Sravnitel noe konstitucionnoe obozrenie最新文献_第2页

Review of legal reasoning in the Russian Constitutional Court judgments: Nos. 38-P – 48-P (2020) 俄罗斯宪法法院判决中法律推理的回顾:no . 38-P - 48-P (2020)

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-6-171-191

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Review of legal reasoning in the Russian Constitutional Court judgments: Nos.27-P–37-P (2020) 俄罗斯宪法法院判决中的法律推理回顾:no .27- p - 37- p (2020)

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-5-150-164

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Constitutional watch: June—July 2021 宪法观察:2021年6月至7月

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-4-4-16

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Review of legal reasoning in the Russian Constitutional Court rulings Nos.1938-O, 2372-O, 2374-O, 2375-O, 2596-O (2020) 俄罗斯宪法法院第1938- o号、2372-O号、2374-O号、2375-O号、2596-O号判决中的法律推理述评(2020)

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2020-6-192-198

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Review of legal reasoning in the Russian Constitutional Court rulings Nos.1136-O, 1139-O, 1367-O, 1372-O (2021) 俄罗斯宪法法院第1136- o、1139-O、1367-O、1372-O(2021)号判决中的法律推理述评

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-4-193-199

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The rights of the defendant and public interest in proving insanity under the law of New York 根据纽约法律被告证明精神错乱的权利和公共利益

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-3-108-124

A. Grin'ko

{"title":"The rights of the defendant and public interest in proving insanity under the law of New York","authors":"A. Grin'ko","doi":"10.21128/1812-7126-2021-3-108-124","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-3-108-124","url":null,"abstract":"Allocation of the burden of proof is a key issue of criminal procedure that is affected by multiple legal and social factors. Under due process principles, the defendant’s right to a fair and impartial trial is deemed to be the epicenter of the whole structure. However, efficient law enforcement is a prominent public interest that must be considered. This article explores the correlation between public and private interest in proving insanity under the law of New York, which provides great empirical background due to its long history of legal disputes and legislative changes. Considering the nature and structure of the burden of proof, the author concludes that there are several principles for its fair allocation: the due party that bears both the burden and the risk of its nonperformance; the feasibility of the burden; the adequate opportunity for the other party to rebut; the concentration of resources upon needs that are not presumed but in fact exist. All the mentioned principles lay the ground for the harmonization of constitutional guaranties for the defendant as well as the successful enforcement of criminal law. The current New York approach to insanity defense as an affirmative one along with the history of its implementation tends to prove its compliance with such requirements. This finding suggests that bearing the burden shall not be treated as impairment by default, but can protect both the interest of this party and the integrity of the whole process.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129286751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Public hearings as an institution of deliberative democracy in major Russian and American cities 公开听证会在俄罗斯和美国主要城市作为协商民主制度

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-1-59-83

A. Fursov

{"title":"Public hearings as an institution of deliberative democracy in major Russian and American cities","authors":"A. Fursov","doi":"10.21128/1812-7126-2021-1-59-83","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-1-59-83","url":null,"abstract":"Currently, public hearings are one of the most widespread forms of deliberative municipal democracy in Russia. This high level of demand, combined with critique of legal regulations and the practices for bringing this system to reality – justified, in the meantime, by its development (for example, by the Agency for Strategic Initiatives and the Public Chambers of the Russian Federation) of proposals for the correction of corresponding elements of the legal code – make both the study of Russian experiences in this sphere and comparative studies of legal regulations and practical usage of public hearings in Russia and abroad extremely relevant. This article is an attempt to make a contribution to this field of scientific study. If the appearance of public hearings in Russia as an institution of Russian municipal law is connected with the passing of the Federal Law of 6 October 2003 No.131-FZ, “On the general organisational principles of local government in the Russian Federation,” then in the United States, this institution has existed since the beginning of the 20th century, with mass adoption beginning in the 1960s. In this time, the United States has accumulated significant practical experience in the use of public hearings and their legal formulation. Both countries are large federal states, with their own regional specifics and diversity, the presence of three levels of public authority and different principles of federalism, which cause differences in the legal regulation of municipal public hearings. For this reason, this article undertakes a comparative legal analysis of Russian and American experiences of legal regulation and practical use of public hearings, on the example of several major municipalities – the cities of Novosibirsk, Nizhny Novgorod, Voronezh and New York, Los Angeles, and Chicago. A comparison of laws influencing the public hearing processes in these cities is advisable, given the colossal growth in the role of city centers in the industrial and post-industrial eras. Cities in particular are the primary centers for economic growth, the spread of innovations, progressive public policy and the living environment for the majority of both Russian and American citizens. The cities under research are one of the largest municipalities in the two countries by population, and on such a scale, the problem of involving residents in solving local issues is especially acute. In this context, improving traditional institutions of public participation is a timely challenge for the legislator, and the experiences of these cities are worth describing. The unique Russian context for legal regulations of public hearings involves the combination of overarching federal law and specific municipal decrees that regulate the hearing process. There are usually two municipal acts regulating public hearings on general issues of the city district (charter, budget, etc.) and separately on urban planning. In the United States, the primary regulation of","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"30 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113989465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Doctrinal characteristic of the subject of constitutional law as a factor in strengthening or overcoming of its dysfunction 宪法主体的理论特征是加强或克服宪法主体功能失调的一个因素

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2019-6-50-60

I. Alebastrova

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Foreign agents in Russia: How a borrowed American legal institute acquired a different sense in Russian legislation and law enforcement practices 俄罗斯的外国代理人:一个借来的美国法律机构如何在俄罗斯立法和执法实践中获得不同的意义

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-4-97-121

A. Kondrashev

{"title":"Foreign agents in Russia: How a borrowed American legal institute acquired a different sense in Russian legislation and law enforcement practices","authors":"A. Kondrashev","doi":"10.21128/1812-7126-2021-4-97-121","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-4-97-121","url":null,"abstract":"The article examines the institution of a “foreign agent” that appeared in Russian legislation in 2012. The author, analyzing American legislation, the position of the Venice Commission, the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (hereinafter — the OSCE/ODIHR), the decisions of the Constitutional Court of the Russian Federation, as well as the existing Russian judicial practice, comes to the conclusion that ’misappropriation’ status of a foreign agent by the Ministry of Justice of Russia for non-profit organizations (hereinafter — NPOs) occurs in the absence of clear legal definition of the term “political activity”, does not correlate with the identification of the real connection and activities of NPOs on the order or instruction of a foreign donor, and is actually applied in those cases when it comes to appeals to government agencies, criticism of government agencies or assessment of their decisions. All this indicates that the purpose of the restrictions imposed by the state was by no means a desire to ensure transparency and openness through access to information about foreign financing of non-profit organizations, but rather the purpose was to politically stigmatize and impose additional organizational and financial burdens on NPOs, which dare to criticize the authorities. The author advocates the complete abolition of this institution of a foreign agent, since the pre-existing Russian legislation already made it possible to exercise control over the financing and activities of NPOs. The expansion of the number of types of foreign agents, introduced since December 2019 (first in terms of recognition by media as foreign agents), led by December 2020 to the appearance in Russian legislation of individuals of foreign agents and foreign agents-unregistered public associations and even greater and disproportionate restrictions on the constitutional the right to association. Moreover, the status of a “foreign agent” (in relation to a candidate for an elective office and a candidate affiliated with an acting foreign agent) is supposed to be introduced into the electoral legislation with the obvious goal of political stigmatization of persons trying to exercise their passive electoral right.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134422729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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State of emergency in Poland: constitutional regulation and “hybrid” nature during the COVID-19 pandemic 波兰的紧急状态:2019冠状病毒病大流行期间的宪法法规和“混合”性质

Sravnitel noe konstitucionnoe obozrenie Pub Date : 1900-01-01 DOI: 10.21128/1812-7126-2021-4-41-67

Valentina I. Chekharina

{"title":"State of emergency in Poland: constitutional regulation and “hybrid” nature during the COVID-19 pandemic","authors":"Valentina I. Chekharina","doi":"10.21128/1812-7126-2021-4-41-67","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-4-41-67","url":null,"abstract":"The COVID-19 pandemic became widespread across the world throughout 2020 and 2021 in an emergency that gravely impacted the health and lives of people around the world. States have taken exceptional measures to combat the pandemic, including controversial decisions to introduce emergency regimes, which have been questioned in regards to their compliance with constitutional regulations. The fight against the COVID-19 pandemic requires special measures, however they must remain within the constitutional framework. Consequently, the pandemic and its effect upon the legality of regimes in a state of emergency has captured the attention of legal scholars. The aim of this study is to analyse the constitutional regulation of the state of emergency in the Republic of Poland which was introduced in the country during the COVID-19 pandemic. In Poland, an emergency regime was introduced following an order by the Minister of Health. However the state of emergency (here, natural disaster) as stated by the Constitution was not introduced, although, according to analysts, some state bodies and officials had confirmed that all the necessary conditions for this were met. On 2 March 2020, the so-called Special Law on Coronavirus was adopted, followed by other regulations to fight the pandemic. These analysts stated that the measures introduced by the new acts corresponded to a legal regime containing the constitutional characteristics of a state of emergency, but lacked the appropriate constitutional procedure for their introduction. Presidential elections were held at this time, however legally they cannot be held during a state of emergency, as it indicates the presence of political interests in the choice of the regime. The unconstitutional procedure of the introduction of emergency measures alongside their characteristics of the state of emergency make it possible to consider the epidemic regime introduced in Poland a “hybrid” state of emergency, which is not detailed by the Constitution or legislation. On this basis, the study concludes that reasons behind the unconstitutional response to the COVID-19 pandemic in Poland can be found in both the Constitution, and in the manifestations of the crisis of the constitutional and legal system, which began with the reform of Poland’s Constitutional Tribunal by the ruling Law and Justice party in 2015.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134629356","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0