частно-правовые (цивилистические) науки. Рубрика в журнале - EUROPEAN AND ASIAN LAW REVIEW
CIVILISTICS AS AN INTERNATIONAL PHENOMENON
Статья
The definition of the value of law, including private law, is currently quite a relevant and significant issue both from philosophical (theoretical) and practical points of view, since recognition of the law’s value will help to improve legal control over social relations and, therefore, will encourage social and national development in a progressive vein. The purpose of the research in the framework of this article is to define the functional role of civilistics regarding its functional purpose in the context of control exerted over various areas of social life on a world-wide scale. A systemic functional approach is used as the definitive research method that allows studying functions of private law in the context of the axiological approach. Aside from the abovementioned approach, other scientific methods of inquiry were used in the course of the research, including a legal hermeneutics approach. Over the course of the research, the authors have come to the conclusion that civilistics as a category is a multidimensional one, while proving that civilistics constitutes the greatest accomplishment not of a certain nation, but of all of humanity, since it serves as an all-purpose controller of social relations, in the life of society and the state.
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Статья
The problem of protecting the labor rights of workers definitely attracts the attention of labor /scientists not only within the framework of national legal, but also cross-border legal field. Thus, new issues arise in this area during the unification of labor legislation within the framework of the Eurasian Economic Union. If the jurisdictional ways of protecting labor rights are to some extent developed within the framework of the national legal order of the member states of the Union, then the institution of self-defense is deprived of the attention of the legislator in these legal orders. In this regard, it seems important to analyze such a way of protecting rights as self-defense, guided not only by the ideas of the national development of the institute in the legislation of the Eurasian Economic Union member countries, but also its implementation within the framework of Union labor law. This work, as a scientific try to study the institute of self-defense by employees of their labor rights in the countries of the Eurasian Economic Union, takes as its basis a comparative legal scientific method. Applying this method, we can conclude that the legal model of self-defense of employees of their labor rights can be unified due to the uniform understanding of its nature by the legislation of most of the member countries of the Eurasian Economic Union. Nevertheless, the defective and obviously insufficient elaboration of the regulation of labor and legal self-defense in the studied legal systems shows a number of practical and theoretical problems that will ultimately affect the consolidation of such a legal model1 within the framework of the Eurasian Union labor law. In this regard, it seems important to present a single legal definition of self-defense, comprising the fundamental features of this method of protection. The adoption of such a term will allow to form a uniform understanding not only among labor scientists, but also among law enforcement agencies, and will serve as a starting point for the further development of the institute of self-defense in the Eurasian Economic Union.
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DIGITALIZATION AND COVID-19: GLОBAL TREND OF THE CIVIL PROCEDURE DEVELOPMENT
Статья
The widespread development of digital technologies, their relationship with the globalization of the modern world are beyond doubt. The sphere of the civil process is not an exception in this regard. The process of its digitalization should be perceived precisely in the context of globalization and the pandemic that covered the world gave us a demonstration of new attributes of this process. That is why, despite the serious scientific attention to the problems of cross-border jurisdictional interaction and the transformation of the civil process in the conditions of coronavirus restrictions, an exhaustive analysis of these phenomena has not yet been conducted in relation to the digitalization of the civil process. On the basis of the specifics of the subject, the following methods were used in its study: a) the system method, b) the method of comparative law. In the framework of this study, based on the analysis of the achieved level of practical development and doctrinal understanding of digital technologies in the Russian and foreign civil process, an attempt is made to theoretical and practical study of the problems of cross-border interaction of civil jurisdictional systems in the context their widespread digitalization and the coronavirus pandemic. The study has led to the following conclusions: a) the Covid-19 pandemic not only marked, but also accelerated the process of digitalization of the civil process now, both nationally and globally. At the same time, the increasing usage of digital technologies in the civil procedure has led to the new issues that represent structural shifts occurring in the ‘classical’ civil process under the influence of a new technological basis. b) Digitalization is a global civil procedure development trend, and the Covid-19 pandemic only emphasized it has lack of alternatives. In the context of the dematerialization of civil circulation, the blurring of state borders, and competition of national law enforcement systems, the digitalization of the civil process perhaps is the only possible way to adapt the traditional civil process to the needs of the modern world and preserve its former significance.
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INTERACTION AND COMPETITION OF LEGAL SYSTEMS: A STUDY OF CIVIL PROCEDURE
Статья
The long outlined process of globalization interferes not only with the economy, politics, and ecology but with law directly as well. Regarding globalization in the field of law, we use such terms as rapprochement, unification, and harmonization. That said, generally, the abovementioned terms are intended to denote the process of creating something shared, of a similar meaning. Conventionally, these processes can be observed in the framework of various integration associations. The opposite phenomenon is a competition of legal systems that provide for the establishment of the best conditions for social and economic development. The same is true for civil procedure as well. At the same time, in recent years, an interesting trend has emerged – competition within integration associations. This paper is the first attempt to show the aforementio- ned trend in the field of civil procedure. The authors note that this trend can be traced both in the EU (in the context of Brexit) and in the EAEU (in the context of establishing the Astana International Financial Centre and the AIFC Court). The paper analyzes the consequences of these actions in view of their impact on integration associations and a more detailed exploration of the legal status of the AIFC Court and its jurisdiction in this regard. Based on the research, the authors draw the conclusion that increased competition in the field of civil jurisdiction does not have to weaken integration associations, it can even enable further rapprochement
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PROBATION UPON HIRING: A NEED FOR TRANSFORMATION
Статья
This publication invites discussion on the issue of probation upon hiring as an institution in need of transformation, in the author’s opinion. The goal of probation should be specified, since it can be established either to test the fitness of an employee for the job assigned, or for the employee to decide whether the offered job is suitable for them. Also, it is necessary to resolve the issue of the exact rationale and the moment in time the labor relations with an employee should be terminated during probation in case they do not succeed. The author suggests introducing a new special rationale – termination of a labor contract at the end of the employee’s probation without further employment of the worker at this employer’s based on a wrongdoing by the employee during probation or in case the employer discovers that the worker’s professional aptitude does meet the employer’s requirements. These amendments to the legislation can allow identifying fault-based (disciplinary) grounds for the labor contract termination among all the cases when the worker was considered to have failed the probation upon hiring, as well as to link them directly to the institution of labor discipline. It is no secret that in practice, multiple issues regarding the interaction between the regulatory provisions on probation outcomes and the regulatory provisions on disciplinary responsibility of workers arise: these problems should be resolved, since the court practice examples provided by the author often show diametrically opposed conclusions made by the courts based on their interpretation of statutory regulations. Also, the paper invites discussion on the renunciation of possible replacing probation by a fixed-term temporary labor contract and establishing a probation model for the change in employment functions (transfer to a new job).
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PROPERTY RIGHTS OF SPOUSES IN CASE OF CROSS-BORDER INHERITANCE
Статья
This article analyzes the practical and doctrinal problems associated with the documentation and determination of the scope of rights belonging to the surviving spouse in the event of international inheritance. These relations are at the junction of inheritance and family law, which causes difficulties in determining the law regulating these relations. In preparing the article, general scientific and special legal methodswere used. In order to ensure the logical structure of the narrative, groups of problematic issues are distinguished, on the correct solution of which the final determination of the scope of the rights belonging to the surviving spouse depends. It is demonstrated that the application of the law of different states to inheritance relations and to property relations of spouses may result in a violation of the balance of the rights of the spouse and other heirs. The article substantiates the need to plan inheritance, if it is expected to be tied to more than one legal order, conclusion is made that it is necessary to expand the discretion in the international inheritance plan by providing an opportunity to choose the applicable law, and analyzes the potential value of the inheritance contract for ordering complex legal relations.
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WORKER ADAPTATION AND LABOR RELATIONS
Статья
the worker is in a new work group and starts to perform employment duties in a new position. This requires adaptation. Adaptation is a multifaceted phenomenon (process). In the author’s opinion, it can vary, including the scenarios arising during legal relationships. As is noted in the paper, there are almost no provisions regarding legal regulation of the adaptation process in the current labor legislation. Adaptation is classified as occupational and non-occupational. In the framework of labor relationships, occupational adaptation is of especial interest, since it includes professional, psychophysiological, sociopsychological, organizational, economic and labor adaptations. An analysis of professional and labor adaptation in terms of their definitions and contents has identified their differences. The paper is an attempt to research the issue of worker adaptation through the lens of labor legislation. Mentorship is definitely a component of professional adaptation. There is a special focus on the lack of any provisions regulating the mentorship institution in the Labor Code of the Russian Federation. The need to fill this gap by introducing supplements and amendments into the existing legal regulation mechanics has been pointed out. The conclusion has been drawn about the link between the probation period established with a labor contract and the professional or labor adaptation of the worker. Additionally, the author has made the assumption that probation upon entry into employment should be seen not only as the adaptation of a worker to a new workplace, but as the adaptation of an employer to a new employee as well. Among other things, it is a period when the worker’s adequacy for the assigned job is verified. The opinion has been expressed that it is necessary to standardize the mentorship institution in the Labor Code of the Russian Federation.
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ПРИМЕНЕНИЕ СРОКА ИСКОВОЙ ДАВНОСТИ К ВИНДИКАЦИИ НЕДВИЖИМЫХ ВЕЩЕЙ В РЕСПУБЛИКЕ АРМЕНИЯ
Статья
В настоящей статье рассматривается проблема применения трехлетнего срока исковой давности к искам об истребовании недвижимых вещей от незаконного владельца. Проблема заключается в том, что истечение короткого трехлетнего срока не прекращает право собственности на недвижимость, а в результате отказа в виндикационном иске в связи с пропуском давностного срока, ответчик продолжает незаконно владеть вещью, и в результате возникает dominium sine re. Более того проблематичным является вопрос приобретения собственности владельцем также после 10 лет владения в силу приобретательной давности, так как узукапиент для приобретения права собственности должен не только владеть вещью, но владеть ею добросовестно и как своим собственным, что практически не сможет доказать «захватчик» чужой недвижимости, от которого в свое время собственник требовал вещь обратно. Таким образом возникает период неопределенности прав на недвижимое имущество, и в статье автор рассматривает сложившуюся практику армянских судов относительно механизмов обхода трехлетнего давностного срока. В частности, распространение давностного срока к виндикационному иску привело к подмене последнего негаторным, в результате чего происходит смешение вещно-правовых способов защиты. Автор также рассматривает целесообразность предлагаемых в науке вариантов разрешения поднятой проблемы в виде согласования сроков исковой давности и узукапии.
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