Articles

The problem of the implementation of generally recognized principles of the administration of justice in the procedural law of the Eurasian Economic Union is one of the most controversial both in the science of international law and in the activities of the EAEU Court. The Court’s practice has formed certain procedural and legal approaches, in which special attention is paid to universal principles of the administration of justice, in particular, such as legal certainty, the principle of legitimate expectations, and the right to judicial protection. These procedural principles formed the basis of the Court’s activities, including the acceptance of applications submitted to the Court. Currently, the legal criteria for the admissibility of applications have been developed. Conventionally, such criteria can be divided into two groups, conceptually differing in legal significance: for «litigation» and for «clarification of law». For the first group, the Court makes a decision, and for the second, it provides an advisory opinion. It is important to note that the interpretative function of the Court, manifested in the provision of an advisory opinion, has proved to be very effective and in demand, as evidenced not only by the statistics of applications to the Court for clarification of the law, but also by the growing role of advisory opinions in the law enforcement practice of the EAEU bodies. The established practice of the Court sufficiently implements the procedural principles of the administration of justice. At the same time, it is noted the importance of continuing the development of law enforcement practice for the implementation and observance of procedural principles in the legal system of the EAEU.

A thorough understanding of legal phenomena is impossible without understanding how they are created (constructed). This is especially important for such a fundamental element of law as legal norms. It is well known that the legal norm is the most important element of the mechanism of legal regulation, serves as the foundation for lawmaking and therefore indirectly performs the most important functions associated with the implementation of law in society. An analysis of legal doctrine shows that today scholars do not draw a clear line between the categories of “legal norm” and “legal norm” and use them as synonyms. A legal norm is the basis for legal relations and other legal phenomena, through which legal regulation is ensured in various social spheres. At the same time, the question arises as to what constitutes the construction of a legal norm as a legal phenomenon. The study of this question is the purpose of this study.

The article examines the process of legalization of separation of spouses without divorce among peasants in the last decades of the Russian Empire. Involving archival materials previously unexplored in science, the author demonstrates three contradictory lines of legal regulation of the separation of spouses: the legislative prohibition (with a small number of exceptions prescribed in the law) on the separation of husbands and wives; permission to issue separate residence permits to wives in the order of the monarch’s favour in the practice of the III Division of Her Majesty’s Own Chancellery, the Department of State Police, the Commission (Chancellery) of the Russian Empire. I. H. Chancellery, the State Police Department, the Commission (Chancellery) of Petitions to the Emperor; decrees of the Governing Senate, which in some cases allowed local authorities to issue separate residence permits to peasant women without the consent of their husbands. It is concluded that the formation of the institution of separate residence of spouses in the Russian Empire did not take place at once for all estates, but gradually. Specific legislation on peasants, which directly allowed the issuance of separate residence permits to members of the peasant yard without the consent of the householder, was the reason why the peasant class was the first to obtain the right to seek separation of spouses.

The article examines the problems of adoption of the Constitution of the Japanese Empire (late 19th century). It analyzes the grounds for choosing the Prussian Constitution of 1850 as a model for the Basic Law of Japan of the Meiji era and mentions the reasons why the constitutions of some other countries were rejected. It describes the circumstances that forced Japanese politicians to begin work on drafting the country’s fundamental law, the first drafts of the Constitution, the contribution of Ito Hirobumi, as an outstanding Japanese political figure, to the development and adoption of the Basic Law of Japan, and the influence of Japanese traditions and customs on determining the status of the Head of State. It shows the main points of the translated from Japanese Natsushima bill prepared by Ito, which served as a basis for the working group drafting the Constitution, and comments on it by the German lawyer Hermann Rosler, to whom Japanese politicians and lawyers often turned for advice in the field of constitutional law. It narrates in details what happened on February 11, 1889. This was the day of holding a ceremony of the adoption of the Constitution, which consisted of religious and secular parts. This day remained firmly in memory of the inhabitants of the Japanese archipelago. The opinions of Japanese scholars are represented regarding the first Japanese Constitution in the European interpretation of this term, based on the Japanese sources. An inference is made about the conservative nature of this law, which was unable to prevent the militarists from coming to power and unleashing wars in the middle and in the late first half of the twentieth century.

The problem of legal regulation of contracts not provided for by the current positive civil legislation has long been the object of scientific research of many generations of scientists. Providing the participants of civil relations with the freedom necessary for them to carry out their activities should be recognized as an essential condition for the effective development of the economy of states based on the principles of a free market. The legal recognition of various atypical private law constructions is precisely one of the manifestations of such freedom. As the main such atypical constructions, most often encountered in practical activity, it is customary to single out unnamed and mixed contracts, which are understood as agreements of counterparties, in respect of which the current civil legislation does not provide for any positive regulation. In this regard, the main objectives of this article are to describe the historical development of the Russian normative regulation of mixed and unnamed contracts; to identify a clear distinction between these atypical agreements among themselves, as well as with the named contractual constructions enshrined in the current civil legislation; to analyse the main doctrinal positions regarding the essence and specificity of mixed and unnamed contracts, including foreign researchers; to find the optimal mechanism for the application of rules for the following types of agreements.

This article investigates the origins and identifies the prerequisites for the emergence of the institution of the firm. Then the process of formation of the doctrine of the firm in Europe in the periods of the Middle Ages and the New Age is analyzed. The sources used were domestic and foreign (mainly German) literature of the corresponding periods. When writing the work, author used historical-legal, comparative-legal and logical methods. With the help of these methods, it was revealed that the prerequisites for the emergence of the institution of the firm appeared in medieval Europe, also the relationship between the emergence of trade partnerships in medieval Europe and the need to distinguish the trade transactions of partners from the personal transactions of each of them was established. Author notice that already in the Middle Ages lawyers began to realize the distinction of means into those that distinguish the subjects of law and replace the signature and those that distinguish the objects of law and their properties. The problem posed by medieval jurists led to the necessity of solving the question of what exactly a firm distinguish, a merchant or a trade establishment? The solution of this question at the end of the XIX century led to the distinction between the concepts of firm and trade establishment.

The article compares the process of succession in civil law and common law. It is generally believed that the difference between them lies in the direct or indirect transfer of inheritance: in continental law the inheritance passes to the heir, while in common law the inheritance is first transferred to the personal representative and then to the heir (beneficiary). The author concludes that the reason for the difference is that in civil law the heir not only receives the inheritance, but also “liquidates” it, while in common law these tasks are distributed between the beneficiary and the personal representative. This helps to explain why common law does not provide for legates existing in civil law, and does not recognize a combination of limited and unlimited liability for the debts of the deceased. Furthermore, it follows that common law succession also provides for a universal succession that takes place not between the deceased and the beneficiary, but between the deceased and the personal representative.

Flats, non-residential premises, parking spaces, land plots for gardening and land plots in residential schemes are well-known, understandable, and widespread property in Russia. However, the rights and obligations inherently linked to the ownership of such objects are far less obvious to average Russian person: participation quota in common property, the obligation to maintain it, the right/obligation to participate in decision-making regarding such property, the obligation to refrain from construction interference in common property, not to occupy common spaces, to comply with common property use conditions, and so on. This article explores Russian legislation devoted to a special type of property that arises when parts of real estate are allocated for independent economic purposes, belonging to different individuals — individual (private) property — and parts of common use —“common property of real estate owners”. The paper proposes to term this legal regime “sectional ownership,” to develop a corresponding legislative framework based on the concept of condominium scheme, in order to eliminate the ambiguity of the definition of “common property of real estate owners” and to clarify the legally significant relationships between individual (private) and the common property in the scheme, between real rights, and between the owners of real estate (to underline the existence of co-ownership community). Additionally, the article attempts to systematize the manifestations of sectional ownership in Russian law.

The article deals with the approaches to the definition and realization of authority of judiciary in Russian pre-revolutionary criminal procedural science. After the brief characteristic of the definition of authority of judiciary its implementation in judicial organization and criminal procedure is studied. It is shown that the authority of judiciary in judicial organization requires special subsidiary bodies of judiciary, that cooperate court in the accomplishment of its main power of the administration of justice. The problem of the authority of judiciary in the aspect of pre-revolutionary criminal procedure is examined regarding its stages. The attention is focused on the way with the help of which judiciary may control a criminal process from its beginning to an end. Particularly during an inquiry police forces were placed under control of Public prosecutor’s office, and at the same time public prosecutor was considered as a subsidiary body of judiciary. On the following stages of criminal procedure the judiciary represented by judicial investigator and court resolving a dispute played a leading role. A stage of committal proceedings differentiating subject to the crime under examination is separately discussed.