No 2 (2017)
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6-10 245
Abstract
The article is devoted to a new and urgent task of combating russophobia growing, in which we should include the Bar as a community of professional human rights defenders, in addition to public authorities and organizations. It provides an analysis of the historical roots of russophobia, factors that contribute to the spread of this dangerous social and political "disease" in modern Russia, and the author proposes a number of legal and organizational measures that should help to improve the situation. It is especially emphasized that the task of combating russophobia can't be solved without appropriate adjustment of the regulatory framework, the improvement of specific forms and methods of advocacy work, in close cooperation with the emerging civil society.
11-16 440
Abstract
The article is devoted to a new and urgent task of combating russophobia growing, in which we should include the Bar as a community of professional human rights defenders, in addition to public authorities and organizations. It provides an analysis of the historical roots of russophobia, factors that contribute to the spread of this dangerous social and political "disease" in modern Russia, and the author proposes a number of legal and organizational measures that should help to improve the situation. It is especially emphasized that the task of combating russophobia can't be solved without appropriate adjustment of the regulatory framework, the improvement of specific forms and methods of advocacy work, in close cooperation with the emerging civil society.
17-27 1626
Abstract
The article is devoted to the stages and content of the "Antimonopoly packages". The authors examine the dynamics of antitrust regulation in Russia, as well as the contents of the main changes in the legislation. The authors note the role of acts adopted in the RSFSR and the peculiarities of their force at the present time. The authors explore various approaches to the concept of "competition" used in various Federal laws. The authors observed that the Law "On Protection of the Competition" is a living document and the significant changes are made in the framework of the "Antimonopoly packages" – the amendments are initiated by the state and involve the amendments of the several legislative acts. Such changes are the sort of reforms, and the "packages" are being actively discussed by the legal community. In addition, all participants of the legislative process often initiate the clarifying amendments. The authors focus on the "Antimonopoly packages" and exam the essence of the changes to the legislation in detail. In addition, the authors paid attention to the trends in the inclusion the procedural to the Law "On Protection of the Competition": the rules for clarification of decision, revision on again opened circumstances, the appeal of decisions of Antimonopoly authorities in court of arbitration. Summing up, the authors make conclusions concerning tendencies of development of the Antimonopoly legislation in the Russian Federation.
28-35 247
Abstract
The article considers the basic scheme of shadow asset creation as the initial stage and element of the process of shadow asset legalization. The authors have proved that the schemes for shadow asset creation are of much stronger threat to the financial security of the state then the schemes of legalization of funds obtained by illegal. The article provides an analysis of the three basic schemes of shadow asset creation: scheme of increasing material costs of a business entity; the scheme of use unliquid securities of the scheme and use of financial services. The majority of illegal schemes of tax optimization in the Russian Federation are various of these basic shadow schemes. The understanding of the mechanisms of such schemes will allow to develop a method of combating these schemes, eliminating their key links.
36-43 290
Abstract
The article analyzes the mechanisms of protection of the rights of participants of the reorganized legal entity in accordance with the latest legislation. The author has made a comparative analysis of domestic and foreign laws aimed at right protecting of this category of subjects, and have come to two main conclusions. In particular, the author proposed to maintain the approach of the domestic legislator that a decision on the recognition of the reorganization failure should be a measure of last resort. However, in order to avoid extended judicial discretion in addressing such an important issue it is advisable to establish a closed list of "failed" reorganization grounds. In addition, analyzing the European practice of corporate law, the author came to conclusion about whether substantial changes to article 60.1 of the Civil Code, which regulates the effects of the recognition of the decision on reorganization as invalid.
44-53 518
Abstract
This article is devoted to the problems of applying to the relations of the state acting as the proprietor of the subsoil and the minerals contained in them and the subsoil user-foreign legal entity. This article analyzes the legal situation that emerged after the entry into force of the Federal Law «On Jurisdictional Immunities of a Foreign State and Property of a Foreign State in the Russian Federation», the tendency of «eroding» the jurisdictional immunity of a foreign state is investigated, the undesirability of adopting a federal law on the immunity of the Russian Federation stipulated by Article 127 Civil Code of the Russian Federation. Also in the presented article the traditional problem of definition of actions of the state as iure imperii or iure gestionis is put to set approximate reference points for definition of those or other actions of the state as private law transactions or especially power acts.
CRIMINAL PROCEDURE AND CRIMINALISTICS
54-58 870
Abstract
The article analyzes the concept of law enforcement activity and the bodies of its executors. It is known that all law enforcement bodies unite that the activities of each of them are aimed at protecting the individual (his rights and freedoms), society (his material and spiritual values) and the state (its constitutional order, sovereignty and territorial integrity). Taking into account the judgment and analysis of the legal literature on the topic under consideration, the author comes to the conclusion that the term «law enforcement bodies» should be defined through the category «law enforcement», and the concept of «law enforcement» through its types aimed at: 1) protection of rights And the interests of the individual, society and the state (in a broad sense); 2) identification, prevention, suppression, investigation and disclosure of crimes and other offenses, as well as the identification and identification of persons who prepare, commit or commit them (in the narrow sense).
59-64 292
Abstract
The Constitution of the Russian Federation proclaims that rights and freedoms are the Supreme value, therefore, they are one of the main foundations of the constitutional system of the Russian Federation. In this regard, the duty of the state is the recognition, observance and protection of the rights and freedoms of citizens. Speaking as an important factor determining the purpose, content and form of the criminal process, human rights are indicator in determining the degree of compliance of the criminal process, fundamental rights and freedoms of man and citizen. Analysis of Russian legislation, including the criminal-procedural and criminal-Executive, at different periods of time, will reveal the fault and, as a consequence, will allow to improve the existing regulatory legal acts.
65-70 337
Abstract
We can not imagine modern life without the electronic payments and electronic payment services. However, the legal nature of these occurrence still remains controversial. Many researchers discuss about the place and the role of electronic payments in the system of payment services, the legal status of their participants, the characteristics of electronic payments and their correlation with the classical, established types of calculations. The author of the article highlights the legal nature of relations arising in connection with the payments of securities calculated and disclosed form of implementation of cashless payment. The article defines the role of the Central Bank of the Russian Federation in case of cash monetary circulation and credit organizations in the non-cash money transfer customers. In this article the author defines the place of cashless payment in electronic payment system payment services.
COMPARATIVE LAW
71-75 224
Abstract
Recently the Russian law enforcement is being affected by liberalization, as manifested in frequent and wide use of exemptions for taxes and levies for taxation. However, all individuals only benefits of taxes and duties is not possible, because then the mechanism of legal regulation will not be able to realistically influence the behavior of participants of tax relations, as well as the taxation process becomes unmanageable. The reasons for this lie in the different legal content of private and public interests that do not coincide in their nature, which leads to contradiction and conflict. Given this, the establishment and use of legal incentives (e.g., incentives, rewards, privileges, etc.) objectively requires the establishment and enforcement of legal restrictions, when those and others are closely related a common goal – effective implementation of the mechanism for tax-legal regulation. In this research article the author draws attention to the importance of legal restrictions in the mechanism of tax regulation, as well as the relevance of development and further scientific development in this category. Not always the reform of tax legislation leads to the unequivocal compliance with and performance of its legal requirements, especially when it comes to public-law regulation and public bodies of the state power. The only possible approach in solving the contradictions of public and private forms of ownership, namely public and private interests, is the need for a judicious combination of incentives with restrictions, when the latter prominently and determined an important role in the mechanism of tax regulation.
76-82 1534
Abstract
The US Constitution, adopted in 1787, did not abolish the slavery existed in the former British colonies that came together to form the United States. But in the north of the country a powerful abolitionist movement arose and divided the country into North and South. Between 1789 and 1861, slave-owners from the South had been holding high posts in the United States Government. For 49 years, their representatives were US presidents. The "Southern" majority was in the Congress and in the Supreme Court of the United States. In 1803, the Supreme Court appropriated to itself the right of constitutional review over acts of Congress, the President and the states, and thereby took upon itself the judicial protection of the Rule of Law in the United States. The author considers the principle of the rule of law in the USA in not abolished slavery and racial segregation periods.
83-88 295
Abstract
This article is devoted to one of the most discussed problems in the science of modern private law – the issue of the independence of the legal personality in various cases. This paper describes the most important court cases in the framework of the doctrine of "lifting the corporate veil" and the approaches of the courts to the resolution of disputes on the prosecution of persons controlling the activity of a legal entity. The article highlights the reasons that in one way or another influenced the different application of this doctrine in the system of common law and statutory law. The article discusses the thesis that it is necessary to take into account the legal nature of the legal entity as a separate subject of civil law relations when using the doctrine of "lifting the corporate veil" in order to avoid negative consequences in the formation of property turnover. This article is devoted to a comparative analysis of the normative regulation of relations related to connected with the application of the doctrine of "lifting the corporate veil" in Russia and in some countries of common law. Separate court cases are considered, the analysis of which is related to the subject matter under consideration.
89-94 573
Abstract
In recent years, great attention among legal scholars is paid to intellectual property, since the conditions of their use and protection in the modern world play a huge role in the productive, commercial and entrepreneurial activities of organizations. In this regard, there is a growing need for an effective legal protection of intellectual property in the Russian Federation. It should be noted that at present, basic research in the field of know-how is not enough. A unified conceptual study on the current state of trade secret in the Russian Federation, unfortunately, is missing. This adversely affects the development of legislation that must, as a rule, to serve as a reliable legal basis. This article provides a comparative legal analysis of the Institute of production secret (know-how), as the object of intellectual property, there is a special legal regime. In the article the analysis of modern legislation, and discusses some actual problems. Great attention is paid to the scientific discussion regarding the content of this object.
95-101 1012
Abstract
In the article the question of the use of death penalty in Russia is considered from different sides. The death penalty was used throughout the history of our country because of historical factors: traditions, the weakness of government, for which criminals were a real threat, in addition in that times the value of human life was so low. However, on May 16, 1996, Russian President Boris Yeltsin issued a decree according to which the use of the death penalty was phased out in connection with the accession of Russia to the Council of Europe. Since August 1996, according to this decree, death penalty was no longer carried out. Nevertheless, among contemporary scientists, jurists and politicians, discussions about the need to abolish the moratorium on the death penalty still being conducted. The history of the emergence and development of the death penalty as a form of punishment in Russia, opponents` and defenders` arguments for this punishment are considered in detail in the article. Besides raised the question of the humanity of the death penalty.
102-110 760
Abstract
The article presents an analysis of the legal regulation of registration of wills in the countries of the two main branches of the law. In many countries, wills consideration solely as a unilateral transaction order containing only one citizen is not so categorical. In some states a will – a one-way transaction in which the party, represented by two or more persons, as well as two-way deal or contract. The author provides specific provisions on the joint will of spouses and contractual succession of some states. Based on years of experience of foreign countries, where joint testament spouses claimed and successfully applied, paying attention to the fact that each of the parties to the transaction can be represented as one or more subjects, the author believes that such a significant obstacle to the inclusion of the institute in domestic legislation there. The paper argues that a thorough study of experience of foreign countries, in the design of the will of the testator in the form of bilateral transactions will extract the best that could be the basis for an effective design of inheritance in the domestic law of contract.
111-117 310
Abstract
The problem of the application of exemptions in the Russian tax system is inextricably linked to cultural, social and economic situation and the political situation in the world. Currently, there are many theorybased concepts and classifications of existing tax benefits. The article deals with the study of the nature of the legal mechanism of tax – tax benefits. The author tried to study the nature of the concept, stipulated in the Tax Code of the Russian Federation in accordance with other legal concepts. The problems of legal qualification of tax benefits in the judicial practice were also considered in present article. The author comes to conclusion that tax denefit (subsidy) refers to the provision of certain types of taxpayers, established by the legislation on taxes and fees benefits, expressed as an exemption from the payment of tax, the introduction of a preferential order of calculation and payment of tax. Also the author confirms the need of creation of the new tax benefit concept (laid down in paragraph 1 of article 56) or replace it with the concept of a subsidy.
118-123 852
Abstract
The paper discusses the notion of the production secret (know-how) in the Russian legislation, its legal regime and other issues related to the regulation of relations which concern the know-how. Then these provisions are compared with some international sources that mention regulation of the status of the production secret. There is a comparison of the institutions of know-how, trade secrets and confidential information; considers different approaches about their relationship with each other. Based on the analysis the conclusion is made about the different nature of these institutions, the complexity and specific nature of the know-how as object of intellectual property. In addition, it is revealed the need for a more precise definition of the content of information covered by know-how, an improvement the legal protection of information, know-how.
ISSN 2411-118X (Print)