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Corporate Contract Legal Regulation in the Context of the Joint-stock Company Corporate Culture. 股份公司企业文化背景下的公司合同法律规制。
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2021.4.7.
N.V. Bandurina
The relevance of this article is due to the need to study legal nature of the corporate contract in the field of corporate culture and the system of corporate governance in modern conditions. The subject of the study is regulatory legal acts governing corporate contracts conclusions, as well as doctrinal sources and interpretations. The purpose of the work is to conduct a study of the corporate contract institution and to identify its legal nature and significance for corporate governance. The author shows various points of view on the nature and content of the corporate contract, examines the positions of legal scholars on its binding or dual nature, including applying this design in corporate legal relations. The article also considers certain issues of corporate governance, effective tools in the management system and analyzes the possibility of applying a corporate contract in the framework of governance in corporate legal entities. One of the main points is the justification of the corporate contract essential role in regulating the business companies` corporate governance system, since it can determine the structure of corporate bodies, their competence, which are reflected both in the charter of a corporate legal entity and directly in the corporate contract itself. The author concludes that there is a need to further improving this contractual design in order to increase its enforceability and attractiveness in various economic societies.
本文的相关性是由于需要在企业文化领域研究公司合同的法律性质和现代条件下的公司治理制度。本研究的主题是管理公司合同订立的监管法律行为,以及理论来源和解释。本研究的目的是对公司合同制度进行研究,明确公司合同制度的法律性质及其对公司治理的意义。作者对公司合同的性质和内容提出了不同的观点,考察了法律学者对公司合同的约束性或双重性的看法,包括在公司法律关系中应用这种设计。本文还考虑了公司治理的某些问题,以及管理制度的有效工具,并分析了在公司法人治理框架中应用公司合同的可能性。其中一个要点是公司合同在规范公司治理体系中的重要作用的正当性,因为它可以决定公司法人的结构,其能力,这既体现在公司法人章程中,也直接体现在公司合同本身。作者的结论是,有必要进一步改进这种契约设计,以提高其在各种经济社会中的可执行性和吸引力。
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引用次数: 0
The Concept and Characteristics of a Legal Action in Civil Law 民法中法律行为的概念和特征
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2021.3.2.
E. Titov
The purpose of the article is a critical assessment of the established in the legal literature and practice the concept and characteristics of a legal action and criteria for distinguishing legal actions and events. The main problem identified by the author is that, despite the huge number of sources on this subject, jurisprudence has not progressed in the study of this phenomenon since the early 19th century. The definition and characteristics of a legal action «migrate» from one work to another, as a rule, without any critical analysis at all and are taken by lawyers as a given, which leads to stagnation in the development of the relevant field. At the same time, studies of specific varieties of legal actions often reach a deadlock precisely because of the incorrectly defined general characteristics of a legal action. The author defines the classification criterion of differentiation of legal facts, and argues the necessity of two-member division of legal facts into events and actions. It is proved that facts-states cannot be distinguished within the classification of legal facts on the volitional ground and they are not legal facts at all. The concept of legal action and its characteristics are given. The concept of will as a key element of legal action is discussed in the article and it is substantiated that «involuntary» actions are not legal facts. The author analyzes the classification of events into absolute and relative, and offers an algorithm for determining whether a certain legal fact refers to events or actions.
本文的目的是对法律文献和实践中确立的法律行为的概念和特征以及区分法律行为和事件的标准进行批判性评估。作者指出的主要问题是,尽管关于这一问题的资料非常多,但自19世纪初以来,法律学对这一现象的研究并没有取得进展。法律行为的定义和特征通常从一部作品“迁移”到另一部作品,根本没有任何批判性分析,并被律师视为给定的,这导致了相关领域发展的停滞。与此同时,对法律行为具体种类的研究往往陷入僵局,正是因为对法律行为的一般特征的定义不正确。界定了法律事实区分的分类标准,论证了将法律事实分为事件和行为两部分的必要性。事实状态不能在法律事实的分类中以意志为依据加以区分,事实状态根本不是法律事实。给出了法律诉讼的概念及其特征。本文讨论了意志作为法律行为要素的概念,并论证了“非自愿”行为不是法律事实。笔者分析了绝对事件和相对事件的分类,并提出了一种确定某一法律事实是指事件还是指行为的算法。
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引用次数: 0
Interests Balance of Creditors and Debtors` Families in Bankruptcy Cases 破产案件中债权人与债务人家属的利益平衡
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2021.3.6.
E. A. Lagunova
The article is devoted to the legislative norms on bankruptcy of citizens, providing the possibility of exemption from the unbearable debt obligations execution. It is noted that the number of court cases in this category annually increasing. The author studied the current legal regulation and law enforcement practice of consumer bankruptcy relations, taking into account the interests of the debtor's family as a separate community, and analyzed (in the aspect of the problem of abuse of right) the courts approaches on the issues of releasing citizens from the obligations performance; the practice of challenging transactions with the common property made by the debtor and his or her spouse. There is the need to find a balance between the interests of a debtor's family in his bankruptcy case and preventing the debtor from refusing to fulfill his obligations to his creditors. The attention is drawn to the absence of clear criteria for determining the balance of competing interests with a significant number of court disputes on this issue. It was noted that a balance between the interests of creditors and a debtor's family was achieved through retaining the debtor's minimal property to ensure his livelihood. It is concluded that further study of the issue under consideration in the aspect of the implementation of the constitutional and legal principle of family, motherhood and childhood protection in bankruptcy cases.
本文探讨了公民破产的立法规范,提供了免除不可承受债务义务执行的可能性。委员会注意到,这一类案件的数目每年都在增加。笔者研究了当前消费破产关系的法律规制和执法实践,考虑到债务人家庭作为一个独立的社会群体的利益,分析了(在权利滥用问题方面)法院在解除公民履行义务问题上的做法;对债务人及其配偶对共同财产进行的交易提出异议的做法。有必要在债务人家庭的利益和防止债务人拒绝履行对债权人的义务之间找到平衡。提请注意的是,由于在这一问题上有大量法院争端,缺乏确定相互竞争利益平衡的明确标准。有人指出,通过保留债务人最低限度的财产以确保其生计,实现了债权人和债务人家庭利益之间的平衡。结论认为,在破产案件中实施保护家庭、母亲和儿童的宪法和法律原则方面,应进一步研究这一问题。
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引用次数: 0
Efficient Exercise of Property Rights and Civil Law 有效行使财产权与民法
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2022.2.6.
Z. Lambaev
The author of the article examines the principle of effective implementation of the property right. The principle assumes rational behavior of the proprietor, reasonable and economic expediency of his or her actions and the effectiveness of the measures that he or she takes. Meanwhile the effectiveness is rather a qualitative that quantitative feature of the proprietor behavior. According to the author’s opinion, the grounds for the effective implementation of the property right have economic and ethical backgrounds. They influence legislative regulation of the property relations. The author refers to the doctrinal sources, legislation and court practice. He, therefore, concludes that the principle of effectiveness of the implementation of the property right is reflected in the legal system in general as well as in particular norms and institutes of civil legislation. The principle of effective implementation of the property right can influence the meaningful content of certain legal constructions (appearance and termination of the property right, implementation of this right). It can also influence on legally applied activity while solving individual disputes (on belonging of the property, on defining the size of the part of the property in property right).
本文对产权的有效实施原则进行了考察。该原则假定经营者的行为是理性的,其行为具有合理性和经济上的权宜之计,其所采取的措施是有效的。同时,经营者行为的有效性是一种定性特征而非定量特征。笔者认为,产权有效实施的依据有其经济和伦理背景。它们影响着财产关系的立法规制。笔者参考了理论渊源、立法和法院实践。因此,他得出结论,产权实施的有效性原则既反映在一般的法律制度中,也反映在具体的民事立法规范和制度中。产权有效实施原则影响着某些法律结构的意义内容(产权的产生与终止、产权的实施)。它还可以影响在解决个人纠纷时的法律适用活动(关于财产的归属,关于界定产权中财产部分的大小)。
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引用次数: 0
Public Legal Entities Bodies` Powers on Protecting Human Rights 公共法律主体的人权保障权力
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2020.3.1
I. Zernov
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引用次数: 0
Ratio of Fainess and Competitiveness in Judicial Practice 司法实践中的竞争与竞争之比
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2021.2.4.
V. Katomina
The article is devoted to the study of the question of the ratio of fairness and competitiveness in judicial practice. The purpose of the article is to determine the general and distinctive features of fairness and competitiveness in the legal process, to establish the relationship in judicial practice, and to identify contradictions between them. The author notes that the unity of fairness and competitiveness lies in the fact that they have the same goals and objectives, act as the basic values of law, are externally expressed in the current legislation as a principle, and also include in their content the idea of equality of participants in procedural legal relations. Attention is drawn to the differences between fairness and competitiveness in the scope of application, variability of content, etc. As a research task, the author identified an attempt to establish the interaction of fairness and competitiveness in judicial practice. The author comes to the conclusion that an adversarial process can be fair if the parties are given the same opportunities to present their position. However, in judicial practice, there are often contradictions between the existing adversarial process and justice. This is due to the availability of procedural opportunities provided by the legislator to any one party to the trial and the restriction of the rights of participants in the presentation and examination of evidence by judges.
本文对司法实践中公平与竞争的比例问题进行了研究。本文的目的是确定公平与竞争在法律程序中的一般特征和鲜明特征,确立公平与竞争在司法实践中的关系,并找出两者之间的矛盾。公平与竞争的统一性在于两者具有相同的目的和目的,作为法律的基本价值,作为一种原则在现行立法中对外表现,并在其内容中包含程序性法律关系参与者平等的理念。应注意在适用范围、内容可变性等方面公平与竞争之间的差异。作为一项研究任务,笔者确定了在司法实践中建立公平与竞争互动关系的尝试。作者得出的结论是,如果当事方有同样的机会表达自己的立场,对抗性程序可能是公平的。然而,在司法实践中,现有的对抗性程序与司法公正之间往往存在矛盾。这是由于立法者向审判的任何一方提供了诉讼机会,并且限制了法官提出和审查证据的参与人的权利。
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引用次数: 0
Electronic Investigation Technologies and Modern Format of Technical and Criminalistic Support for Criminal Cases Investigation 电子侦查技术与刑事案件侦查技术与刑事支持的现代形式
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2021.1.11.
G. Romanova, V. Romanov
The article considers the main aspects of the electronic criminal investigation technologies application from the point of view of modern legislation of Russia and foreign countries. In modern society, there is a continuous process of improving the means of transmitting information, developing and implementing new technical devices for its processing and storage. The rapid development of science and technology inevitably leads to the desire to regulate the relations that arise in this area from a legal point of view. Meanwhile, in the Russian legal science, the information space is defined through the unity of its two components: the technical one, which includes the communication and communication infrastructure, and the social one – the community of Internet users. In this regard, the normative regulation of this area justifiably causes objective difficulties. The development of high technologies leads to the most frequent use of a relatively new form of technical and forensic support for the investigation of criminal cases in the process of criminal investigation. In the modern practice of investigation, the traces left by criminals on various media due to the expansion of digitalization processes are becoming more and more important every year. Timely, systematic development of legal regulation of the use of electronic information technologies is recognized as the most important condition for the successful digitalization of criminal proceedings. Understanding the need for the introduction of electronic technologies in the investigation of a criminal case from the point of view of the informational and technological nature is necessary, since the criminal process should not be an exception within the framework of a single international information policy, and its technological effectiveness should be dominant.
本文从俄罗斯和国外现代立法的角度,探讨了电子刑侦技术应用的主要方面。在现代社会中,人们不断改进信息的传输手段,开发和实施新的信息处理和存储技术设备。科学技术的迅速发展不可避免地导致从法律角度规范这一领域中出现的关系的愿望。同时,在俄罗斯法学中,信息空间是通过其两个组成部分的统一来定义的:技术部分,包括通信和通信基础设施,以及社会部分,即互联网用户社区。在这方面,对这一领域的规范规制必然会造成客观困难。高技术的发展导致在刑事调查过程中最频繁地使用一种相对较新的技术和法医支助形式来调查刑事案件。在现代侦查实践中,由于数字化进程的扩大,犯罪分子在各种媒体上留下的痕迹每年都变得越来越重要。及时、系统地发展对电子信息技术使用的法律规制被认为是刑事诉讼数字化成功的最重要条件。从信息和技术性质的角度理解在刑事案件调查中采用电子技术的必要性是必要的,因为刑事程序不应是单一国际信息政策框架内的例外,其技术效力应占主导地位。
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引用次数: 0
On the Mechanism of Legal Regulation of Civil Circulation 论民事流通的法律规制机制
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2021.4.3.
Yu.V. Vinichenko
This article is a development of the author's concept of civil circulation, according to which the latter should be perceived not as a legal form of economic circulation (as it is established in the Russian civilistic doctrine), but as a systematically organized sphere of actual (real) relations of subjects, representing an economic subsystem of society, which should be subject to legal regulation due to its social importance. Choosing the mechanism of legal regulation of civil circulation as the subject of this study, the author highlights approaches to the understanding of the mechanism of legal regulation (available in the general theory of law) and to the issue of its elements, the types of legal regulation allocated in science. On this basis, the author formulates a general definition of the mechanism of civil circulation legal regulation, and gives characteristics of legal regulation means and types of this social sphere. The mechanism of civil circulation legal regulation is defined as a system of legal means, by which legal regulation (ordering) of social connections (relations) that form civil circulation as a sphere of society is carried out. It is noted that the elements of the mechanism of civil circulation legal regulation are such legal means as: 1) norms of positive law; 2) (specific) legal relations of subjects of civil circulation; 3) acts of implementation of legal opportunities and obligations by participants in civil circulation; 4) (optionally) acts of law application. It is summarized that the peculiarity of these means of the civil circulation legal regulation mechanism is the presence of «intersectoral component», caused by the specificity of civil circulation as an object of legal regulation. The author pays attention to the necessity of developing a general (intersectoral) doctrine of the civil circulation legal regulation mechanism. It is argued that the legal regulation of civil circulation is carried out not through a combination of two types of legal regulation – public law and private law types, but through the only one – general permissive type.
本文是作者民事流通概念的发展,根据该概念,后者不应被视为经济流通的法律形式(正如它在俄罗斯民事学说中所建立的那样),而是作为一个系统地组织了主体的实际(现实)关系的领域,代表了社会的经济子系统,由于其社会重要性,它应该受到法律的规制。本文选择民事流通的法律规制机制作为研究对象,重点探讨了理解法律规制机制的途径(一般法学理论中有)以及法律规制的要素问题,即科学分配的法律规制类型问题。在此基础上,对民事流通法律规制机制进行了概括性的界定,并给出了民事流通社会领域法律规制手段和类型的特点。民事流通法律规制机制是对构成民事流通作为一个社会领域的社会联系(关系)进行法律规制(排序)的法律手段体系。民事流通法律规制机制的构成要素是:1)实在法规范;(二)民事流转主体的(具体)法律关系;(三)民事流通主体履行法律机会和义务的行为;4)(可选)法律适用行为。文章总结认为,这些民事流通法律规制机制手段的特殊性在于其“跨部门成分”的存在,这是由于民事流通作为法律规制对象的特殊性造成的。作者强调了建立民事流通法律规制机制的一般(跨部门)学说的必要性。本文认为,民事流通的法律规制不是通过公法与私法两种法律规制的结合来实现的,而是通过唯一的一种——一般许可型法律规制来实现的。
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引用次数: 0
Legal representation in civil proceedings in Russia (historical and theoretical aspects) 俄罗斯民事诉讼中的法律代表(历史和理论方面)
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2020.2.1
N. N. Menyailenko, A. Keklis
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引用次数: 0
The Standard of Crime Scientific Analysis (to the 100th Anniversary of Semyon Samuilovich Ovchinsky) 犯罪科学分析的标准(致谢苗·萨穆洛维奇·奥夫钦斯基诞辰100周年)
Pub Date : 1900-01-01 DOI: 10.21639/2313-6715.2022.3.10.
A. Bychkova
Semyon Samuilovich Ovchinsky (1922–1993) had his 100-years anniversary in 2022. He was a distinguished Soviet and Russian scientist, professor and doctor of law. This article is prepared based on S.S. Ovchinsky biography information that is contained in the preface to the book «Operational investigative information» (2019). The author of the article cites the information about outstanding contribution of S.S. Ovchinsky in the entire complex of legal disciplines that are aimed at the crime fighting and crime prevention. These disciplines are criminology, criminalistics, administrative law, criminal law and criminal procedure. The author describes the process of creation by the scientist of operational and investigative activities and the basics of its information support. The article mentions the contents of three books that were published after the death of their author but that continue to influence modern scientific life. The article emphasizes the innovative nature of the S.S. Ovchinsky works that were ahead of time and that stay relevant nowadays. These works represent a solid theoretical foundation for creating information-search, information-analytical, information-identification and the most promising information-diagnostic systems of the new generation.
2022年是谢苗·萨穆洛维奇·奥夫钦斯基(1922-1993)诞辰100周年。他是一位杰出的苏联和俄罗斯科学家、教授和法学博士。本文是根据S.S. Ovchinsky传记信息编写的,这些信息包含在《Operational investigative information》(2019)一书的序言中。这篇文章的作者引用了关于S.S. Ovchinsky在旨在打击犯罪和预防犯罪的整个法律学科综合体中的杰出贡献的资料。这些学科是犯罪学、刑法学、行政法、刑法和刑事诉讼。作者描述了业务和调查活动的科学家创造的过程及其信息支持的基础。这篇文章提到了三本书的内容,这些书是在作者去世后出版的,但它们继续影响着现代科学生活。文章强调了S.S.奥夫钦斯基作品的创新性质,这些作品超前于时代,并与今天保持联系。这些工作为创建信息搜索、信息分析、信息识别和最有前途的新一代信息诊断系统提供了坚实的理论基础。
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引用次数: 0
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Prologue: Law Journal
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