy. The author examines the legal framework for public procurement at three levels: within the framework of the World Trade Organization (WTO), within the framework of the Eurasian Economic Union (EEA) and the Commonwealth of Independent States (CIS), as well as in the national legislation of the Republic of Belarus. The presence of relevance for the purposes, tasks, basic requirements in the regulation of public procurement at all three levels is noted. Proposals have been made to improve the legal norms for public procurement: the definition of a reserve supplier along with the winner, the creation of registers of the best suppliers in the EEMP, the CIS and individual member states of international economic entities. In this survey, the author examines the public procurement as a form of state participation in civil law relations with a foreign element, since all levels of regulation require the admission of foreign representatives to procurement on conditions of fair competition. From this follows the conclusion – in contracts of state procurement between the subjects of different states, in the absence of choice by the parties to regulation, the law of the buyer, not of the seller, should be applied.
52-60 315
Abstract
The focus of the present paper is on the foreign private property regime and its correlation with the state property regime to uncover concepts underlying boundaries and restraints of rights of foreign owners. This survey is aimed to observe the boundaries in implementation of investment rights in Saudi Arabia by subjects of foreign law. It also shows main risks arising in the investment activity and warns investors about possible negative effects of their rights implementation in Saudi Arabia. That is a country in which a private law activity is governed by religious law having its specific features directly affecting the scope and substance of foreign investors’ rights. To reflect them in the present paper legal acts made in accordance with rules and principles of religious law are scrutinized.
61-67 378
Abstract
The article deals with the problems of the formation of administrative procedural law. The author analyzes the text of the Code of Administrative Judicial Proceedings as the main source of the new branch of Russian law. The scientific idea of unification of existing procedural norms is criticized. In the article the author uses historical-legal and comparative-legal methods of research. It is emphasized that with the codification of administrative procedural legislation, the newly formed branch of Russian law will be improved on its own basis. We should expect a gradual expansion of judicial jurisdiction in administrative cases, including by extending the new jurisdiction to cases of administrative violations. The procedure of judicial consideration of cases of public law will develop, and due to the appearance of original norms, institutions and provisions that are characteristic only for the administrative process. The possibility of its structural reform in the direction of creating specialized administrative courts is very likely. Only with the creation of such jurisdictional bodies will the administrative process be finalized as an independent branch of the judiciary.
68-74 384
Abstract
The article analyzes the experience of pre-trial (extrajudicial) settlement of administrative disputes abroad and in Russia. Foreign experience shows the development of alternative methods for resolving disputes. To resolve conflicts in the world, there are various ways and forms. Their choice depends on the nature of the dispute. The main advantages of alternative ways of resolving administrative disputes may, depending on the case, be greater freedom of action of the parties, simpler and more flexible procedures that allow for faster and less costly dispute resolution, peaceful settlement, expert dispute resolution, dispute resolution in accordance with the principles of justice, and not only in accordance with strict legal rules. Alternative ways should allow a judicial review of the case, because it represents the ultimate guarantee of the protection of user rights and administration rights. The Russian practice allows for a predominantly departmental pre-trial settlement of administrative disputes. However, it is necessary to develop different forms of protection of citizens' rights, relying on the generalization of the experience of both foreign and domestic ones.
75-82 299
Abstract
This article evaluates changes in the powers of central banks, in particular the Bank of Russia, as a result of the extensive use of international financial mechanisms for foreign liquidity extension. This mechanism is an integral part of the economic and financial integration of states, since such integration cannot proceed without mutatis mutandis harmonization and coordination of regulation in the sphere of monetary policy and regulation and control of money circulation both at the national and international levels. And since these powers are transferred to central banks by relevant state authorities within the framework of the national jurisdiction, these financial institutions become not only subjects of international law, but also swap agreements between them become sources of this field of law. In order to identify and study this phenomenon, this article reveals features of the instruments used in international treaties to form international financial mechanisms to extend foreign liquidity, such as the European Stabilization Mechanism, where the European Central Bank plays a special role, as well as the Treaty for the Establishment of a BRICS Contingent Reserve Arrangement, which takes a central place in this work. International financial mechanisms for foreign liquidity extension are institutions based on international treaties governing the procedure for providing parties with necessary foreign currency, i.e. foreign liquidity. The core methods of this work are analysis and synthesis, by which necessary characteristics were identified, allowing to determine the status of the central bank in international law and to reveal the nature of swap agreements between central banks. One of these international financial institutions’ legal bases granted the ECB powers, which are recognized by the European Court of Justice as marks of international subjectivity of the ECB. The instruments to achieve objectives of the above-mentioned treaties are, as a rule, currency swap agreements, which according to these treaties should be entered into between central banks of the parties in the treaty. The author comes to the conclusion that since international treaties transfer powers to implement their goals to central banks, central banks, including the Central Bank of the Russian Federation, acquire international legal personality, and swap agreements entered into between the Bank of Russia and central banks of other BRICS Member States, being instruments to achieve objectives of the treaty, are sources of international law. Moreover, representatives of central banks of the BRICS countries participate in the formation of international bodies of the BRICS Contingent Reserve Arrangement with the power to make decisions on dollar liquidity extension in exchange for national currencies of the BRICS countries.
83-87 446
Abstract
The main focus of this article is on one of the most frequent crimes in housing development, each year taking more sophisticated ways of committing and concealing it. That is public funds embezzlement. This sphere of the state economic activity is very attractive for criminals. Huge sums are wasted on it out of federal and regional budgets. Despite repeated addresses of the Head of the state, detection and spreading of facts of billion public funds embezzlement in this sphere through media, criminals do not "slow down", but to the contrary, attract high-ranking officials to commit these crimes, connecting corruption and economic crimes. Their investigation therefore is even more difficult. This article contains evidences of criminal cases investigated by the authorized bureau of the Russian Federation, based on which survey the author uncovers peculiarities of the mechanism to identify ways of committing this category of crimes.
PLEKHANOV SCHOOL OF YOUNG SCIENTISTS
88-95 265
Abstract
The object of this survey is a national legislation on corporate income tax of the EAEU countries. In addition, the author analyzes the prospects of convergence of tax legislation on profit tax of the countries of the Eurasian economic Union and the problems that the EAEU countries may face along the way. The tax norms of the EAEU countries are subjected to a comparative legal analysis, which makes possible to study an experience of other post-Soviet countries in taxation, and to evaluate its positive and negative aspects. The author also develops his own proposals for the development of the legal foundations of the Eurasian Economic Union. The main conclusion of this study is the assertion that there are some discrepancies in the regulation of this tax, which may adversely affect the further economic integration within the Union.
96-104 394
Abstract
The essence, concept and attributes of disputes arising in non-public joint-stock companies are considered in the article, taking into account the changes introduced by Federal Law N 99 of 05.05.2014 "On Amendments to Chapter 4 of Part One of the Civil Code of the Russian Federation and on the Repeal of Certain Provisions of Legislative acts of the Russian Federation" and Federal Law N 210 of June 29, 2015 "On Amending Certain Legislative Acts of the Russian Federation and Recognizing the Invalidation of Certain Provisions of Legislation the acts of the Russian Federation". In this article, the provisions established by these changes are considered as one of the factors that influence the emergence of corporate disputes in the management of society. The author establishes distinctions between the concepts of "corporate conflict" and corporate dispute "and then considers a separate group of corporate disputes that are expressed in an intentionally created by one or several participants, the impossibility of taking a decision by shareholders of a non-public joint stock company on one, two, three consecutive or close friends to a friend general meetings of shareholders, the negative consequences of which are expressed in the non-acceptance of decisions vital for a non-public joint-stock company. The article explores in detail the subjective and objective features of the "dead end" situation in the management of society, the factors and possible causes of its occurrence, after which possible options for determining the appropriate category of disputes are given. The reason for the emergence of a designated group of disputes is considered separately, according to the author, which is a violation of the balance of interests in the corporation – the discrepancy between the personal interests of the founders and (or) members of the society that realize the interest of the society to the interests of this society or the discrepancy of the private interests of the founders and participants of the society among themselves. Also, the author of the article proposes legal mechanisms – perspective directions that can minimize the emergence of corporate disputes in non-public joint-stock companies.
105-113 347
Abstract
Coordination between territorially limited intellectual property rights and global Internet activities has always been the focus of attention. The liability of Internet intermediaries offering potentially global services that may facilitate infringements of intellectual property rights by others in multiple countries poses a particular challenge in that regard. At a substantive law level, significant differences remain between jurisdictions regarding secondary liability for intellectual property rights infringements and maintaining safe position of Internet intermediaries. This article discusses the conflict of laws aspects of the liability of Internet intermediaries in light of the recent international efforts to adopt «soft law provisions» in the field of intellectual property and private international law. In addition, the author emphasizes that it is often difficult to apply the conflicting norms (lex fori, lex loci protectionis) to legal relations arising in the Internet, which are usually used to overcome conflicts in law.
114-120 294
Abstract
The article presents an analysis of such institute of tax law as a tax amnesty. The subject of this work are the rules of the financial law, tax law and other branches of Russian legislation that regulate relations for the implementation of tax amnesties, as well as the doctrine on the issues under consideration. In this paper, the variety of definitions of tax amnesty is examined, a comparison is made between tax amnesty and tax holidays, the author's definition of a tax amnesty is given, and the issue of the tax amnesty for tax benefits is explored. The author used general and private scientific methods of cognition. The formallogical method helped reveal the essence of the tax amnesty and derive a suitable definition of the term. Using a comparative legal method, the author compared tax amnesty with other categories. The author comes to the conclusion that the legislation of the Russian Federation does not fix the exact definition of a tax amnesty. At the moment, there is no clear idea of whether a tax amnesty should be considered a tax benefits (exemption from tax sanctions). In the author's opinion, tax amnesty should be considered as a tax benefits and detached from tax holidays.
121-127 332
Abstract
The cyberspace and digital technologies development in the 21st century opens up new opportunities for our financial system. The crypto currency is an example of this. A year ago the question on the legal prohibition of crypto-currencies was widely discussed. Furthermore, there was a question on the necessity to apply punishment for the use of crypto currency. Today there is no single, comprehensive legal framework regulating the process of application of crypto-currency in the Russian Federation. Therefore, the important task of the state now is to prevent distribution and application of the crypto currency in an extralegal sphere. The article covers the history of the appearance and functioning of the crypto currency in Russia and abroad, its legal status, legality of application and development trends in the modern world.
128-133 342
Abstract
The present article is devoted to the analysis of the issues concerning the effectiveness of the application of the provisions on rehabilitative procedures of the current Federal law on insolvency (bankruptcy). Nowadays a great variety of such procedures has been elaborated but their application is complicated and connected with many restrictions. As a result, the receivership proceeding is used in the majority of cases of bankruptcy of legal entities. In this regard, it can be concluded that the effectiveness of the application of rehabilitative procedures is low in Russia. At the same time considering the foreign legislation and the experience of developed countries, it should be highlighted that the rehabilitation mechanism should be effective and should provide the opportunity for companies to revive their operations.
ISSN 2411-118X (Print)