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Extension of a fixed-term employment contract: some theoretical and practical issues 固定期限劳动合同的延长:若干理论与实践问题
IF 1 3区 社会学 Q2 LAW Pub Date : 2019-07-16 DOI: 10.12737/2500-333x-2019-4-2-65-72
S. Kichigin
The problem of introducing changes to a fixed-term employment contract in terms of amending (extending) its term is an urgent applied problem in the work of personnel services, which often arises in the course of their practical work. Argued, based on established judicial practice, the solution to this problem will create clarity in the application of the norms of the Labor Code of the Russian Federation. The norms of the Labor Code of the Russian Federation do not contain a ban on the application of the provisions of art. 72 of the Labor Code of the Russian Federation. However, to date there is no single, reasoned opinion on whether it is possible to change the term of a fixed-term employment contract, and if possible, under what conditions? On this issue, there are polar opinions. Both the courts and state authorities have repeatedly changed their position on this issue, right up to the diametrically opposite. In this paper, the author attempts to answer this question on the basis of the existing judicial practice and the courts understand the relevant provisions of the Labor Code of the Russian Federation, the opinions of the federal authorities of the Russian Federation, as well as their own attempts to interpret the provisions of the law, and concludes that the term of a fixed-term labor contract in the presence of compliance with the necessary conditions dictated by the norms of the Labor Code of the Russian Federation, established law enforcement practice.
对固定期限劳动合同进行修改(延长)期限的问题,是人事工作中一个迫切需要解决的问题,也是人事工作在实际工作中经常遇到的问题。他认为,根据既定的司法惯例,解决这一问题将使俄罗斯联邦《劳动法》规范的适用更加明确。俄罗斯联邦《劳动法》的规范没有禁止适用第3条的规定。《俄罗斯联邦劳动法》第72条。然而,到目前为止,对于是否可以改变固定期限劳动合同的期限,以及如果可以的话,在什么条件下,还没有一个单一的、合理的意见。在这个问题上,有截然不同的意见。法院和州当局在这个问题上一再改变立场,直到完全相反。在本文中,笔者试图根据现有的司法实践和法院对俄罗斯联邦劳动法相关条款的理解,俄罗斯联邦联邦当局的意见,以及自己对法律条款的解释,来回答这个问题。并得出结论认为,定期劳动合同的期限在符合俄罗斯联邦《劳动法》规范规定的必要条件的情况下,是既定的执法惯例。
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引用次数: 0
Illegal Access to a Computer System from the Standpoint of the Current Criminal Code 从现行刑法的角度看非法侵入计算机系统
IF 1 3区 社会学 Q2 LAW Pub Date : 2019-06-01 DOI: 10.2478/jles-2019-0003
A. T. Drăgan
Abstract One of the forms that cybercrime can take at present is illegal access to a computer system. From the very beginning, the world of computers and of the Internet was based on imperfections, defects, and sometimes on poorly understood processes. We might even call this fact “the original sin” of the Internet. In the end, it is not only computer scientists who have come to exploit such defects, but also criminals. In the real world, there are people who break into homes and take away everything they find valuable. In the virtual world, there are individuals who penetrate into computer systems and steal all valuable data.
目前网络犯罪可以采取的形式之一是非法进入计算机系统。从一开始,计算机和互联网的世界就建立在不完美、缺陷的基础上,有时还建立在人们对过程理解不足的基础上。我们甚至可以把这个事实称为互联网的“原罪”。最后,不仅计算机科学家开始利用这些缺陷,而且犯罪分子也开始利用。在现实世界中,有人会破门而入抢走他们认为有价值的东西。在虚拟世界中,有些人侵入计算机系统并窃取所有有价值的数据。
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引用次数: 0
Criminal Responsibility for Concealing Truth in Finance 金融隐瞒事实的刑事责任
IF 1 3区 社会学 Q2 LAW Pub Date : 2019-06-01 DOI: 10.2478/JLES-2019-0002
S. Khalili, A. Kalantari, Fatemeh Rezaei Zarchi
Abstract The disguise of truth as one of the main sources of blameworthy in the Qur’an and the customs has been extremely condemned and has cautioned the concealer. In light of the Quranic documentation and the legitimacy of the disguise of reality, it has been acknowledged and acknowledged that instances of household and outside business sectors that reason doubt of merchants and uncertainty in the monetary space have been a wellspring of perplexity by the gatherings to the agreement. In Iran’s law, regardless of the expectation of common risk, including pay and end for hiding reality, no assurance of criminal requirement has been predicted. In this article, alluding to the refrains and portrayals, the standard of wellbeing and the guideline of the supply of products reality in contracts where the purposeful camouflage causes unsalvageable harm, by adjusting the components of wrongdoing, notwithstanding thoughtful risk, for hiding criminal obligation.
在古兰经和习俗中,真理的伪装作为主要的罪责来源之一,受到了极大的谴责和告诫。根据《古兰经》的记载和现实伪装的合法性,人们已经认识到,家庭和外部商业部门的事例导致对商人的怀疑和货币空间的不确定性,这是协议集会困惑的根源。在伊朗的法律中,不管对共同风险的预期,包括支付和掩盖事实的结局,都没有预测到刑事要求的保证。在这篇文章中,通过调整不法行为的组成部分,尽管有深思熟虑的风险,为了隐藏刑事义务,有目的的伪装会造成无法挽回的伤害,从而暗指了合同中的克制和描绘,福利标准和产品供应指南。
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引用次数: 0
The Defence of Necessity in International Law and Investor Versus State Dispute Settlement 国际法必要性辩护与投资者与国家争端解决
IF 1 3区 社会学 Q2 LAW Pub Date : 2019-06-01 DOI: 10.2478/jles-2019-0005
B. B. M. AlModarra
Abstract The ability of foreign investors to sue host states without reliance on diplomatic protection is one of the most important developments in international investment law in the post-World War II era. The rise of investor-state dispute settlement under international regimes like the Convention Establishing the International Centre for the Settlement of Investment Disputes (ICSID Convention) raises some concerns from states regarding loss of sovereignty. However, there are defences available to states when they intervene in their economies for purposes like public utility or the need to safeguard an essential interest. Thus in spite of treaty commitments that bind states to protect the investments of foreign investors within their domains, there are available defences for their intervention in their economies even if such interventions become inimical to the interests of foreign investors and could, prima facie, raise the possibility of infringements of the rights of foreign investors. One of such defences available to states is the principle of necessity. This article explores the principle of necessity in international law and how it operates as a defence for states in investor-state dispute settlement. It also conducts analysis of the Annulment Decision in the CMS v Argentina case to shed light on the principle of necessity.
外国投资者在不依赖外交保护的情况下起诉东道国的能力是二战后国际投资法最重要的发展之一。在《建立国际投资争端解决中心公约》(ICSID公约)等国际机制下,投资者-国家争端解决机制的兴起引起了一些国家对主权丧失的担忧。然而,当国家出于公共事业或维护基本利益的需要而干预其经济时,它们可以采取一些防御措施。因此,尽管条约承诺约束各国在其领域内保护外国投资者的投资,但它们对本国经济的干预仍有可用的辩护理由,即使这种干预不利于外国投资者的利益,而且从表面上看,可能会增加侵犯外国投资者权利的可能性。国家可以利用的其中一种辩护是必要性原则。本文探讨了国际法中的必要性原则,以及它如何在投资者-国家争端解决中为国家提供辩护。并对CMS诉阿根廷案中的废止决定进行了分析,以阐明必要性原则。
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引用次数: 0
Avoiding Double Taxation Through The Assessment of International Tax Treties. Case: ESP’s versus Anaf Braşov 通过国际税收协定的评估避免双重征税。案例:ESP对Anaf bra<e:1> ov
IF 1 3区 社会学 Q2 LAW Pub Date : 2019-06-01 DOI: 10.2478/jles-2019-0001
F. Dumiter, Ș. Jimon, Florin Gheorghe Bene
Abstract International double taxation represents one of the main problems’ for which taxpayers have to deal within a world fulfilled with globalization, uncertainty, risk, asymmetrical information and moral hazard. In this sense, in this article it is provided a qualitative overview regarding the appearance and evolution of the main double taxation conventions and their legal framework. In this article it is tackled some important issues, namely: the rationale behind the construction and engaging in double taxation conventions; the need for a coherent and just application of those conventions; the historical appearance and evolution of the double taxation conventions, as well as the quid pro quo OECD Model Convention and UN Model Convention. The conclusions of this article highlight the importance and ultimately need for construction of best practices new and complex multilateral tax convention at the UE level in order to diminish the contagious effects of the treaty shopping practices. The case study presented in this article from the Romanian jurisprudence highlights the multi-faced concept of double taxation and the comprehension approach which must be undertaken in order to solve the complex issues of the international taxation via double taxation treaties.
摘要在全球化、不确定性、风险、信息不对称和道德风险的世界中,国际双重征税是纳税人面临的主要问题之一。从这个意义上讲,本文提供了一个关于主要双重征税公约及其法律框架的出现和演变的定性概述。本文讨论了一些重要问题,即:制定和参与避免双重征税协定的基本原理;需要连贯和公正地适用这些公约;避免双重征税公约的历史出现和演变,以及经合组织示范公约和联合国示范公约的交换。本文的结论强调了在欧盟层面建立最佳实践的重要性和最终必要性,即新的和复杂的多边税收公约,以减少条约购物做法的传染效应。本文从罗马尼亚法律学中提出的案例研究突出了双重征税的多方面概念和必须采取的理解方法,以便通过双重征税条约解决国际税收的复杂问题。
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引用次数: 2
The Interface Between the Securitization Act of 2004 and the Financial Rehabilitation and Insolvency Act of 2010 2004年《证券化法案》与2010年《金融复兴与破产法案》之间的衔接
IF 1 3区 社会学 Q2 LAW Pub Date : 2018-12-01 DOI: 10.1515/JLES-2018-0009
R. S. Q. Geronimo
Abstract The interface between securitization law and insolvency law is the central legal concern in designing securitization transactions. The complex structure of these transactions under the Securitization Act of 2004 should be understood within a specific legal context: the possible bankruptcy, insolvency, or liquidation of the “originator” (i.e. the entity requiring securitization financing), which may jeopardize the claims of asset-backed security investors. It is a solution to the risk that security holders with claim to specific assets may end up being subordinated to the interest of preferred creditors and ranked pari passu with, or even lower than, unsecured creditors in a rehabilitation or liquidation proceeding. Under present law, this risk may arise through the “substantive consolidation” and “clawback” provisions of the Financial Rehabilitation and Insolvency Act (FRIA) of 2010. This risk is mitigated through the creation of a bankruptcy remote vehicle and true sale of receivables, and it is the lawyer’s principal role in the securitization process to isolate or ring-fence assets beyond the reach of creditors, and making them an exclusive claim of investors. How this works in theory and practice is the subject of this paper.
证券化法与破产法的衔接问题是证券化交易设计的核心法律问题。根据2004年《证券化法》,这些交易的复杂结构应该在特定的法律背景下理解:“发起人”(即需要证券化融资的实体)可能破产、无力偿债或清算,这可能危及资产支持证券投资者的债权。这是一种风险的解决方案,即在恢复或清算程序中,对特定资产有债权的担保持有人可能最终服从于优先债权人的利益,与无担保债权人平起平坐,甚至低于无担保债权人。根据现行法律,这种风险可能通过2010年《金融复兴和破产法》(FRIA)的“实质性合并”和“追回”条款产生。这种风险可以通过创建破产远程工具和真正出售应收款项来减轻,律师在证券化过程中的主要作用是隔离或隔离资产,使其超出债权人的范围,并使其成为投资者的独家索取权。如何在理论和实践中发挥作用是本文的主题。
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引用次数: 0
Human Rights for Life. The Experience of Ukraine 生命的人权。乌克兰的经历
IF 1 3区 社会学 Q2 LAW Pub Date : 2018-12-01 DOI: 10.1515/JLES-2018-0011
M. Hromovchuk
Abstract The article reveals the peculiarities of the normative and legal consolidation of the human right to life. The authors pay attention to the provisions of the decisions of the Constitutional Court of Ukraine that carry out the interpretation of the human right to life.
摘要本文揭示了生命权规范与法律巩固的特殊性。作者注意到乌克兰宪法法院对生命权进行解释的决定的规定。
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引用次数: 2
Human Rights for Information in Social Networks: Constitutional Aspect 社会网络中的信息人权:宪法层面
IF 1 3区 社会学 Q2 LAW Pub Date : 2018-12-01 DOI: 10.1515/jles-2018-0012
Dmytry Byelov
Abstract The article is devoted to coverage features the use of public information in social networks. The author draws attention to the occurrence of criminal responsibility for public expression in social networks.
摘要本文主要研究了社交网络中公共信息的覆盖特点。作者对社交网络中公开表达的刑事责任的发生提出了关注。
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引用次数: 3
Unilateral Enforcement of Un Security Council Resolutions: The Case of Operation Iraqi Freedom 单方面执行联合国安理会决议:伊拉克自由行动的案例
IF 1 3区 社会学 Q2 LAW Pub Date : 2018-12-01 DOI: 10.1515/JLES-2018-0013
A. Ansong
Abstract The prohibition of armed aggression under Article 2(2) of the United Nations Charter is one of the most important developments in international law and international relations in the modern era. The fact that the right to wage war is no longer accepted as falling within the sovereignty of the state has ushered in an appreciably stable international order based on the rule of law and not the rule of might. While states obviously still engage in warfare and numerous wars have been fought by states in the era of the UN, the very fact that the prohibition of armed aggression has assumed universal acceptance as customary international law is a notable achievement. In spite of the prohibition of armed aggression under the UN Charter, self-defence and collective action mandated by the UN Security Council serve as notable exceptions. The US-led invasion of Iraq in 2003 (i.e. Operation Iraqi Freedom) was peculiar because, the justification for the invasion hinged on the enforcement of UN Security Council Resolutions. This justification thus brought to the fore whether, under international law, there was the right to unilaterally enforce Security Council Resolutions. In the current resurgence of unilateralism typified by the US Trumpled withdrawal or threat of withdrawal from multilateral systems of international governance and cooperation, it is important to reiterate the lessons of unilateralism epitomized by the 2003 invasion of Iraq and the instabilities that have become offshoots of this invasion – e.g. the creation of monsters like the so-called Islamic State. This article discusses the resort to unilateralism under the guise of enforcing UN Security Council resolutions. It also engages in a brief discussion on the justifications for war prior to the UN Charter and the provisions on the use of force prescribed in the Charter. It uses the US-led invasion of Iraq in 2003 as a case study to shed light on legality of unilateral enforcement of UN Security Council Resolutions.
《联合国宪章》第二条第二款禁止武装侵略是近代国际法和国际关系最重要的发展之一。发动战争的权利不再被认为属于国家主权的范畴,这一事实带来了一个基于法治而非强权统治的相当稳定的国际秩序。虽然各国显然仍在参与战争,而且在联合国时代,各国也打了许多战争,但禁止武装侵略已被普遍接受为习惯国际法,这一事实本身就是一项显著的成就。尽管《联合国宪章》禁止武装侵略,但联合国安理会授权的自卫和集体行动是明显的例外。2003年美国领导的对伊拉克的入侵(即“伊拉克自由行动”)是特殊的,因为入侵的理由取决于联合国安理会决议的执行。这一理由因此突出表明,根据国际法,是否有权单方面执行安全理事会的决议。在当前以美国特朗普多次退出或威胁退出多边国际治理与合作体系为代表的单边主义复苏之际,有必要重申以2003年入侵伊拉克为代表的单边主义的教训,以及由此引发的不稳定,例如所谓的“伊斯兰国”(Islamic State)等怪物的产生。本文讨论了在执行联合国安理会决议的幌子下诉诸单边主义。它还就《联合国宪章》之前的战争理由和《宪章》中关于使用武力的规定进行了简短的讨论。它以美国领导的2003年入侵伊拉克为例,阐明了单方面执行联合国安理会决议的合法性。
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引用次数: 0
Member States’ Compliance with EU Law in 2018 in the Field of Internal Market 2018年成员国在内部市场领域对欧盟法律的遵守情况
IF 1 3区 社会学 Q2 LAW Pub Date : 2018-12-01 DOI: 10.1515/jles-2018-0010
Daniel Berlingher
Abstract The present text is dedicated to analysing the situation of Member States’ compliance with EU law in the field of Internal Market because it is one of the most important aspects of the process of European consolidation. In the introductory part we presented the central role of the European Commission because it is the institution that monitors the implementation of the EU law in the national legal order of each Member State. At the centre of our analysis is the 2017 Annual Report of the European Commission. Here we presented in a schematic manner the European norms that the Member States had to implement in their legal order in 2017. We concluded our research by presenting the evolution of this complex process with reference to the data furnished by the Single Market Scoreboard. The situation did not know a significant improvement in the process of Member States’ compliance with EU law. We can see that things evolved but we consider that this evolution could have been better if Member States would have dedicated more attention to this process.
本文致力于分析成员国在内部市场领域遵守欧盟法律的情况,因为这是欧洲整合过程中最重要的方面之一。在引言部分,我们介绍了欧盟委员会的核心作用,因为它是监督欧盟法律在每个成员国国内法律秩序中实施的机构。我们分析的核心是欧盟委员会的2017年年度报告。在这里,我们以示意图的方式介绍了成员国在2017年必须在其法律秩序中实施的欧洲规范。我们通过参考单一市场计分板提供的数据来展示这一复杂过程的演变,从而结束了我们的研究。在这种情况下,会员国遵守欧盟法律的进程没有得到重大改善。我们可以看到情况发生了变化,但我们认为,如果会员国对这一进程给予更多的注意,这种变化本来可以更好。
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引用次数: 2
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Journal of Legal Studies
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