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Journal of Law and Administration

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No 2 (2018)
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LAW IN THE PRESENT-DAY WORLD

3-12 618
Abstract

Introduction: Districts in Serbia have a long tradition, dating back to the early 19th century. In that period, they performed competences of state admin­istration and local self-government at the same time. Serbia left the socialist model of constitutionality and returned to liberal-democratic constitutional institutions in 1990, and districts have their new position in constitutional system – districts are exclusively regional offices of ministries, a form of terri­torial deconcentration of power. Their main function is to accomplish orders is­sued by central administrative authorities (ministries). First part of this paper analyzes development of administrative districts and their current position in the constitutional system of Serbia (status, organs and competences). Second part of the paper discusses some options for improving of the position of ad­ministrative districts in the future, within the possible reform of the territorial organization of Serbia.  

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 constitutional and administrative law: the method of systemic structural analysis, method of synthesis of socio-legal phenomena, the comparative legal method, formal logical method, historical method.  

Results: The analysis showed that the status of administrative districts should be changed. Administrative districts is the Republic of Serbia are of­fices (branches) of ministries that perform tasks of state administration They are therefore a kind of regional state administration bodies and organizational units of ministries. On the other hand, the existing districts, 29 of them, can represent a good basis for introduction of second level of local self-government in the Republic of Serbia. In this way, districts could obtain some competencies to conduct independently, by their own organs, elected directly by the citizens. In addition, districts would be able to keep their existing prerogatives and thus become a kind of “mixed” territorial units, which would unify functions of lo­cal government and local self-government. After all, municipalities in Serbia in many ways already have such a character. This solution would increase efficiency and democratic nature of the system in Serbia and strengthen the position of local self-government. However, in order to improve the position of districts in Serbia in this manner it is not enough to perform only revision of laws, but also the constitutional revision as well.  

Conclusions: The main conclusion is that districts should change their le­gal nature. They should become “mixed” territorial units (administrative and self-governing). In that way, they would be very similar to Serbian districts of the 19th century. Reform of the territorial organization of the Republic of Serbia, which seems inevitable, should seriously consider changing of the legal status and nature of districts. They could become respectable territorial units, which could have “mixed” character, so they could unite in themselves both functions of state administration and functions of local self-government. Such a character, which existed in the Serbian constitutional tradition for a long time, would allow districts, as both administrative and self-governing units, to establish more solid relationship between local communities (municipalities and cities) and institutions of central government. Their territorial, economic and demographic potential would be a solid basis for increasing of efficiency of local self-government and state administration in the Republic of Serbia. Besides, application of this model would completely overcome senseless region­alization project, which would surely bring more damage than good.  

13-21 616
Abstract

Introduction. The article provides an analysis of China’s tough stance towards the applicability of the governance regime of the common heritage of mankind to the Arctic referring to the Part XI of the United Nations Convention on the Law of the Sea, 1982, in the general context of contemporary inter­national law.  

Materials and methods. General scien­tific and private scientific methods of cogni­tion constitutes the methodological basis for the study.  

Results of the study. In the course of the study the author concludes that China’s current stance towards the governance regime of the International seabed area as the common heritage of mankind and towards the international maritime law as a whole should not have exclusively negative assessments as it was during the period of the confrontation between the Soviet Union and the People’s Republic of China in 1960-1980. Objectively the long-term interests of the People’s Republic of China and the Russian Fed­eration in the maintenance of international maritime law are aligned. However, a contemporary legal poli­cy of China differs from the policy stated at the Third United Nations Conference on the Law of the Sea. It became more focused on the promotion of China’s national interests in the Arctic, on the creation of the Area of the common heritage of mankind in the Arc­tic Ocean, even though none of the Arctic Coastal State advocate this stance.

 Conclusions. In this article the author balanc­es China’s arguments in favour of applicability of norms of the international law related to the com­mon heritage of mankind to the Arctic with the Arc­tic Coastal States’ arguments against it according to the doctrine in the sphere of the international law in which the legal concept of the common heritage of mankind is clarified. The author reveals reasons of China’s support of the concept of the common heri­tage of mankind initiated by the USA and China’s effort to broadly interpret it especially towards the Arctic in terms of the Arctic Coastal States’ stance towards this issue contained in the materials of the Third United Nations Conference on the Law of the Sea (1973 – 1982).

22-30 988
Abstract

Introduction. May and June 2018 saw intensi­fied discussions in Russia around the issue of confis­cation of property obtained by criminal means. These discussions arose after several initiatives of legisla­tors who advocated the strengthening of the role of this institution of criminal law in the legal practice in Russia and after the Supreme Court of the Rus­sian Federation summarized the experience of the use of confiscation in the practice of Russian courts and formulated some recommendations for the courts in the decision of the plenary session of June the 14th .  

Materials and methods. The article uses a number of research methods and techniques to ana­lyze the problem such as analysis that allows isolat­ing the trends in the development of the institution of confiscation; comparison which allows evaluating homogeneous processes at different stages of the in­stitute of confiscation of property acquired by crimi­nal means, and generalization which is necessary to summarize the results of the research.  

Research results. The use of the institution of confiscation of property obtained by criminal means in the legal practice of Russia has passed several stages. The modern stage began after the institution was restored in the criminal code of the Russian Fed­eration by the Federal law of July 27, 2006 № 153FZ and section VI of the Criminal Code was supple­mented by Chapter 15.1 “Confiscation of property”. This Chapter contains the legislative definition of the confiscation of property (article 104.1 of the Crimi­nal Code) and an indication of the subject of confis­cation, its types and conditions.  Based on the decisions of the plenums of the Su­preme Court of the Russian Federation the article analyzes the practice of this institution in the activi­ties of Russian courts. 12 years of experience in the application of Chapter 15.1 of the Criminal Code, showed that, despite the repeated explanations of the Supreme Court, which dealt with individual crimes, some of the controversial issues remained unre­solved. In this regard the Plenum of the Supreme Court introduced a number of proposals to improve the legal framework of this institution in the draft Resolution.  On June 14th , 2018 the next plenary Session of the Supreme Court of the Russian Federation ad­opted a new detailed resolution on the practice of application of Chapter 15.1 of the Criminal Code and proposed detailed recommendations to improve the application of the institution of confiscation of property obtained by criminal means in the Russian Federation, which are considered and commented on in the article.  

Discussion and conclusion. Legal literature discussed the innovations in the Russian legislation related to the institution of confiscation of property obtained by criminal means caused in a very active mode. The views of the authors of articles on this is­sue can be divided into two parts with each havinga lot of supporters. According to the first of them the new place of confiscation of property among the mea­sures of criminal law is justified.  Supporters of the opposite point of view sup­port the exclusion confiscation of property from the system of measures of criminal law as they believe that the legal nature of the confiscation of property belongs to a form of criminal punishment. This is the opinion of the judges. Two-thirds of the judges believe that the confiscation of property should be considered as an additional form of punishment.

31-39 665
Abstract

Introduction. In the article the author’s view of justice as one of the most important security func­tions of the human rights nature of judicial author­ity is set out. The author defines the factors which determine the level of credibility and the nature of as­sessment by society of judicial authorities’ work (as a result – all judicial system of Russia). The nature of judicial authority, its structure and system in many respects are based on the function of justice (imple­mentation of judicial authority in the system of divi­sion of the authorities) as most important type of law enforcement and also on the nature and functions of legislature adopting laws which are then construed by court. Only the court, based on construction and analysis of standards of legislation (analogy of leg­islation) and law (analogy of law), within the “cor­ridor” of the current legislation, can draw the final conclusion which can be equated to the law based on its validity and need for its execution by obligatory use of coercion.  

Materials and methods. The methodological basis of the research includes the following general scientific and special methods of researching legal phenomena and processes in the sphere of the judicial law and justice: method of the system and structural analysis; synthesis method; analysis method; com­parative method; formal method; statistical method.  

Results of a research. As a result of the analysis it is revealed that law enforcement is possible only on the basis of interpretation or specification of law by a judge in each individual case. Law enforcement is law in operation, and justice (under the judicial acts which have come into force) a final way of ensur­ing universality and uniformity of rules of law. Law enforcement is impossible without the current legis­lation which is exposed to continuous changes and additions; which change law enforcement itself.  

Discussion and conclusions. It is proved that the structure of judicial system is defined by the hu­man rights nature of judicial authority and by the character of the substantive law applied in each type of legal proceedings. The author of the dissertation suggests proceeding from a new – the author’s – understanding that judicial authority by means of a security function of justice is a source of creation of the standards of behavior (forbidding, obliging) for certain citizens and/or their groups. It is proved that the understanding of justice only as the type of human rights activity is narrow and doesn’t meet the purposes of improvement of the judicial system of Russia.

40-47 500
Abstract

Introduction. Corporate law in the developed legal systems is changing very quickly. The legisla­tor understands that commercial legal entities are a kind of conductors of free capital. This circumstance forces the legislator to react quickly in order to create optimal operating conditions for commercial legal entities. Creating a favorable investment climate al­lows you to attract free capital which is concentrated not only in banks, but also in commercial organiza­tions. Harmonization of corporate law allows form­ing a favorable investment climate in the relevant jurisdictions. However, the process of harmonization of corporate legislation is fraught with significant difficulties, overcoming of which is the primary task of the legislator.  

Materials and methods. The methodological basis of the research constitutes the following gen­eral scientific and special methods of cognition of legal phenomena and processes: dialectical, formal-legal, comparative-legal, formal-logical, structural-functional.  

Results. In this study the author has focused on the most important aspects of the ongoing harmo­nization of the provisions of corporate legislation of individual states both at the national level and in the format of existing integration associations. In par­ticular, it is noted that one of the main criteria of the form of a commercial legal entity is its investment attractiveness in a specific national legal system. Commercial legal entities are the point of applica­tion of capital. This factor can be considered one of the determining factors in the direction of improving national corporate law.  

Discussions and conclusions. The systematiza­tion of common features of commercial legal entities in various national legal systems made it possible, among other things, to determine the constraining factors of their development both at the national level and within the framework of integration associations. The methods for overcoming such factors are very dif­ferent, depending on the level at which they are used. Scientific discussion in this direction allows us to identify the unique starting points for the regenera­tion of the most conservative provisions of corporate legislation in various national legal systems.
48-59 891
Abstract

Introduction. International space law (“ISL”) does not provide a specialized coherent system of dispute settlement (“SCSDS”). Up to now the ab­sence of such a system has had no negative impact on development of either ISL, or space activity (“SA”), however this fact does not exclude the necessity of elaboration of SCSDS. The article analyzes factors potentially influencing increase in the number of space related disputes, methods of “risk manage­ment” of occurrence of disputes, as well as existing general and sectoral dispute resolution mechanisms applicable to space activities within the context of specific features of ISL.  

Materials and methods. The theoretical back­ground of this research consists of works of distin­guished scholars and specialists in ISL as well as ma­terials of diverse conferences on ISL. The analytical framework includes the UN Charter, the UN treaties on outer space, relevant UN GA resolutions, as well as the Permanent Court of Arbitration optional rules of 1997 and 2011. The research is based on methods such as formal logic, including analysis, synthesis, analogy and modeling, as well as systematic, com­parative and interpretation.  

Results. Following the analysis, it is found that: 1) specific features of ISL, including the existence of unsettled legal issues, as well as the trends in the SA development directly impact the increase in risks of occurrence of international disputes; 2) although specific features of responsibility and liability in ISL can impact the increase in the number of disputes, on the one hand, on the other – cumulatively they contribute to prevention of potential disputes; 3) at the present stage effective application and potential combination of the existing means of dispute resolu­tion may lead to finding of new means that might be able to fill in the legal vacuum created by the absence of SCSDS in ISL.  

Discussions and conclusion. To reduce risks of dispute occurrence and effective resolution of the existing disputes the following conclusions and rec­ommendations are provided on: 1) the primary ne­cessity of regulation of the unsettled issues of ISL; 2) the determination of methods of “risk management” of the dispute occurrence in the context of the specific features of ISL; 3) the use of the PCA dispute reso­lution system that allows taking into account both the specific features of the contemporary SA and the necessity of its coherent legal regulation, as well as effectively using and combining diverse means of dispute resolution, in particular, establishment of fact-finding commissions of inquiry; 4) in the longer term – the necessity of establishment of SCSDS on a treaty basis.

ADMINISTRATION: CHALLENGES AND PROSPECTS

60-69 535
Abstract

Introduction. The article explores the evolution of the global economic system in the context of economic theories developed by Smith, Keynes, and Friedman and the impact of propaganda on that evolution.  

Materials and methods. The study used both General scientific and traditional methods used in political science and Economics.  

Research result. The influence of propaganda is evidenced by the uprise of the Keynes-Bernays model in the middle of the 20th century, followed by the neo-economic model the beginning of the 21st century in which propaganda is dominating. In this model supply and demand, as well as value added, quotations, prices, etc. are created by the flows of information. Furthermore, the article introduces the “rule of four parts” which is characteristic of the modern labor market in developed countries. The data about the newest computer technologies in propaganda lead to the conclusions on its new potential in politics and economics.  

Conclusion. The authors postulate the synergy between propaganda and economy, a phenomenon which requires further research.

70-78 620
Abstract

Introduction. The processes that are going on now in Europe make a research of the social, cultural and political peculiarities of the Swiss electorate a timely issue due to their ambiguous attitude to the perspective of Switzerland joining the European Union.  

Materials and methods. The research is based on the theoretical and empirical analysis of Swiss ap­propriate sources and literature by using the meth­ods of historical, system and behavioral approach, that allowed us to define a causal relationship and differential signs of German-speaking Swiss com­munity as a particular ethnic group, to display most important factors that make the greatest influence on this group in terms of their attitude to EU.  

The results of the research. The Swiss elector­ate is deeply committed to the Swiss political insti­tutions. The principles of neutrality, federalism and direct democracy are supported by all population of Switzerland irrelatively of their ethno-linguistic di­versity. That is why many Swiss Eurosceptic argue that the membership in the EU is incompatible with political traditions of the Swiss Confederation. The repudiation of the EU membership is mostly peculiar to a great number of the German-speaking Swiss due to their political and cultural habits. On the contrary French-speaking Swiss mostly stay for joining the EU. We presuppose that a sufficiently high level of repudiation of the EU membership by the German-speaking Swiss can be explained by two main rea­sons: on the one hand, all Swiss belong to the state that has no general cultural (ethnical) attributes that make them more vulnerable to the institutional am­bitions of the EU, on the other hand, being German-speaking Swiss they belong to the ethno-linguistic and territorial unit which has no institutional sup­port and vivid cultural articulation. Being squeezed from both sides by the political and linguistic factors the German-speaking Swiss electorate possess a la­tent feeling of vulnerability and a nation-exclusive type of identity, which is the reason of their Euro­scepticism.  

Discussions and conclusion: the European Union wants to clarify the outlines of its relations with Switzerland. But the more resolute its politi­cal line becomes in this respect the more definitely the German-speaking Swiss electorate will perceive that this policy is a danger to their identity and the stronger their willingness to stay outside the EU will become. If we take into account that the German-speaking Swiss population is three times as big as the francophone Swiss population, Switzerland will apparently remain outside the EU in the foreseeable future.

79-87 1108
Abstract

Introduction. The relevance of the study is caused by the growing interest in the practices of involving citizens in the budget process in Russia and abroad. In 2017 the project “Development of initiative budgeting in the Russian Federation” was launched. It is being implemented by the Ministry of Finance of the Russian Federation and the World Bank. More than 50 Russian regions participate in this project today. Since the issue of civic partici­pation in budget allocation is quite new, academic researchers and practitioners are interested in for­eign experience, in particular, in citizen engagement mechanisms used in European countries.  

Materials and methods. The research uses comparative historical analysis and case-study methods. The sources include academic articles, the­matic books and monographs, encyclopedias, official websites, and specialized portals of the Internet en­gagement.  

Results. The historical and political prerequi­sites, which laid the foundation for the development of modern mechanisms of direct democracy in Euro­pean countries, were identified. The most large-scale country cases are characterized. These cases are re­lated to the biggest numbers of implemented projects or the number of citizens who took part in the formu­lation and selection of ideas about local development. Cases of the European capitals from Paris, Madrid, Lisbon and Warsaw are presented. The experience of Russia in this historical context is characterized.  

Discussion and conclusions. The most original approaches that are of interest from the point of view of the citizen engagement procedures or local devel­opment issues are submitted for discussion within the framework of participatory mechanisms revealed. It is shown that the need for direct citizen engage­ment into the budget process is recognized today in different countries.
88-97 689
Abstract

Introduction. The aim of this article is the analy­sis of the reforming of the Bar association, which arose after the February and October revolutions in Russia. The fact that both the Interim Government and the Government of Bolsheviks attended to the issue of the Bar’s future immediately after the take-over highlights the importance of the Bar association for the state. The Interim Government formed a sub-commission on re­vision of the Statute of the Bar association, and a draft law on developing independent legal profession was prepared. The Council of People’s Commissars of the Russian Soviet Federative Socialist Republic (RSFSR) passed a decree “On the Law” № 1 on 24 November 1917 which abolished the Bar association without any substitution. Different provisions and decrees con­cerning the legal profession, which were adopted up until 1922, is evidence of chaos of law in the country. Finally, the All-Russia Central Executive Committee of the RSFSR passed “The Statute on Advocacy” in 1922 which lasted until 1939. With the guidelines of this Statute the Bar association was subordinated to the state. In the time of repressive measures the as­sociation was not able to exercise its main function, it was not allowed to participate in either investigation or in trials regarding repressed people.  Only in 1939 with the guideline of “the Statute on Advocacy of the USSR” the colleges of advocates became relatively self-regulative, they were given the rights of legal entities, the word “advocate” came back to practice. Time passed. The state regulation of the Bar association loosened gradually. “The Statute on Advocacy of the RSFSR” of 1962 considerably ex­panded the rights of an advocate, colleges of advocates were recognized as a voluntary association of individ­uals who practice advocacy.  In 1970-1980 improvements the institution of le­gal profession weres sought for, Article 161 on col­leges of advocates was included in the Constitution of the USSR in 1977. “The Statute on Advocacy of the RSFSR” of 1980 contained principles of international acts.  After the breakup of the USSR the so-called paral­leled colleges of advocates functioned along with the traditional Bar association, and energetic efforts were made to develop a new line in advocacy. It resulted in the Federal Law “On Legal Practice and Advocacy in the Russian Federation” adopted by the State Duma of Russia on 26 April 2002. The advocate was rec­ognized as an independent professional legal counsel. Interference in the legal practice, carried out in com­pliance with the law, and impediment to this practice were prohibited.  

Materials and methods. The materials for the research are the works of national and foreign re­searchers in the field of the Russian Law, legislative acts of the 20th century of Russia and the USSR. The methodological background of the research is based on the general philosophical and specific juridical meth­ods of development of knowledge in the sphere of es­tablishing the national advocacy, method of compara­tive analysis and method of legal history analysis.  

Results of the research. The results of the scien­tific research allows making the following conclusion: in the world where the rule of law is infringed upon and the rule of arbitrariness prevails, where there is no lawyer there is no justice.  

Discussion and conclusions. The indispensabil­ity of independence of a lawyer and the Bar associa­tion is proved, advocacy can only function in a stable society; advocacy cannot act as a legal institution in the conditions of a legal chaos. Advocacy is a means of salvation of a state from the internal decay. The state should take care of advocacy and guarantee the inde­pendence of a advocate.
98-107 11626
Abstract

Introduction. The article is dedicated to the analysis of some basic characteristics of Russian political culture, in particular in the post October 1917 Revolution’ period. At the same time it was underlined that these characteristics were not a simple “print” of “October Revolution” but have their roots far in the past, including some ontologi­cal components. The basic elements of Russian po­litical culture (far from being fully described in this article) are presented with reference to the practice of Russian government’s activities. The controversial nature of correlation between Russian political cul­ture and radical changes in Russian politics in the 20th century was also put forward.  

 Materials and methods. Methods of scientific cognition, abstraction, generalization, analysis, syn­thesis, and comparative methods were used in the course of research and presentation of the theoretical approaches of Russian and foreign researchers re­lated to “political culture”. Russian political history of XX century, and beyond, provided large scope of necessary materials for this article.  

Results of the study. The analysis of Russian political culture has as its outcome the presentation of a hierarchy of “elements” including the basic ones and many additional which are also present and acting in social and political practices in mod­ern Russia.  

Discussion and conclusions. The study shows that “political culture” is not only an abstract con­cept within a political science and theory, but also a very important “operational tool” for decision-making process and practice of government. The lack of an adequate perception of acting politi­cal culture by a political elite might create an im­portant distortion especially during radical social changes. In conclusion the author announced the topic of his further research on the “culture of Rus­sian foreign policy” based on the findings of this article.

REVIEWS

108-110 492
Abstract

Review of the book by L.I. Zakharova «Interna­tional sports law» (Zakharova L.I. International sports law: textbook for bachelors / Ed. by K.A. Bekyashev.Moscow: Prospekt, 2017. 272 p.).



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ISSN 2073-8420 (Print)
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