Summaries of articles in the issue 2 (2) - 2008 of the Journal “Pravo.by”
INTERNATIONAL AND LEGAL PROBLEMS OF FORMING AND DEVELOPMENT OF UNIVERSAL (UN) AND REGIONAL (CIS) SYSTEMS OF PROTECTION OF RIGHTS AND FREEDOMS OF PERSON
The article considers the questions of forming and development of universal and regional (CIS) systems of protection of rights and freedoms of person and the role of the Republic of Belarus in this field. There are analyzed the questions of adopting the first international documents in the field of protection of human rights. The author grounds the advisability of creation within the frameworks of the CIS of the Interstate Court of the CIS on Human Rights which would function as a permanently acting body of the Commonwealth, the decisions of which would have obligatory jurisdiction for the member states of the CIS, and also the author gives the definition of the notion «implementation of the norms of international law in the sphere of civil rights and freedoms of man into the legislation of the Republic of Belarus».
The author makes a reasoned conclusion that the Republic of Belarus as an independent subject of international law takes all necessary measures directed to that its normative legal acts regulating protection of human rights to correspond to international obligations of the country. One of the bright examples of this can be the section II of the Constitution in force «Individual, Society, State» in the articles 24-51 of which there are set the rights and freedoms of individual which are analogous to those declared in the Universal Declaration of Human Rights of 1948.
The USSR and Belarusian SSR took active part in elaboration of the first international documents in the field of protection of human rights and freedoms – the UN Charter of 1945, the Universal Declaration of Human Rights of 1948 and also international pacts of 1966. These states have made a particular contribution to forming and development of international system of protection of individual’s rights. After disintegration of the USSR the Republic of Belarus has become one of the initiators of adopting the CIS Convention on Human Rights and Basic Freedoms of 1995.
ON PROPERTY RIGHTS CERTIFIED BY SECURITIES
The article analyzes normative legal acts by means of which there are regulated property rights as the object of civil rights at considering the category «paperless securities». There have been studied scientific views and approaches to the definition of security, property right, the procedure of registration of securities rights, peculiarities of transferring the rights under the civil contract, peculiarities of transfer (way of transferring the rights under security), grounds of which were given by the Russian civilist M.M.Agarkov. Main theses of the article can be the base of conception of security as economic and legal category, form of fixation of the rights under security. The author grounds the statement that paperless security falls into the category of special property right for the purpose of unified approach to defining its legal title (right of ownership or possession).
CONCEPTUAL PROBLEMS OF LEGISLATION ON STATE SERVICE IN THE REPUBLIC OF BELARUS AND WAYS OF ITS IMPROVEMENT
The article considers conceptual problems of legislation on state service in the Republic of Belarus connected with the lack of single system regulation of all kinds of state service. Solution of this problem is seen in such kind of systematization of legislation as codification.
A. Gavrish, L. Finkevich
CHILDREN’S LEGAL WEB-SITE – A UNIQUE INFORMATION PRODUCT IN THE FIELD OF LAW
The article considers prerequisites and the process of creation of the unique Internet resource for children – Children’s Legal Web-site. The authors also accentuate the attention of the readers on the importance of this resource in the light of ensuring legal competence of children and teenagers, cultivating respectful attitude to the law in them.
ORGANIZING-LEGAL FORMS OF BUSINESS ACTIVITY AT REALIZATION INNOVATION PROJECTS
Author briefly reviews specific characteristics of organizing-legal forms of innovation parties. Today the legal regulation in innovation sphere is quickly changed and has special requirements. From analysis of acting legislation of the Republic Belarus and the other states is seen that commercial organizations in innovate activity can be created in any organizing-legal form.
This gives the more possibilities to investors, but on the other hand requires from corresponding state organs more clear and mobile legal regulation. It appears that any mobile changes in society and state must have flexible legal form. The state and subjects of innovate activity have to find the compromise in creation of corresponding organizing-legal forms, which would promote decision of concrete objectives. It is obvious that background of experience in different spheres of activity speaks of need of the weighted approach in legal regulation of subjects activity and practicability of one or another legal form.
THE PROBLEMS OF THE REALIZATION OF THE EURASIAN ECONOMIC COMMUNITY LEGAL ACTS
Some problems of the realization of the Eurasian Economic Community legal acts are considered in the article. Thus, the examination of the Community constituent documents and its bodies subject jurisdiction allowes to conclude, that the EurAsEC has no supranational powers at the contemporary stage of the integration development. The EurAsEC legal base in the sphere of the Organization legal acts realization was examined as well. Corresponding documents are devoted to a greater extent to the regulation of the certain legal acts working out and adoption procedure. As a rule, the procedure of these acts realization is not usually prescribed in detail or it has general or reference character.
The forming of the Community legal acts unified system with a determination of their types, legal effect, hierarchy and their correlation and interaction with the national legal acts of the member states will promote to the effective realization of the EurAsEC legal acts. The working out of the documents regulating directly the procedure of the EurAsEC separate legal acts realization plays an important role as well.
INDUSTRIAL PROPERTY DEFENCE ACCORDING TO THE LEGISLATION OF THE REPUBLIC OF BELARUS
The proper exercise of civil rights without effective system of their defense is impossible. The absence of the uniform legal control of defense of the group of rights of any legal institute has detrimental effect on the law enforcement. On the base of this thesis author considers some of the mainframe problems of industrial property defense according to the legislation of the Republic of Belarus. Holders of defense right and basic methods of rights protection are analyzed. Presence of gaps and legal control shortcomings are determined. The changes and additions to the existing legislation of the Republic of Belarus are proposed.
REPUBLICAN SEMINAR «THE ACTIVITY OF PUBLIC CENTERS OF LEGAL INFORMATION ON LEGAL EDUCATION OF THE CITIZENS»: MAIN OUTCOMES
The article considers the outcomes of the republican seminar on the issues of the activity of public centers of legal information on legal education of the citizens, which was held by the National Center of Legal Information of the Republic of Belarus together with the Ministry of Culture of the Republic of Belarus.
PSYCHOLOGICAL ASPECTS OF INFLUENCING IN PARLIAMENT ACTIVITY
The article considers important aspects of practice of application of psychological influencing in law-making activity by the deputy corps of the country. There is given a brief review of basic directions of psychological influencing being considered and investigated in the works of native and foreign scientists-psychologists. There are proposed special methods and rules of psychological influencing being necessary for the deputy at adopting draft laws and legislative decisions. Psychological peculiarities of influencing in law-making process are shown. The necessity of taking into account and using of psychological principles of influencing in law-making is stressed. There is given the classification of psychological influencing on different grounds: character of influencing; direction of influence; form of realization; technical equipment. There are marked specific psychological problems of influencing in law-making activity being used by the deputies. The sphere of application of psychological influencing in law-making activity is shown.
ON CERTAIN ISSUES OF INTERPRETATIVE ACTIVITY OF SPECIALIZED CONSTITUTIONAL REVIEW BODIES
The present paper dwells upon some topical issues of interpretative activity of specialized constitutional review bodies (such as spheres of interpretative activity, study of object and subject of specialized constitutional review, etc.). Also, this study explores different criteria used by the bodies of constitutional review to determine logical and other connections between the interpreted norm and the «model» norm, which together form the object of specialized constitutional review. The author tried to supplement general and theoretical approach with an analysis of the complex terms (among them, «conformity»; «legality»; «validity», etc.). This study also describes and analyses the influence of interpretative activity of specialized constitutional review bodies on due functioning of legal mechanism of human rights protection.
SYSTEMATIZATION OF LEGISLATION: ITS NOTION AND KINDS
The article describes main kinds of systematization of legislation, notion of systematization of legislation is given.
HISTORICAL ANALYSIS OF ACTIVITY OF THE AGENCIES, RESPONSIBLE FOR THE INVESTIGATION OF THEFTS OF PERSONAL PROPERTY ON RAILWAY AFTER THE DESINTEGRATION OF THE RUSSIAN EMPIRE
The analysis of the history of creation of agencies responsible for the investigation of thefts of personal property on the objects of railway transport in different periods of time is given. The author thoroughly examines the activity directed at solution and investigation of thefts, gives the examples, shows the drawbacks in investigatory work. The attention is drawn to the fact that still there is no necessary literature concerning investigation; the necessity of satisfying the needs of practicing specialists in formation of scientific and methodological grounds of investigation of thefts of personal property on railway transport is underlined.
GENESIS OF SCIENTIFIC VIEWS ON THE PROBLEM OF SOLUTION OF INTENTIONAL INFLICTION OF SEVERE PHYSICAL INJURIES
Complex research of the problem of solution of intentional infliction of severe physical injuries presupposes the application of the historical method. Thereupon the process of development of theoretical and practical fundamentals of solution of such crimes is studied. The analysis of different sources shows that scientific search was generally conducted in the framework of investigation of problems of combating crimes against a person, and mainly, against the life and the health of citizens. As a result these studies were of insufficient differentiated character. Criminal and legal, criminological and criminalistic aspects are studied more thoroughly, and issues of application of forces, means and methods of detective activity for the purpose of solution of international severe physical injuries are less examined.
SAFETY OF GENE-ENGINEERING ACTIVITY: BASICS OF LEGAL REGULATION
Development of gene engineering is a new source of ecological danger arising. Accordingly, the author investigates international norms, carries out a comparative analysis of national basics of legal regulation of the safety of gene-engineering activity. The author notes that it is legal norms which can become the factor which, on the one hand, stimulates subsequent development of gene-engineering activity, and, on the other hand, – promotes minimization of influencing of possible negative consequences of using gene-engineering organisms on a man and environment as a whole.
REGULATION OF NATIONALITY OF INDIVIDUALS IN RELATION TO STATE SUCCESSION IN THE FRAMES OF EUROPEAN REGIONAL ORGANIZATIONS
European states have been undergone transformations connected with territorial changes during last several centuries. Consequently, population of the countries faced the problem of acquisition of nationality of the successor state or retention of nationality of the predecessor state. The developments of the end of XX century (so called «the latest» forth wave of succession) have affected the questions of nationality particularly strongly. It should have given rise to concerns of regional organizations both in the view of protection of the rights and interests of individuals and in relation to tackling the problems of illegal migration, refugees, and mass statelessness, which are concomitant to the situation of state succession. The results of the activity of European intergovernmental organizations in the sphere for the last 15 years are carrying out research, holding conferences and elaboration of the range of international instruments. The process of codification of such complex issues as state succession in the sphere of nationality, which has traditionally been within domestic jurisdiction, is unique and needs to be analyzed in details. The current situation in Balkans, Cyprus, a range of European states, where separatist views are tense, proves urgency of the issue.
ABOUT FORMING OF STANDARD EXPERTS METHODS
In the article the author substantiates the necessity of forming of standard experts methods, discusses sources and principles of forming of standard experts methods and considers the problems of approbation and approval of them.
SOME ASPECTS OF LEGAL INFORMATIZATION IN KAZAKHSTAN
The author considers basic stages of legal informatization in Kazakhstan, issues of the activity of the Republican Center of Legal Information are covered.
RIGHTS AND DUTIES OF A CHIEF OF A FORENSIC INSTITUTION
Procedural position and organizational powers of a chief of a forensic institution are considered in the article. Peculiarities of his or her interrelationship with participants of criminal procedure by the appointment and execution of examinations are analyzed. The author draws a grounded conclusion concerning the existing gaps in the law on criminal procedure of the Republic of Belarus in this field and concerning the necessity of perfecting legal regulation of the activity of a chief of a forensic institution. In the opinion of the investigator organizational rights and duties of a chief of a forensic institution should be stipulated in the departmental Instruction on the organization of the activity of forensic units of law-enforcement agencies of the Republic of Belarus while the procedural powers should be stipulated in the Code of criminal procedure of the Republic of Belarus.
THE LEGAL CHARACTER OF LAW ISSUES
The article touches upon the problem of revelation the essence of law validity issues. One of this problem solutions is based on such methodological structure as legal character. The major character elements and their interrelations are being developed. The role of legal character in law issues analysis and studies is being determined.
THE ENTERPRISE (THE HISTORICAL-LEGAL ANALYSIS)
The enterprise as legal concept has started to be shown with the beginning of technical revolution and development of industrial activity. For this time many approaches to definition of legal forms of the enterprise were offered. Present article is devoted to research of historical stages of development of impressions about the enterprise as object of legal regulation from the beginning of 18 centuries up to now. The author on the basis of the rather-legal and historical analysis looks after genesis of development of impresions about the enterprise, various approaches to understanding of legal essence of the enterprise at various historical stages are investigated. In the given research theoretical views and the legislation on the enterprise are considered with enough details, separate positions are commented, their critical analysis is done, probable directions of perfection of the legislation in the given area are offered.
THE PROBLEMS OF SOLUTION OF INDIVIDUAL LABOUR DISPUTES: THE HISTORY AND THE PRESENT
The article considers the problems of creation and activity of commissions on considering individual labour disputes between employees and employers. The author studies the works of famous Russian scientists, having laid the foundation of the definition of the notion “individual labour dispute”, such as A.A.Mikulin, L.S.Tal’, N.V.Mitrohina, I.H.Ozerov, etc. There are analyzed the works of the scientists of the beginning 1900’s and the works of modern scientists of the CIS countries and Belarus. The author scientifically grounds existing problems in the legislation in effect on considering individual labour disputes and makes proposals on changing and adding of labour legislation in effect. The author makes proposal by analogy with the Labour Code of the Russian Federation to provide legal definition “individual labour dispute” in the Labour Code of the Republic of Belarus.
LEGAL COOPERATION IN ORGANIZATION OF UNCOVERING AND INVESTIGATING OF ILLEGAL TRAFFIC OF NARCOTIC DRUGS
There are considered the peculiarities of organization of activity of law-enforcement bodies on uncovering and investigating of crimes connected with transit of narcotic drugs in the territory of several states. For using in practical activity there is proposed the complex of measures directed to revealing and exposing of participants of organized criminal communities by unlawful acts of which there are created illegal channels of contraband importation of narcotic drugs and psychotropic substances into the Republic of Belarus.
«YOUR VOTE» – INTERACTIVE SECTION ON WWW.PRAVO.BY
The article covers the polls having been carried out on the National Legal Internet Portal of the Republic of Belarus: their themes, opinions of respondents.
ARE THERE ANY GROUNDS TO SUSPECT?
The problem of legislative regulation of the grounds for suspicion is viewed. In the modern Law of Criminal Procedure the term «suspicion» is used for more than twenty times, also for regulation of legal relationships, but it doesn’t determine the verge between occurrence of suspicion and its absence, i.e. it doesn’t regulate sufficient body of intelligence, which will allow to consider that the prosecution agency has reasonable grounds to believe that a person has committed a criminal act. The analysis of article 108 of the Code of Criminal Procedure leads to the conclusion that the legislator equates the grounds for apprehension of a criminal on the basis of direct suspicion for crime commission and the grounds of origination of suspicion itself. Thereupon the author proposes his formulation of the grounds for origination of suspicion.
THE LEGISLATION OF THE REPUBLIC OF BELARUS IN THE CONTEXT OF THE SYSTEM APPROACH
The article is devoted to system aspects concerning the formation and development of the Belarusian legislation. Reasoning from the analysis of the scientific literature and the existing legislation of the Republic of Belarus, the author clearly demonstrates that the above legislation considered in the context of a scope of its structural and functional aspects possesses properties of a system. Hereby there is proved the necessity to differentiate the notions «legislation», «legislative system», «legislation structure» and on this basis there are offered proposals on improvement of the Belarusian legislation regulating the problems in consideration.
SYSTEM OF PROTECTION OF THE PERSONAL (CIVIL) RIGHTS AND FREEDOMS OF CITIZENS IN THE FIELD OF INFORMATION TECHNOLOGIES
The article is devoted to the problems of effective system of protection of the personal (civil) rights and freedoms of a person in the field of information technologies. Some structural elements which are included in the international mechanism of protection of the personal (civil) rights and freedoms of a person are determined. The virtual place of the specified elements in the information environment is designated. It is marked that the received analytical material of information portals has not become the base of international policy and the ground for law creating activity in domestic policy.
Structural elements of legal regulation of protection of the personal (civil) rights and freedoms of citizens in the field of information technologies in Belarus are considered. The necessity in the main structural element of legal regulation of protection of the personal (civil) rights and freedoms of citizens in the field of information technologies is marked. It can be the institute of the Representative on human rights which does not exist in Belarus yet. The author comes to the conclusion that the coordinated activity of the structural elements of legal regulation in the field of information technologies will become the main part of the international mechanism organically integrated into the common system of protection of the personal (civil) rights and freedoms of a person and a citizen.
AGRICULTURAL LANDOWNERS: PROBLEMS OF LEGAL REGULATION
The article is focused on the urgent problem of high theoretical and applied value. The author analyses the legal regulation of agricultural land used by various agricultural landowners on the bases of study of special juridical literature and current legislation analysis. The agricultural landowners are regarded in consideration of the latest novations, provided by the Land Code 2008 of the Republic of Belarus. The author notes the defects and contradictions, which are available in the land legislation of the Republic of Belarus, and proposes practical recommendations on further legislation improvement in the area of research.
PEER-TO-PEER NETWORKS AND ROLE OF INTERNAL INTERNET-PROVIDERS IN ENSURING INTELLECTUAL PROPERTY RIGHTS
In accordance with the Constitution of the Republic of Belarus the state shall guarantee the rights and liberties of citizens of Belarus, stipulated by the Constitution, laws and international obligations. A number of individual property and non-property rights belong to the authors pieces of science, literature, art. In the contemporary conditions the objects of intellectual property need additional legal protection. Development of Internet technologies creates new options for violations of the intellectual property rights. The insufficiency of legal regulation of the relationships in the area of use and protection of copyright in conditions of the development of the Internet in the Republic of Belarus complicates security of legality in this field. The article covers the violations of the copyright when use of peer-to-peer networks. The author suggests the possible ways of definition of the infringers and determination of the role of internal Internet-providers in ensuring intellectual property rights.
THE SOCIALLY-LEGAL CHARACTERISTIC OF BORDER SECURITY OF ТНЕ REPUBLIC OF BELARUS
In the article from the system approach positions the socially-legal characteristic of border security of Belarus is stated as a legal category. Its essence and the content are determined. The parity of «border security», «national security» and «state security» conceptions is considered.
THE PROCEDURAL ORDER OF CARRYING OUT OF OBSERVATION OF DWELLING AND OTHER LEGAL PROPERTY
Problem questions of the regulation of observation of dwelling and other legal property in the Law of Criminal Procedure of the Republic of Belarus are studied. To perfect the legislation the analysis of the legal provisions of the Codes of Criminal Procedure of the Republic of Belarus and the Russian Federation concerning dwelling and other legal property as well as the points of view of various authors on problem at issue are analyzed. On the basis of both the legislation analysis and logic conclusions, the author gives his proposals on perfection of provisions of the Belarusian Law of Criminal Procedure, regulating the process of carrying out of observation of dwelling and other legal property.
THE RIGHT AND MORALS IN RUSSIAN PHILOSOPHICAL LEGAL IDEA
In the article the attempt of analysis of a parity of the right and morals in Russian philosophical legal idea of the most fruitful period of its development (second half ХIХ – beginning XX centuries) is undertaken. The special attention is given to consideration of the specified question in the theories of E.N.Trubetskoy, V.S.Solov'ev, B.N.Tchitcherin, B.A.Kistyakovskiy, G.F.Shershenevich, P.I.Novgorodtsev, I.A.Ilyin, A.S.Yashchenko, I.V.Mihajlovskiy, etc.
THEORETICAL ASPECTS OF CLASSIFICATION OF CONVICTS
The concept «classification» is interbranch institute of the legislation, and «classification of convicts» during execution of punishment – institute of law of corrections which allows to spend classification of convicts on the various bases for achievement of the purposes of punishment. The classification of convicts with on degrees of correction proceeding from a positive and negative orientation of their behaviour was found the widest application in a science and in a practice. The degree of correction is considered as the most important multidimensional basis of classification of convicts, and the behaviour of convict during serving as the basis his for reference to the certain group allocated depending on a degree of correction.
FORMING OF THE SYSTEM OF UNDER-AGE CRIME PREVENTION IN THE REPUBLIC OF BELARUS
The article covers under-age crime prevention issues and is an actual research. It considers factors influencing under-age criminality in general as well as forming of the crime prevention system through time – in Tsar Russia, Soviet Belorussia and measures taken in independent Belarus. It studies in details the state strategy and tactics to combat under-age criminality, which altered assessment and approaches from strict and punitive to humane policy. The author pays attention to the history of such professional activity, general and special prevention methods, underlines certain factors favoring asocial under-age behavior, depicts forming process of sense of justice among young generation.