Chief editor’s column
Topic of the issue
D.V. Tarikanov Introduction to Turkish Private Law Private law of Turkey is represented by the Civil and Commercial
Codes as well by the Code of Obligations. Turkey gave up the old
Islamic law as the source of private law in 1926 and preferred
the way of reception of the Civil Code and the Code of Obligations
of Switzerland. Turkey follows this way till nowadays, borrowing in
Swiss law not only the letter of law, but also relying on the Swiss case
law and doctrine in the issues of interpretation. To immerse the reader into the Turkish private law, a number of its particular institutes is
dealt with in the article: the general principle of the compensatory
justice, the mandatory registration of the chattel mortgages to secure
that the obligation will be performed, the statutory matrimonial
property regime which is based on the concept of obligations and
not on the one of property, compulsory share of the inheritance,
the civil court system and the general description of the procedure
for hearing civil disputes. The emphasis is placed on the situations
involving foreign element.
Keywords:
unjust enrichment, retention of title, chattel mortgage, lex rei sitae, matrimonial property, compulsory share of the inheritance, private international law, recognition and enforcement of foreign judgments, Turkey
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D.V. Zhigulskaya, M.D. Romanenko The Headscarf in Turkey: Symbol or Political Tool? Headscarves are quite a controversial subject in Turkish society.
The article reviews the issue in the context of the confrontation
between traditional religious and secular values from the perspective
of law enforcement. It notes the substantial impact exerted by
the headscarf controversy on the political atmosphere and the higher
education system in Turkey. The issue is often debated in the context
of the threat to the principle of secularism. The previously widespread
practice of excluding women who cover their heads from public sphere, especially universities, has become a serious domestic policy
problem in Turkey that has been largely securitised by the judicial
authorities. (A securitised issue is any aspect of public life that is
portrayed by the state as an existential threat and is perceived as such
by the population.)
The situation changed significantly following the rise to power of
the Justice and Development Party in 2022: against a backdrop
of sweeping Islamisation of society, the headscarf issue was reinterpreted
and re-semanticised.
Chronologically, the article covers the period from the emergence of
the Turkish Republic to the “Justice and Development Party era” and
includes the latest initiatives launched by the ruling elite in late 2022.
The article consistently analyses the concept of secularism in
republican Turkey, examines the historical context of the headscarf
issue and its transformation into a social problem, and provides
a description of specific laws and court rulings on the subject.
The article ends with a summary of the authors’ conclusions.
Keywords:
Turkish Republic, headscarf, secularism, Islamisation, Justice and Development Party
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I.A. Karataev Features of Civil Proceedings in the Republic of Turkey: Comparative Analysis The article analyses the legal regulation of the procedure of
consideration and resolution of civil cases in the court of first
instance in the Republic of Turkey with the aim of forming
a common understanding of Turkish civil proceedings. The author’s
attention is focused on some principles of Turkish civil procedure,
the peculiarities of the procedure for bringing an action, initiating
and considering a civil case in the court of first instance. Comparing
the provisions of the Turkish Code of Civil Procedure and the Code
of Civil Procedure of the Russian Federation, the author concludes
that there are commonalities (e.g., common fundamental principles
of judicial proceedings) and differences (e.g., rules governing
the conduct of judicial proceedings). The author notes that Turkish
law-making experience in regulating certain aspects of civil
proceedings can be taken into account by domestic legislators.
Keywords:
The Republic of Turkey, comparative jurisprudence, civil procedure of Turkey, civil procedure, civil proceedings, trial, principles
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B.D. Nuriev Institute of Agency in Commercial Law of the Republic of Turkey The article analyses the institution of commercial agents in
the Republic of Turkey, which has not only rich legal traditions going
centuries back to the existence of the Ottoman Empire, but is also
very popular at the present time. The author gives a classification of
all types of commercial intermediaries represented in the national
legislation, and highlights the key features of each of them. The paper
states that the institution of agents in Turkish commercial law does not have a clear and unambiguous regulation, which introduces
some confusion in understanding the essence of a particular type
of commercial intermediary. The author states that the regulation
of the institution of commercial agents by various legal sources
also does not contribute to an unambiguous interpretation of
legal norms. At the same time in the field of commerce in this
country, in some cases, the norms of customary law apply. It is
concluded that the variety of legal forms of intermediary activity
largely contributes to the development of business in the country
and employment growth. The article presents various positions of
Turkish researchers on the most debated issues of the activities of
commercial intermediaries. In addition to excerpts from the main
sources of Turkish commercial law, materials of judicial practice and
scientific research by Turkish and Russian specialists are presented.
Taking into account the deepening cooperation between Russia and
Turkey, particularly in the field of commerce, separate comments on
the rules of law governing the activities of intermediaries are given,
taking into account the interests of Russian business.
Keywords:
commercial law, Turkey, commercial intermediary, commercial representative, commercial proxy, intermediary seller, commercial agent, broker, commission agent
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Ju.E. Kiel, L.O.k. Alaskarova Legal Regulation of Earthquake-Resistant Construction: The Example of Russia and Turkey The article analyses the main approaches formed in world science
regarding the importance of building codes and requirements
for reducing the risks and consequences of earthquakes.
The specificity of earthquakes, like any natural disaster, lies in
the impossibility of preventing it, and for this reason the emphasis
in solving the problems of earthquakes should be placed
on preventing negative consequences. This can be achieved by
building an effective regulatory framework and the practice of its
implementation. Moreover, the complexity and interdisciplinary
character of the problem requires a balanced interaction
between the legislator, law enforcer and specialists in the field of
engineering and seismology. The authors analyse the experience of the catastrophic earthquake in Turkey and Syria in 2023, identifying
the shortcomings of the Turkish regulatory framework, which
somehow caused the destruction of buildings as if they were built
without proper seismic stability.
Keywords:
seismic construction, building codes and requirements, seismic regulation, earthquake prevention, Turkish regulation
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A.P. Evseev P.I. Lyublinsky as a Criminologist (on the 85th Anniversary of His Death) The article is devoted to the life and work of an outstanding Russian
lawyer, senator P.I. Lyublinsky. His creative path is considered, his
views on criminal punishment, including the problem of the death
penalty, the identity of the offender, conditional conviction, are
consistently stated. His contribution to the development of criminal
law thought in Russia in the first third of the 20th century is assessed.
The author comes to the conclusion about the enduring relevance of
his scientific heritage, which should take a well-deserved place on
a par with the works of other prominent criminologists of the past.
Keywords:
P.I. Lyublinsky, penological studies in the USSR, death penalty, goals of punishment, probation
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Discussion Board
A.V. Ilyin Res Judicata in Criminal Procedure Res Judicata in criminal procedure, which prescribes respect for
the legal force of judicial acts adopted in civil proceedings, ensures
not only the right to judicial protection and the principle of legal
certainty, but also the impossibility of resolving civil disputes about
the law within the framework of criminal proceedings. As a result,
the scale of the impact of the court decision on the criminal process
should be determined precisely from the point of view of the limits
of the legal force of the court decision in a civil case, and not from
the point of view of what signs of corpus delicti can be established
on its basis. The article examines the questions of what the objective
limits of res judicata are, whether it can have subjective limits, and
what significance the presumption of innocence has in establishing
these limits.
Keywords:
legal force of a judgment, bindingness, Res Judicata, presumption of innocence, forms of legal proceedings, civil procedure, criminal procedure
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A.A. Ivanov University Spirit and Lawyers The article is devoted to the history of legal education in modern
Russia. The author, based on his own experience of teaching at
some Russian universities, traces stages of development of legal
education, fixes its modern position and considers its perspectives.
Starting point is the situation in legal education in the late USSR.
Compelled transformation of Russian education towards the
liberal principles in 1990s had been gradually changed by its
bureaucratisation after 2000. The main consequence of this process
is decline of quality of education and graduates, as well as «exodus»
of skilled and freedom-loving lawyers from high schools. The author
does not see another way of increasing the level of legal education
except returning to the liberal principles.
Keywords:
lawyers, legal education, universities, bureaucratisation, lifetime contract
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Legal Chronicle In the August Legal Chronicle, read comments on the Acts of the Supreme Court on the proceedings in
criminal appeal, on the jurisdiction of criminal cases, the fate of income from the sale of only housing
of bankrupt, on the unity of the system of state bodies and the mutual responsibility of the taxpayer and
state bodies, as well as the commentary on the law on the gender reassignment.
Keywords:
the only housing, bankruptcy, appeal in criminal proceedings, jurisdiction in criminal cases, liability of the state body, taxpayer liability, gender reassignment
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Theory and practice
A.I. Savelyev Legal Aspects of Technical Support for the Software of Copyright Holders Who Have Left the Russian Market The article is focused on legal aspects of termination by foreign
vendors of technical support for software for Russian users. Based
on the analysis of the existing case law, the paper provides the
answers to the following questions: 1) Is it possible to demand
reimbursement of the price of technical support for a period during
which it was not provided by a foreign vendor, and who should make
such a reimbursement? 2) Is it possible to receive updates issued
by the vendor without an agreement with the copyright holder or
his authorised representative and what are the legal risks associated
with such activity? 3) Is it possible, from a legal point of view, to
perform independent support of foreign software products by users
themselves or by the companies specifically engaged by users for
this task?
Keywords:
software updates, software support, abuse of right, adaptation, modification
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O.A. Zharkova Land Plot for Construction and Operation Purposes — Constant or Variable? The article analyses the dynamics of the development of land
legislation in terms of determining the size of the land plot
necessary for the operation of the constructed object and conflicting
judicial practice, as well as housing and registration legislation governing the mechanism for transferring rights to a land plot
from the developer to the owners of premises in the condominium.
The author comes to the conclusion that in the land legislation
in the context of the provisions of urban planning legislation this
issue is resolved unequivocally, but courts do not always correctly
interpret the norms of the law. With regard to condominium,
the situation is different: housing and registration legislation does
not contain a clear mechanism for the transfer of rights to a land plot
to the owners of premises, and therefore judicial practice has to fill
this legal vacuum.
Keywords:
placement of immovable property, lease for construction, urban planning regulations, mechanism for transfer of rights, owners of premises
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P.S. Alpatov Stability of the Conditions for Granting Tax Benefits as a Fundamental Basis for the Investment Activity Regime in the Russian Federation This paper covers aspects of the legal nature of stabilisation with
regard to investment tax incentives. The relevance of the research
is related both to the current macroeconomic difficulties and
the corresponding need to encourage investment activity, and to
the latest trends in jurisprudence and lawmaking.
This article will examine the effect of the tax “stabilisation clause”
in the use of investment tax incentives. The article will substantiate
the thesis that stabilisation applies to any investment incentive due
to the fact that the invariability of investor support measures follows
from the constitutional regulation of the operation of law over time. It will also define the content of a legitimate reasonable expectation,
which is ensured through the stability of tax benefits.
Keywords:
capital investments, investment tax benefits, “stabilization clause”, reasonable expectations
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K.G. Kiktenko, A.A. Kirilina Civil Grounds for Donation The authors reveal in the article the nature, the main idea of donor
legal relations, legal relations in the sphere of transplantation of
donor organs and tissues, pointing out the problems that have
objectively developed in our legal order. In fact, transactions in
the sphere of donation and transplantation exist, but there is no
proper legal regulation of the emerging legal relations. The authors
adhere to the position that a person has the right to dispose of his
body provided that such disposal does not entail the donor’s death
or disability, and has the right to a commensurate compensation,
acting not as a payment, but as a compensation for the harm to
health, which was or could be a consequence of entering into donor
legal relations. The necessity of terminological unity of normativelegal
regulation of these relations is shown. The main purpose of
the work is to reveal the private legal nature of donation, donor legal
relations and legal relations in the field of transplantation. An attempt
is made to describe the system of transactions in donation, proper
ways of defence, problems of correlation of tort and contractual
claims in relation to donation are discussed. Foreign experience is touched upon, showing the uncertain steps of different legal orders
towards a freer regulation of this sphere of social relations. Politicaleconomic
and moral reasoning on the necessity of transferring
donation relations from the sphere of public law to private law, as
well as from state regulation to free market is given. Attention is
emphasised on a number of contradictions that require resolution in
doctrine, legislation and judicial practice.
Keywords:
donation, transaction, transplantation, civil circulation, human organ, biological materials, human tissue, personal non-property rights, protection of civil rights
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