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Russian law: conditions, perspectives, commentaries
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4–21
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The article is devoted to the analysis of the Russian center and its regions relations development dynamics.This development tends to be cyclic: from general decentralization (up to “parade of sovereignties”)to the absolute centralization. Russia saw this cycle for the period from 1989 to 2014, and now itfaces the threat of the next wave of decentralization.The author states that there is a neutral position of the system, the golden mean, under which therelationships between the center and the regions are stable and not subject to either centrifugal orcentripetal forces. To define this golden mean, the author proposes to use the historical experience ofdealing with the state structure issue in the Russian Empire, the RSFSR and the USSR.The analysis shows that despite a rather complex state system structure in the Russian Empire itremained a unitary state. The status of various areas, including those with the elements of politicalautonomy, was not been unified, and the power of the center was based on the national and localtraditions. The analysis of the RSFSR Constitution of 1918, which proclaimed Russia as a federation,and the practice of its application also indicates a unitary model of state. The emergence of the termfederation was not associated with the concept of national-territorial structure, but with the need to preservethe state integrity: to find a compromise between unitarianism and separation. This same tacticwas used to preserve the state integrity between 1990 and 1993. However, by the end of the 2000s theindependence of regions within the federation was actually nullified.The current status of Russian regions can be defined as a public (political) national-territorial autonomyin a unitary state. Thus, the federation in Russia is nominal or symbolic. In fact, Russia is the unitaryregionaliststate in which the federal rhetoric is used as a tool for tactical political maneuvering. Thismeans that the center’s policy toward the regions must be flexible and not based on absolute dictatorship.The “strength” of the center must be based on its ability to maintain peace and prosperity throughoutthe country by non-violent means as well as by building relationships with the regions on the basisof respect and consideration for their interests, including budget formation. |
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22–42
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This article examines the problem of refusing the recognition and enforcement of foreign arbitral awardsdue to the violation of the mandatory rules of the country of execution. The authors analyze to whatextent such rules should be violated to become legitimate grounds to denythe recognition and enforcementof a foreign decision. The basis of the research is the French and the Russian judicial practice.In the first part of the article, the authors separate the concept of mandatory rule from public policy andclaim them as two different legal institutions, two different legal categories, with an adjacent character.The mechanism of action of peremptory norms is significantly different from the public policy exception.The public policy exception is only valid in cases of violation or threatened violation of fundamentallegal principles that have a higher peremptory, universal nature of public interest and constitute thebasis of economic, political and legal system in view of international obligations of the state. Peremptorynorms (immediate application) are the norms, which, because of inner signs or because of theirspecial importance to the rights and interests of civil circulation participants, regulate certain relations,regardless of the applicable law. Mandatory rules are often referred to as internationally mandatoryrules, rules of direct application and the laws of international public policy, pointing to their mandatorycharacter and their communication with public policy. At the same time, the Court of Cassation does not include the mandatory rules of the forum in its international public policy. Russian court practiceincludes mandatory rules in the concept of public policy of the Russian Federation. In the second partof the article, the authors examine whether a simple violation of peremptory norms of the country whereenforcement of the award amount to a violation of public policy. The conclusion is drawn that the simpleviolation of such rules is not considered as a violation of public order of France or Russia. Refusal togrant an exequatur can take place only if the violation of a peremptory norm is “obviously real andconcrete” and qualifies as a “simple” violation of international public policy. However, the authors emphasizethat this approach can lead to unjustified extension of the scope of the public policy exception. |
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43–66
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This paper analyses the impact of Big Data technologies on data protection legislation, which represents one of the main legal outposts of privacy in digital environment. The paper describes the origin of what is currently called Big Data, its definition and examples of its application in various spheres. The main focus of the paper is on the analysis of compatibility of Big Data technologies with the core principles of data protection legislation. Based on the analysis, the author comes to a conclusion that such principles as purpose limitation, data minimization; informed consent as a main basis for processing personal data are substantially eroded by Big Data. Purpose limitation and data minimization are at odds with the concept of data reuse, which underpins the philosophy of the Big Data age. Informed consent is impossible in the situations where a specific goal of data processing cannot be provided, and it cannot be provided due to unpredictable nature of potential data uses of in Big Data age: to limit processing data by specific purposes means rejection of the benefits of Big Data. In addition, the point is made that contrary to the popular view, anonimity of personal data is not an effective solution of existing problems with personal data in Big data era, due to widely available opportunities for de-anonymization provided by cheap computing power and a vast amount of information currently available on the Internet. The paper has a purpose of highlighting the problems in data protection legislation and initiating discussions. It is expected that possible solutions to them will be a subject of subsequent papers. Alexander Savelyev. The Issues of Implementing Legislation on Personal Data in the Era of Big Data. Р. 43–66 |
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67–80
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Since the development of market economy in Russia, the issues of promoting employment for citizens have been especially topical. State policy to promote employment aims the development of labour resources, increasing mobility, protection of national labour market, ensuring employment and preventing unemployment. The state policy is implemented by carrying out special events promoting the increase in the number of employed citizens. One of the key directions of the state policy is a significant role of the RF subjects in regulating the labour market by assigning a share in federal authorities as to employment, allocation of subsidies from the federal budget on joint financing regional programs to decrease the tension on employment market in a particular RF subject. Within the regional programs RF subjects may take additional measures in the sphere of employing citizens and protecting from unemployment as well as supporting citizens socially to relieve the tension on the employment market. A measure promoting to reliving such tension is promoting little business and self-employment. This measure is performed by providing subsidies to start up a business within regional special-purpose programs. The paper attempts to examine legal aspects of performing material support and self-employment of citizens and some details in law-enforcement practice. The legal evaluation and system analysis show doubts in terms of the efficiency of such a support in modern economic circumstances and providing a gratuitous subsidy on entrepreneurship is erroneous. However, the author considers this question open for discussion. |
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81–90
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The article deals with the study of the influence of corporate criminal liability on reputation and image. No doubt, corporate criminal liability in Russia is the question of current interest and a widely discussed phenomenon. Considering the events and processes taking place in the global economy, domestic and international companies are, more than ever, interested in «saving» their business today. According to some experts, the dissemination of information about the fact that a legal entity has committed a crime influences its image, profitability and company value. In many ways it is the demand that forms the value of the company and determines the capitalization of the company. In spite of this fact, the image of the company has been recently studied. Nevertheless, researching of image is growing rapidly today: for example, in the 21st century consumer behavior is studied by neuromarketing (a special field in psychology). The author reveals the essence of such terms as reputation, business reputation, image and notes when and by whom the content of the terms was studied. The article makes a distinction between such terms as goodwill (the term which came to Russia from Anglo-American law) and business reputation (there is an opinion that goodwill is synonymous to business reputation). The question about the influence of corporate criminal liability on business reputation and image of the company is considered by the author from general and economic points of view. Despite the fact that at first glance it may seem that corporate criminal liability cannot have an impact on the image of the company and its values, the practice proves otherwise. Given the fact that most producing companies provide rules that seem socially significant (for example, safe production, environmental constraints, and so on), information about the violation of these rules can create a negative image of the company among consumers. From the economic point of view the fact of committing a crime by a company may be denigrating, since the negative image of the company also affects the value of the shares in the company, the interest of potential investors. As an example we consider the case of the influence of committing a crime by the head |
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91–104
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The paper is devoted to the question of crime committer and assisting offender activities distinction in the interpretation of the current criminal legislation and judicial practice, accumulated over the last twenty years. An examination of the Special Part of the Criminal Code articles is made as to the compliance with the general provisions on complicity. The empiric basis consists of the cases on crimes against human life and health, sexual inviolability and sexual freedom of the person; against property; against public security, human health and public morality; ecological crimes and crimes related to bribery court practice. The article covers the key documents of the Russian Federation Supreme Court containing clarifications on the question of differentiating the crime committer and assisting offender roles. The article analyses judicial acts containing ambiguities, generating discussion in academic community and the lack of uniformity in enforcement practice. The paper contains a case selection which sets out the courts position different from the Supreme Court clarification. A particular attention is paid to the federal law Art. 205, added to part 3 of the Criminal Code, which stated abetting in terrorism as an independent crime, and to the state authorities positions, set out in the reviews to the draft. This law has set the tendency to confuse the concepts of crime committer and assisting offender concepts at the legislative level. The tendency was continued by the addition to the Criminal Code Art. 291 ‘Mediation in bribery’. There is also the analysis of the draft laws which are currently under consideration in the State Duma. In case of their adoption abetting in some crimes committing will be recognized as independent crimes and persons committed these crimes will be recognized as crime committers. The author notes that the Supreme Court is often beyond the permissible interpretation and its position is an application of the law by analogy but not the explanation. The author supports the proposal to make the p. 5 Art. 33 of the Criminal Code activities list open to avoid difficulties with this rule application. In general, the author concludes that there is a tendency to blur the distinction between the crime committer and assisting offender roles, lack of uniformity in judicial practice and calls for the development of the general provisions on complicity in the General Part of RF Criminal Code. |
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105–114
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Additional qualification of crimes is provided not to all the changes of criminal law according to article 10 of the RF Criminal Code. Eliminating or identifying the criminal nature of an act, this rule holds as for one law a criminal case should be available and in the other be absent. A decision is required as for the final qualification of crime — positive or negative. Additional information is also required to mitigate or increase punishment as criminal component does not change and the criminal case is supposed by both new and old criminal law. However, when the situation of the criminal improves or deteriorates neither the criminal nature nor punishment change. Theoretically and practically, it is evident that the time when a crime was committed should be considered differently taking into account the presence or absence in the case of socially dangerous consequences. Of course, the actions reflected in the criminal law as a criminal case are complete only with the moment of consequences and cannot be incomplete in the process. Only after the consequences get evident, the act due to negligence becomes a crime. However, it does not mean that such an act continues after committing socially dangerous actions (failure to act). A crime may be committed only by an action or failure to act. At the same time, modifying criminal law is possible only after some act is committed and the modification gets possible only by eliminating, establishing a crime. Such legislative decisions on the operation of criminal law are seen as incomplete. They do not predetermine the additional qualification of crimes for all changes in criminal law. |
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115–125
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The necessity of establishing benchmarks and performance indicators in administrative and legalregulation of the alcohol market. Based on the study of different approaches to determine theeffectiveness of the legal regulation, the author concludes that the decisive criterian for the effectivenessof the system of state regulation of production and turnover of alcohol products is to achieve thepurposes of this regulation, certain legislator, namely purposes such as the protection of morality,health, rights and lawful interests of citizens and the economic interests of the Russian Federation, the safety of alcoholic beverages consumer needs, as well as monitoring compliance with laws, rules andregulations in the regulated area. It is proposed to assess the efficiency of the administrative and legalregulation of the alcohol market by comparing precise quantitative indicators. The article highlightedeight such indicators: 1) the volume of sales of alcoholic beverages to the public; 2) deaths fromaccidental alcohol poisoning; 3) the number of inspections; 4) the number identified in the audits ofviolations and violators organizations; 5) the number of applications for cancellation of licenses sent tothe court; 6) the number of revoked; 7) rate of excise duty; 8) the amount of federal budget revenuesfrom excise taxes.Through the analysis of these indicators, the author assesses the extent to which the above objectives,the state regulation of the alcohol industry and comes to the conclusion that the positive results inthe field of the protection of life, health, rights and interests of the consumers of alcoholic beverages.However, the article cites the figures indicating a lack of effective control over the implementation of thelegislation in the regulated area. In addition, according to the author, excise policy in the alcohol marketdoes not provide the protection of the economic interests of the state and the needs of consumers ofalcoholic beverages. |
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126–149
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The paper deals with the analysis of the mechanism of international cooperation in legal proceedings, inparticular cooperation of courts, attorneys, investigators and inquiry agencies with cognizant authoritiesand the officials of foreign states and international organizations, procedure of extraditing persons forcriminal prosecution or enforcing the sentence, the order of transferring a convicted person to the stateof his citizenship. It is noted that international cooperation in criminal justice has been developing forcenturies and shows that this issue has always been complicated for Russia. Until the 20th century, itslow intensity has been determined with many reasons including weak international law, railroads, meansof communication. The situation changed after the establishment of the United Nations Organization, inwhich the USSR played a serious role. However, until USSR collapse, international cooperation in criminalproceedings was sporadic as it was politicized heavily. The related issues were discussed in the onlynormative legal act of a rather general nature. Immediate cooperation of the law-enforcement officials withtheir counterparts was excluded. Hence, Soviet courts, attorneys, investigators were not entitled to filerequests to foreign competent authorities personally regarding criminal cases and get involved in providinglegal assistance. As the new RF criminal code was enforced, the situation changed significantly as thecooperation in criminal proceedings has acquired a developed legal basis having served an impulse todevelop as a pivotal procedural institution. Its legal nature is respecting and following the procedural ordertaking into account national and foreign legislation as to time, space and people involved. The efficiencyof the cooperation in this area depends not only of the possibilities of practical performance of relevantlegal mechanisms but the environment for implementing legal mechanisms. |
Law in the modern world
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150–168
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This article advocates the strengthening of the spirit of cosmopolitanism in modern legal education. In contrast to the epistemic environment of predominantly domestic and nation-oriented discourses across law schools and faculties around the world, the analysis proceeds with a number of propositions as to what ought to be done to improve legal education, especially at first-degree level. Relevant propositions are set out under a proposed cosmopolitan ethos for law. Recognition is given to current fundamentals of legal education and the fact that law is still a predominantly domestic discipline, which is otherwise this contribution’s hypothesis. The article posits that a certain re-alignment of the subject’s overall educational ethos ought to materialise for the benefit of the discipline, as well as for the benefit of future law graduates.To this effect, the author argues that it is the ethos of cosmopolitanism which ought to be directly introduced to the academic learning of law. Accordingly, this essay acts as an invitation for the re-invigoration of liberal education in law in accordance with a new ethos of excellence, a cosmopolitan ethos. Moreover, whilst partial recognition is given to the need for the mastery of positive law amongst law graduates, this contribution attempts to differentiate itself from current legal orthodoxy in educational terms in that it expects and proposes the combination of mastery of positive law with a cosmopolitan ethos in the orders of our future law graduates. |
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169–182
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The adoption and benefits of cloud computing services in various government ministry/department projects can help support the government’s decision-making processes in relation to a wide variety of issues by providing a more effective integrated working environment. Internally, it improves the operational efficiency of the government and, externally, it provides effective services to citizens anywhere at anytime. Its dynamic nature can maintain uniformity of services across the nation by providing better services in all e-governance projects. It allows people to access data and computer resources, and, in this digital economy, data is considered a nation’s asset and fuel for the economy. Being one of the marvels of “Gandhi engineering”, cloud computing can instantly collect and transmit data from multiple sources, from various sectors and various domains, including socio-economic aspects, health, sanitation, etc. The government or policy maker can convert this data into information and knowledge which can drive the government to make qualitative decisions and take action. |
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183–193
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What interpretative role can the historical development of International Humanitarian Law (IHL) norms play in the current discussion on the globalization of law in general? To answer this question, the article firstly highlights from a theoretical perspective the fragmentary effects of the phenomena of globalization on law in general to set the discursive playing field. Based on these findings, the author shows potential normative and institutional answers provided by IHL on the truly global phenomenon of armed conflicts. To demonstrate the ongoing development and normative reinterpretations of IHL norms in the interdependent system of customary rules and treaty-based rules, the article draws a line of reception from the norms of the St. Petersburg Declaration (1868) to the influential Customary International Law Study of the International Committee of the Red Cross (2005) and recent IHL conventions such as the convention on cluster munitions (2008). Thereby, a special emphasis is given to the broad global acceptance of the relevant IHL norms despite its rather weak enforcement mechanisms. |
Discussion club
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194–207
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The article considers features of mutual relations between shareholders and also betweenmanagement, board of directors of the company and shareholders. The consideration purpose is thefinding of certain balance of interests between board of directors (management) concerning receptionof personal benefits, on the one hand, and shareholders concerning their of maximization wealth.In particular, attempts of a finding of ways concerning management efficiency of the company willbe undertaken: input and algorithmization of independent board, a formulation of model of behaviorof large and small shareholders (including, concerning the redemption of shares at the fair price,abusing a right to be informed about company activity). The author contemplates the classical agencyproblem connected with division of ownership rights (economic interests) and the control (participationin management questions). An example of the agency conflict between shareholders is squeeze out ofminority shareholder, even at observance of appropriate legal procedure. Other example of an agencyproblem between shareholders is reception of the information on company activity (abusing the rightfrom the minority shareholder on reception of the information). Agency conflicts between shareholdersnegatively influence not only activity of the company, but also on other shareholders indeed. Onthe other hand, the shareholder can use procedure of initialization of the judicial control concerningillegal actions of other shareholder. An important deterrent of an agency problem is the institute ofindependent management. Besides, the author considers influence of the majority shareholder oncompany activity — submission to itself of will of other shareholders (small shareholders). The purpose,the large shareholder is economic interests and the total control over the company. However, theownership right on the share and the voting right, allows the small shareholder to have the bindingchannel between other shareholders, to formulate summonses at general meetings, and also to initiatelegal requirements. Besides, in the presented work situations will be considered, in which companyboard of directors breaks balance of interests, making transactions, to the prejudice of interests of thecompany and its shareholders. |
Book review
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208–221
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The present article is a review of the book which had been dedicated to the 65th anniversary of theGhent University professor Mark Van Hoecke. Starting from a short characterization of the contribution made by Mark Van Hoecke to the contemporary comparative law, the author consequently analyzes allthe papers which have been included into the reviewed collective monograph. The author also makescritical assessments of some of these papers. The reviewed book allows getting an idea about themultifaceted approach to methodology of comparative law in the Western legal science. It also canbecome an important tool for Russian comparativists. Almost every essay of this book reveal ways ofconducting comparative research outside the analytical comparison of normative legal texts and legalinstitutes, the sociological comparison of functions performed by these texts and institutes. The authorunderlines the importance of the methodological standpoint employed in most of the essays — the deep level investigation into legal phenomena, which implies a comprehensive analysis of all facetsof social life in order to reveal differences between the compared norms, institutes, legal mentalities.In this perspective a particular role in constructing the methodology of comparative law belongs totheoretical and philosophical frameworks. That is why the attention in this book is focused on thetheory of “Law as Communication” elaborated by Mark Van Hoecke. Intersubjective communication,coordination of meaningful comportment, interpretation of texts and other communicative actions takeplace within certain institutionally shaped societal context. This approach to analysis and comparisonyields the possibility to create a general methodological framework for understanding law in a widesocial-philosophical perspective. This standpoint serves as an important methodological principle forcomparative analysis of legal cultures. In the opinion of those who authored the reviewed book, it isimpossible to conduct comparative legal studies without taking account of this principle. |
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