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No 1 (2017)
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THE TOPICAL ISSUES OF CONSTITUTIONAL LAW

3-10 929
Abstract

Introduction: The article analyses the concept of “democracy” subject to current intercivilizational, political, social, ethnic and cultural transformations in Europe and the USA. The author states that the form of an individual’s participation in the political system of the State, as originated from European Civilization and developed by the Christendom, has been changing over centuries. It has lost the old features and acquired the new ones. Democracy as a political will of the electoral majority can hardly be described as flawless. It used to exist in ancient Greek republics and French towns of the 18th century which were monocultural and monoethnic by nature. But today we are witnessing a brand new reality. Another fact of great importance is that at present the factors splitting the world are not any more of national or racial nature, but rather of religious and cultural origin. In addition, the historical development of some states remains at a medieval level while other states jumped into the 21st century. Such controversial diversity of states has the single common form of their political structure. And this form is democracy, the concept and core values of which need re-evaluating due to the multifaceted nature of this phenomenon in modern society

Materials and methods: Methodological basis of the research includes such general scientific and specific methods of studying political  and  social  phenomena  and  processes as the method of systematic and structural analysis, the method of synthesis of social and legal phenomena, comparative method, method  of  formal and  logical analysis, statistical method, etc.

Research results: The results of the research are as follows:

1. Democracy implies the involvement of all citizens of a certain age in the organization of power vested in the country’s chief executive officer, i.e. a president, as well as federal and local authorities.

2. Democracy constitutes a comprehensive means by which controversial and overlapping interests of various strata, political and public organizations and  groups can  be  negotiated and agreed upon.

3.  Democracy  suggests  that  all  decisions should be taken by a majority vote subject to compliance with the minorities’ rights.

4. Democracy is traditionally implemented via general elections, which, however, can lead to the crisis of power and society in a country divided by ethnic and racial criteria.

Discussion and conclusions: It is required to introduce a brand new election mechanism by changing the system of general direct and equal  elections  and  introducing  multi-stage and open elections which will minimize manipulation  of  elections  by  professional  political managers and elites, as well as the bias of mass media.

INTERNATIONAL CONFERENCE «POLITICAL TRANSFORMATIONS IN MODERN EUROPE»

 
11-12 283
Abstract

The international conference “Political Transformations in Modern Europe” was held on April, 21st at the School of Governance and Politics, MGIMO University. The speakers included Robert V. Yengibaryan, the Academic Supervisor of the School of Governance and Politics, MGIMO University; Honoured Scholar of the Russian Federation, PhD (Law), Full Professor with the Department of Legal Basics of Administration, MGIMO University, Editor-in-Chief of Academic Research Journal “Law and Administration: XXI Century”; Francesco Adornato, the President of Macerata University (Italy), Dean of the Faculty of Political Science, Macerata University, Full Professor of European Agricultural Law and International Agricultural Law, Macerata University; Henry T. Sardaryan, the Dean of the School of Governance and Politics, MGIMO University, PhD in Political Science; Aleksei A. Gromyko, the Head of the Center for British Studies, PhD in Political Science; Oksana V. Gaman-Golutvina, the Head of the Department of Political Science, MGIMO University, Chairman of the Federal Association of the Accumulated Group of Disciplines in “Political Sciences and Regional Studies” (41.00.00), Full Professor, PhD in Political Science, MGIMO University, Deputy Editor-in-Chief of the Journal “Comparative Politics”; Gerhard Schnyder, Lecturer in Comparative Management, King's College London, Research Associate at the Centre for Business Research (CBR), University of Cambridge, UK, PhD in Political Science, University Lausanne, Switzerland, and others. Reports covered such topical issues of the current EU political environment as the crisis in the relationship between Russia and the EU, the Italian-Russian relations during the period of political transformations in Europe, the implications of Brexit, Christianity and democracy in Europe, the European Union in search for global role and the policy of the EU on post-Soviet territories, etc. Nikolai I. Klimovich and Marina V. Khlopkova, Associate Professors with English Language Department №6, MGIMO University, provided the conference speakers with interpretation services at a high professional level.

13-21 2287
Abstract

Introduction. The article focuses on the problem of modernizing public governance through integration of e-government into the public governance system of the Russian Federation. Conceptual and legal basis of e-government, key areas for modernizing and improving the public governance through information technology, and the e-government infrastructure are examined. The experience of implementing e-government in the Russian Federation over the past decade shows that the principles of the Western model cannot be fully applied in the country. In addition, among the political, social and economic issues related to implementation of e-government in Russia, there are those that sometimes complicate the use of e-government in our country to the fullest. However, tremendous work has been done to integrate key e-government solutions into the system of public governance. The analytical, methodological and organizational work has already significantly improved the efficiency of public governance, through the implementation of innovative approaches. Many of the target indicators have already been achieved, a number of others in the short term will reach the levels defined in regulatory legal acts.

Theoretical Background. The main theoretical methods of the present study are the plan-fact comparative analysis of transformation of public governance based on digitalization, identification and resolution of the contradiction related to the integration of information-communication technologies in public governance system. We initiate a broad discussion of the evolution of administrative models from conventional to digital platform in the Russian Federation. We will consider the current stage of development of public administration systems, its levels, capabilities and methods through the prism of: - technological dimensions of e-government;

-          pitfalls of the digitalization of public governance;

-          - challenges to the public governance in the future.

In a world characterized by rapid changes which are caused by globalization, the knowledge economy creates opportunities for both the society and the state.

Results. The arguments for improvement of public governance for citizens led governments of different countries to the need to develop the information society based on the core infrastructure – the e-government. It is uneven but objective process.

Discussion. The trend of reforming and modernizing the system of public governance began to rise in many countries. The performance of the state's activities can be measured by the quantity and quality of the goods and services provided for its citizens. Many countries around the world are striving to revive the new system of public governance, based on the principles of proactivity, transparency, accountability and efficiency. In order to meet these goals, governments are implementing innovations into their organizational structures, strategies and plans and their methods of using human, information, technological and financial resources.

22-30 881
Abstract

Introduction. Of all Nordic countries, only Denmark and Finland have their own national-territorial autonomies. In other Nordic countries, there are non-territorial national autonomies of the Sami people, who are entitled to form their own representative bodies (the Sametings).

The southern part of Denmark on the border with Germany (in the Northern Holstein) is home to German-speaking minority, the existence of which can be attributed to a national-cultural autonomy. However, it is not entitled to form its own parliament (contrary to the Greenlandic and Faroe people) but enjoys guaranteed representation in the Danish Parliament – the Folketing. In order to guarantee the rights of the German-speaking national minorities Denmark has become the member of the Council of Europe Framework Convention for the Protection of National Minorities since February 1, 1998, and the member of the European Charter for Regional or Minority Languages of 1992 since January 1, 2001.

Materials and methods. The methodological basis of the article is formed by general scientific and special methods of investigation into legal phenomena such as systematic and structural analysis, the synthesis of social and legal studies, formal logical and comparative legal methods.

The results of the research: The analysis of the legal status of Greenland and the Faroe Islands leads to the conclusion that the two Danish autonomies are to a very large extent independent in their relations with the central authorities. They are entitled to enter into international treaties, decide on membership in international organisations and unions separately from the central government. Legal changes in the status of both Danish autonomies indicate the process of regionalization which has been taking place over recent years in Denmark.

Discussion and conclusions. The article justifies legislative changes in the relationship between Danish and self-government authorities, reviews the merits and demerits thereof, and allows the secession of the autonomies together with the declaration of their sovereignty.
31-36 439
Abstract

Introduction. The aim of the present Article is to analyze the emergence and evolution of the concept “separate legal personality” in line with the trends of political and economical changes in Europe.

Materials and Methods. The methodological ground of the present Article represents the dialectic scientific method of research of the socio-political, legal and organizational processes with its principles of development, integrity, consistency, etc. The consistency analysis method is used while researching the object of the analysis. Some specific research methods are also used: formal-logical and comparative legal method are used to compare decisions of different courts on the same precedent. The aim of the present article is to find the root of the problem and compare positions of opponents in order to give recommendations for the solution of the problem.

Results. The author makes a general conclusion that the precedent court judgement on the case «Salomon v. Salomon and Co. Ltd» raise the issue of corporate liability, including the problem of introducing criminal corporate liability that is of real importance in the light of political and economical transformation of Europe.

Discussion and Conclusions. One of the most disputable and controversial issues today in the legal and political society of Europe and the Russian Federation is a question of necessity of introduction of criminal liability for corporations. This issue is particularly troubling in the light of the State Duma of the Russian Federation’s initiative on necessity of criminalization of corporate liability and the Russian Federal Chamber of Lawyers’ strong opposition to this idea.

Corporate crime is a serious phenomenon, which produces high level of social danger in many fields – economy and trade, health and safety at workplace, environmental protection, human rights and others. Introducing criminal liability of legal persons in some nation-states has opened theoretical debates in various academic disciplines, such as criminal law, criminology, sociology and social psychology, economic science and others. So, how did it all start?

The article focuses on different theoretical approaches towards the emergence of the concept of “corporation” as a separate entity in the civil relations. The author gives a review of such concept using the example of the precedent «Salomon v. Salomon and Co. Ltd». The present research comes to the following conclusion: exactly at the stage of industrial society the current concept of the corporation as a separate entity emerged with the necessary scope of rights and liabilities in the light of political and economic transformation of Europe.

37-43 423
Abstract

Introduction. At present, the European Union faces dramatic challenges in its history. The EU’s future, which seemed so clear in the past, is now rather uncertain. Over the last five years, the secession trends have become more significant. The research places special emphasis on the efforts to be taken by the Europeans in order to prevent political collapse, and strengthen the Union.

Materials and methods. Currently the EU concerns cause heated debate among analysts and political scientists. The author follows two patterns of theoretical approaches to European problems: The works of prominent theorists – Antony Giddens and Jürgen Habermas.  The research is based on the books “Turbulent and Mighty Continent. What Future for Europe?” written by Anthony Giddens in 2015, and “The Crisis of the European Union. Response” by Jürgen Habermas (2012), which express the opinion of these most competent researches on the specific features of democratic processes in Europe and in the EU.

The results of the research. Following the review of the above books, the author concludes that supraNational democracy is a matter of great concern.  This  kind of democracy is interpreted as manifestation of high political culture which, on the one hand, is free from local narrow-mindedness and, on the other hand, lacks one of the main controversies of democracy such as the conflict between the majority’s will and the minority interests.

Discussions and conclusion. Based on Giddens’ idea of the two-tier system of power existing in modern Europe (Europe of bureaucrats, so-called “Paper Europe” – the EU1, and Europe of effective leaders – the EU2) the author states that successful development the European Union requires the following three tiers of power: 1) the power of administrative institutions (the EU1), 2) the power of effective political leaders (the EU2), and 3) the power of supraNational democracy (power of the European people – the EU3).

The author focuses on the unique nature of the European experiment in terms of history, its significance for the prospective political development of other regions of the world, highlights the EU economic, political and anthropological conditions, which may ensure that the development of supraNational EU democracy will be a success.

44-50 410
Abstract

Introduction. This article is devoted to the analysis of the reasons for opposition towards European integration in Switzerland and to the complicated format of interrelations between Switzerland and the European Union.

Materials and methods. The author undertakes the theoretical and empirical analysis of historical, political and legal literature, research of foreign and Russian scholars, theses, statistical documents that gave her an opportunity to formulate the hypothesis of the research and come to the results that are stated in this article.

Results. The  author’s basic hypothesis presupposes that economic, ideological, and value discrepancies between the Swiss Confederation and the EU Member States cannot explain the motives why the Swiss electorate rejects the idea of Swiss membership in the EU. The explanations that at first sight look “obvious” do not give us an adequate answer to the question “ why does Switzerland reject the idea of its membership in the European Union?” The more substantive and scrupulous research is needed to define the arguments, which could explain the Swiss position, and give us the arguments that could disclose the causes of their choice but not the superficial coincidences. That is why it is necessary to more carefully scrutinize all rational and in addition emotional (irrational) reasons of Swiss electorate attitude to the idea of integration with the EU.

Contrary to the EU neighbors, which have no reason to be afraid of losing ethnocultural attributes as a source of National consolidation the Swiss can’t define themselves in common cultural terms, can’t use the concept “ethnic nation” as a nationstate marker and the uniting idea. The threat to civil practices and institutions from unpredictable situations in the EU can potentially cause not only deprivation of political role of the multiethnic federation but even loss of National identity of Swisses.

Discussions and conclusion. Just only the Swiss people have been able to turn federalism and democracy from abstract functionalist paradigms into real and cordial National values. That is why a deprivation of these values for them is equal to a loss of National identity. In this regards the author connects the nature of Swiss eurosсepticism first of all with the threat to weaken the worldwide known Swiss institutions of neutrality, “referendum democracy”, federalism that in practice turns into a rejection of any forms of International integration.

LAW IN THE PRESENT-DAY WORLD

51-58 866
Abstract

Introduction. The article discusses the specificity of formation and development of science of administrative law in Germany. According to German legal doctrine, the author reveals the concept of public management and the concept of German administrative law. The article describes the system of public authorities engaged in public administration in Germany. In this article the author analyzes some current problems of science of administrative law of Germany.

Materials and methods. The material for the study consists of the works of German and Russian researchers in the field of German administrative law and modern administrative law of Germany. The methodological basis of research comprises general and specific scientific methods of cognition (dialectical method, methods of analysis and synthesis, deduction and induction, comparative legal and historical-legal methods).

Results. In the course of the study the author formulates the concepts developed by German jurists and contained in German legal and administrative literature: administrative law as branch of public law, public administration in Germany. The author examines the scientific classification of the sources of administrative law of Germany. In the article the author suggests borrowing the German experience in the sphere of legal regulation of administrative activities to the Russian legislator.

Discussion and Conclusion. In this article the author explores features of formation and development of science of administrative law in Germany. The article deals with the definition  of  public  administration, administrative law as a branch of public law. Activities related to public administration are shown through the system of bodies of the public administration of Germany. Based on German legal doctrine, the author characterizes the system of administrative law and system of sources of administrative law of Germany.

59-65 542
Abstract

Introduction. The article delves into the system of corporate governance in Turkey which has been introduced by the new Commercial code.

Materials and methods. The article is based on the analysis of various sources of law in Turkey as well as on analytical papers of Turkish lawyers. The author uses comparative, axiomatic and synergetic methods in order to conduct the research.

Results. The reform of corporate law in Turkey created a modern effective system of corporate governance comparable to those existing in Europe and the USA. The changes include such important issues as protection of minority shareholders, legal status of the board of directors and agent-principal dilemma. Special attention was paid to the digitalization of corporate governance. As a result this reform has already enhanced the performance of Turkish companies notwithstanding political turmoil in the country.

Discussion and conclusions. The article makes the first step in the study of Turkish corporate law, proves that corporate governance in Turkey uses European and American laws as a model, identifies the potential risks that might emerge because of the mistakes made during the reform.

66-74 709
Abstract

Introduction. The article deals with the reform of the banking regulation in the European Union.

Materials and Methods. The author made a theoretical and empirical analysis of the main sources of International and European law, the jurisprudence of the European Court of Justice, the studies of domestic and foreign scholars, analytical documents of the EU institutions and bodies and International organizations.

Results. It is proven in the article that the reform of the legal regulation of banking sector in the European Union was aimed at deepening the integration process in the European region. The reform was supposed to implement the European Banking Union project, which is based on 3 mechanisms Single Supervisory Mechanism, Single Resolution Mechanism and European deposit insurance scheme. These mechanisms are enshrined in the Single Rule-book for financial services that is a comprehensive document that regulates the whole process of centralization of banking supervision, crisis management and the protection of depositors. This legal act includes a regulation, the directives and guidelines for their implementation in National legislation.

Discussion and Conclusions. The main reason for the revision of the banking regulation in the European Union was the inefficiency of the existing mechanisms of resolving crisis situations, especially after the global financial and economic crisis  of  2008-2009, which  quickly gained a systemic character and became the largest in history. The emergency measures of financial support in this situation did not have the desired effect and the financial and banking crisis has continued by inertia to gain momentum. It affected the real sector of the economy and marked the beginning of a long and protracted recession with high unemployment and social upheaval in a number of European countries. The leadership of the European Union was forced to change the approach to the problem in connection with the onset of the second wave of the crisis in the summer of 2011, when a vicious circle of sovereign and banking risks explicitly manifested itself. The President of the European Council Herman van Rompuy was the first who said about the need for the reform in June 2012. He outlined in his report the main directions of the reform and called for the creation of a genuine Economic and Monetary Union. The reform of the EU banking sector was intended to create a European Banking Union and aimed at improving prudential regulation and banking supervision with the purpose of preventing crises and finding the most effective ways of managing banking crises.

ADMINISTRATION: CHALLENGES AND PROSPECTS

75-84 340
Abstract

Introduction. This article discusses topical issues related to legal regulation of activities of workers councils with the Russian Federation and some countries of the European Union.

In  modern conditions of  development of economy of the Russian Federation, organizations must improve the mechanism of representation of workers in the management of these organizations as a way of improving economic performance and stable growth.

However, to talk about any positive developments in this area of public relations is premature because the workers themselves are not active in the management of organizations, not even trying to implement the existing law.

At the same time employers consider the activity of individual workers or group of workers, usually as interference in the production activity of the organization, the disclosure of trade secrets etc.

Employee councils that came into existence quite recently in Russia that could be on  par with trade unions representing interests of hired workers are still only in the formative stage, and do not possess the real powers.

The developed countries of the European Union (Federal Republic of Germany, France, Austria, Czech Republic and many others) have accumulated very interesting experience in the creation and activities of  employee councils, which under certain circumstances can be used in Russia.

Materials and methods: The methodological basis of the present legal study was the method of scientific cognition. The author used general scientific and specific methods such as analysis, synthesis, formal logical method, historical method, methods of legal interpretation, theoretical, comparative law.

The results of the research. As a result of the research the analysis and synthesis of scientific, normative and practical materials were carried out and the theoretical concepts and insights were formulated and substantiated. Legal regulation of the activities of workers councils in developed countries of  the  European Union has its own peculiarities, very different from the legal regulation of the activities of these bodies of public initiative in the Russian Federation. It appears that the use in Russia of this International experience will allow the country to move towards development of industrial democracy, the involvement of large segments of employees in the actual management of organizations.

Discussion and conclusion: The necessity of borrowing by the Russian Federation of the best practices of workers councils’ activities that exist in developed countries of the European Union (Germany, France, Austria, the Czech Republic and some others) is substantiated. Employee councils in Russia should not repeat the negative experience of creating such social groups in  the 1990-ies in  the USSR, when imposed on labor collectives they began to duplicate, and in some cases replace, the work of trade unions, which led to extremely negative processes for the development of the real industrial democracy.

REVIEWS

85-87 299
Abstract

Review of the book S.G. Kamolov “Anticonflictology: Issues of Teaching Conflictology in Management for graduates” / S.G. Kamolov. M.: “Publishing House of International Relations”, 2016, 127 p. ISBN 978-5-906367-35-8



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