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The second part of the article is devoted to the analysis of two epistemological problems that are directly related to the balancing of values in judicial practice – the nature of human rights and the relationship between law and non-legal normativity. According to the authors, the dispute between Habermas and Alexy over what is the authority of law in the area of human rights illustrates the conflict between Kantian legal philosophy and jurisprudence of interests,
between the absolutism of deontological ethics and consequentialism. Balancing legal values, using, among other things, the economic analysis of law, is one of the ways of the conscious evolution of law, its synchronization with the flow of life of society. Another problem is related to the conflict between the natural boundaries of law as a scientific and practical field of knowledge, and the regulatory function of law, which presupposes a timely and adequate response of the law to external events and challenges. The authors turn to Luhmann’s distinction between the normative closeness of law and its cognitive openness and come to the conclusion that there is both direct and indirect communication between law and other normative systems (such as ethics and economics). Law assimilates and transforms ideas and values of other areas of knowledge, but it shares with them the same context, which allows us to speak of the common cognitive structures.
The article discusses the specific mode of existence of values – balancing or optimization when it comes to deontological values. The authors using examples of values such as the principles of law and human rights, the rules of balancing are analyzed, which, according to G. Hart's classification, are secondary norms. The critical issue for the legal balancing procedure is the relationship between legal reality and values as such. Are the constitutional and legal values set by the Basic Law (Constitution), or do they objectively exist in society as a general (pre-constitutional) order of values? Should the Basic Law be confined to its own text and remain value-neutral in this sense? Are legal values purely deontological, or can they be related to utilitarian goals and interests? The second part of the article explores the value of balancing as one of the methods for resolving the most complex legal conflicts. The well-known dispute between J. Habermas and R. Alexy about the admissibility of balancing of human rights demonstrates how complex and philosophically rich the legal balancing procedure is. Based on Luhmann’s concept of the cognitive openness of law, at the end of the article, the authors substantiate their own position on the role of values in modern
The purpose of this article is to inform the Russian reader about the Italian consumer protection against unfair contract terms established by both national autonomous regulation and the implemented EEC Directive No. 93/13/EEC. It focuses on the Directive itself, the Italian Civil and Consumer Codes (which are translated by the authors), as well as on the most important positions of Italian civil doctrine, Italian Court of Cassation and the European Court of Justice in order to understand the provisions of these regulatory acts. The work does not purport to be exhaustive or in-depth analysis, providing only a general overview of the Italian law on the relevant relations in comparison with Russian law. It may be useful for further comparative study of consumer law, a deeper understanding of the problem of protection against unfair contract terms in domestic law and respective improvement of jurisprudence and legislation.
The article analyses the interrelation between the preparation of planning documentation and granting of permits for construction, as well as the questions of unlawfulness of constructions erected in violation of planning documentation. The authors investigate the problem of issuing permits for construction of non-linear objects, when the objects do not comply with the technical and economic indicators established in the territory planning documentation. According to the authors, refusals to issue construction permits in such cases are often unlawful. Public authorities desire to use planning documentation when issuing a construction permit due to the improper incorporation of the institution of urban planning zoning into the Russian legislation on urban planning activities. The authors analyse the problems of qualifying a building as unauthorised if it violates the threshold parameters provided by the documentation for
the planning of the territory.
At the articke authors are analyzing contractual constructions that
are not directly provided for by the Part IY of the Civil Code of the Russian Federation, but follow from
the meaning of its norms.
For the first time, a Russian translation and a detailed article-by-article commentary on Title I, ‘On Obligations in General’ (articles 1173-1320) of Book Four of the Italian Civil Code in force (as at 31 December 2020), adopted in 1942, is published. This title is essentially the General Part of Italian law of obligations. This issue publishes the first two chapters of the Title: ‘Introductory Clauses’ and ‘On the Performance of Obligations’.
For the first time, a Russian translation and a detailed article-by-article commentary on Title I, ‘On Obligations in General’ (articles 1173-1320) of Book Four of the Italian Civil Code in force (as at 31 December 2020), adopted in 1942, is published. This title is essentially the General Part of Italian law of obligations. This issue publishes the three last chapters - fifth, sixth and seventh - of the Title: ‘On the Cession of Claims’, ‘On the Delegation, on the Expromission and on the Assumption of Debt’, and ‘On Some Types of Obligations’. The beginning (chapters I and II) and the continuation (chapters III and IV) are published in The Herald of Economic Justice of the Russian Federation No. 1 and 2 for 2021.
The article touches upon the problem of bringing persons controlling the debtor to the liability in the light of the interpretation clause
clause 3.1 of Art. 3 of the Federal Law "On Limited Liability Companies", which was made by
The Constitutional Court of the Russian Federation in the Resolution of May 21, 2021 No. 20-P. In particular, the Constitutional Court indicated that the conclusion made in the Resolution of the Constitutional Court of the Russian Federation related to the subject matter of this case cannot in itself be considered as excluding
the application of the same approach to the distribution of the burden of proof in cases where the creditor is a subject other than an individual, the obligation of the society to which arose not in connection
with the implementation of business by the creditor.
Illustrating the grounds for ambiguous interpretation laid down in such a phrase, the author concludes that
what is more preferable is still a narrow approach, when the clause is interpreted in favor of only such a creditor who is “another entity, the obligation of the society to which did not arise
in connection with the implementation of entrepreneurial activity ".
According to the author, such a conclusion is not only consistent with the idea of fairness in the distribution of the burden of proof in terms of the status of creditors, but is generally consistent with the general prohibition on taking advantage of unfair behavior.
The article deals with the problematic issues of interpretation of the bona fide prop in relation to the institution of long-term ownership of a land plot. The authors conclude that the right of ownership of a land plot can, in principle, arise according to the institute of limitation of ownership. However, the bona fide ownership of the institute of limitations and the understanding of the same institution within the framework of a bona fide acquirer under a transaction should be understood in different ways. It is concluded that there can be no presumption of good faith of public bodies, in contrast to a citizen or legal entity, for which it is assumed.