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Vol 15, No 2 (2019)
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LAW IN THE PRESENT-DAY WORLD

3-11 395
Abstract

Introduction. Relations between Russia and the United States have nearly three centuries of history, and for more than two hundred years the countries had diplomatic relations which were interrupted for sixteen years from 1917 to 1933. Perhaps the XIX century was the most peaceful and fruitful for our countries when the interests of the Russian Empire and the United States on the world stage did not contradict each other, often coincided, thus excluding confrontation between the two nation-states. The XIX century for Russia and the United States was marked by the singing of a number of bilateral treaties, including the treaty on the extradition of criminals, which consolidated their partnership.

On the contrary, the XX century is marked by unstable and cyclical relations between the two countries. The rejection of Soviet power, the long period of non-recognition of the Soviet Union was followed in 1933 by mutual multifaceted cooperation between the USSR and the United States, which included the legal sphere, and by the allied relations during the Second World War. The second half of the twentieth century was the time of open confrontation between the two world giants, when the crisis of relations between the USSR and the United States put the world on the brink of world war III. In such conditions, there could be no talk of improving the legal framework of legal cooperation, and the agreement on the procedure for execution of court orders concluded in 1935 did not find its practical application.

Modern Russia has assumed the entire burden of problems and contradictions in legal cooperation with the United States. Searching for ways out of them is possible only on the basis of historical analysis of their prerequisites, taking into account the peculiarities of modern international relations.

Materials and methods. The methodological basis of the study is the dialectical method of cognition of phenomena in the relationship and mutual conditionality using a set of general and particular scientific methods of cognition of reality. The historical method contributed to the restoration of the chronological sequence of legal cooperation between Russia (USSR) and the United States. The method of actualization made it possible to identify the historical factors that determined the peculiarities of international cooperation in the legal sphere. The method of diachronization made it possible to identify certain successive stages in the development of international legal cooperation between Russia (USSR) and the United States, to compare them, to identify patterns of development.

Results. In the framework of the study, the author found that inter-state legal cooperation is an integral part of the foreign policy of states. The international legal basis of cooperation between Russia and the United States in civil, family and criminal cases was created in a different historical era, does not meet modern international relations, and is poorly implemented by the justice authorities of the two States.

There is no treaty on legal assistance in civil and family matters that is fundamental to the protection of the rights and legitimate interests of citizens of both States, and there are no provisions on extradition in the Treaty on legal assistance in criminal matters.

Discussion and Conclusions. The international legal framework of cooperation between the Russian Federation (and earlier - the Soviet Union) and the United States of America in the legal sphere; the problems of implementation of international legal assistance in civil, family and criminal cases are researched. The main provisions of the Treaty on mutual legal assistance in criminal cases of 2000; multilateral Conventions on the service abroad of judicial and extrajudicial documents in civil or commercial cases of 1965 are analyzed. The 1958 Convention on the recognition and enforcement of foreign arbitral awards, the 1935 Agreement “On the procedure for the execution of court orders between the Union of Soviet Socialist Republics and the United States of America” were explored. The prospects for the development of legal cooperation between Russia and the United States are shown.

12-20 462
Abstract

Introduction. The article considers the category of management from the standpoint of history, theory and philosophy. The law and the processes of its implementation in practice have been chosen as the social context within which the importance and potential of management has been studied.

Materials and methods. The article actively uses both contributions of natural science and papers written for the purpose of understanding the humani-tarian knowledge. The methodological basis of the article includes the universal method of cognizability of the world, such logical methods as induction and deduction, the achievements of comparative jurisprudence, the method of text interpretation (mainly judicial decisions and regulations).

The results of the study. The paper tries to answer the questions what management is in principle, what are the possible and acceptable forms of its manifestation in jurisprudence. The meanings in which management is used in the natural and human sciences are compared. A distinction is made between the concepts of “management of legal processes” and “public administration”.

Law enforcement processes are much rationalized, and law has maintenance of order as its highest goal. The absence of reference to management in the procedural legislation serves as an indirect but sure sign that governance in law does not exist in the form in which it is represented in the natural sciences.

Discussions and conclusions. Subject to the above it was concluded that management in law is manifested and realized in a peculiar way. It is implemented in legal processes through decentralized principles, i.e. by the participants themselves on a parity and consensual basis. The role of guides is played by symbolic means - the principles of law and the values protected by it. The role of doers is played by instrumental means - law enforcement agencies and institutions. The role of organizes is exercised by the subjects of law (individual, society and the state), and the function of consumers is realized by the subjects of specific legal relations.

21-28 2889
Abstract

Introduction. The article analyzes the results of two studies of international organizations “Women, business and law 2019: decade of reforms” conducted by experts of the World Bank with the involvement of external resources and the non-Governmental organization “World Economic Forum” in Davos, devoted to the study of the situation of gender inequality in the modern world.

Materials and methods. The article provides theoretical and empirical analysis of the issues which concern ensuring equality of men and women in law, morality and social practice on the basis of analytical documents and research of international organizations, works of domestic and foreign scientists.

The results of the study. The World Bank report shows that over the past decade, 274 reforms have been undertaken in 131 countries around the world to bring about changes in legislation that aim to increase gender equality.

In the report of the World Economic Forum on this issue, experts took into account the situation of women in 149 countries.

Women’s participation in politics remains the main issue according to the report.

Discussion and conclusion. Research into the existing inequalities between men and women in public life highlights several facets of the problem.

Firstly, the problem of creating gender within the framework of the socio-constructivist approach is actively discussed.

Secondly, there is a production of gender differences in interactions in the public space.

Thirdly, in scientific works much attention is paid to practical problems: gender division of labor, representation of women in the structures of power, the emerging structure of sexual and emotional relations, historical changes in structural patterns of behavior.

The core of these studies is the search for ways to eliminate inequality in the status of men and women in public life on the basis of the basic UN human rights documents.

The guidelines for this search are set by the UN Convention on the elimination of all forms of discrimination against women (CEDAW), adopted on December 18, 1979 by the UN.

29-37 743
Abstract

Introduction. The article analyzes the current situation in the use of outer space, which is characterized by the expansion of outer space activities, increased competition and a dangerous trend of the possible placement of weapons in outer space. After examining the existing international outer space law, the author identifies gaps in international treaties that must be addressed in order to prevent the deployment of weapons in outer space. Particular emphasis is placed on the study on the assessment of effectiveness of international legal efforts of the Russian diplomacy in dealing with this urgent task.

Materials and methods. The methodological basis of the study comprises general scientific methods of knowledge: analysis, synthesis, induction/deduction, analogy, as well as special scientific methods: comparative legal, formal legal and statistical methods.

Results of the study. It was revealed that international outer space law has been developing from the beginning in the logic of limitations on the military use of outer space. However, they are selective and permit the deployment in outer space of non-nuclear weapon systems. There is a real threat of weapons being deployed in outer space especially because the USA is not even hiding such an intention. A number of negotiating bodies exist to eliminate this threat by international legal means. Russia continues an active diplomatic work in the UN, at the Conference on Disarmament and other locations. The author demonstrates that support for Russian initiatives is growing, but they are persistently confronted by the United States and their allies.

Discussion and conclusion. Based on the results of the analysis and expert opinions the author advances specific proposals in support of Russia’s diplomatic efforts to prevent confrontation in outer space. It is recommended that the number of countries which pledged not to be the first to place weapons in outer space should be expanded; that this subject should be included in the BRICS documents; that the second conference on peaceful use of outer space dedicated to the 60th anniversary of the Yuri Gagarin space flight should be to be held in Moscow in 2021.

38-44 567
Abstract

Introduction. The article based on the methods of systems analysis and comparative law studies the legal consequences of the impossibility for the proprietor to return the thing requested by the owner as a result of the loss of the latter. The concept of “excess” in the civil law of Germany is discussed. The issue of competition of claims in the recovery by the owner of property from someone else’s illegal possession is resolved. The legal status of a bona fide and unfair proprietor in the event of “excess” in Russia and Germany is considered.

Materials and Methods. The main methods of this study are the system analysis of legislation, the analysis of scientific literature, and the comparative legal method of research.

Results of the Study. The main conclusion is the absence of a systemic and fair regulation of the position of a bona fide proprietor in Russia who is not able to return the thing to the owner in kind. The consequence of this is a violation of the balance of interests of the owner and the proprietor of the thing. The practical result of the study is a series of proposals for amending the institutions of vindication and unjust enrichment in the Civil Code of the Russian Federation

Discussion and Conclusion. Regulation of property relations requires the obligatory observance of the balance of rights not only of the participants of relations, but also of society and the state. Imbalance can lead to unjustified infringement of the rights of participants in legal relations.

45-51 427
Abstract

Introduction. The article deals with the issues of policy environment for individual social mobility. It provides the examples of promotion of representatives of the noble and spiritual estates (including foreigners who took Russian citizenship) of the Russian Empire in the early 19th century; the role of noninstitutional factors in upward mobility is noted.

Materials and methodology. The methodological basis of the study includes the dialectical, historical, formal-legal, critical-legal methods in the framework of the civilizational approach.

Results of the research. At the beginning of the XIX century the system of vertical social mobility was modernized in the Russian Empire, primarily in relation to the representatives of the privileged classes. The legal basis of the mechanism of changing the individual legal status included the normative legal acts and the traditions of joining the service by children from nobily that had developed over the previous century. These traditions can be considered as non-institutionalized practices of advancement on the social ladder. The two main channels of social lift in Russia at that time for representatives of the privileged classes were the army and the state civil service; court service in that period lost its role as a channel of social lift.

With the help of this mechanism, representatives of the noble class, as well as individual representatives of the spiritual class, were promoted to the political elite of the country. This mechanism was designed to be applied to both “natural” Russian nationals and foreigners who chose to serve Russia as their main professional career. After 1809 the nobles of Finland received institutional opportunities for professional growth within the Russian system of public service. A successful career in the civil service was also possible for a representative of a foreign state who received Russian citizenship, but only if they had a good education and knowledge in the field of professional activity.

Discussion and conclusions. The author substantiates the importance of not only the legislative provisions, but also of the existing factors of “nonlegal” nature in the process of changing the individual legal status, as well as the role of education, which by the beginning of the considered period had become a prerequisite for joining the political elite of the country.

52-59 571
Abstract

Introduction. Although there have been multiple studies done by both Russian and foreign specialist, one of the most poorly studied international law problems deals with interpretation and application of rules on safety of artificial islands, installations and structures. These measures encompass the coastal state’s right to enact legislation ensuring safety and security of these structures at sea.

For the past ten years states have been outlining the need for review of the breadth of the safety zones around offshore installations, first and foremost, around installations and structures used for exploration and exploitation of hydrocarbon resources on the continental shelf. It’s of great importance to protect these structures, in particular from collision with ships, and to prevent accidents. The main reason behind this initiative is the increasing number of accidents on offshore oil rigs.

Materials and methods. The basis for this research comprises the international treaties which set forth the regime of safety zones at sea. The materials for this paper are also commentaries of the UN Convention on the Law of the Sea 1982, as well as relevant instruments adopted by IMO, related papers from all three UN conferences on the Law of the Sea, documents issued by the International Law Commission, and the IMO Sub-committee on safety of navigation. The methodological basis of present research consists of such traditional methods as general scientific and specific methods.

The results of the study. The author of this paper proves the need for elaboration of more thorough international legal regime of safety zones at sea, since it is one the most principal means to ensure safety and security of offshore structures. Among the reasons is the ambiguous practice of coastal states, based on various approaches taken on the issue of safety zone’s breadth.

Discussion and conclusion. The article contains thorough analysis of the international legal regime of safety zones, outlining its flaws. Conducted research emphasizes both positive and negative aspects of applicable national legislation, as well as unravels legal norms different from those enshrined in modern international law.

ADMINISTRATION: CHALLENGES AND PROSPECTS

60-71 529
Abstract

Introduction. The article is devoted to the study of problems of corruption in foreign countries. Corruption is seen as the inefficiency of public administration associated with a violation in relations between the principal and the agent: the first receives services, the second provides them.

It is noted that corruption is the abuse of state and municipal authorities for private gain. A sharp rise in corruption was noted by researchers in the XIX century. At the same time, the first attempts to counter it at the legislative level appeared. At the end of the 20th century (December 17, 1979), the UN General Assembly adopted the Code of Conduct for Law Enforcement Officials. The legal basis for the definition of corruption was the adoption in 2003 of the UN Convention against Corruption, and three years earlier the Convention against Transnational Organized Crime. For the first time, the thesis was voiced that the fight against corruption is the responsibility of states, and for its effectiveness a comprehensive interdisciplinary approach is needed. In this regard, researchers decided to note the multiplicity of causes of corruption, highlighting the legal, economic, institutional and sociocultural factors, as well as dividing corruption into white, gray and black. According to the geographical classification and the statement that there are no non-corruption countries, they build several models of corruption: Asian, African, Latin American, European.

Researchers agree that the level of corruption in all countries depends on the institutional environment and social conditions; it remains an important political phenomenon.

Materials and methods. The methodological basis of the study was a set of general scientific methods, special methods of cognition of international practice, phenomena and processes (analytical examination, synthesis, system-oriented and functional-analytical approaches, interpretation and characteristics of legal norms, comparative legal analysis).

Results. In the course of the analytical study, the resources involved in the orbit of corruption, the terms and definitions of this dangerous phenomenon, the legal basis of such definitions proposed by the international community were characterized. International documents of a recommendatory nature relating to the fight against corruption, state anticorruption programs of individual countries, formed some recommendations of an anti-corruption nature were considered.

Discussions and conclusions. The application of an integrated interdisciplinary approach to the formation and implementation of systemic activities in which the democratization of public life and the transparency of the activities of all authorities are obvious and necessary is substantiated.

72-80 380
Abstract

Introduction. The review of individual results of economic management of the state with a special status evidenced by the Donetsk People’s Republic is provided in this article. The newly formed state has to create its own economic management system as a result of the military-political conflict.

The conditions of limited opportunities require, on the one hand, taking an account of available opportunities and external constraints for the purpose of providing for current societal needs, and on the other hand – a strategy for a long term economic development, which should contain the development of its own economic model, identification and prediction by the government of future threats and risks, which will provide a correction impact on the socialeconomic system. The more the republic’s economic management system borrows old tools and mechanisms, restores technological chains that have proved their economic futility in the pre-conflict period, the more urgent the solution of this dual problem is. The article provides a brief analysis of the prerequisites for the formation of a management system for the republic’s economy and the consequences of the implementation of its principles.

Materials and methods. The methodological basis of this research includes the following general scientific and special methods of cognition of organizational and economic phenomena and processes in the field of public economic administration: comparative method; formal-logical method; statistical method, grouping method, method of analysis and synthesis, substitution method. Results of the research. As a result of the analysis, it was revealed that the economic management system of a state with a special status requires increased attention, resources and time. Currently, it has passed only the first stages of its formation, has not completed its first stage of organization - the stage of formation. The system of managing the state’s economy with a special status is still in the process of searching for effective mechanisms and instruments of government and determining priority areas for economic development. This explains both attempts to restore outdated technological chains, despite the fact that they demonstrated a devaluation of their economic potential under more favorable conditions, and continuing uncertainty with the choice of an economic development model, when the old mechanisms no longer work and the new ones have not yet been developed.

Discussion and conclusions. The drawbacks of the formed system of managing the state economy with a special status, caused by the use of outdated organizational and economic-production principles and tools are shown. The urgency of the development of its own model of economic development in conditions of limited opportunities is grounded.

81-88 857
Abstract

Introduction. In Russian historical science, a steady consensus has been established regarding the biography of Prince Dmitry I. Lobanov-Rostovsky. The article is dedicated to him - the hero of the Crimean battles and the Russian-Turkish war of 1787-1792, an outstanding peacemaker who made an enormous contribution to the conclusion of the Peace of Tilsit, who did much to strengthen the western borders of Russia and the formation of the country’s military reserve in 1812, the commander of the Russian reserve army in 1813. For 10 years he truly was the “Eye of the Emperor” serving as Minister of Justice and Prosecutor General. He was lucky to be a witness to the defeat and flight of Napoleon’s troops outside Russia.

Materials and methods. The methodological background of the present research is based on general scientific and specific methods of research into historical and juridical phenomena and processes, as we as system-based comparative statistical analysis.

Results of the research. It is revealed and reasonably proved that after the Russian army was defeated in June 1807 near Friedland Alexander I made the right decision to negotiate for truce with Napoleon charging Lobanov-Rostovsky with an assignment to hold the negotiation, who carried out the emperor’s commission brilliantly. The peace was concluded in Tilsit. At that time both Alexander I and Lobanov-Rostovsky realized that a war with France was inevitable. The conclusion of the peace in Tilsit enabled Russia to secure the western frontiers, to prepare the army, to increase its numerical strength and to improve its combat readiness.

Discussion and conclusions. The results of the conducted research show as follows: all the activities and the life of Dmitry I. Lobanov-Rostovsky were dedicated to the selfless service to Russia. Whatever posts he held, his activity was based on faith in his people, on the desire to sincerely serve his country.



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ISSN 2073-8420 (Print)
ISSN 2587-5736 (Online)