RUDN Journal of Law最新文献

{"title":"Right to an Effective Remedy in the European Convention on Human Rights","authors":"Lado Chanturia","doi":"10.60131/jlaw.1.2023.7060","DOIUrl":"https://doi.org/10.60131/jlaw.1.2023.7060","url":null,"abstract":"
 
 The article is dedicated to the right to an effective remedy in the European Convention on Human Rights (the Convention) which guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Article 13 of the Convention obliges the States to protect human rights within their legal system. The States’ primary obligation deriving from Article 13 is to guarantee the availability of an effective remedy at the domestic level which must be “effective” in practice as well as in law. Moreover, the States have an obligation to demonstrate convincingly the existence of an effective remedy in the practice. At the same time, that provision obliges individuals to exhaust all effective remedies before they lodge their applications with the European Court of Human Rights (the Court). However, they are only obliged to exhaust the remedies that are effective and capable of redressing the alleged violation, accessible and offering reasonable prospects of success. Additionally, this provision creates a basis for the Court to examine the existence and effectiveness of the domestic remedies. 
 The article analyses the Court’s case-law concerning the interplay of the parties’ obligations corresponding to the right an effective remedy from the perspective the subsidiarity of the Convention system: the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the Convention is placed on the national authorities.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":"208 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136365570","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}

{"title":"The Problematic Issues of Jury Selection","authors":"Irina Akubardia","doi":"10.60131/jlaw.1.2023.7071","DOIUrl":"https://doi.org/10.60131/jlaw.1.2023.7071","url":null,"abstract":"It is known that the jury is not an institutionally separate legal entity. It functions alongside the Court of First Instance and is a special form of administration of justice. Unlike ordinary proceedings when a judge makes a decision based on the law, a jury trial relies on the opinions of ordinary citizens applying to their \"inner voice\" - conscience, \"common sense\", folk wisdom and intelligence, public morality, sense of justice. That is why jury trial is considered the highest expression of democracy. It is an interesting institution in many ways. The article reviews the problematic issues of jury selection.
 The article analyses theoretical and practical aspects of selecting non-professional judges, the preconditions of their selection, recusals and the jury composition. Legislative changes have been evaluated positively, but there are still challenges. Accordingly, the problems associated with jury selection are identified and the specific recommendations are made to prevent the process from delaying and choose independent, unbiased jurors.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":"239 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136365574","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}

{"title":"A Shareholder Activity: Types of Control, Gaining and Using it","authors":"Giorgi Makharoblisvili","doi":"10.60131/jlaw.1.2023.7062","DOIUrl":"https://doi.org/10.60131/jlaw.1.2023.7062","url":null,"abstract":"The article analyzes control as a methodical mean of practical implementation of shareholder activism, the ways of obtaining it and forms of use in the corporate-legal dimension. 
 In corporate law, control is understood in several directions. Its corporate sense leads to the mutual separation of ownership and control, management and holding a controlling stake by a shareholder under the authority of the JSC.
 The three-level classification of control is based on positive corporate law, which is developed by the best international practices of corporate management and the requirements of capital market law. The research thesis is centered on the legal, and in certain cases, economic categories of a shareholder controlling stake.
 In the article, the term \"control\" is analyzed with regard to its accession and use by a person (a shareholder) inclined to take control over the main material and procedural transactions and the control premium. The method of comparative legal research, systematic and teleological definition of the norm makes it possible to cover the basic scientific range of control in the JSC.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136365576","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}

{"title":"Issues of foundations and criteria of law: criticism of the theory of social rules and conventional rule of recognition in “early” R. Dworkin’s doctrine","authors":"S. Kasatkin","doi":"10.22363/2313-2337-2023-27-2-288-308","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-288-308","url":null,"abstract":"The article investigates the doctrine of an American jurist, Ronald Dworkin, presented in the essay “Social Rules and Legal Theory” (1972) and considered as a stage in his large-scale polemics with legal positivism. In this doctrine the author criticizes the theory of “social rules” and the conventional “rule of recognition”, which is basic for his opponents. The theory requires an agreed unity of practice and defends the controversial character and moral engagement of normative grounds and criteria of law, their priority and autonomy against community practices. The relevance of the topic is due both to the fundamental nature of the Dworkin - positivists dispute, and peculiarities of the 1972 doctrine, which formed a number of its “cross-cutting” elements. The article is aimed at systematization and assessment of the 1972 doctrine, relies on the texts by its author, his opponents and researchers, and uses various tools, primarily the ideological and historical method, focused on explication of views and issues developing in the history of thought. The study results are generalization of original components of R. Dworkin’s 1972 doctrine, its localization within the dispute between the author and positivists and discerning its ideological and historical implications. Summing up the article emphasizes a stimulating role of the 1972 doctrine for evolution of the rival approaches, as well as its potential for the philosophy of law, associated with R. Dworkin’s problematization of a link between normativity and facticity in law, linguistic-analytical idea of a rule as a practice, and conventionalist account of foundations of law which decenters normative disagreements.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47553544","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}

{"title":"United States of America and the pandemic: issues of legal regulation in combating COVID-19","authors":"N. Latypova","doi":"10.22363/2313-2337-2023-27-2-354-367","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-354-367","url":null,"abstract":"The pandemic period in the United States has become a test of the strength of many state mechanisms, raised the question of the limits of the extraordinary powers of the President and governors and effectiveness of the public health system. The reasons why one of the most prosperous countries in the world has become the most affected state by the pandemic largely lie in the sphere of public administration system and historically established precedents for expanding the powers of the executive branch in times of emergency. The aim of the study is to identify the foundations of constitutional and legal regulation in combating the consequences of the pandemic in the United States and to trace correlations between peculiarities of distribution of powers in the field of public security and effectiveness of measures to counter the COVID-19 spread. One of the tasks is to identify both advantages and disadvantages of the US political structure in the context of countering the nationwide threat. The historical method of research allowed to determine the specifics of the extraordinary powers of the US President, while the specific legal method was used as the basis for analyzing the structure and powers of legislative and executive authorities along with comparative legal, system-structural and functional approaches. In the fight against the pandemic, the mechanism of public administration in the United States has shown its inability to counter threats of a nationwide nature. In many ways, this situation is explained by peculiarities of the legislative regulation of the healthcare sector, transferred to the autonomous regulation of state authorities, a disparate system of legal regulation of emergency response, as well as the very modest capabilities of the head of state in responding to epidemiological threats. The study allows to conclude that there is a correlation between the features of the public administration system in the United States, its legislative regulation and the negative consequences of the COVID-19 pandemic caused by uncoordinated actions of federal and regional government authorities.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42051568","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}

{"title":"The concept of “insurable interest” in civil law: Key issues of theory and practice","authors":"P. Battakhov, Y. Ovchinnikova, S. Moturenko","doi":"10.22363/2313-2337-2023-27-2-439-452","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-439-452","url":null,"abstract":"The article pays attention to the importance of insurable interest in the modern legal environment. The insurable interest is looked at in relation to the insurable risk; the meaning of the insured property losses is also explained. The article formulates the features for a single concept of insurance contract. In the focus are such features of insurable interest as legitimacy and private (subjective) nature. The author reveals the difference between the objective and subjective sides of the insurable interest and analyzes judicial practice. It is concluded that insurable interest of the subject consists in compensation for property losses, which are not in all cases related to the concept of “damage” and “harm” in civil law. Accordingly, the insurable interest exists insofar as there is a possibility of the occurrence of insured property losses; moreover, the insurable interest is of property nature, which allows us to formulate uniform features of a personal and property insurance contract.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46686206","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}

{"title":"Public control and supervision in the economy: theoretical and legal justification","authors":"S. Agamagomedova","doi":"10.22363/2313-2337-2023-27-2-421-438","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-421-438","url":null,"abstract":"In the context of the rapid processes of economy digitalization and integration, the issues of updating the forms and methods of public law impact on economic relations in the new modern conditions naturally arise. Taking into account the fact that control and supervision are traditionally positioned as basic management functions, the issues of substantiating public control and supervision in various areas of managerial influence in general and in the economic sphere in particular are becoming increasingly relevant. At the same time, the literature review allows to speak about the lack of common positions on the issues of structural and functional content of the category “public control and supervision in the economy”. In this regard, the purpose of the study is determined as the need for a theoretical and legal substantiation of the concept of public control and supervision in the economy, its structural and functional content and place in the general system of public administration. The materials for the study are the scientific works of domestic and foreign scientists in the field of public control and supervision, their individual areas (public financial control, public environmental control, etc.). Various opinions on the structural and functional content of public control and supervision in the economy, its individual areas, assessment of the subject composition, goals and mechanisms for implementing such activities have formed the basis for classifying the existing scientific approaches to justification of public control and supervision in the economy. It is proposed to distinguish at least three approaches to such justification: from narrow (public control and supervision as control and supervision of public authorities) to two options for a broader approach (at the national and supranational levels). The latter seems relevant from the point of view of unification of states on economic basis and formation of regional markets for goods and services in the modern economic space.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45664478","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}

{"title":"Justification of the right to subsistence in contemporary Western philosophy: challenges and solutions","authors":"N. Shaveko","doi":"10.22363/2313-2337-2023-27-2-309-320","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-309-320","url":null,"abstract":"The article discusses the views of modern Western philosophers on the isuue of socio-economic human rights, including the right to subsistence. The purpose of the work is to answer the question of whether the right to a decent life is morally justified. The work was carried out within the framework of the analytical approach and its inherent methodology. The author identifies several types of arguments expressed in Western literature against the right to a worthy existence. They are 1) actual impossibility of guaranteeing these rights; 2) denial of non-contractual positive obligations that could correspond to this right; 3) problematization of the imperfect nature of positive obligations corresponding to this law. It is shown that these objections in themselves are not sufficient to reject the right to a worthy existence, but they show that at the abstract level this right cannot be justified only in a “negative” sense, that is, as the right to which only the negative duties of others correspond. The author proposes to consider options for solving the problems that gave rise to discussions concerning the right to a dignified existence, outside of human rights discourse. Thus, the moral basis for the fight against poverty and other features of an “unworthy” existence can be formulated by applying to the public sphere (by analogy) the categories of civil law - condiction, tort and contract, as well as taking into account the classical conditions for the onset of legal liability. Moreover, the moral justification for securing some “decent” level of existence is achieved by referring to the general principles of fair distribution of material wealth (regardless of what is considered a “decent existence”). One of these principles is the Rawlsian principle of difference, which does not depend either on the idea of a person as a “moral agent” who requires some kind of minimum (“worthy”) level of well-being, or on understanding of the human rights nature.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45021047","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}

{"title":"The development of an insolvency privilegle for derivatives in German law","authors":"A. Klementyev","doi":"10.22363/2313-2337-2023-27-2-453-467","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-453-467","url":null,"abstract":"The article outlines the development of insolvency privilege with respect to derivatives under German law in its historical perspective. It traces the evolution of special privilege from the moment when it was first announced in the German insolvency statute (Insolvenzordnung) and came into force on August 1, 1994, up to the moment when legislative provisions securing the functioning of derivatives in insolvency context were amended in response to the 2016 Federal Court of Justice Verdict. This court ruling ended the long-standing consensus on “friendliness” of the German insolvency law to derivatives and other financial transactions. German highest court concluded that contractual clauses on the termination of obligations under derivative contracts in the event of bankruptcy are invalid unless their legal result is identical to the one prescribed by law. This court decision created significant legal uncertainty for recognition of claims under derivative transactions and directly influenced the use of standard master agreement for over-the-counter derivatives. Drafted under the auspices of the German Banking Union (GBU), an organization representing the interests of German financial institutions, German Master Agreement for Financial Derivatives Transactions ( Deutscher Rahmenvertrag fur Finanztermingeschäfte ) provided a contractual framework for the relevant market, and it came under significant pressure. Overall, German insolvency rules were significantly enforced to achieve the enforceability of close-out netting thus expanding the insolvency privilege for derivative transactions.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42388281","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}

{"title":"Review of the scientific and methodological seminar Synergetic Approach in State Understanding: Challenges and Development","authors":"A. M. Mongush, Valentina S. Nikitina","doi":"10.22363/2313-2337-2023-27-2-522-532","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-522-532","url":null,"abstract":"On December 15, 2022, the Department of Theory of Law and the State of the Law Institute of the RUDN University held a scientific and methodological seminar on the Synergistic Approach in State Understanding: Challenges and Development. A wide range of people were involved in the seminar: the faculty of the department, graduate students of the department and students of the Law Institute. The work of the seminar suggested personal and remote presence of the participants and observers.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43586012","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}