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BRICS Law Journal

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Vol 2, No 1 (2015)
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https://doi.org/10.21684/2412-2343-2015-2-1

ARTICLES

7-14 585
Abstract
The present paper deals with the theoretical question of how can be warranted unity of legal system in the perspective of building up a new legal order of the BRICS. The author draws on the contemporary theories considering various aspects of explanation and construction of law as of a logically united system. Among such aspects are logical unity of legal propositions, epistemological unity of the phenomena unified under the term ‘law,’ factual unity of societal regulation, axiological unity of a hierarchy of legal values, procedural unity of legal reasoning, synergetic unison. It is asserted that the idea of unity of law is not something conceptually monolithic and allows for different readings, none of which can claim to be exhaustive. The author suggests that the BRICS does not need follow the track of systematization of the legislation of the Member States and that creating agglomerations of legal texts from different legal orders of the Member States is an issue not for politician but rather for legal scholars who can construct and reconstruct legal texts, jointing and disjointing them in the view of practical needs of amelioration of legal technique.
15-32 805
Abstract
This text seeks to identify the objective and subjective aspects of rights to an existential minimum in health care, based on international parameters which, because they are restricted to the internal scope of a nation, depend on a constitutional basis and on comprehensible facts, the demonstration of which should be the responsibility of the national administrative authority. Regarding the judicial review of the minimum right to healthcare, this paper points out that it is a serious mistake to try to handle public health conflicts according to the typical judicial principles governing conflicts under private law, because that distorts the public health system, with judicial orders that depart from the universal access to health care and that are often impossible to comply with. The article concludes that the judicial review of administrative authorities in matters involving the right to health necessarily requires simultaneous judicial review of the corresponding administrative procedures.
33-49 621
Abstract

After describing the class action for damages in the American judicial system, with the requisites of ‘prevalence’ and ‘superiority,’ the study passes to the examiner of the requirements of the admissibility of the Brazilian class action for damages, concluding on the existence of the same requisites, even in a civil law system.

50-99 526
Abstract

In this essay, I mainly focus on the constitutional transplantation in the People’s Republic of China. Firstly, I briefly present the Chinese constitution-making process from the Qing dynasty to the Republic of China to show that both regimes had transplanted more or less liberal constitutional principles, rules and institutions into their domestic constitutional document. Then, because China and the Former Soviet Union shared the Marxism-Leninism, China’s 1954 Constitution borrowed almost all the constitutional articles to various extents from the 1936 Soviet constitutional code. Though few articles of the 1977 Soviet Constitution have been imported into China’s present 1982 Constitution, China’s Constitution is still influenced by the Soviet model of constitution in many aspects related to the political and legal reform in the post-Mao era. Globalization brings many challenges to present-day China’s Soviet- featured constitutional system. With China’s accession to the WTO, a qualified judicial review mechanism is required to be established by the other Member States. However, China seems not to satisfy this obligation under the framework of the present legal system. In addition, a constitutional review mechanism is still absent in China. Besides, the modern Chinese legal system keeps silent on the domestic implementation of the UN international human rights treaties in view of the fact that Chinese international law theory was molded by Soviet’s which took highly concerned on protection of its state sovereignty. Chinese authorities, on the other hand, take a vague attitude to universal human rights standards. They sometimes prefer to observe them, while in other cases, they are not willing to follow them. Besides that, the domestic effects of international law also depend on the outcomes of the struggle and compromise between the reformist and Chinese Marxist conservative.

COMMENTS

100-124 3351
Abstract

This paper is designed to discover legal rules addressing insolvency trading in three jurisdictions: England and Wales, Russia and the USA. Originally it was a master’s dissertation written under supervision of Ms. Sarah Paterson, who was extremely helpful and patient. The key jurisdiction for the research is England and Wales, whose wrongful trading provision apparently was the very first insolvency regulation in the field. Here, we will give particular attention to the factual circumstances of insolvency trading and research how the concept of wrongful trading addresses them. The next question will be how the American concept of deepening insolvency and the Russian concept of subsidiary liability are comparable with wrongful trading. Later, we will focus on the functions that should be performed by the regulations. Also, the effectiveness of wrongful trading and similar overseas provisions will be examined. Finally, this paper attempts to find obstacles to the wide application of wrongful trading provision.

125-155 4881
Abstract

The research focus is an assessment of disclosure rules in the European Union and a perspective for implementation of the US discovery rules to improve European private enforcement. For these purposes the EU disclosure rules are compared with the US discovery rules; the influence of tension between disclosure of evidence and leniency programme on the effectiveness of protection of information is analyzed in order to propose areas for improvement and solutions to find a balance between some inconsistencies of the EU disclosure rules with interests of European plaintiffs in cartel litigations.
The research method is not limited to a doctrinal approach to the EU and US legislation, but includes case law, and secondary sources. This paper does not deal with particular types of evidence and generic issues of disclosure unrelated to the cartel cases.
The author contends that the American model of discovery in cartel cases cannot be transferred to the European context completely, even though disclosure of evidence in the EU is rather inefficient, and new rules are unlikely to protect consumers’ interests. In terms of consumers’ interests, protection facilitating follow-on actions looks more relevant on the EU level. Practically, the design of the US disclosure rules and priority of consumers’ rights effectively allow victims from the EU to sue in the US and obtain all necessary documents in the US proceeding. In this context convergence of the US and EU positions on disclosure of leniency materials could bring more certainty both to plaintiffs and defendants in cartel litigations.

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ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)