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Kutafin University Law Review (KULawR)

Kutafin University Law Review (KULawR) №1 2014 (100,00 руб.)

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Страниц154
ID336779
АннотацияOn behalf of the Kutafin University Law Review, let us be among the fi rst to welcome you to the pages of our journal. We hope you will fi nd this periodical as enjoyable as we do. This is one of the few English-language legal journals in Russia. The Kutafi n Moscow State Law University (MSAL) was founded in 1939 as a successor of the Judicial Courses. Today, the MSAL is the biggest and most famous Law University within the territory of the former Soviet Union. About 18.000 students are studying different law disciplines behind the walls of the MSAL at the moment. The Kutafin University Law Review (KULawR) was established by the MSAL in 2014 as an editorial project aimed to spread legal knowledge generated by leading Russian scholars all over the world. Their achievements have not been accessible to respective non-Russian speaking audiences for a long time. One of the main ideas of this journal is to fi ll that gap. In addition, we welcome contributions from all legal researchers from every corner of the world. We would like to bring the Kutafi n University Law Review to the level of a new and authentically international law journal. It presumes that the content of the periodical should refl ect actual, modern, and innovative legal issues. The contents of the KULawR cover different legal branches and scholarships. We would be happy to focus on random topics of law, as well as allied sciences – legal sociology, criminology, forensics, etc. The pages of the KULawR are opened for a wide range of new and creative opinions.
Kutafin University Law Review (KULawR) .— 2014 .— 2014 .— №1 .— 154 с. — URL: https://rucont.ru/efd/336779 (дата обращения: 05.12.2021)

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LIMITS OF STATE INTERVENTION AND NON-INTERVENTION IN THE SPORTS FIELD / Ponkin Igor (160,00 руб.)
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KUTAFIN UNIVERSITY LAW REVIEW Volume 1 September 2014 Issue 1 WHAT IS CONSTITUTIONAL LAW TODAY? <...> THE SCOTTISH INDEPENDENCE REFERENDUM: PEACEFUL, CONSENSUAL, AND LAW-BASED JURY TRIAL: THE RULE OF LAW OR NULLIFICATION? <...> E AREE B R C S E E O S T I D A S M E D ! 2 KUTAFIN UNIVERSITY LAW REVIEW Volume 1 Andrea Bonomi (University of Lausanne) William Butler KUTAFIN UNIVERSITY September 2014 Senior Editorial Council Sergey Pashin (Pennsylvania State University) Peter Van Elsuwege (University of Ghent) Christophe Hillion (University of Leiden) Dimitry Kochenov (University of Groningen) Editors-in-Chief Paul Kalinichenko (Kutafi n University, Moscow) Irina Alebastrova (Kutafi n University, Moscow) Executive Editor Olga Shevchenko (Kutafi n University, Moscow) International Editors Natalia Sokolova (Kutafi n University, Moscow) Maria Zakharova (Kutafi n University, Moscow) Online Editor Sergey Zaikin (Kutafi n University, Moscow) (Jan Kochanowski University, Kielce) Ekaterina Shugrina (Kutafi n University, Moscow) Vladimir Zhbankov (Kutafi n University, Moscow) Promotion Editors Maria Antokolskaja (VU University Amsterdam) Yulia Kalinina (Kutafi n University, Moscow) Bartosz Mendyk Projects Editor Nikita Lyutov (Kutafi n University, Moscow) Frequency two issues per year Contacts www.kulawr.ru info.kulawr@gmail.com +7 (499) 244-86-85 www Publisher Kutafi n Moscow State Law University (MSAL) 9 Sadovaya-Kudrinskaya str., Moscow, Russia, 123995 http://msal.ru/en/ msal@msal.ru +7 (499) 244-86-35 LAW REVIEW (Higher School of Economics, Moscow) Roman Petrov Junjie Zhang Editorial Board Team Submissions Editors Marina Lazareva (Kutafi n University, Vologda) Ekaterina Tyagai (Kutafi n University, Moscow) Public Relations Editors Alexander Ermolenko (Kutafi n University, Moscow) Оlga Gourjian (Kutafi n University, Moscow) Diversity and Development Editors Alexey Salomatin (University of Penza) Oleksiy Kresin (Volodymyr Koretskyi Institute of State and Law <...>
Kutafin_University_Law_Review_(KULawR)_№1_2014.pdf
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Kutafin_University_Law_Review_(KULawR)_№1_2014.pdf
KUTAFIN UNIVERSITY LAW REVIEW Volume 1 September 2014 Issue 1 WHAT IS CONSTITUTIONAL LAW TODAY? THE SCOTTISH INDEPENDENCE REFERENDUM: PEACEFUL, CONSENSUAL, AND LAW-BASED JURY TRIAL: THE RULE OF LAW OR NULLIFICATION? IVAN IL'IN: RUSSIAN PATRIOT, LEGAL THEORIST, AND DEFENDER OF THE RULE OF LAW LEO TOLSTOY AND LAW INTERPRETIVE APPROACH for INTERNATIONAL LAW www.kulawr.ru Next issue
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www.kulawr.ru info.kulawr@gmail.com THE BEST IDEAS E T H A L W A L W A Y ALWAYS WELCOMED! E AREE B R C S E E O S T I D A S M E D !
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2 KUTAFIN UNIVERSITY LAW REVIEW Volume 1 Andrea Bonomi (University of Lausanne) William Butler KUTAFIN UNIVERSITY September 2014 Senior Editorial Council Sergey Pashin (Pennsylvania State University) Peter Van Elsuwege (University of Ghent) Christophe Hillion (University of Leiden) Dimitry Kochenov (University of Groningen) Editors-in-Chief Paul Kalinichenko (Kutafi n University, Moscow) Irina Alebastrova (Kutafi n University, Moscow) Executive Editor Olga Shevchenko (Kutafi n University, Moscow) International Editors Natalia Sokolova (Kutafi n University, Moscow) Maria Zakharova (Kutafi n University, Moscow) Online Editor Sergey Zaikin (Kutafi n University, Moscow) (Jan Kochanowski University, Kielce) Ekaterina Shugrina (Kutafi n University, Moscow) Vladimir Zhbankov (Kutafi n University, Moscow) Promotion Editors Maria Antokolskaja (VU University Amsterdam) Yulia Kalinina (Kutafi n University, Moscow) Bartosz Mendyk Projects Editor Nikita Lyutov (Kutafi n University, Moscow) Frequency two issues per year Contacts www.kulawr.ru info.kulawr@gmail.com +7 (499) 244-86-85 www Publisher Kutafi n Moscow State Law University (MSAL) 9 Sadovaya-Kudrinskaya str., Moscow, Russia, 123995 http://msal.ru/en/ msal@msal.ru +7 (499) 244-86-35 LAW REVIEW (Higher School of Economics, Moscow) Roman Petrov Junjie Zhang Editorial Board Team Submissions Editors Marina Lazareva (Kutafi n University, Vologda) Ekaterina Tyagai (Kutafi n University, Moscow) Public Relations Editors Alexander Ermolenko (Kutafi n University, Moscow) Оlga Gourjian (Kutafi n University, Moscow) Diversity and Development Editors Alexey Salomatin (University of Penza) Oleksiy Kresin (Volodymyr Koretskyi Institute of State and Law, Kyiv) Boris Strashun (Kutafi n University, Moscow) Editors Jensen Bigelow (Davidson College, North Carolina) Arsen Gourjian (Worcester Polytechnic Institute, Massachusetts) Junior (Student) Editors Anna Brodskaya (Kutafi n University, Moscow) Olga Gavrilova (Kutafi n University, Moscow) KULawR always welcomes new authors and sponsors All rights reserved. Any part of this journal may not be published elsewhere without the written consent of the publisher (Kyiv-Mohyla Academy) Csaba Varga (Catholic University, Budapest) (Minzu University of China) Volume I (September 2014) Issue 1 Issue 1
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2 CONTENTS Welcome Note ...................................................................................................4 LAW EVOLUTION Constitutional Law: Notion and Sources Lecture by Boris Strashun ................................................................................5 LEGAL CONFLICT MANAGEMENT The Scottish Independence Referendum of September 2014: Constitutional and International Aspects Article by Alyson JK Bailes ............................................................................ 23 TOWARDS THE 150th ANNIVERSARY OF THE ALEXANDER II JUDICIAL REFORM The History and Challenges of Reintroducing Trial by Jury in Russia Article by Sergey Pashin ................................................................................ 41 LEGAL CLASSICS On the Appearance of I. A. Il’in’s Legal Consciousness: Towards the History of the Publication Essay by William E. Butler ............................................................................ 55 EXECUTIVE POWER Canadian Model for Centralized Delivery of Legal Services and its Application in Russia Article by Sergey Kabyshev ............................................................................ 80 SPORTS LAW Limits of State Intervention and Non-Intervention in the Sports Field Article by Igor Ponkin and Alena Ponkina .................................................... 92 www.kulawr.ru Volume 1 September 2014 Issue 1
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CONTENTS 3 ECONOMIC INTEGRATION Participation in International Trade Organizations as an Indirect Means of Strengthening Human Rights in the Russian Federation Note by Bartosz Mendyk ............................................................................... 105 COMPARATIVE LAW OF HUMAN RIGHTS The Russian Commissioner for Human Rights and the European Ombudsman: Comparative Analysis Note by Olga Gavrilova ................................................................................. 117 WTO LAW Should the WTO Have Rules on Frivolous Claims in its Dispute Settlement Understanding? Note by Yulia Mogutova ............................................................................... 128 BOOK REVIEW Two Books on the Top Shelf Review by Maria Zakharova ......................................................................... 141 CONFERENCE REVIEW Judicial Independence as Essential Foundation of Justice and Peace Review by Vladimir Zhbankov ..................................................................... 146 Volume 1 September 2014 Issue 1 www.kulawr.ru
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4 KUTAFIN UNIVERSITY LAW REVIEW Dear readers, On behalf of the Kutafi n University Law Review, let us be among the fi rst to welcome you to the pages of our journal. We hope you will fi nd this periodical as enjoyable as we do. This is one of the few English-language legal journals in Russia. The Kutafi n Moscow State Law University (MSAL) was founded in 1939 as a successor of the Judicial Courses. Today, the MSAL is the biggest and most famous Law University within the territory of the former Soviet Union. About 18.000 students are studying different law disciplines behind the walls of the MSAL at the moment. The Kutafi n University Law Review (KULawR) was established by the MSAL in 2014 as an editorial project aimed to spread legal knowledge generated by leading Russian scholars all over the world. Their achievements have not been accessible to respective non-Russian speaking audiences for a long time. One of the main ideas of this journal is to fi ll that gap. In addition, we welcome contributions from all legal researchers from every corner of the world. We would like to bring the Kutafi n University Law Review to the level of a new and authentically international law journal. It presumes that the content of the periodical should refl ect actual, modern, and innovative legal issues. The contents of the KULawR cover different legal branches and scholarships. We would be happy to focus on random topics of law, as well as allied sciences – legal sociology, criminology, forensics, etc. The pages of the KULawR are opened for a wide range of new and creative opinions. We hope you will enjoy reading the Kutafi n University Law Review. All additional information may be found on the journal website at www.kulawr.ru Editors-in-Chief Irina Alebastrova, PhD, Associate Professor Paul Kalinichenko, Doctor of science (Law), Professor www.kulawr.ru Volume 1 September 2014 Issue 1
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5 LECTURE CONSTITUTIONAL LAW: NOTION AND SOURCES By Boris Strashun Author Doctor of science (Law), Institute of State and Law, Academy of Sciences of the USSR, 1978 Professor, Kutafi n Moscow State Law University E-mail: 29-29@mail.ru Abstract This paper consists of two main parts. The fi rst one gives an understanding of the term “Constitutional Law” and its different meanings: as a system of legal regulations, legal studies, and an academic discipline. It’s worth mentioning that some scholars defi ne Constitutional Law as a Political Law. This is also correct, even if nowadays, some constitutions tend to include certain issues that seem to be absolutely irrelevant; for example, the ones concerning the institutions of marriage and family. This results from the fact that a constitution-maker considers those issues to have a political meaning. Regarding methods of legal regulation, they are not much different from the ones used in other branches of law, which are: obliging, permitting (authorizing), and prohibiting. At the same time, the author also mentions the method of general principles declaring. Constitutional Law as legal studies is a result of its norms and social relations research, which elaborates recommendations for lawmakers and relevant state bodies concerning the proper development and interpretation of Constitutional Law norms. Most of the law universities in Russia include Constitutional Law of the Russian Federation and Foreign Countries, as well as Comparative Constitutional Law, as a part of scholar program. The second part of this paper defi nes the sources of Constitutional Law. There are also some ideas of constitutionalism. Keywords Constitution, constitutionalism, Constitutional Law Volume 1 September 2014 Issue 1 www.kulawr.ru
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6 KUTAFIN UNIVERSITY LAW REVIEW § 1. The Term “Constitutional Law” and “State Law”. Object, Subject and Methods. Scholarship and Studies 1. First of all, Constitutional Law is a system of legal norms. Most of the scholars consider that system to be a branch of law, which is not absolutely correct. Constitutional Law is more the basis of law than a branch of law. What’s more, Constitutional Law contains essential principles of different law branches (Criminal Law, Civil Law, etc.). Until the end of the last century, Constitutional Law had the name of “State Law” in Russia. It’s worth mentioning that the term “State Law” includes all kinds of norms, which regulate organization and activity of a state, i.e. Administrative Law and Process, Judicial Law and Process. Constitutional Law is considered to be a fundamental part of Public Law. Sometimes it may seem diffi cult to differentiate Public Law from Private Law for the reason of the interlacing of Economics and Ecological Law and the infl uence of the European Union and International Law.1 The Constitutional Law of Russia, as well as that of the countries with the Anglo-Saxon and Roman systems, includes all the norms that have constitutional meaning, regardless of the source that contains them. The term “Constitutional Law” originates its name from the name of basic law, the Constitution, which appeared in the time of Ancient Rome. This term used to mean “order”, “structure”. The system of law norms that is nowadays called Constitutional Law used to regulate only a structure of public authority in Ancient Rome. In modern times, there are just a few countries that still use the term “State Law”. Most of the modern states defi ne a system of fundamental legal norms as Constitutional Law. It’s worth mentioning that Constitutional Law appeared in a relatively peaceful way in just a few countries. In most of the cases, it emerged as a result of revolution or other kind of violence. But anyway Constitutional Law became fi rmly established upon fi nding a compromise between contradictory social interests. This is very important for society in general because it has a risk of 1 H Maurer, I Staatsrecht, Grundlagen. Verfassungsorgane. Staatsfunktionen. 6, überarb und ergänzte Auflage (2010) München: C.H. Beck 8. www.kulawr.ru Volume 1 September 2014 Issue 1
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Boris Strashun Constitutional Law: Notion and Sources 7 self-destruction without that compromise. What’s more, this concept is exactly what the social and political nature of Constitutional Law means. The object of Constitutional Law should, fi rst of all, include political relations, i.e. relations concerning the organization and functioning of political authority, especially public authority. Constitutional Law sometimes can be defi ned as Political Law, which is also correct, even if nowadays, some constitutions tend to in-clude certain issues that seem to be absolutely irrelevant for politics; for example, the ones concerning the institutions of marriage and family. In particular, the Constitution of the Federal Republic of Brazil contains a lot of similar provisions, so it means that constitution makers consider them to be politically important in this case. The subject of Constitutional Law is formed by the norms regulating social relations, which have to be refl ected in the Constitution. One of the most important Russian Constitutionalists and Legal Scholars, O.E. Kutafi n, stated as follows: The most important subject within Constitutional Law is a group of social relations, which form a ground for the state organization. Another group of social relations is formed by the relations that have a basic level of signifi cance for those spheres through which they have come into existence. Such relations are not obligatory and they can become elements of Constitutional Law, just in case where there is a state interest2 . Art. 10 of the Russian Federation Constitution of 1993, declares: “State power in the Russian Federation comes into effect on the grounds of division between legislative, executive, and judicial powers. The respective authorities of the legislative, executive, and judicial powers are independent”. So, state power in the Russian Federation shall be exercised on the basis of its division into legislative, executive, and judicial powers. The respective authori-tative bodies of the legislative, executive, and judicial powers shall be independent. Certain provisions of the Constitution, as well as other laws, specify the limits of every branch of power independence, in addition to the forms of their interaction. 2 Kutafin O.E. Predmet konstitutsionnogo prava. M.: Norma, 2001 (OE Kutafin, The Subject of Constitutional Law (Norma 2001)). Volume 1 September 2014 Issue 1 www.kulawr.ru
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8 KUTAFIN UNIVERSITY LAW REVIEW Certain provisions of the Constitution, as well as other laws, describe and specify the limits of every branch of power independence, in addition to the forms of their interaction. Regarding the other group of relations (non-obligatory ones), Art. 200 of the Brazilian Constitution, is a very good example of those relations that defi ne the competence of the Common Health System. It’s worth mentioning the opinion of the French Professor J.-P. Jacqué on the subject: “As its subject, Constitutional Law defi nes political relationships with the state power as the most important component.”3 Like many other branches of law, Constitutional Law uses three methods for legal regulation: obliging, permitting (authorizing) and prohibiting. For example, according to § 2 of Art. 17 of the Brazilian Constitution, political parties are obliged to register their statutes with the Superior Electoral Tribunal; according to § 3 of that article, they are permitted to have free access to radio and television; and § 4 of the same Article prohibits them to involve any military organization. At the same time, Constitutional Law implements the method of general principles declaring. For example, Art. 1 of the Polish Constitution of 1997 declares: “the Republic of Poland shall be the common good of all of its citizens”. The method of defi nitions (normative determinations) is also rather common for Constitutional Law. Art. 20 of the German Fundamental Act of 1949, declares: “the Federal Republic of Germany is a democratic and social state”. 2. Constitutional Law as legal studies is the result of the research of relevant norms and relations. It elaborates recommendations for lawmakers (other relevant state bodies) concerning the proper development and interpretation of Constitutional Law norms. But the lawmakers are not always eager to follow those recommendations. The problem is that sometimes, a theory is too far-removed from the reality of practice. But it is more common that legislative, administrative and even judicial practice steps aside from the norms of Constitutional Law, either because of misunderstandings of law norms idea, or because of some sort 3 J.P. Jacqué, Konstitutsionnoe Pravo i politicheskiye instituty. Uchebnoe posobiye / Perevod s fr. Maklakova V.V. M.: Yurist, 2002 (J.P. Jacqué, Constitutional Law and Political Institutions. Tutorial (Translated from French by V Maklakov, Lawyer 2002)). www.kulawr.ru Volume 1 September 2014 Issue 1
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Boris Strashun Constitutional Law: Notion and Sources 9 of evil intent. Unfortunately, this kind of phenomenon became more and more common in the last decades. 3. Scholar program of Russian law universities includes Constitutional Law of the Russian Federation, Constitutional (State) Law of Foreign Countries and Comparative Constitutional Law. Constitutional Law of the Russian Federation among others includes Municipal Law, Electoral Law and Constitutional Judiciary. An academic program and educational materials on Russian Constitutional Law are structured according to the structure of the Russian Federation Constitution. Foreign textbooks are different. First of all, they often contain a brief presentation of a general theory of Constitutional Law, or even of a State, subsequently presenting parts that characterize Constitutional Law institutes. The typical example of a Constitutional Law textbook is the one written by Karel Klima, the Czech Professor of Law.4 The fi rst part of it includes general provisions, which characterize the nature of the European Constitution. The subsequent part is devoted to the history and provisions of the Czech Constitution. Finally, it contains a part that deals with Constitutional Court Practice. There is a different approach in “Constitutional and Administrative Law” by the Principal Lecturer of Law at De Montfort University, N. Parpworth.5 The textbook, fi rst of all, contains the essential principles of the Constitution, followed by its structure, and thereafter, by sources of Public Law. It also includes the judicial review of administrative actions, alternative means of compensation, and fi nally, provisions on civil liberties. Another British textbook, which has the same title, written by Professor J. Alder,6 includes general principles (political values: liberalism, republicanism in spite of the monarchic form of government, equality, democracy; sources of the Constitution; historical outline; an overview of the main constitutional institutions; the territory and regions; the rule of law; the separation of powers; parliamentary supremacy; the European Union), followed by government institutions (Parliament, the Crown, ministers, and departments), Administrative Law (the grounds for 4 5 6 K Klíma , Ústavní právo. 4. vyd. Plzeň: Aleš Čeněk, 2010. N Parpworth, Constitutional & Administrative Law. (4-th edn, Oxford University Press 2006). J Alder, Constitutional and Administrative Law (Palgrave Macmillan 2009). Volume 1 September 2014 Issue 1 www.kulawr.ru
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