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Journal of Law and Administration

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No 3 (2016)
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A POLITICAL WRITER'S COLUMN

3-11 1570
Abstract
The article conducts comparative legal analysis of the institution of presidency in the United States of America and the Russian Federation. The authors give detailed description of various aspects of the institution in question placing special emphasis on the specific powers exercised by the presidents of two respective states. The Constitution of the United States adopted in the 18th century (1787) contained a number of novelties, which subsequently contributed to a great extent to constitutional and national development in most countries worldwide. It separated the government into the legislative, executive and judicial branches and established a completely new institution, the President. In the era when monarchies dominated, this institution was initially perceived as their equivalent limited only by election for a fixed term. However, it became clear very soon that the faraway and low-populated United States of those days created an entirely new constitutional structure with a complex democratic mechanism of separated branches of power balancing and checking each other. In the USSR the institution of presidency was established in 1990, and then Russia introduced the presidency by referendum in March 1991.Currently the status, procedure for election, competence and grounds for removal from office of the President of the Russian Federation are subject to clear and detailed regulation of Chapter 4 of the Russian Constitution and Federal Law№19 “On the Election of the President of the Russian Federation” of January 10, 2003 as amended on July 13, 2015. The legal framework, entirety of powers, and role of the President were determined on the basis of the experience of a number of presidential republics, including the USA and France, taking into account specific features of Russia’s history, mentality of its people and political elite.

LAW IN THE PRESENT-DAY WORLD

12-20 445
Abstract
Introduction: the article deals with judicial rule-making of international judicial institu- tions.Materials and Methods: the authors made a theoretical and empirical analysis of the main sources of international and European law, the court practice of international judicial institu- tions, the works of domestic and foreign schol- ars, analytical documents of international orga- nizations.Results: the article proves that judicial rule- making is well-established international prac- tice which in some cases is especially needed. Judicial rule-making is perceived by the doc- trine as a natural, necessary and legitimate legal phenomenon. In practice two forms of judicial rule-making have developed - judicial rule- making may involve interpretation of both the content of a rule of law and procedural aspects. However, international judicial institutions should strive to refrain from judicial activism and judicial rule-making. It must be borne inmind that the activities of international courts must rely on the support of national courts and the expert community.Discussion and Conclusions: according to the currently prevailing views, which made a decisive impact on the evolution of theory of state and law, judicial rule-making is insepa- rable from the daily implementation of judicial functions. Both the society and the legislator are in urgent need for it regardless of whether they admit it or not or even act against it. It is neces- sary in all cases where the legislator does not keep up with the progress of the changes caused by the rapid evolution of society and new oppor- tunities of scientific and technological progress. It is often beneficial for the legislator that the courts should have tested various approaches and have developed a well-established practice, and the application of this practice should have suggested the most rational decisions. Judicial rulemaking developed especially widely in the judiciary of international/regional integra-tion associations and within the framework of international mechanisms with elements of su- pranational coercion, first of all, in the practice of the Court of Justice of the European Union and the European court of human rights. The whole system of EU law has gained the most features and basic characteristics associated with it thanks to the Luxembourg Court. These features and characteristics include positioning EU law as a system of law that differs from in- ternational and domestic law, the supremacy and direct effect, the effective jurisdictional pro- tection, strict compliance with the requirements of subsidiarity and proportionality, etc. In turn the Strasbourg Court has done a lot in order to turn positive and procedural rules of the Euro- pean Convention on human rights into “a living and developing organism.” However, periods of judicial activism have always been nothing more than a reaction to a request by the states or the need for solving tasks. The last word always belongs to major players who has always been society and legislators. When it is necessary they easily impose certain limitations on judicialrulemaking. It has already been made in respect of the Court of the Eurasian Economic Union in the legal order. However, the Minsk Court faces difficult tasks concerning the application of the EAEU law and on its formation. There- fore, it is important that the Minsk Court should determine as quickly as possible the preceden- tial nature of its decisions, the possibility of us- ing other sources of law, along with the EAEU Treaty and its secondary law, and how to tie up the national legal system of the member states in a common legal space.
21-28 443
Abstract
Introduction: The status of law in the modern world raises serious public concern. The characteristics of this status are erosion of the monopolistic role of state in legal regulation and in the implementation of such state powers as the creation of law and administration of justice, rising crime rate and legal nihilism, and the substitution of international law with law of individual national jurisdictions, etc. Materials and Methods: the aim of this article is to summarize some results of studying the crisis in law contained in the literature, to attempt to trace their genesis and the main features, to uncover the causes and assess the possible ways out of the crisis. The methodological basis of research is the dialectical method, based on the analysis of contradictions of social development and evaluation of transition of quantitative changes in qualitative ones, historical, systematic and comparative legal analysis. The results: the crisis of law is seen as the discrepancy between legal norms and requirements of social life. The manifestation of it is that law is not perceived as a whole, but it represents a set of rules, formally united only by a legal technique. The erosion of the monopolistic role of the state in legal regulation, in such exclusively state powers as the creationof law and the administration of justice is one of the main causes of the crisisDiscussion and Conclusion: the discussion of the crisis in the scientific literature revealed several symptoms of the crisis that are analyzed in the article. The first symptom is a conflict of values when the values adapted by law are in conflict with the new system of values shared by the greater part of society. The second symptom is the presence of intersectoral contradictions, which finds expression not only in the value conflict but also in actual legal conflict between different principles. The third symptom is a decrease in the effectiveness of law in regulating social relations and protecting basic values of law. The fourth symptom of the crisis is associated with the ratio of conceptualism and instrumentalism in law. Finally, the fifth sign of the crisis is the decreased motivation to exercise law. The author sees the change of paradigm in modern law as the way out of the crisis in the law.
29-37 359
Abstract
Introduction: Information support of the entire system of government, each structural unit is carried out in a specific legal regime. This article seeks to examine the issues of systematization of legislation in the field of information support of public authorities and the effectiveness of management decisions. Materials and Methods: various analytical methods were used to make theoretical and empirical analysis of domestic research, reference and reporting documents, regulatory and legal framework on the problems of systematization of legislation through codification mechanisms in the field of information support of public administration in the country. Results: As a result of the research theoretical and empirical analysis of legal regulation of information support of public authorities, the conditions of administrative decision-making in the information field of the Russian Federation was carried out, arguments about the need to improve the legal regulation of it were formulated. It is proved that in the system of public administration information is the legal basis for the creation of information legislation, and subsequently of the state information policy. The paperanalyzes the signs of the system approach in the development of legal regulation in the sphere of information, which, on the one hand, introduces order and comprehensiveness in the system of government, and on the other hand , causes a temporary dissonance due to the continuity of law-making in this area.Discussion and conclusion: regulation of legal relations in the sphere of information is dynamic. It requires not only the harmonization of domestic legislation with international regulations, but also the creation of a systematic information legislation through codification, which can be regarded as the ideal form of lawmaking. It is regarded as a promising way to achieve comprehensive results - development of the national standard base of legal information. Such a base will allow government bodies to take effective decisions, to enhance managerial impact and standardize the legal terminology.
38-45 516
Abstract
Introduction: the article considers ways to perfect sections of the foreign trade agreement which plays the leading role in international business (commercial) traffic pursuant to international trade law. Taking into account the national law the authors pay special attention to key claims which the buyer can make to the seller if goods are not fit for sale. Materials and Methods: the authors used the traditional dialectic method of scientific knowledge, system approach to studying legal concepts, and other general scientific and specialist methods applied in law (historical, statistical, comparative and legal, system and structural, analysis and synthesis, comparative analysis, SWOT analysis, interviewing, etc.). The critical analysis of legal literature on topical issues concerning the sequence of creation of the foreign trade agreement is carried out. The authors research in detail these questions, finding some gaps and shortcomings. Results: the study concludes that the state of the legal regulation of the emerging relationships based on it does not meet the modern requirements. Problems and difficulties in their regulation find their origin in a lack of common approaches to a number of important issues for the development of trade relations. The obstaclesthat prevent realization of advantages that objectively exist, for example, in the framework of the Customs Union, are the lack of a regional unified legal act, which would take into account the specifics of the relations between economic entities of the Customs Union and create a single legal framework for the formation and development. In the «Force majeure” section , the authors find some gaps related to emergencies. Such factors as counter-terror operations and hybrid war are analyzed. The authors provide practical advice on how to avoid mistakes when drawing up the contract. In order to address the problems identified, the authors offer a list of sections of a foreign trade agreement.Discussion and Conclusion: from the point of view of the authors of this article, the foreign trade agreement (contract) is a type of economic transaction, i.e. the agreement between economic agents, one of which is a non-resident of the Russian Federation or, being its resident, owns a commercial business abroad aimed at establishing, changing or terminating civil rights and duties in the implementation of the trade (export, import and re-export) operations. The findings will contribute to the resolution of civil disputes arising in commercial traffic and can be used for subsequent research offundamental scientific and applied issues of civil legal regulation of commercial traffic, as well as for creating textbooks and training materials for civil, commercial and private international law academic courses.

POLITICAL ISSUES OF INTERNATIONAL RELATIONS

63-70 673
Abstract
The article covers the Asia-Pacific region and its role in the Russia’s global strategy. The author analyses the cooperation with countries in Asia-Pacific, development trend of Russian’s cooperation in the economic and political Partnerships in the emergence of local macro-regional governance schemes.

TRIBUNE OF YOUNG SCIENTISTIST

71-77 421
Abstract
Introduction: The article is devoted to the special aspects of «Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992/3288) as a basic act of special legislation regulating civil law relations within the touristic sphere in England. The author examined the scope of the these Regulations and the delimitation of the legal relationships falling within these Regulations and of the legal relationships being outside the scope of these Regulations regulated by the general rules of contract law. For these purposes, the concept and indicia of «package» as a key definition, which determines the scope of these Regulations, were analyzed. Materials and Methods: general and specific scientific methods of cognition are used to examine the research object, namely formal- legal and logical analysis and comparative- legal approach. The author analyzes the statute and case law of England in the touristic sphere as well as the works of the English legal academics in this field. Results: Following the results of the analysis of relevant legal provisions and their practical application the author comes to the conclusion that in some aspects the definition of «package» is better in comparison with the definition of “touristic product” in terms of Russian legislation. First of all, this advantage is that it is not necessary to combine both transport and accommodation for creating «package» as opposed to “touristic product”. Due to this fact, the definition of «package» is wider than the definition of “touristic product” and thereby legal defense may be provided to the extended number of persons. At the same time several law problems were exposed connected with the application and interpretation of relevant legal rules. Discussion and Conclusions: In order to improve the legal protection in the touristic sphere in Russia the author proposes that the successful practices of English legislators should be introduced in this country and the concept of«touristic product» should be extended.
78-86 853
Abstract
Introduction: The article presents a review of investment regulation in the European Union free trade agreements. Investment is of great importance for the European Union as it contributes to the development and competitiveness of European enterprises. Until recently, issues related to investment, were not included in the EU free trade agreements, being regulated on the international level. However, the situation has changed after the Lisbon Treaty entered into force and the EU was given the right to make decisions in the field of investment policy, which is part of its commercial policy,. The free trade agreements have become a major tool for the regulation of investment relations of the European Union with third countries. The author examines which regimes and guarantees can be provided by the European Union in such agreements in relation to foreign investors and investments.The article presents the analysis of investment provisions in several EU agreements concluded with third countries. Moreover, the author deals with the issue of settlement of disputes between investors and States in the EU free trade agreements, in particular, with the new mechanism in the context of two trade agreements of the European Union: Transatlantic Trade and Investment Partnership with the US and Comprehensive Economic and Trade Agreement with Canada.Materials and methods: the methodological basis of the research consists of general scientific and special methods of cognition of legal phenomena and processes in the field of international trade law: the method of systemic structural analysis; method of synthesis of the socio-legal phenomena; the comparative legal method, formal logical method; statistical method. Results: the analysis reveales that for a long period of time the agreements of the European Union on free trade with third countries did not contain mechanisms for the protection of foreign investments. Such a mechanism is proposed in several agreements made after 2010, including the Comprehensive Economic and Trade Agreement concluded between the EU and Canada in October 2016. It represents a fundamentally new approach to the resolution of investment disputes between parties in which the special system of investment courts instead of the current mechanism of «investor- to-state» dispute settlement. The new system provides a number of innovations, including the introduction of appellate court and mediation, selection of judges, among whom there will be citizens of both parties to the agreement.This new system has both advantages and disadvantages, which are primarily associated with providing investors with broader powers in this matter.Discussion and Conclusions: the use of a new mechanism of investment dispute settlement in EU agreements on free trade is substantiated; its main advantages and disadvantages are analyzed; the possibility of incorporating such systems in subsequent bilateral or multilateral trade agreements, including the Transatlantic trade and investment partnership between the EU and the USA is discussed and substantiated.

СОДЕРЖАНИЕ

PUBLIC ADMINISTRATION: PROBLEMS AND PROSPECTS

46-54 444
Abstract
Introduction. The article provides the linguistic analysis of regulatory legal acts dealing with formation of moral culture and anti-corruption behavior of public servants as a very important but currently neglected factor in preventing corruption and other offences in the public service and fighting corruption in the country as a whole.Materials and Methods. The methodology of the research is based on the general scientific methods of cognition - analysis, comparison, generalization. The theoretical analysis of domestic research works, publications, analytical documents devoted to the problems of overcoming the «lack of morality» in the public service and improving the effectiveness of structures established for their solution is carried out; the article provides the linguistic analysis of the latest decade’s regulatory legal acts offering specific measures to prevent corruption and other offences, which led to the following results.Results. Proceeding from on the textual analysis the author comes to the conclusion that one of the major reasons for the lack of effectiveness of the decisions on prevention of corruption and other offences and loweffectiveness of the structures created for the execution of these decisions is the introduction to legal acts of the new terminology whose meaning is not clear and violation of basic requirements for the text of any document which must be definite, true and precise to the maximum extent, which should eliminate its arbitrary interpretation.Discussion and Conclusion. Some of the ideas summarized in this article were published earlier and discussed in the scientific press, which is reflected in the relevant domestic (SCI) citation indexes. According to the author, prevention of corruption and other offences and ensuring compliance with requirements of official conduct in the public service as the most important factor of counteraction against corruption is a long- term process that requires development and implementation of a package of regulatory, legal, organizational, coordinating, monitoring, research, methodological measures. In this process, the final word belongs to the legal regulations, whose textual perfection should serve as a guarantor of their implementation in the practice of state-building.
55-62 1106
Abstract
Introduction: this article discusses the features of lobbying in the Russian Federation; it contains the analysis of the attempts to regulate lobbying activities. The paper gives detailed overview of the laws governing the lobbying procedures and its forms as well as the historical development of lobbying activities. Materials and methods: the following materials were used for the analysis: laws and regulations of the Russian Federation, draft laws as well as works of Russian constitutional law experts and researchers relating to lobbying activities in Russia. The author applied general scientific methods (analysis, comparison, deduction and others). Results: the author concludes that it is reasonable to apply the combined method oflegal regulation of lobbying in the Russian Federation and to ensure publicity of lobbying activities. The suggested method contemplates granting wide range of rights to the lobbyists in order to allow them to cooperate directly with the state representatives. At the same time, the lobbying activities should be placed under state control through the imposition of strict sanctions for shadow lobbying operations as well as for the failure to disclose information required by law. Rights and duties of lobbyists set out in law should ensure immediate access of the lobbyists to the state authorities.Discussion and conclusions: The author analyzes the methods of legal regulation of lobbying activities in Russia, outlines the history of such regulation and makes an overview of previous draft laws, identifies problems arisingin this regard, identifies possible solutions to these problems. The author pays specific attention to the development of the optimal model of the legal regulation of lobbying in Russia taking into account the specifics of Russian lobbying activities and peculiarities of the country’s historical development. The author suggests that this model needs to be set out in a law on lobbying activities in Russia.

«КРУГЛЫЙ СТОЛ» В МАГИСТРАТУРЕ

87-95 801
Abstract
The Faculty of State Administration held a round table discussion on «State Anticorruption Strategy:domesticandforeignexperience.»This scientific event was an organic continuation of the previous scientific discussion on a broader issue - the moral foundations of the civil service and public administration. Master's degree students, research students and young lectures of the Faculty of State Administration (MGIMO-University under the MFA of Russia) participated in the discussion. The speakers concentrated on the essence of corruption and its negative manifestations in various spheres of life in modern society, the characteristics of different anti-corruption strategies, the legal basis of the national anti-corruption policy, legal and institutional arrangements for international cooperation in combating corruption. A lot of attention was paid to the analysis of foreign experience in struggle against corruption, to the principles, forms, tools and methods of effective anticorruption struggle. Scientific and systematic approaches, the rule of law, well-weighed strategy, efficiency and effectiveness, practical implementation of moral principles as a basis for effective anti- corruption activities were among the issuesdiscussed. The speakers pointed out that the effective anti-corruption efforts are based on the rule of law, institutions of civil self- regulation, the increasing importance of the media. The participants came to the conclusion that the modern state should pay special attention to corruption; corruption is well covered, self-regulating, mutually beneficial exchange of material and financial values, services and information; corruption in our country has become systemic, and therefore the fight against it must be systematic; reducing corruption-associated losses is a major objective and an indispensable condition for accelerated socio-economic development of the country, moreover, corruption is often used as a tool in the political struggle and economic war against competitors; corruption can not be completely eradicated, but its incidence can and should be minimised. Russia is focused on system- integrated anti-corruption strategy based on the neutralization of its basic socio-economic origins.

REVIEW

96-99 286
Abstract
The book review is dedicated to the notable event in the literary and scientific world: widely-known Russian scientist and writer, Doctor of Law, Professor, Merited Worker of Science of the Russian Federation R.V. Engibaryan presented a book “XXI Century: Islamic Challenge”.


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