Contents of issue # 3/2018

Migration Law in the Russian Legal System  Pdf 16


head of the Public law research centre of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences, professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The article refers to the object adjusted by Migration Law of the Russian Federation, its place and role in the Russian legal system. To write this paper, both general and special methods of scientific understanding were used, among them formal concept analysis, examination of the legislation, synthesis of current scientific knowledge. It is noted that the development of migration legislation is largely hampered by inadequate legislative definitions, which are based on the currently missing definition of “migrant”. The paper examines foundations of this concept in Russian doctrine. It emphasizes the challenges of the current terminology in the migration area used in the Concept for State policy on the migration in the Russian Federation for the period to 2025. Based on the analysis of doctrine, as well as of provisions of international law and national legislation, the article identifies the essential characteristics of the concept "migration", which facilitate the definition of its border lines. It makes a distinction between Migration Law and other relevant branches of Russian law, that is, Constitutional Law, Administrative Law, Labor Law, etc. It defines what factors are complicating the legal framework governing migration in the Russian Federation. The complexity of relations in the migration area requires a more systematic approach to migration law. In order to be resolved, these problems of the regulation of migration need the involvement both the state and civil society in a balanced way.

Keywords: migration, migration law, migration policy, migrant.

DOI: 10.12737/art_2018_3_1

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The Creation of Conditions for the Exercise of Interest as a Way for Its Protection  Pdf 16


head of the Department of civil procedural law of the Ural branch of the Russian State University of Justice, candidate of legal sciences, associate professor
160, Pobedy ave., Chelyabinsk, Russia, 454084

Nowadays, the development of protection and exercise of legal interests is particularly important and there are not special studies on legal interests in isolation from rights. This article substantiates that the creation of conditions for the exercise of interest is a way for its protection. To achieve the goals of the study, the existing approaches to the dispute resolution under “non-contentious jurisdiction” were considered. The imperfection of these approaches has prompted a search for a better way to settle all categories of disputes under “non-contentious jurisdiction”. The formal logic, systematic and structural analysis were used as study methods. As a result of the study, the author concludes that expression of the will directed on satisfaction of needs of the persons concerned is a legal fact that generates the relationship as a form of interest. In the case of the controversy of the presence or of a legal nature of the effects stemming from it, it is necessary to create conditions for realization of the interest by recognizing relevant facts. In other cases of the dispute resolution under “non-contentious jurisdiction”, there is no alternative to protect legal interests by bringing the actual behaviour of the person concerned to conformity with desired legal result, which also indicates the creation of conditions for realization of an interest.

Keywords: legal interests, protection of interests, ways of protecting interests, creating conditions for the realization of interest, legal fact, actual possession, behavior, expression of will, act of conduct.

DOI: 10.12737/art_2018_3_2

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Problem of Restoring (Elimination) of the Actual Inequality in the Field of Civil Law from the Perspective of Social Justice  Pdf 16


professor at the Department of civil law disciplines of the Plekhanov Russian University of Economics, doctor of legal sciences, professor
36, Stremyany lane, Moscow, Russia, 117997

The problem of restoring (elimination) of the actual inequality of civil law actors remains unexplored in civil law studies. This in turn explains the absence of a sufficient number of “equalizing” mechanisms in the legislation, which can lead to social exclusion and, accordingly, to disaffection among the population. The purpose and objectives of the study are to determine the possibility of equalizing the actual inequality by legal means, that is, by establishing, in applicable cases, the regime of legal inequality of civil law actors, as well as determining the specific social relations, which actors is in need of elimination of the actual inequality. General scientific methods (analysis, synthesis, concretization, generalization, etc.) and specific scientific methods (system-analytical method, formal logic, technical-legal method, comparative legal method, etc.) were used to support the required research and analysis. Outcomes of the work include the following provisions. The problem of elimination of the inequality in the economic field (inequitable distribution of income and wealth, high level of unemployment, low actual wages, etc.) is, first of all, in the competence of economists, and the solution of economic problems still requires significant amount of time. However, the content of actual inequality can be not only of an economic nature, but also of a legal nature, which makes it possible to overcome it by legal means, that is, by establishing in the legislation the legal inequality of civil law actors, when the interests of individuals or groups of individuals will have priority over any other individuals or groups. Thus, the actual inequality in the civil law field can be solved, in applicable cases, by moving away from the principle of legal equality (as equality of legal possibilities) of civil law subjects and establishing their legal (juridical) inequality. In the social state such as the Russian Federation, the problem of actual inequality must be resolved to the extent that will satisfy Russian society.

Keywords: equality of legal opportunities, actual inequality, social justice, consumer, housing legislation, corporate management.

DOI: 10.12737/art_2018_3_3

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Corporate Liability in Russian Civil Law  Pdf 16


deputy head of the Department of civil legislation and procedure of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The article proves the need for designation of corporate liability as a separate type of civil liability. The distinctive features of corporate responsibility and its main differences from other types of liability (contractual or tortious) are determined. The distinctive features of corporate liability is considered from the point of view of the peculiarities of the legal nature of corporate rights and duties, as well as all elements of the corporate offense (illegal conduct, harmful consequences, causality, guilt) and the nature of sanctions applied. This specificity lies primarily in the very notion of corporate liability, which the author associates with the violation of relative subjective corporate rights and corporate duties established by corporate legislation, the charter and the corporate contract. The specifics of corporate liability are also determined by the specific nature of corporate rights and duties related to the management of a legal entity, as well as atypical consequences of their violation (for example, restriction of corporate rights, loss of corporate control) and applicable sanctions (for example, prohibition of voting, laying additional duties, etc.). In addition, the necessity of introducing the principle of “specialty” of corporate liability is substantiated and its content is disclosed: any grounds and corresponding measures of corporate liability must be directly named in corporate legislation. Any sanctions of corporate liability, including compensation for damages, should be provided for in corporate legislation in relation to certain offenses and certain subjects. In the charter and other internal documents of the legal entity, as well as in the corporate agreement, additional grounds and sanctions of corporate liability that are not stipulated by the norms of corporate law cannot be established. Also, the principle of a specialty justifies the inadmissibility of competition of tort and corporate claims for bringing to civil liability.

Keywords: сorporate relations, corporate liability, torts, corporate sanctions, damages, specialty.

DOI: 10.12737/art_2018_3_4

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Terms of Limitation in Labor Law: about Words and Definitions  Pdf 16


professor at the Department of labor law of the Stolypin Volga Region Institute of Administration — the Branch of the Russian Presidential Academy of National Economy and Public Administration under the President of the Russian Federation, doctor of legal sciences, associate professor
23/25, Sobornaya st., Saratov, Russia, 410031

The article considers the problem of correlation between the circulation period for protection of the violated rights established by the labor legislation and a current of terms of limitation period provided by the Civil Сode of the Russian Federation. The author analyzes problems of application of Article 392 of the Labour Code in connection with ambiguity of the terminology used by the legislator. In this regard the purpose of this work is to analyze the concepts of terms of limitation period and circulation period in court behind protection of labor rights, and also their functional role in the system of the current legislation. To achieve the objectives of the study, the author uses the general scientific dialectic method allowing to understand duality of the considered legal categories, as well as, a formal logical method, a comparative method, a system and structural method, etc. As a result of a research the author comes to a conclusion that terms of appeal to the court and to the labour dispute committee for the protection of violated rights represent an independent limitation period of terms. Therefore, the labor legislation is in great need of a system of rules governing the terms of limitation period. The author pointed out the need, in a number of cases, for a definition ‘a continuing violation of labor rights’. The continuing offense begins with any action or omission and comes to an end with the actions of the guilty directed to the termination of offense or with an event that impede further commission of offense.

Keywords: labor legislation, civil legislation, terminology, circulation periods in court, limitation period, the contituing offense, abuse of the right.

DOI: 10.12737/art_2018_3_5

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The Social Child Allowance: Some Regulatory Issues  Pdf 16


acting senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The article presents some issues of legal regulation and implementation of the right to social child grant (child allowance) in the Russian Federation. The author gives a comparative analysis of Soviet and Russian legislation on child allowances. There is a high level of purchasing power of such allowances during the Soviet period and its intended destination to compensate necessary expenses actually incurred by parents for their children. The author draws attention to a decline in the value of child allowance as a result of Russia's transition to a market economy and subsequent transformation of allowances for families with children to financial allowance to combat poverty in families with children. The article criticizes that the identification of issues of appointment and payment of child allowance are assigned to the subjects of the Russian Federation, which strengthened the tendency to a further decrease in its values, created problems of the implementation of the citizens' rights on allowance, because there is no unity in determining the number of persons, entitled to allowance, conditions of granting of allowance, its base and heightened dimensions. Special attention is paid to the lack of adequate social guidelines, underlying a right to child allowances. There is support for the ideas of legal scholars on the necessity of developing the minimum consumer budget of a family, which content provides greater benefits than subsistence (physiological) minimum currently utilized with regard to determine the amount of the allowance. In the transition period, before the development of the minimum consumer budget of the family, it is proposed to guarantee to all recipients the basic amount of child benefit at the level of the federal subsistence minimum, fix in the federal legislation the circle of persons entitled to this benefit, and also the uniform conditions for its appointment and payment in the Russian Federation.

Keywords: social child benefit, child allowance, minimum consumer budget of a family, subsistence level (physiological) minimum, base and increased size of the child benefit.

DOI: 10.12737/art_2018_3_6

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The System of Checks and Balances in Pretrial Proceedings in Criminal Cases  Pdf 16


director of the Institute of Law of Volgograd State University, doctor of legal sciences, associate professor
100, Universitetsky ave., Volgograd, Russia, 400062

The last decade was marked by major reform of pretrial proceedings on criminal cases concerning the modified pattern of legal relations between the prosecutor and the investigator. As a result of this reform, the function of the prosecutor in pretrial proceedings is limited to the supervision over the procedural activities of the investigating authorities. However, the study shows that many scientists refuse to accept this new model as part of the modern legal reality. The aim of the study is justifying the conclusion that the introduction of a new model of legal relations between the prosecutor and the preliminary investigation body became the basis of functioning of the system of checks and balances in pretrial proceedings in criminal cases. To achieve this aim the following targets and tasks were addressed: to show a change of the legal status of the prosecutor in pretrial proceedings; to consider the different types of delimitation of competence between the prosecutor and preliminary investigation bodies; to illustrate the system of checks and balances on the example of the dispute resolution procedures regarding the requirements of the public prosecutor for elimination of infringements of the Federal legislation and the resolution of court issues in the order of the system of judicial supervision. The study uses general scientific methods of analysis and synthesis, system approach, methods of legal interpretation and logical-legal method. The methodological basis is grounded on dialectical method. The result of this research is a conclusion that the system of checks and balances, as well as, the underlying distinction of the competences between the prosecutor and the investigating authority provides repeated verification of the indictment thesis during pretrial proceedings, creates safeguards against abuse of power by the authority subjects of the criminal process, prevents making wrongful decisions.

Keywords: pretrial procedures, procuratorial supervision, investigator, prosecutor, system of checks and balances.

DOI: 10.12737/art_2018_3_7

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Procedural Conflict-of-Laws Rules in Private International Law and International Civil Procedure  Pdf 16


associate professor at the Department of public and private international law of the National Research University “Higher School of Economics”, candidate of legal sciences
20, Myasnitskaya st., Moscow, Russia, 101000

The article analyzes the problems raised from the use of foreign civil procedure norms in the settlement of disputes in the international civil process. The trend towards the application of foreign civil procedural rules has emerged in judicial practice relatively recently, but the reference to foreign procedural law is now enshrined in most national and international legal instruments on private international law and on international civil procedure. This gives rise to the problem of distinguishing a special category of conflict of laws — procedural conflict of laws rules, the problem of determining their concept and structure (including rules on the resolution of conflict of jurisdiction). The aim of the study is to illustrate that there is a special category of rules in international private law and international civil procedure which prescribes the application of foreign civil procedure law, i.e. procedural conflict-of-laws rules. The task of the study is to show that the using of procedural law of the court’s country in the current international civil process is advisable to position not as a procedural imperative, but as a general conflict – of-laws binding. The relevant norms of national laws and international legal acts, examples from judicial practice are considered to solve mentioned tasks. The author gives a brief overview of doctrinal views on the problem raised in the article. Main research methods are: comparative law, comparative and retrospective analysis. Currently, the application of foreign civil procedure rules is a daily reality, and therefore it is possible to assert the existence of a special legal category “procedural conflict-of-laws rules”. The law of the court’s country in the international civil process should be approved not as a procedural imperative, but as a conflict-of-laws principle, as a general conflict-of-laws binding. Also the author proposes to define the conflict-of-laws rules as a procedural conflict-of-laws rules.

Keywords: international private law, international civil process, procedural conflict-of-laws rules, foreign civil procedure rules, procedural conflict-of-laws question, conflict of jurisdiction.

DOI: 10.12737/art_2018_3_8

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To the Question of the Functionality of Justice  Pdf 16


professor at the Russian State University of Justice, doctor of legal sciences, professor, honored lawyer of the Russian Federation
69, Novocheremushkinskaya st., Moscow, Russia, 117418

In the continuation of the research of the definitions of the judicial organization and judicial proceedings, their correlation, and also the relationship between the court specializations and the function of justice (Russian Journal of Law. 2016. No. 12), this article is devoted to the discussion on multifunctionality of justice. There are different point of views in the legal science. But all of them say that the functional division of justice is linked with the procedural detailing of the court activities. However, there is no sufficient justification for such position. The primary goal of this research is to define the functional content of the judicial authorities. The objectives of the research are determined by its goal. They are: to analyze the scientific approaches on multifunctionality of justice, to determine the ratio of judicial control and justice, as well as to learn the functional contention of constitutional, civil, administrative and criminal proceedings. The methodological basis of this study is an analysis of the legal relationship mechanism. On the basis of its consideration from the point of view of constitutional, civil, administrative and criminal proceedings the author made a conclusion on their uniformity in the context of the fairness in resolving social conflicts. Accordingly, this indicates a common sphere of activity of the judiciary. In this regard, the author points to the failure of views on the functional division of justice, constitutional and judicial control. Judicial control is understood as one of the forms of implementation of a single function of justice.

Keywords: functions of justice, multifunctionality of justice, justice, judicial control, judicial power, judicial proceedings.

DOI: 10.12737/art_2018_3_9

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The Concept of the Actual Right to Income: Enforcement Aspects of Implementation  Pdf 16


senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences, associate professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The article deals with the law enforcement practice in the context of the resolution of tax disputes arising from the application of the advantages of agreements on avoidance of double taxation by the profits tax payers. This problem is very urgent due to the need to ensure the receipt of revenues in the budget system of the Russian Federation in full. The task of minimizing the risks for the state of unjustified use by taxpayers and tax agents of the benefits of double taxation agreements is currently being solved through the use by law enforcement officers of the concept of the actual right to income (beneficial owner). The purpose of the study is to determine trends in law enforcement activities of tax and judicial authorities in the Russian Federation for application of the concept of the actual right to income and to formulate criteria for attribution / non-attribution of a person to the beneficial owner. The objectives of the study are: to study the most significant court decisions, which applied the concept of the actual right to income; to identify and study the issues arising during the application of the Russian legislation on taxes and fees, international legal acts, including agreements on avoidance of double taxation and the Model Tax Convention on Income and Capital of the OECD, in cases related to the misuse by taxpayers of income tax organizations and tax agents of the advantages contained in agreements on avoidance of double taxation. The methodological basis of the research includes general scientific and private scientific methods of cognition: formal-legal, analytical and logical. The study allowed to determine the two-level nature of law enforcement practice and the leading role of the courts in its formation; to periodize the development of law enforcement practice, noting its “turn” in 2011—2014; to evaluate from a positive point of view for law enforcement practice the implementation of the concept of the actual right to income in national legislation, as well as to formulate criteria (factors) of attribution / non-attribution of recipients of income to beneficial owners.

Keywords: beneficial owner of income, beneficial owner, law enforcement, agreement on avoidance of double taxation, Model Tax Convention on Income and Capital OECD.

DOI: 10.12737/art_2018_3_10

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Influence of the Implementation of the Russian Socio-Economic Policy on Legal Regulation of Land Relations  Pdf 16


acting head of the Department of natural resources legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The current model of socio-economic development is based on the ideas of spatial and sectoral development, which involves a comprehensive solution of social and economic problems in order to improve the standard of living of people. This model has a significant impact on legal regulation of social relations. In present article the author analyzes the influence of the basic principles and concepts underlying the modern socio-economic policy of the state on the development of legal regulation of land use and protection in the Russian Federation. At the end the author concludes that the ideas of socio-economic development of society, set out in the documents of strategic planning and enshrined in normative legal acts, and the idea of rational use of land resources, political and legal methods of involving land in economic turnover, are still not fully correlated. The legislation on strategic planning provides for general provisions on the provision of resources for development areas provided for in strategic planning documents. At the same time, the legislation on strategic planning does not provide for legal mechanisms for planning the use of land resources. Such mechanisms are not provided also for the land use, as well as in natural resource law. Therefore, systematic and planned use of land resources in order to implement the strategic planning documents is not currently subject to any land law or the law on strategic planning. This fact, due to the limited land resources, high competition for their use and no less high environmental value, needs to be corrected. Moreover, not only legal regulation but also conceptual approaches to strategic planning and the underlying approaches to defining the principles and foundations of socio-economic development require adjustment.

Keywords: socio-economic policy of the Russian Federation, land law, urban planning law, spatial development and strategic planning.

DOI: 10.12737/art_2018_3_11

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Protection of Environmental Rights: Some Issues of Theory and Practice  Pdf 16


senior lecturer at the Department of labor and environmental law of the Law Institute of the Siberian Federal University
79, Svobodny ave., Krasnoyarsk, Russia, 660041

Some actual problems of realization and protection of ecological rights at the present stage of development of the Russian State are considered in present article. The author analyzes their content and determines their legal nature. There are some defects of a number of the concepts existing in the nature protection legislation defining the content of constitutional ecological rights are specified. The purpose of the article is to generalize the issues caused by difficulties in the protection of environmental rights. Firstly, these difficulties are caused by problems of law enforcement, and secondly, by defects contained in normative legal acts. This defect could be seen, for example, in the absence of criteria for the favorable state of the environment, the absence of a normative definition of environmental information, as well as the composition, protection measures and conditions for access to this information. Some defects existing in the sphere of legal regulation of environmental protection are analyzed in the text of this work. Also the author analyzes the problems arising in law enforcement, including judicial, practice of ensuring the basic constitutionally established ecological rights. There is some practice of national courts and the European Court of Human Rights in the article. This case-law confirms the need to change certain legal categories established in environmental legislation, for example, “favorable environment” and “environmental information”. There are positive and negative aspects of administrative and judicial measures. The author suggests the ways to improve the protection of environmental rights, for example, by eliminating imperfections in environmental acts that fix some environmental rights. The idea of creating ecological courts in Russia through which it is possible to facilitate the procedure of collecting evidence of violations of environmental rights, as well as to increase the activity of citizens in the implementation of the mechanism of judicial protection of environmental rights is supported.

Keywords: protection, environmental rights, improving the effectiveness of protection, implementation of the right to a favorable environment, specialized environmental courts.

DOI: 10.12737/art_2018_3_12

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The Principle of Pacta Tertiis Nec Nocent Nec Prosunt in the Law of Treaties  Pdf 16


leading research fellow of the Department of foreign constitutional, administrative, criminal legislation and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

The article deals with the genesis of the principle of pacta tertiis nec nocent nec prosunt (treaties do not create either obligations or rights for third states without their consent) in the law of treaties and its application in the modern treaty practice. This principle, originated from the Roman law, was enshrined in the existing law of treaties through the relevant provisions of the Vienna Convention on the law of treaties. Assessing the application of this principle, it is noted that it is of paramount practical importance to those international treaties, the object and purpose of which have a significant impact on relationships of the parties with third states. The number of such agreements in recent years significantly has increased, especially in the field of security. It is emphasized that, despite the existing consensus on the general recognition of the legal value of the principle of pacta tertiis, specific limits concerning the application of this principle remain the subject of intense scientific debate. It is due to several problems associated with its direct application. Among the reasons of such a state are: the declining importance of the concept of state sovereignty in modern conditions, changing approaches to the limits of the exception to this rule, the application of the principle of pacta tertiis in the framework of international criminal law, the use of references to other international instruments in the texts of international treaties. The study of international treaty practice has showed the preservation of legal uncertainty in respect of indirect obligations and their role in emergence of adverse effects in respect of third states. In the conclusion the author emphasizes the dual nature of the principle pacta tertiis, which is manifested in the fact that this principle allows to overcome the contradictions between the provisions of international treaties and, at the same time, causes itself their occurrence.

Keywords: principle pacta tertiis nec nocent nec prosunt, the law of treaties, Vienna Convention on the Law of Treaties, the Rome Statute of the International Criminal Court, the UN Convention on the Law of the Sea.

DOI: 10.12737/art_2018_3_13

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On Some Issues of Legal Regulation on Submission of Information on Income, Expenditures, Assets and Liabilities  Pdf 16


senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218

Among the complex of the measures on prevention of corruption offenses the Russian legislation stipulates providing the information on the income, expenses, property and obligations of property character, by the state (municipal) employees and other persons which list is established by regulatory legal acts of the Russian Federation, and also the information on the income, expenses, on property and obligations of property character of their spouse and minor children. The author reveals the legal basis for the submission of mentioned information by the persons, working at all levels of government, points some disputed issues identified by the results of the analysis of law enforcement practice (the complexity of the procedures for collecting the relevant documents, the presence of corruption factors in legislation, etc.). The author notes that often the submission of incorrect information concerning income is not intentional, but is the result of uncertainty, a gap in the legislation. Thus, in accordance with the Federal law “On combating corruption” the persons holding municipal positions must (in particular) provide information on income, expenses, about property and obligations of property character. At the same time, the absence of legislative norms regulating the issues of submission of information on the income, expenses, on property and obligations of property character by municipal employees, brings uncertainty in the procedure of their submission and often becomes the reason of termination of powers of the municipal employee. Elimination or minimization of the problem issues specified in article is directed on increase of efficiency of anti-corruption activity. The author considers that the duty of submission of information on the income, expenses, property and obligations of property character disciplines the public and municipal employees, and also other persons which list is stipulated by regulatory legal acts of the Russian Federation.

Keywords: information on income, expenses, property and obligations of property character, prevention of corruption, restrictions and the bans connected with public civil service, public servants, municipal employees, corruption factors, forms of documents.

DOI: 10.12737/art_2018_3_14

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Forefeeling of Space: Connection of International-Legal and National-Legal Regulations  Pdf 16


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