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«ДИАЛОГИ О ВЛАСТИ»: ВЗГЛЯДЫ КАРЛА ШМИТТА НА ГЕНЕЗИС ВЛАСТИ И ЕЁ РАЗВИТИЕ

Author(s): Georgiy Nikolaevich Zhikharev,Mauro Mazzucchi,Liliya Ahatovna Ganeeva,Viktor Nikolaevich Gavrilov / Language(s): Russian Issue: 6/2015

The paper is devoted to “Dialogues about Authority” written by Carl Schmitt, the outstanding German lawyer, politician, and thinker of the 20th century. This work is still increasingly relevant. Modern researchers in the sphere of law, philosophy, and political science often refer to the creative heritage of Carl Schmitt, considering him “today’s Macchiavelli”. We made an attempt to analyze and translate Carl Schmitt’s “Dialogues about Authority” from the Italian language, into which it was transferred by Pierangelo Schiera (Trento, Italy), a Carl Schmitt’s colleague and professor of law.

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КОНЦЕПТУАЛЬНЫЕ ОСНОВЫ РАЗВИТИЯ ГРАЖДАНСКОГО ЗАКОНОДАТЕЛЬСТВА РОССИЙСКОЙ ФЕДЕРАЦИИ

Author(s): Evgeny Valeryevich Vavilin / Language(s): Russian Issue: 6/2015

The paper considers the main trends for improving the current civil legislation, which are reflected in the Civil Law Development Concept of the Russian Federation. The systemic changes in the Civil Code of the Russian Federation and other federal laws are analyzed. Suggestions are made concerning further modernization of the current civil legislation.

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О МЕТОДОЛОГИИ НАУКИ ГРАЖДАНСКОГО ПРАВА

Author(s): Grigorii Vcheslavovich Kolodub / Language(s): Russian Issue: 6/2015

The paper is devoted to the currently unsolved problem of correlation between provisions of the methodology of theory of state and law and the methodology of civil law. Logical justification of the inter-sectoral property on the raised problem seems to be an obligatory aspect of the highly topical issue of civil law, i.e., the system of categories of civil law science. The conclusion is made that the study of problems marking the independent and exclusive subject of civil law in the field of private science requires that there should be efficient selection of the necessary methodological components, as well as adjustment and modification of particular methods.

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ОТРАСЛЕВОЕ ОПРЕДЕЛЕНИЕ ПРАВОСПОСОБНОСТИ И ДЕЕСПОСОБНОСТИ В СЕМЕЙНОМ ПРАВЕ

Author(s): Elena Vladislavovna Kosenko / Language(s): Russian Issue: 6/2015

The paper analyzes the current legal doctrine of natural and entity persons in civil and family laws in terms of their comparative analysis and sectoral characteristics. Discussion on the suggestion to waive the mainly civil approach to definition of the legal and active capacity is encouraged. This led to the suggestion that the sectoral theoretical conclusions can be brought in line with the general theory of law. The modern scientific material on the theory of law is used. Innovative suggestions in this area of knowledge are presented. An attempt is made to extend particular suggestions to the area of family law. We introduce our own definition of such sectoral concepts as legal capacity and active capacity. The necessity of their determination based on a thorough analysis of research works of both Soviet and current periods in the development of legal thought is proved.

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АКТУАЛЬНЫЕ ВОПРОСЫ СУДЕБНОЙ ПРАКТИКИ ПО ПРИМЕНЕНИЮ МЕР ОТВЕТСТВЕННОСТИ ЗА НЕНАДЛЕЖАЩЕЕ ИСПОЛНЕНИЕ АЛИМЕНТНЫХ ОБЯЗАННОСТЕЙ

Author(s): Olga Nikolaevna Nizamieva / Language(s): Russian Issue: 6/2015

The paper is devoted to the study of urgent problems which appear as courts apply the rules on responsibility for improper fulfillment of alimony obligations. In order to secure the judicial practice uniformity, it is suggested to improve the legal regulations on application of material sanctions for the delay or failure to fulfill alimony obligations.

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АКТУАЛЬНЫЕ ПРОБЛЕМЫ РАССЛЕДОВАНИЯ МОШЕННИЧЕСТВА С ИСПОЛЬЗОВАНИЕМ КОМПЬЮТЕРНОЙ ИНФОРМАЦИИ

Author(s): Igor Olegovich Antonov,Anatoly Nikolaevich Shalimov / Language(s): Russian Issue: 6/2015

The main characteristics in the development of methods used for forensic investigation of fraud committed by using computer information are analyzed in the paper. It is substantiated that the efficiency of investigation of this type of fraud depends largely on the quality of interaction between various state law-enforcement bodies themselves and with non-state structures that are specified for preventing crimes in the sphere of telecommunications and computer information. Identification of current problems associated with the organization of counteraction to fraud committed by using computer information will favor optimization of measures aimed at preventing this type of fraud.

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"Words hurt for life" – legal aspects of verbal punishment of children

Author(s): Sylwia Różycka-Jaroś / Language(s): English Issue: 05/2016

This paper is dedicated to the issues of verbal punishment of children during the upbringing process. Statistics show that this is the most common type of punishment of children used by parents. Unfortunately, it often takes the form of a humiliating criticism, shouts or intimidation. All this affects negatively the child’s psyche. Taking into consideration the amendments which introduced a total prohibition on using corporal punishment towards children to Polish legislation, the issue of the limits of verbal punishments permitted by law still remains unsolved. Apart from a short definition and the description of the scale of this phenomenon, this paper is mainly dedicated to a legal analysis, which takes into account the stances of the doctrines of criminal and civil law. This paper attempts to give a straight answer to the doubts concerning this matter.

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«ВЛИЯНИЕ МОМЕНТА БЕЗВОЗМЕЗДНОСТИ В ГРАЖДАНСКОМ ПРАВЕ»: К 100-ЛЕТИЮ СО ДНЯ ЗАЩИТЫ ДОКТОРСКОЙ ДИССЕРТАЦИИ А.А. СИМОЛИНЫМ

Author(s): Kamil Maratovich Arslanov / Language(s): Russian Issue: 2/2016

The year 2016 marks 100 years since Aleksandr Aleksandrovich Simolin (1879–1920) defended his doctoral dissertation. A.A. Simolin is the famous professor of Kazan University, who addressed the basic problem of modern civil law, i.e., onerousness and gratuitousness of civil legal relations. The above-mentioned dissertation is still relevant, because several clauses taken from it were embodied and developed in the modern Russian legislation and law-enforcement policy. A.A. Simolin’s dissertation was consigned to oblivion just after its publication and defense on October 23, 1916, which happened due to the political causes and revolutionary developments of that time. The interest in A.A. Simolin and his works has revived only in the last decade. “Influence of the Moment of Gratuitousness in Civil Law” is the unique and brilliant work of the legendary Kazan professor and the last pre-revolutionary head of the Department of Civil Law and Court Proceedings of Kazan Imperial University. The juridical society in Kazan and the Department of Civil Law of Kazan Federal University should currently strive for popularization of the ideas of predecessors (civil legal researchers) in order to improve and develop the modern dogmatics and legal regulation.

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ИНСАЙДЕРСКАЯ ИНФОРМАЦИЯ КАК ОБЪЕКТ ГРАЖДАНСКИХ ПРАВ

Author(s): Azaliya Faridovna Akhmadullina / Language(s): Russian Issue: 2/2016

The legal institution of insider information is currently developing in Russia. The insufficiency of comprehensive theoretical research in the sphere of insider information, legislative voids and collisions, weak law enforcement potential give rise to many problems associated with the use of insider information and counteraction to its misuse. Modern researchers are mainly concerned with public and legal aspects of curbing insider trading violations without paying due attention to private property interests that underpin the corresponding regulation. The purpose of the paper is to reveal the civil nature of insider information by solving the problem of whether it has signs of an object of civil rights. It is proved that insider information is an object of civil rights with restricted circulation, which is characterized by discreteness, judicial binding, systematicity, legalization, and ability to ensure property interests of its owners. In the course of the investigation, the essence of the individual civil right to insider information is considered by differentiating it depending on the type of legal relations in which it arises. Based on the results of the study, it is concluded that insider information is characterized by a special civil regime, which is complicated by inter-branch connections. The revealed problem of civil and legal consequences for the late disclosure of insider information requires the establishment of legal liability of insiders for the corresponding violations. The efficiency of legal regulation of the relations associated with prevention of misuse of insider information is achieved when a balance between the interests of investors and insiders is provided.

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ГРАЖДАНСКО-ПРАВОВЫЕ РЕГУЛЯТОРЫ В ЭЛЕКТРОЭНЕРГЕТИКЕ

Author(s): Aygul' Vladimirovna Valeeva / Language(s): Russian Issue: 2/2016

The paper makes an attempt to form a civilistic perception of the system of civil law regulators operating in the electricity market. The peculiarities of the corresponding regulators are investigated. The basic legal problems associated with regulation of the relations in the power industry are formulated. In particular, the normative acts, corporate acts, and civil law contracts are considered as the most vivid and specific civil law regulators in the power sector. The paper also studies the correlation between local and contractual regulation within the wholesale and retail markets. It is established that there is a specific “parallel regulation”, i.e., the wholesale market participant is influenced by two types of regulators at the same time. It is emphasized that the value of isolation and identification of a clear range of civil law regulators in the power sector makes it possible to not only to see an integral system of regulators of the power industry in their interconnection, but also enables, to some extent, the participants of these relations to exercise their rights and fulfill the imposed obligations.

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ПРИМЕНЕНИЕ ИСКОВОЙ ДАВНОСТИ В СЕМЕЙНЫХ ОТНОШЕНИЯХ

Author(s): Elena Ivanovna Gladkovskaya / Language(s): Russian Issue: 2/2016

Determination of the scope of application of the prescriptive limit in family relations is a special case of application of civil law to family relations. The prescriptive limit extends to the requirements implied by family relations only in cases stipulated by p. 3 of art. 35, p. 7 of art. 38, and p. 4 of art. 169 of the Family Code of the Russian Federation. Absence of other limitation periods for defense of the rights violated in family is explained by the branch-wise nature of civil law and by the specificity of civil law in Russia stipulated by it. Suggestions on extension of the presented list by p. 2 of art. 35 and art. 107 of the Family Code of the Russian Federation disagree with the principles of application of the prescriptive limit to family relations. Refusal to satisfy the claims for annulment of marriage contracts only due to the barred period of limitation in the presence of lawful grounds for such acknowledgment, contrary to art. 9 of the Family Code of the Russian Federation, extends the scope of application of the prescriptive limit to family relations. Invalidation of the marriage contract, including on the grounds of invalidity of transactions, does not convert property relations of spouses based on it to civil relations, because they are bound by the contractual regime of property of spouses. Possibility of protection of the property rights of the spouse by themselves by return to the legal regime for property resulting from invalidation of the marriage contract on any lawful ground cannot be limited by the prescriptive limit.

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УЧАСТИЕ РОССИЙСКОЙ ФЕДЕРАЦИИ В СОВРЕМЕННОЙ СИСТЕМЕ МЕЖДУНАРОДНЫХ ДОГОВОРОВ В СФЕРЕ ОХРАНЫ ИНТЕЛЛЕКТУАЛЬНОЙ СОБСТВЕННОСТИ

Author(s): Roza Iosifovna Sitdikova / Language(s): Russian Issue: 2/2016

The paper is devoted to the study of issues related to the participation of Russia in the international system of intellectual property protection. The relevance of this research is determined by the role of international treaties in protection of the rights of foreign authors in Russia and Russian authors abroad. The modern system of universal international treaties in the field of intellectual property protection, as well as the history of Russia’s accession to international treaties in the aspect of implementation in the Russian legal system and unification of the Russian legislation in this sphere are shown. International treaties of the Russian Federation are part of its legal system. Therefore, it is important to show the role of international treaties in the field of intellectual property with copyright laws. They influence the creation of laws. Some topical issues in the field of international protection of intellectual property rights associated with copyright restrictions, the removal of which is possible by conclusion of additional international agreements, are emphasized. The conclusion is drawn on the basis of the research results that the Russian Federation is a full member of the international intellectual property protection system, which is the basis for effective protection of the rights of foreign authors and Russian authors abroad.

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ДОГОВОРНЫЕ ОСНОВЫ ГОСУДАРСТВЕННО-ЧАСТНОГО ПАРТНЁРСТВА В РОССИЙСКОЙ ФЕДЕРАЦИИ: НЕКОТОРЫЕ АСПЕКТЫ

Author(s): Elena Vasilevna Kobchikova / Language(s): Russian Issue: 2/2016

The paper considers the main problems of state-private partnership agreements and public-private partnership agreements as civil law contracts, as well as their inherent characteristics distinguishing them from other civil law contracts. The legal nature of partnership agreements, their material terms, as well as the main rights and obligations of the parties are revealed. The relevance of this research is determined by the fact that the Federal Law no. 224-FL “On sate-private partnership, public-private partnership in the Russian Federation and amendments to certain legislative acts of the Russian Federation” of July 13, 2015 entered into force on January 1, 2016. This federal law aims to create a legal environment for attraction of investment in the economy of the Russian Federation and increasing the quality of goods, works, and services, the availability of which is ensured by the state and local public authorities. The federal law determines the main principles of legal regulation of relations arising from formulation of the project of state-private and public-private partnership, as well as conclusion, execution, and termination of state-private and public-private partnership agreements, including the corresponding competences of state and local public authorities, establishes the security of rights and legal interests of the parties of state-private and public-private partnership agreements. Based on the results of the study, the conclusion is made that state-private and public-private partnership agreements are complex in nature. They can be regarded as mixed contracts that sometimes contain claims from unidentified sources.

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ПРИМЕНЕНИЕ СТАТЬИ 452 ГРАЖДАНСКОГО КОДЕКСА РФ: ПРАКТИЧЕСКИЙ ПОДХОД К ТРЕБОВАНИЮ О СОБЛЮДЕНИИ ДОСУДЕБНОГО ПОРЯДКА УРЕГУЛИРОВАНИЯ СПОРА

Author(s): Aleksandr Petrovich Sergeev,Tatiana Alekseevna Tereshchenko / Language(s): Russian Issue: 2/2016

The Russian civil law and practice have undergone major changes aimed at improving the legal normalization of relations and the modernization of private legal practice in the spirit of the disposition method of regulation. The legal approach, according to which any rule that defines the rights and obligations of the parties to the contract should be interpreted by the court on the basis of its spirit and legislative regulation purposes, is conceptual for interpretation of the rules. It eliminates formalism in the law enforcement practice. To illustrate the essence of this approach, the authors refer to the analysis of the provisions of Article 452 of the Civil Code of the Russian Federation (the Civil Code), which allows to find out what kind of sense is put by the legislator in the requirement for pretrial settlement of the dispute on change (termination) of the contract, which turns out to be a mandatory step for bringing the case to court consideration. On the basis of interpretation and study of the judicial practice, attention is drawn to the fact that the provisions of Article 452 of the Civil Code should not be understood purely formally and are designed solely for the court to unsure that attempts to pretrial resolution of a legal conflict were made and are exhausted. This approach to interpretation of the provisions of Article 452 of the Civil Code is consistent with the objectives of legal regulation and does not create unnecessary obstacles to implementation of the rights of the bona fide participants of civil relations.

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ВОЗБУЖДЕНИЕ ДЕЛА ПО ГРАЖДАНСКОМУ ПРОЦЕССУАЛЬНОМУ КОДЕКСУ И КОДЕКСУ АДМИНИСТРАТИВНОГО СУДОПРОИЗВОДСТВА РОССИЙСКОЙ ФЕДЕРАЦИИ: ДЕЙСТВИЕ СЛЕДСТВЕННОГО НАЧАЛА

Author(s): Sergei Yurievich Baranov / Language(s): Russian Issue: 2/2016

The paper analyzes the procedural activity performed by the court of law within the stage of initiation of civil or administrative cases. As noted, it is impossible to reveal all grounds for rejecting adoption of the statement of claim or its return at the stage of case initiation. These grounds are as follows: final court decision on an identical claim; singing of the statement of claim by a person, who is not authorized to do so; sufficient mental capacity of the applicant. The fact of signature of the statement of claim by the applicant or authorized person can be found out only during the court session, which is not assumed by the stage of initiation of case proceedings. Furthermore, it is impossible to verify the final court decision which entered into force on an identical claim due to the absence of procedural mechanisms in the court for identification of these grounds. It is emphasized that the stage of case initiation should reflect the actual capacity of the court to verify the availability or absence of grounds for rejection or return of the statement of claim, which is the manifestation of the investigatory origin of court procedures at the stage of case initiation. At the same time, consideration of the issue on initiation of case proceedings and adoption of the relevant judgement in the absence of the person concerned, as well as revision of this judgement without notice of the persons involved in the case, violate to a certain degree the right of the claimant for judicial protection. The conclusion, therefore, is that the person concerned should be enabled to convey their position to the court, thereby implementing their right to be heard.

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Prawne aspekty eutanazji w Holandii

Author(s): Grzegorz Stefanowicz / Language(s): Polish Issue: 3/2016

This article undertakes to show the way that has led to the statutory decriminalization of euthanasia-related murder and assisted suicide in the Kingdom of the Netherlands. It presents the evolution of the views held by Dutch society on the euthanasia related practice, in the consequence of which death on demand has become legal after less than thirty years. Due attention is paid to the role of organs of public authority in these changes, with a particular emphasis put on the role of the Dutch Parliament – the States General. Because of scarcity of space and limited length of the article, the change in the attitudes toward euthanasia, which has taken place in the Netherlands, is presented in a synthetic way – from the first discussions on admissibility of a euthanasia-related murder carried out in the 1970s, through the practice of killing patients at their request, which was against the law at that time, but with years began more and more acceptable, up to the statutory decriminalization of euthanasia by the Dutch Parliament, made with the support of the majority of society.

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Bariery w przepływie pracowników na rynku wewnętrznym – stary problem w nowych odsłonach

Author(s): Robert Grzeszczak / Language(s): Polish Issue: 4 (1)/2016

The issue of re-nationalization (disintegration and fragmentation) of integration process is manifested by the will of some of the Member States to verify their relations with the European Union. In the age of an economic crisis of the EU and in relation to the large migration of the population, there has emerged strong social and political criticism, on the European level, of the integration process, with some Member States even consideringtheir withdrawal from the EU. In those States, demands forextending the Member States’ competences in the field of some EU policies are becoming more and more popular. The legal effects of the above-mentioned processes are visible in the free movements of the internal market, mainly within the free movement of persons. Therefore, there are problems, such as increased social dumping process, the need to retain the output of the European labour law, the issue of the so-called social tourism, erosion of the meaning of the EU citizenship and the principle of equal treatment.

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Zasada proporcjonalności jako obiektywne uzasadnienie ograniczeń w swobodnym przepływie osób w Unii Europejskiej

Author(s): Joanna Ryszka / Language(s): Polish Issue: 4 (1)/2016

The principle of proportionality in the EU legal order applies, among others, to actions taken by Member States in the situation where they are willing to use, permitted by the EU law, derogation from its provisions, in particular – in the area of internal market freedoms. Derogation from those freedoms will not be justified if it is not absolutely necessary. National regulations must therefore be proportionate to the objective that these restrictions are to protect. With respect to the free movement of persons, as an example of these goals, the protection of fundamental rights could be mentioned. It is vitally important for the realization of an internal market due to the existence of interesting interactions occurring between them and specific ways of applying the principle of proportionality when they collide with each other.

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Sankcje administracyjne i zasady sprawiedliwości w przypadku nielegalnego usunięcia drzew ze szczególnym uwzględnieniem sytuacji prawnej przedsiębiorcow

Author(s): Michał Hejbudzki / Language(s): Polish Issue: 32/2016

The study contains considerations for the evolution of the legal means of pre- venting the removal of trees without the required permit. The analysis carried out concerns the legal regulations introduced after the Constitutional Court's judgement of 1 July 2014 issued in case SK 6/12. The author presents the criticisms of existing regulations in the field relating to the legal situation of entrepreneurs who, without the required permit, removed a tree for the purposes of their business activity and proposes de lege ferenda solutions.

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Nienależne świadczenie w polskim Kodeksie zobowiązań z 1933 r. na tle porównawczym

Author(s): Jan Halberda / Language(s): Polish Issue: 1/2016

The present paper discusses the concept of undue payment as found in the Polish Code of Obligations of 1933. The research is comparative in nature since it also explores the institution in question in other contemporary codes (Code Civil, ABGB, BGB and Obligationrecht), Roman law, and the Polish Civil Code of 1964 (1). The discussion is concerned with the framework of legal provisions on undue payment in the aforementioned sources (2). Furthermore, while applying a framework of the Roman condictiones the paper analyses the grounds of the action (3). It presents circumstances which allowed a payor to seek recovery of his payment (4–6) and those which precluded the claim (7). Then the paper gives an illustration of the scope of a payee’s liability (8). In his final remarks, the author attempts to assess undue payment as regulated in the Code of Obligations (9).

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