Preview

Kutafin Law Review

Advanced search
Vol 6, No 2 (2019)

LEGAL EDUCATION - TRAINING FOR LAW MOOT COMPETITIONS 

237-271 105
Abstract
The paper explores the issues that are rarely dealt with by Russian Universities and their Faculties in the context of the methodology and general theory of legal education, whereas the issue of mooting (legal competitions) is rather well covered under the common law system. The primary goal of any moot competition is to facilitate both the study of the subject matter (e.g. international commercial law as in the annual Vis moot competition) and the existing dispute resolution processes (e.g. arbitration as the dispute resolution process of choice for international business disputes). Thereby, mooting trains future law leaders in dispute resolution. The most common approach is that a perfect team of mooters needs an equal combination of both outstanding legal arguments (both in oral and written forms) and effective presentation skills. Based on our coaching experience and the discussions we have conducted with our colleagues and students involved in mooting we show that there are numerous different views among moot competitions participants, judges, coaches, and the most experienced “real” professional advocates as to the most effective advocacy tools. Mooting and clinical work represent the key skills-oriented approaches to training lawyers. However, mooting prevails in the context of globalisation of legal education and the development of cross-cultural competences.

COPYRIGHT LAW 

272-294 79
Abstract
This article seeks to clarify legal issues relating to determining damages in copyright infringement, including material damage and spiritual damage. This is a complex area of law, involving both objective and subjective considerations. The author examines the concepts of material damage and spiritual (or moral) damages in detail under Vietnamese law, drawing comparison to their meaning and intempretation in other jurisdictions. The challenges of valuation of material losses are identified and examined - with emphasis on the methods currently used in court practices. As to spiritual or moral damages, the challenges are more complex, being highly subjective to the infringed party, and thus difficult to assess. Other heads of cost - such as lawyer’s fees are also examined, with a view to drawing a distinction between what is reasonable or not - and the reasonableness of the legal fees of a party who is claimed to be infringing the rights of another. Based on the study of Vietnamese laws, laws of certain jurisdictions and hearings in Court practice, this article also makes some proposals on the supplement, clarification of damages to be compensated and bases for evaluation of the infringed copyright. Specific conclusions are made upon the topics of supplementing the definitions of the type of damage to The views expressed in this paper are solely those of the author in his private capacity and do not in any way represent the views of his institution, or any other entity of Vietnam’s Government. include other reasonable costs and damages, specifying in detail the valuation methods of copyright, and finally the establishment of criteria for determining reasonable lawyer’s fees.

CRIMINAL LAW - JUVENILE OFFENDERS 

295-334 115
Abstract
The problem of children and young people committing offences create real difficulties for a justice system in the light of the Rights of Children as variously enacted in national and international legal instruments. It is a problem that transcends international boundaries, and provides a rich field for legal scholarship to chart processes, rules and systems which to deal with this. This paper aims to present and analyse significant provisions of the legislative frameworks governing juvenile offenders of three nations very different approaches to this problem - namely the State of Victoria (Australia), New Zealand and Germany. These are Victoria’s provisions protecting the confidentiality of criminal proceedings and governing bail application; New Zealand’s regulations on family group conferences; and Germany’s stipulations on victim-offender mediation. For each matter, the author makes a comparison with Vietnamese criminal procedure laws applicable to accused persons who are under 18 years of age. The finding is that there are certain shortcomings within the system of Vietnam, which need to be overcome. In this regards, the details, rules, and procedures as well as the experiences of the three nations’ laws are valuable lessons for Vietnam in reforming and developing its legislative framework designed for juveniles in conflict with criminal law.

LAW-MAKING 

335-349 68
Abstract
The paper considers a number of approaches with regard to the concept of the “information revolution” in the development of legal concepts. Various opinions regarding the number of approaches and their main points have been studied. The complexity as to how to determine the exact dates of the beginning and the end of certain events have an impact on new steps in the development of society and public relations - generating debate. The authors identified and systemised the most relevant issues to study in the sphere of the starts and results of information revolutions. They are: leaks and protection of confidential information on an international basis; reliability of the distributed information, firstly in political and military international conflict and secondly in the use of information resources by terrorist organizations and other similar structures. The characteristics of cause-effect relationships for the development of legal concepts are described as a follow-up of the development of the forms of information, information technologies and the info-sphere. Some conclusions are made concerning the further development of legal concepts in modern society on the basis of the classification available.
350-360 76
Abstract
The shadow economy in most academic works is viewed as a negative phenomenon, something that the state should fight. Lawmaking is a one of methods to counteract pre-criminal and criminal shadow economy activities. Counteraction to the pre-criminal shadow economy is carried out by narrowing the so called “grey zones” where unregulated and untaxed activities occur. Grey zones are characterised by a difficult distinction between the normative and non-normative and a sense of the need for normative regulatory of an economic activity. To narrow the grey zone, it is possible to use two different strategies for creating norms. Firstly, it is possible to impose restrictions and prohibitions on various subjects (for example entrepreneurs, public and municipal officers). Secondly, it is possible to simplify the procedures for registering, licensing and control (supervision) economic activity. Other strategies are preferable for fighting the criminal shadow economy: criminalisation of certain types of economic activity, tightening of sanctions, the imposition of restrictions and prohibitions which impede the use of incomes or property derived from corruption. Lawlessness and the shadow economy seem to enter the race ahead of the curve of prescription and prohibition - that is, the law lags behind those who exploit the “grey zones”. So, the legislator needs to have tools for anticipating and preventing the growth of the shadow economic sector. The need for such instruments is exacerbated in conditions of digital shadow economy development.

TAXATION LAW 

361-382 65
Abstract
The topic of taxation is one which finds few enthusiasts outside the field of tax specialists. Yet, public indignation when large companies are discovered to be avoiding large amounts of tax is common - especially when set alongside matters such as rising prices, salaries which do not match inflation, and cuts to public services due to reduced sums of money in the public purse to pay for essential infrastructure and services. Accordingly, the basis on which such large companies - and affluent persons can avoid (not evade) paying taxes becomes interesting. The question as to how to secure better tax income stream from such companies and persons becomes a matter to which States increasingly pay attention. To this end, the existing international system of double tax treaties provides a mechanism whereby dividend payments can avoid tax liability when they are cunningly manipulated with a number of financial entities linked together. The concept of “beneficial ownership” has been developed internationally as a tool to leverage income tax revenue out of such tax avoidance schemes. The tax code of the Russian Federation now incorporates provision regarding such beneficial ownership - yet its implementation (both in Russia and abroad) is in its infancy, There are ambiguities and anomalies. This paper explores this concept of beneficial ownership - historically, in theory and in practice - and signposts directions for the taxation law and practice to develop.

INTERNATIONAL LAW 

383-408 100
Abstract
The sanction of expulsion is a significant coercive measure that a State has to remove unwanted persons from its territory. Such powers should not be used arbitrarily, but rather in the situations which the legislature decrees, by properly defined and regulated practices. Not least of the reasons for this is the need for legal certainty and avoiding being subject to the sanction of expulsion. Nonetheless a “big data” review of the 92 Vietnamese decrees which provide for this sanction reveals a number of inconsistencies. These are reviewed and analysed in detail.In doing so, the anomalous and parallel sanction of “compelled exit” is also reviewed, together with situations where the person who is the competent authority to order expulsion or compelled exit - either does not have the power to do so, or does not have sufficiently clear guidance on how to decide if these sanctions are appropriate. The author draws a number of specific conclusions on the changes which shoulld be implemented to correct this situation - and proposes a new Code for the handling of Administrative Offences, similar to that in the Russian Federation. In doing so, he identifies the need for an incremental approach to solving this problem, such that the Government and Legislative Assembly come to a mutual understanding of the problems to be resolved and the nature of the work to achieve this. From the angle of sanction of administrative violations, expulsion means compelling foreigners who have committed acts of administrative violations in Vietnam to leave the territory of the Socialist Republic of Vietnam. On the basis of reference to the laws of some countries in the world on the issue of expulsion, the author made some comments and suggested directions to perfect the form of expulsion under Vietnamese law.

SPORTS LAW 

409-424 76
Abstract
This paper examines the relationship of international law to sports law and the particular nature of so called Lex Sportiva2. The paper also researches whether Lex Sportiva (sometimes also called Lex Olympica) may be a subcategory of international law, or on the other hand whether it creates a different and independent type of rules of law in the sphere of the international practice of sports, with its sources being private international sports institutions. It has been said that the theory of international law maintains that “The law is a mandatory class. It establishes socially organised penalties and it is clearly distinguished both from the religious classes and the moral ones...”3 On the basis of this theory the paper examines whether the international sports institutions, notably the International Sports Federations and the International Olympic Committee are according to international law, international entities, i.e. bodies whose rules can be considered as international sports law.

JURISPRUDENCE 

425-446 60
Abstract
Taxation is not a simple matter. A review of basis of common theories of taxation is made, with an expression of the author’s view about the future direction where these would be best directed. The elements of the juridical composition of tax are the conditions of taxation, established by legislation about the taxes and the collections. Without the determination of the elements of tax it is not possible to present the action of laws about the taxes and the payments, and also the accomplishment of tax production. Constitutional principles of preferences from taxation must be find their expression in tax legislation, in particular, when define tax easy payment terms for tax payers. The law is concretizing fulfillment rules of tax duty, must define not only content, also the mechanism of fulfillment of tax duty and legible distribution tax burden. In consequence of the distribution tax burden the tax payers find oneself in unequal financial condition. This position is law regularity position. But taking into consideration payment solvent of tax payers the part of the persons have right to get some preferences from taxation and this preferences must foresee in law standards of tax legislation.The article conclused with observations on the needs facing legislators when considering modifications to tax legislation - by reference to both classical and modern economic theories as well as legal matters.
447-469 78
Abstract
Crimes being committed by juveniles in Vietnam are increasing in number and are becoming more serious in nature, and furthermore, there is a greater number of juvenile criminals committed crimes at an earlier and earlier age. The new Criminal Code 2015 (amended in 2017) reflects the humanitarian policy in dealing with juvenile criminals, which is in line with international standards. The need to have legislation and codes that reflect international reality and requirements, including treaties, as well as in accordance with humanitarian principles is paramount. The requirements for policies that drive these is clear. In this context, the author elaborates on key aspects of criminal policy that drive new provisions and process - including matters such as inchoate offences, the age of the offender, diversion principles, and sentencing requirements depending upon different ages - including for concurrent sentencing for offences committed within different age bands. Within this paper, the author therefore analyses the grounds for the Vietnamese State’s policy on juvenile criminals and new provisions of Criminal Code 2015 (amended in 2017) reflected this policy. Additionally, the author provides recommendations to improve these provisions with respects to their content and legislative techniques in order to effectively bring the State’s policy on juvenile criminals into real life.


ISSN 2713-0525 (Print)
ISSN 2713-0533 (Online)