Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law最新文献

{"title":"SHORTENED TIMELINE OF APPEAL AGAINST INTERIM COURT DECISIONS MADE AT A PRE-TRIAL STAGE OF CRIMINAL PROCEEDINGS","authors":"Polina O. Gertsen","doi":"10.17223/22253513/41/4","DOIUrl":"https://doi.org/10.17223/22253513/41/4","url":null,"abstract":"The article deals with the problem of classifying interim decisions among those that are appealed in a shortened timeline, and determining the list of such decisions, as well as the closely related problem of determining the rules for calculating such a shortened timeline. Currently, the Criminal Procedure law provides for the possibility of appealing a number of interim decisions made at a pre-trial stage of criminal proceedings before the final decision Moreover, for appealing some interim decisions at a pre-trial stage of criminal proceedings, a general period of appeal is provided - 10 days from the date of the court decision, or the same period from the date of serving with a copy of the decision the person who is in custody, while for others a shortened timeline is 3 days from the date of the decision. Meanwhile, it follows from the literal interpretation of the Criminal Procedure Code of the Russian Federation that within a shortened three-day period, court decisions on the election of preventive measures in the form of a ban on certain actions, bail, house arrest, detention, the refusal to apply them or extend their application can be appealed. At the same time, such a conclusion is not confirmed either in the positions of the Plenum of the Supreme Court of the Russian Federation or in judicial practice. Based on the analysis of the criminal procedure law, the position of the Supreme and Constitutional Courts of the Russian Federation, scientific literature and practice, several problems are highlighted. Thus, the author states the discrepancy between the provisions of the Code of Criminal Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation when it comes to establishing the terms for appealing the court decision on a preventive measure in the form of bail. In addition, there is no single criterion for establishing shortened deadlines for appealing interim decisions, and there-fore, the list of such decisions requires analysis. In addition, the Criminal Procedure Code of the Russian Federation does not contain a norm that determines the rules for calculating daily terms. The author formulates several proposals for amendments. It is proposed to determine the criteria for a shortened appeal timeline as the restriction of the constitutional right to liberty and immunity of a person that requires the immediate judicial review of the lawfulness of such a decision. It is also necessary to correct the phrasing of Article 106 of the Criminal Procedure Code of the Russian Federation, which defines the procedure for applying a preventive measure in the form of bail, and establish the rule that appeal against such an interim court decision is filed according to the rules of Chapter 45.1 of the Criminal Procedure Code within ten days. The list of court decisions which must be appealed in a shortened timeline must be expanded by a court decision on putting a suspect or an accused into a me","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"177 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79583717","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":"Impact of the COVID-19 pandemic on the digital transformation of criminal justice","authors":"E. V. Markovicheva, I. Smirnova","doi":"10.17223/22253513/42/4","DOIUrl":"https://doi.org/10.17223/22253513/42/4","url":null,"abstract":"A common trend in the development of criminal proceedings over the last decade has been the penetration of modern digital technology. To a certain extent, the digitalisation of criminal proceedings has been a natural consequence of a qualitative change in crime and an increase in the number of offences committed through the use of modern technology. However, the degree of digitalisation of the criminal process varies considerably from state to state. The COVID-19 pandemic that has engulfed the world has severely challenged courts and law enforcement agencies. The criminal justice system has been confronted with unforeseen challenges and new procedural tools have to be found to address them. The resolution of the contradiction between social distance and the right of citizens to access to justice forced courts to use modern information technology more frequently. However, the pandemic has also revealed organisational and regulatory difficulties that make their use difficult. The authors believe that further scientific development of the problems of digitalization of criminal proceedings will contribute to the smooth administration of justice in criminal cases, even in emergency situations and special regimes. The article analyses prospective directions of digitalization which will contribute to the optimization of criminal proceedings. These directions include application of digital technologies for detection and investigation of crimes, criminal evidence, optimization of routine processes in criminal proceedings and use of artificial intelligence in making procedural decisions. The authors emphasise that the main factor limiting the use of digital technology is the significant lag in the regulatory framework that does not allow the use of a particular technology in the due process of law. The authors propose to regulate by law the issue of determining the reasonableness of the duration of court proceedings, taking into account the epidemiological situation. In conclusion, we substantiate a system of conditions, the fulfilment of which will be a prerequisite for the productive digitalisation of Russian criminal procedure in the post-pandemic era. Key issues are suggested for further constructive scientific discussion, the results of which should be reflected in legislation.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"9 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90401211","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":"Overcoming gaps in penal law through interpretation by the judiciary: theory and practice","authors":"A. A. Khramov","doi":"10.17223/22253513/42/10","DOIUrl":"https://doi.org/10.17223/22253513/42/10","url":null,"abstract":"The relevance of the article is due to the lack of unified limits and conditions of application of interpretation of norms of criminal-executive legislation to overcome gaps existing in it in the theory of criminal-executive law. It is established that in spite of some isolation in the legal literature the analogy of law and analogy of law as the ways of overcoming gaps from the norms interpretation, in the legal literature so far there is no common opinion of scholars concerning the essence of these legal phenomena. Based on the analysis of the opinions of various scholars, it is concluded that the lack of a unified position in this area is due solely to different approaches (narrow and wide) to the understanding of the term \"interpretation\". This circumstance does not affect the process of overcoming gaps by means of analogy because in all cases of applying analogy it is initially required to find a similar norm, to clarify its meaning and content or the meaning and content of general provisions of a branch of law, i.e. to apply interpretation. The article notes the peculiarities of interpretation of the criminal-executive legislation to overcome the existing gaps in it. In contrast to other branches of the \"criminal cycle\", the subjects of execution of criminal sanctions (article 16 of the CEC of the RF) and only in the second place - the court - are called to carry out such activities. However, with the adoption of relevant legislation at the end of the last century, it was the court that was given a real opportunity to form a kind of \"precedent\", which it retains to this day. In this regard, judicial interpretation of the norms of criminal-executive legislation to overcome the existing gaps in it is important in the context of the implementation of the principle of legality in the execution of criminal sanctions, as well as the achievement of its goals. Specific court decisions on overcoming gaps in the criminal-executive legislation (in the field of labour of convicts, bringing them to disciplinary responsibility) are analysed. Taking into account the provisions on the application of analogy of law and analogy of law developed by the general theory of law, as well as the requirements of the Constitution of the Russian Federation, the conclusion is made that today there are cases of expansive interpretation of the rules, which leads to the violation of the rights and freedoms of man and citizen. At the same time, the author allows an expansive interpretation to overcome gaps by analogy, if it does not change or improve a person's legal position, as it is consistent with the law and does not contradict part 3 of article 55 of the Constitution of the Russian Federation.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76852209","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":"SOME ASPECTS OF THE ORGANIZATION OF PROSECUTOR'S SUPERVISION OVER EXECUTION OF LAWS ON MINORS IN THE FIELD OF URBAN DEVELOPMENT","authors":"O. Korshunova, Svetlana I. Korachentsova","doi":"10.17223/22253513/40/5","DOIUrl":"https://doi.org/10.17223/22253513/40/5","url":null,"abstract":"The article deals with topical issues of assessing the legality of the Prosecutor's office documents of territorial planning, planning and placement of facilities for minors, taking into account the practice of land and urban planning legislation. As, undoubtedly, in the existing rates of design and construction works the measure of responsibility for observance not only the town-planning legislation, but its compliance to requirements of ecological standards also increases. The necessity of more thorough implementation of Prosecutor's supervision over the quality of planning, construction and reconstruction of infrastructure facilities for minors, as well as compliance with the requirements defined by the state in the field of urban plan-ning, up to bringing the perpetrators to the statutory responsibility. The authors also considered the issues of information and analytical activities of the Prosecutor's office, assessment of the legality of urban planning activities of local governments. The authors used the methods of analysis of documents and official materials, the establishment of features in the field of land use, urban planning, taking into account the legislation of territorial planning docu-ments and special technical standards. The conclusion about the need for interaction of the Prosecutor's office with the public and the scientific community, as well as the possibility of their involvement in interdepartmental meetings, working groups, and other assistance to the Prosecutor's office. As a result of the study, the need for prosecutors to take into account the shortcomings allowed by local authorities in the implementation of their functions for the development of territorial planning documents is justified, recommendations are proposed to prosecutors, which can be used in assessing the legality of territorial planning documents. The recommendations that can be applied in assessing the legality of the implementation of urban legislation and the implementation of prosecutorial supervision in this area. On the basis of the rules of law, a General approach to the use of special expertise and the production of expertise is presented.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"12 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79775721","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":"ON THE PLANS OF THE FEDERAL EXECUTIVE BODIES AS THE DOCUMENTS OF STRATEGIC PLANNING","authors":"S. Starostin, Alexey G. Dobkin","doi":"10.17223/22253513/41/7","DOIUrl":"https://doi.org/10.17223/22253513/41/7","url":null,"abstract":"The article deals with strategic planning, which is one of the main mechanisms for ensuring the purposeful and sustainable development of the state, economy and society. The adoption of the Federal Law No. 172-FZ of 28.06.2014 \"On Strategic Planning in the Russian Federa-tion\" in the Russian Federation marked a new stage in the formation of the state strategic planning system. The status of plans for the activities of federal executive bodies as one of the key elements of the system of strategic planning documents is considered. The practice of their preparation and implementation is analyzed, its shortcomings are studied, and possible directions for improving the current legislation in this area are proposed. The authors consider the status of plans for the activities of federal executive bodies as one of the key elements of the system of strategic planning documents. They analyze the prac-tice of their preparation and implementation, study its shortcomings, and propose all possible directions for improving the current legislation in this area. When writing the article, the authors studied the content of certain questions about strate-gic planning and the corresponding functions of the federal executive bodies of the Russian Federation. They revealed the problems of practical importance and proposed the methods and options for their solution. The authors used the following methods: system analysis, dialectical, logical, compara-tive-legal methods, analysis and synthesis, induction and deduction. As a result of the study, the following results were obtained: – it is necessary to ensure that not only activities and tasks of a general nature are included in the adopted plans, but also their detailing in terms of the expected stages of work; – the activity plans of the federal executive authorities, which are responsible executors of strategic goals and objectives, should give an unambiguous answer to how and when the strategic guidelines defined at the federal level within the entire array of strategic planning documents will be implemented; – the introduction of a systematic approach will allow to fix the risks of non-achieving certain strategic indicators and take the necessary measures in a timely manner; – at present, the role of plans for the activities of federal executive bodies in the system of strategic planning documents is unreasonably low; – the transfer of issues of preparation and control over the achievement of relevant strate-gic indicators to the level of the executive authorities themselves, in the conditions of insuffi-cient external control over this process, in fact, led to the loss of their managerial potential, depriving the state apparatus of an important mechanism for coordinating work in the field of strategic planning; - it is necessary for the entire system of strategic planning to revise quali-tatively the role of the plans of the federal executive bodies with the transfer of authority for their approval to a higher lev","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"81 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81782872","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":"SOCIAL WELFARE OF MIGRANT WORKERS IN THE EU: COMPARATIVE MODELS IN THE CONTEXT OF THE LEGAL INTEGRATION SYSTEM OF THE EAEU STATES","authors":"D. V. Agashev, S. Trifonov, K. Trifonova","doi":"10.17223/22253513/40/10","DOIUrl":"https://doi.org/10.17223/22253513/40/10","url":null,"abstract":"The article assesses the EU legal system as a unique institutional unit and highlights its features. It deals with the comparative legal aspects of the regulation of the social welfare of migrant workers in the EU and the EAEU. Attention is paid to the study of legislation on social welfare for migrant workers in the EU, as well as the possibility of realizing the experi-ence accumulated within the EAEU. It is emphasized that the use of comparative models con-cerning the social welfare of migrant workers in the EU and the EAEU can be productive, taking into account the analysis of the state and dynamics of the EU's legal policy in its historical development. The authors have analyzed the historical stages reflecting the difference within the EU approaches to the regulation of social welfare relations for migrant workers. The emphasis is on the role of EU administrative institutions, which provide a balancing approach to the key principles and social policy settings, due to the desire to eliminate distortions and possible conflicts between the norms of states. At the same time, EU members have the competence within the existing common standards of financial security obligations to expand the estab-lished standards and this makes the EU's social policy geographically differentiated. It is noted that the allied states, formed on trade and economic grounds, such as the EU and the EAEU, are characterized by an objective desire for a single legal space, with the uni-fication of approaches on the social welfare of migrant workers throughout the Union. Never-theless, in complex interstate unions, it is impossible to abandon the principle of multi-level regulation of social and security relations, and in this sense, the situation in the EU and the EAEU is quite similar. The current state of EU law in terms of regulating the relations under consideration largely preserves national legal regimes, and each of them, through its special legal means, determines a different amount of social rights of migrant workers. In the context of the EAEU, a similar approach should not be considered productive, since it does not contribute to the goals of this interstate association, defined by Article 4 of the Treaty on its creation. Therefore, within the framework of the EAEU, it is advisable to fix as early as possible the uniform standards in the area of social welfare of migrant workers, estab-lishing a relatively narrow range of powers of the member states of the Union.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"419 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86842648","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":"Artificial intelligence as a participant in civil relations: the transformation of law","authors":"E. Vavilin","doi":"10.17223/22253513/42/11","DOIUrl":"https://doi.org/10.17223/22253513/42/11","url":null,"abstract":"Artificial Intelligence (hereinafter referred to as AI) carriers are active participants in civil relations. Therefore, questions of legal nature of AI units, their ability to possess rights and bear responsibilities, exercise rights and perform responsibilities, questions of liability limits for improper exercise of rights and performance of responsibilities by AI units are most relevant. For law, the defining characteristic of any participant in civil relations is its role in the exercise of rights and the performance of duties. The digital actor must also be viewed from this perspective. One of the central debates in this area is the possibility of conferring legal capacity on digital actors. This position has found supporters and opponents both in domestic science and abroad. At the same time it is necessary to take into account the specifics of will, consciousness and other anthropomorphic qualities of AI carriers. Complex neural networks have similar anthropomorphic qualities, the nature of which is a digital algorithm. AI is capable of expressing its will in accordance with the interest, goals and motives set by software algorithms, i.e. it is technological in nature. Obviously, an AI must be endowed with legal capacity and be responsible for its actions, otherwise we cannot use the full potential of an AI as a technology (person), and the actions of such a participant in legal relations cannot be recognised as legally significant. According to its purpose and registration an AI medium can be endowed with different legal personality: to be an agent - a subject with a narrow special legal capacity within certain functions, to participate in civil relations as a full subject, or to act as an object of legal relations at all. This legal capacity is conditioned by the robot having a certain set of qualities, such as the level of self-awareness, autonomy, complexity of neural networks, and competences. It is necessary to create a classification of AI forms by legal personality, by competences, which are certified through state registration. Legal statuses of different types of AI should be defined, including a new specific legal status of limited digital legal capacity. It is necessary to consider the legal personality of AI in relation to its exercise of rights, principles of law and legal content. It is necessary to create for AI varieties a certain mechanism of responsibility conditioned by the legal status assigned to it at the state registration. With respect to AI carriers the nature of law execution changes - subjective expression of will disappears, the execution becomes objective, unbiased. AI software must incorporate a system of principles for the exercise of rights and the performance of duties. In this way, the AI will be certified to a specific scope of powers, be competence-oriented and have a specific legal capacity.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"59 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77415994","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":"ANALYSIS OF SELECTED BIOGRAPHICAL FACTS ABOUT THE PERSONALITY OF A PERSON WHO ABUSES HIS OR HER POWER IN THE CONTEXT OF A FORENSIC STUDY OF PERSONALITY","authors":"V. L. Yuan","doi":"10.17223/22253513/41/10","DOIUrl":"https://doi.org/10.17223/22253513/41/10","url":null,"abstract":"The article reveals a set of problems related to the forensic investigation of personality when using the method of biographical analysis. The range of problems involves methodo-logical, statistical, forensic, and psychological aspects. The subject of the research was a complex of biographical facts, bearing a possibility of interpretation of personal properties of their bearer. Regularities were revealed in relation to a personality of the person abusing his office. The study used the following general scientific methods: analysis, synthesis, system-structural. The following specific scientific methods were used in the study: modelling, statis-tical analysis, comparative-historical, expert assessment. The analysis was carried out by recording data on the defendants' employment activities related to the commission of the offence for which Article 285 of the Criminal Code of the Russian Federation establishes liability. Among the persons examined, military personnel made up the smallest percentage of defendants, while among public sector employees almost half were employed in the education sector. The article reached a number of conclusions as follows. The development of a criminalistic characteristic of the personality of a person who abuses his powers from the perspective of biographical analysis, it is advisable to begin with the identification of groups of biographical facts that have a pronounced correlation with the predisposition to commit crimes of this type. It is not an unconditional predisposition of persons to commit this type of crime if their biography contains, to a large extent, biographical facts that are interrelated with a predisposi-tion to abuse their position in office. It is necessary to speak about the existence of such a relationship, which has the potential to form tendencies, but at the same time, it is not absolute. The final conclusion is that the biographical analysis reveals a number of biographical facts that have a strong correlation with a predisposition to abuse of power. The information obtained will make it possible to know in advance, at the initial stage of the investigation, a number of typical personality traits of the defendant and to have an idea of other sources of information about him. The information obtained will also make it possible, when planning the investigation of the type of crime in question, to rely on the psychological characteristics already known about the personality of the accused, on the basis of which investigative tactics, such as questioning, confrontation, search, etc., can be developed.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"101 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90368804","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":"SIGNS OF AN ACTION FOR THE RECOGNITION OF A PROPERTY RIGHT","authors":"T. Podshivalov","doi":"10.17223/22253513/40/15","DOIUrl":"https://doi.org/10.17223/22253513/40/15","url":null,"abstract":"The article examines the definition of a closed list of features of a claim for the recogni-tion of a property right. The establishment of the features of a claim for the recognition of property right allows to correlate, distinguish the claim for the recognition of property right with other property claims and methods of protection of property rights, which ensures the prevention of competition lawsuits. Peculiarities of the action for recognition of property right are conditioned by its proprietary nature, i.e. by attributing it to proprietary lawsuits. The features of the action for recognition of the right in rem shall characterise the subject matter of proof and the conditions of satisfying such an action. The peculiarities of an action for recognition of property right may be divided into special and general characteristics - special characteristics are of qualifying nature allowing to distin-guish it from other property lawsuits; general characteristics result from the characteristic of this method of protection as a type of property action, since these characteristics are inherent to all property lawsuits. An action for recognition of property right is characterized by the following specific features: presence of the plaintiff's lawful possession of the subject of dispute; proprietary right acquired by the plaintiff on sufficient legal basis and preserved, exists for him at the time of the dispute; there is legal uncertainty in belonging of a person to a proprietary right; presence of the defendant's contesting the presence of proprietary right of the plaintiff; exclusive nature of application; independent legal significance of the claim for recognition of property right; non-contractual nature of claim; legal nego General, universal features of an action for recognition of property rights are as follows: non-contractual nature: there must be no binding relations between the plaintiff and the defendant regarding the subject matter of the dispute; legal uncertainty concerns individually identified thing, in most cases immovable thing, which physically exists at the moment of court decision; restoration character - vindication and negative actions restore situation existing before violation - restoration of possession and restoration of c An action for recognition of a property right cannot have the following properties: abso-lute nature of the claim; existence of a subject of ownership; absence of grounds indicating termination of ownership right; universality in application.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90411828","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 ROLE OF THE DELOCALISATION THEORY IN THE DEVELOPMENT OF THE FRENCH LEGISLATION ON INTERNATIONAL COMMERCIAL ARBITRATION","authors":"Daria O. Astakhova","doi":"10.17223/22253513/40/11","DOIUrl":"https://doi.org/10.17223/22253513/40/11","url":null,"abstract":"The notion of delocalisation of international commercial arbitration has recently drawn increasing attention from Russian and foreign scholars. The main problematic of scientific discussions relates to the question of how closely international commercial arbitration is related to the legal order of the seat of arbitration. The emergence and development of the theory of delocalisation of international commer-cial arbitration is inextricably linked to the French legal science. French scientists stand at the origins of this theory. Besides, French law and jurisprudence have been significantly influenced by the theory of delocalisation of international commercial arbitration. The following provi-sions of the French legislation provide the most significant examples. First, article 1511 of the French code of civil procedure constitutes a basis for the use by arbitrators of the method of direct choice of law (“voie directe”). This implies that arbitrators do not have to apply any conflict of laws rules. Therefore, French law provides for a broad autonomy of arbitrators in the choice of law, while at the same time reducing the link between arbitration and national law, including the French law. French law is thus in perfect harmony with the concept of delocalisation of international commercial arbitration. Second, it is worth mentioning that the French code of civil procedure contains a limited number of grounds for refusal of recognition and enforcement of foreign arbitral awards. This particularity permits to ensure the highest efficiency of international commercial arbitration, to maintain an arbitration friendly approach at the stage of recognition and enforcement of foreign arbitral awards, as well as to recognise and enforce arbitral awards that have been set aside at the seat of arbitration. This corresponds to the idea of delocalisation of international commercial arbitration. Third, the influence of the delocalisation theory on the French legislation is also reflected in the scope of international competence of the French supporting judge, who can act in cases where one of the parties incurs the risk of denial of justice. This means that the French sup-porting judge is entitled, for example, to nominate an arbitrator if one of the parties fails to do so, even if the dispute does not have any objective links to France. The features of the French legislation on international commercial arbitration examined above prove that it is impacted by the theory of delocalisation of international commercial arbitration. The recognition in legal science, law and court practice of the autonomy of inter-national commercial arbitration from national legal orders contributes to the growth of attrac-tiveness of Paris as a place of cross-border dispute resolution.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"12 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86794535","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}