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Russian Law Journal

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Vol 6, No 1 (2018)
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https://doi.org/10.17589/2309-8678-2018-6-1

Articles

4-27 850
Abstract

This paper deals with the question of if and to what extent power-conferring legal rules can be treated as coercive and whether the concept of coercive offers can help to substantiate the coerciveness of power-conferring in law. In his recent book, “The Force of Law,” Frederick Schauer claims that power-conferring legal rules are coercive.1 There are several ways to interpret this claim. In this piece I would like to explore one route of interpretation of this interesting and controversial claim, i.e., whether one can use a highly controversial concept of “coercive offers” to substantiate this claim. First, the very concept of coercive offers requires clarification. In fact, there are several distinct ways to interpret it and I explore them below. The second point is whether the coercive offers concept is applicable in the context of the power-conferring legal rules. Two influential theoretical models of coercive offers are analyzed and critically evaluated and their ramifications for the coerciveness of the power-conferring legal rules are demonstrated. In my view, the only possible route to substantiate the coerciveness claim from the vantage point of coercive offers concept is through the distributive non-neutrality of law narrative.

28-57 1288
Abstract

For a long time, the issues of sexual orientation and gender identity have been restrained from entering the legal arena as being regarded as too radical. In today’s society, these issues warrant consideration in the context of international criminal law. Critically reflecting on the way of placing these grounds within the international criminal law framework, this paper tries to unpack the sheer possibility of addressing them within the core international crimes. Correctly defining terms such as “sexual orientation” and “gender” is not only germane, but also necessary for international criminal law to tackle them accordingly. By doing so, the power of legal argumentation in international criminal law for protecting sexual minorities is strengthened, but its boundaries and vulnerabilities are also exposed. This paper proposes that the described massive violation of the most fundamental human rights should be legally qualified as persecution. For protecting sexual minorities on an international criminal law scale, it is argued that we are not really “there” yet, but we might just be on the right track.

58-82 445
Abstract

The article is devoted to the contractual models designed to formalize the legal relationship between the clearing participants (parties to the original derivative transaction) and the central counterparty (“CCP”). The authors deal with the legal concepts of novation, so-called “open offer” and assignment, which are commonly used in international practice. Taking into consideration some Russian legal peculiarities and comparative law experience, the authors come to the conclusion that the concept of assignment is best suited to the Russian legal framework.

83-99 622
Abstract

The article deals with the legal regulation of tourist taxation in Italy with a view to improving the Russian tax system. Many European countries have adopted a tax on accommodation, also known as a tourist tax or a resort fee, in order to facilitate contribution by tourists to tourist infrastructure. This approach is currently being implemented in many countries, including those countries in the European Union which welcome a large number of tourists. Italy is one of the most popular such destinations, and has considerable experience in tourist taxation and regulation of public finances, which can serve as a useful example for the improvement of the Russian tax system. The authors point out that a nation’s laws should include a direct link between a tax resident and the location of a vacationer or a tourist. They also conclude that the imposition of the tax may affect the number of tourists in a particular municipality since they may prefer to stay in a place free from resort fees. The paper also examines and supports the imposition of the tax as a reasonable and civilized solution to the problem of damage caused to the environment by a large influx of tourists into particular territories, since it makes it possible to compensate for the damage caused. The research indicates that there is room for improvement with regard to certain provisions of the Law adopted in Russia and coming into force on 1 January 2018. In the authors’ view, the better solution would be to transfer resort fees to the budgets of those municipalities where tourists are accommodated. This would ensure the necessary tourist involvement in the public sphere, increase their responsibility and would also provide a direct link between the payment of the tax and the development of resort infrastructure.

Comments

100-118 415
Abstract

Class action is an important safeguard to protect the rights and legitimate interests of large groups of people and it has already proven successful in advanced foreign legal systems. One of the most popular forms of class action in countries with acontinental legal system (France, Sweden, Argentina) is a representative action, which is initiated by non-profit associations, i.e., “ideological claimants” (associations, foundations, non-profit organizations) in defense of violated collective rights of a large group of people or unspecified persons in the most vulnerable areas of economic life. The institution of collective redress by representative bodies is less popular in countries with common law legal systems (the USA, Australia, Canada), which traditionally use class actions. Nevertheless, countries with common law legal systems such as the United Kingdom (England and Wales) actively use the legal tools for the social protection of the violated rights and interests of citizens. This article analyzes the legislative consolidation and application of representative actions in the Russian Federation. The absence of amechanism (for filing alawsuit before the decision) of judicial protection of professional representatives’ collective rights and public interests according to the generally accepted international practices involving interested persons whose rights have been violated (opt-in or opt-out), creates barriers to the development of representative actions in Russia. At the same time, the scope of these claims and the judicial protection of collective rights and public interests by public associations has its own characteristics, which can be used by legislators to effectively protect human rights.

119-132 311
Abstract

The Law on Assisted Reproduction was adopted by the Parliament of Lithuania (Parliament) on 14 September 2016. This law entered into force on the 1 January 2017 and replaced the Order of the Ministry of Health of 1999 which regulated assisted reproductive technologies (ART) until then. After the adoption of the new Civil Code in 2000, Parliament recommended that the Government prepare a draft law on ART by 2002. The first “liberal” draft was presented to Parliament in 2004. Its opponents also prepared a “conservative” draft. Both drafts were rejected. Only in 2010, a new draft was prepared but the adoption of this law was delayed until 2016. This article could be one of the first to present an overview and analysis of the history of legal regulation of ART in Lithuania; it also describes the main features of the new law, reveals its shortcomings and gaps, and explains the main reasons for such a long legislative process in this area.

Recent Cases

133-139 406
Abstract

Criminal cases, being almost entirely domestic in their nature, rarely draw comparative attention. But R v. Jogee, decided by the UK Supreme Court in 2016, is exceptional in its nature. It provoked a new discourse on a mental element in complicity in a highly controversial situation where the principal went beyond the scope of what was agreed, or in civil law language, excessu mandati. Following Jogee, common law is likely to move in the direction of implementing in a more coherent way the idea of a subjective fault standard for a mental element in complicity. Paradoxically, civil law systems are now much closer to pre-Jogee jurisprudence so there is good reason to conduct comparative analysis at this point.



ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)