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Legal thought: history and contemporarity
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4–24
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The purpose of the study is to identify the role and importance of legal responsibilityas a means of prevention from the standpoint of its understanding as an integral legalphenomenon, including the positive and negative aspects of implementation. Thesubject of the study is the evolution of the concept and meaning of legal responsibility,legal norms that enshrine legal responsibility. The article analyzes the evolution ofunderstanding of the phenomenon of social responsibility in general and legal inparticular. The characteristic signs of social responsibility are revealed and interrelationswith its separate type, namely legal responsibility, are established. The derivative of legalresponsibility from social is shown, which in the aggregate of all its manifestations andtypes is aimed at preventing deviant behavior. Arguments are presented proving thepresence in the legal system of Russia of not only negative legal liability for violationsof legal norms, but also a positive component of this phenomenon. The dependence ofthe prevention of offenses is substantiated not so much on the effect of negative legalliability, but on positive. The opinion is expressed that the opposites of the manifestationsof legal responsibility can be represented in the form of paired categories. Such pairingis an expression of the contradictory nature of each manifestation of responsibility.The necessity of further research of positive legal responsibility in the context of theprevention of offenses in various ways of legal regulation is proved. A number of the mostimportant functions of the legal liability system are being established. The problem oflegal responsibility of state bodies is touched upon, the functioning of other types of legalresponsibility, the formation of a rule of law, and ultimately the prevention of offenses,depends on its effectiveness. Conclusions are drawn about the historical nature of the normative nature of positive legal responsibility, its predetermination by the entire legalsystem and the very need for social development. Moreover, the prevention of offensesby means of positive legal responsibility is carried out by “soft” methods and means. Inthe context of the dialectical interaction of the positive and negative component of legalresponsibility, conclusions are drawn about the prevention of the positive responsibility ofnot only offenses, but also of negative legal responsibility as such. For citation: Malko A.V., Lipinsky D.A., Markunin R. (2020) Legal Responsibility as a Means to Prevent Offences. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 4–24 (in Russian) DOI: 10.17323/2072-8166.2020.4.4.24 |
Russian law: conditions, perspectives, commentaries
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25–42
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Equality is the most important principle of interaction and mutual relations betweenpeople, being one of the main social and legal regulators of social relations, reflectingthe degree of equal importance of their subjects to society and the state, the availabilityof equal rights, freedoms and duties for citizens, as well as opportunities for theirimplementation. The principle of equal rights and freedoms of men and women isone of the most revealing examples of the existence of problems of establishing andimplementing the constitutional principle of equality. The degree of development andimplementation of the principle of equal rights and freedoms of men and women is oneof the most important indicators of the rule of law, in which a person is recognized asthe highest value regardless of gender. The article examines the current state of theprinciple of equal rights and freedoms of men and women in Russia, using the exampleof the National Strategy for Women’s Action for 2017-2022, approved by the RussianGovernment..This legal act objectively and comprehensively reveals the existing stage ofdevelopment of the principle of gender equality, reflecting the existing imbalance of therelevant relations, which is based on the idea of the need to provide women with additional rights and privileges in order to overcome the historically established stereotype of theirsecondary roles and significance for society. The author comes to the conclusion thatthe paternalistic model of the state’s relationship to women remains, which creates theprerequisites for violating the principle of sexual equality in the absence of the necessarygrounds for this. At the same time, ignoring by the legislator the need to improve thelegal status of men, including as individuals with family responsibilities, is the cause of aviolation of the balance of rights and freedoms of men and women. The most importanttask for the legislator to implement the principle of equal rights and freedoms of men andwomen is the development and implementation of state gender policy. For citation: Zaykov D.E. (2020) The Principle of Equal Rights and Freedoms of Men and Women: Current State and Prospects. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 25–42 (in Russian) DOI: 10.17323/2072-8166.2020.4.25.42 |
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43–77
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The article describes the key issues of legal regulation of cryptocurrency, which emergedin Russian doctrine and jurisprudence in 2015-2020. The article considers nature of“ownership” of cryptocurrency, status of cryptocurrency as an object of property rights,legal ratio of “cryptocurrency”, “money” and “money surrogate” in Russian law. Authordescribes the chronology of legislative activity concerning cryptocurrency and relatedissues, marks the main milestones. The author compares the problems arising in practicewith the solutions proposed by the Russian law. The structure of the article fits thepurpose of the research — to determine the problems of cryptocurrency’ legal regimeand to evaluate how Russian Law coped with arising tasks. The first two parts of thearticle are devoted to civil and financial issues of the legal regime of the cryptocurrencyand to the proposed legal options. The third part of the article is devoted to the bills andadopted laws on the legal regime of the cryptocurrency. The work of the legislator hasbeen reviewed and evaluated from various perspectives. As a result, the conclusion wasmade that the Russian regulator gravitates towards a prohibitive cryptocurrency policy.Such policy is determined both by the traditions of the Russian market regulation and byRussia’s international obligations as a member of FATF. The author states that during thedevelopment of Russian laws on cryptocurrency, a full analysis of the consequences ofthe regulatory ban was not carried out, the volume of the cryptocurrency market was notestimated, and alternative bills were not considered by officials. The courts, which could,to a certain extent, assume the role of filling the legal gap, failed to take on this role andhave only noted the legal uncertainties regarding the cryptocurrency. It is expected thatsoon the Russian legislator will establish sanctions for violations of cryptocurrency lawsand define obligations and prohibitions in the area of crypto asset issuance and trading.After that discussion about the nature of cryptocurrency rights and the civil law regime ofcryptocurrency will be closed. For citation: Yankovskiy R.M. (2020) Cryptovalues in the Russian Law: Surrogates, «Other Property» and Digital Money. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 43–77 (in Russian) DOI: 10.17323/2072-8166.2020.4.43.77 |
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78–105
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The article is devoted to a comparative analysis of legislation and doctrinal viewsexpressed by jurists of different countries on the concept and legal nature of a smartcontract. The smart contract is a new institution related to the use of digital technologies,which was not previously known either in foreign countries or in Russian law. That is whythe authors have identified five different points of view on the concept and legal nature of asmart contract. A similar situation has been developed in legislations of those countries thathave included the rules on smart contracts (ex., USA, Italy, Belarus). Such a large numberof various points of view on the concept and the nature of a smart contract and on methodsof legal regulation indicate the absence of a proper legal concept of smart contracts thatwould be able to adequately combine both technical and legal features of the technical andlegal phenomenon under consideration. The aim of the study is a comparative legal analysisof the legislation and doctrines of various countries to determine the legal nature of a smartcontract and to justify proposals for improving existing legislation, which will eliminate themain disadvantages of a smart contract application in practice. The subject of the study isRussian and foreign legislations about the legal regulation of civil law relations in cyberspacein general, and on the blockchain platform, in particular, also Russian and foreign doctrinesregarding the legal problems of smart contracts applicаtion in civil circulation. Researchmethods: dialectical, formal logical, functional, and other general scientific researchmethods, and special legal methods: formal, logical and comparative. Results of theresearch: outside of legal regulation, a smart contract is a regular computer program thatcannot be of a legal nature. It remains a technical solution, an innovation in the area ofcomputer technology. A smart contract can be used for various purposes in law, includingthe usage in contractual practice. In case of using a smart contract in contractual practice,it is necessary to distinguish between a computer program and the legal relationship itself,i.e. contract. In accordance with aforesaid, the law can only regulate contractual relations,taking into account the technical features of a computer program that inevitably changesthe contractual relationship. Depending on the objectives of legal regulation, a smartcontract can be used as a way of executing a traditional contract, which can be concludedin simple written or oral form, or as a special non-independent contractual design thatcannot be concluded separately from the corresponding contract type. For citation: Evimova L.G., Mikheeva I.V., Chub D.V. (2020) Comparative Analysis of Doctrinal Concepts of Legal Regulating Smart Contracts in Russia and Foreign States. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 78–105 (in Russian) DOI: 10.17323/2072-8166.2020.4.78.105 |
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106–128
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Since the beginning of the 21st century, companies from various parts of the world havebeen actively implementing an anti-corruption compliance. This process did not leave aside Russian, primarily large, enterprises. Under their influence, the implementation process gradually started in small and medium size enterprises that often act as suppliersor service providers. The role of anti-corruption compliance as a mechanism for protectingcompanies from corruption offences and other misconduct should be not underestimated.At the same time, the authors noted that many largest international enterprises that investenormous funds in designing and implementing compliance programmes are not ableto prevent wrongdoing of managers, employees and third parties. As a result, theseenterprises pay huge penalties to resolve anti-corruption laws violations. Based on theresults of the study, the authors come to the conclusion that anti-corruption complianceshould not be limited to a set of management processes and formal standards. Anticorruption compliance programmes and training should have a meaningful filling aimedat preventing corruption offences. The article proposes and substantiates the idea ofdeveloping an interdisciplinary concept of anti-corruption compliance in the Russian Federation, based on the use of the achievements of the sciences of international law,criminal law, criminal procedure law, criminalistics and investigative activities. The authorspropose own definition of the anti-corruption compliance and analyse main reasons forimplementation of anti-corruption compliance in companies. Special attention is paid todistinctive features of legal regulation of the anti-corruption compliance in Russia and inforeign countries. The article contributes to the integration of main scientific definitionsand concepts from criminal law and criminalistics, such as corruption crime, corruption offences and corruption risks into the concept of anti-corruption compliance system.According to the authors, interdisciplinary concept of anti-corruption complianceshould create a solid basis for developing standards and recommendations for Russian companies and guidelines for judges and law enforcement officers. Many provisions could help in designing effective corporate policies and procedures, as well as trainingand professional development programmes on anti-corruption compliance. The conceptcan also be used for the development of anti-corruption cooperation within the BRICS and the Eurasian Economic Union. For citation: Garmaev Yu. P., Ivanov E.A., Markuntsov S.A. (2020) On the Development of Interdisciplinary Concept of Anti-Corruption Compliance in the Russian Federation. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 106–128 (in Russian) DOI: 10.17323/2072-8166.2020.4.106.128 |
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129–164
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Civil justice system development requires consistent measures to ensure effective judicialprotection of the rights and legitimate interests of citizens, organizations and the State.Evaluating the effectiveness of judicial activity should involve not only expert judgments,but also a more verifiable analysis of criteria and quantifiable indicators. Their applicationmakes it possible to optimize the management impact, rationalize the choice of themost effective procedural means of protecting the rights and freedoms of citizens, andincrease the efficiency of procedural activities and the entire system of civil jurisdiction.The paper presents author’s approach to understanding the criteria for the effectivenessof court proceedings, offers a system of such criteria, defines basic approaches to theformation of indicators of the effectiveness of civil procedure, requirements for them,and formulated a system of possible indicators that can be applied in practical research.Using the methods of analytical jurisprudence, law and economics, sociology of lawput forward the criteria and indicators determining the efficiency of justice, efficiency ofprocedural law, efficiency of suit, trial and court judgment. The practical implementationof the proposed approaches can allow to take into account not only the organizationaland legal parameters of the judicial system, but also the social and economic results ofcivil litigation, assess its social effectiveness, and stimulate the achievement of the goalsof court protection with the minimum costs. For citation: Kurochkin S.A. (2020) Civil Litigation Efficiency: Criteria and Indicators. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 129–154 (in Russian) DOI: 10.17323/2072-8166.2020.4.129.154 |
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165–180
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The article is devoted to research of a new type of social care in Russian legislation,which is a foster family for elderly persons and disabled. The increase in the number ofelderly persons in the population structure along with the further predicted increase inlife expectancy place the states before the new challenges and the need to search for thenew flexible forms of social care for elderly and disabled. The active form of social caresuch as placement to specialized state institutions no longer provides an adequate levelof care, furthermore, it doesn’t allow for taking into account the individual characteristicsand preferences of those in need. Maintenance of this active form in the future will onlyincrease the burden on the state budget. The recognized (including recognition on theinternational level) form capable to satisfy the needs of this category of population is afamily care. In this regard, the purpose of this article is to analyze the socio-demographicand cultural problems of family forms of care for the elderly and disabled, the legalregulation of these issues in Russia and abroad. This research, conducted using generalscientific methods and methods of legal science (formal-legal, comparative-legal, etc.),made it possible to formulate some conclusions. The problem of insufficiency of the formsof social care for the elderly and disabled can be described as civilizational and culturallydetermined. Break-up of traditional forms of social life and economy managementoccurred along with the transition to a new type of family culture — the nuclear family.This type of family culture does not imply living of several generations together (meaningthe absence of the family care for the elderly and disabled) and thus imposes on the statethe obligation to search for and to develop the new forms of care for those in need. Theorganizational form that has received the most distribution in foreign practice is a fosterfamily for elderly and disabled. This form is based on agreement of placement in a fosterfamily with the obligations of a care-giver; the state fully or partially reimburses the costsof a care-giver and controls the fulfillment of agreement. A similar practice has developedenough in regional Russian legislation so that to assert the need to adopt it on the levelof a federal law. For citation: Diveeva N.I., Kuzmenko A.V., Nogaylieva F.K., Filippova M.V. (2020) Outcomes of Foster Family Placement for Elderly and Disabled: Foreign Doctrines and Russian Experience. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 155–180 (in Russian) DOI: 10.17323/2072-8166.2020.4.155.180 |
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181–183
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The article discusses legal issues involved in protecting environment from pollution by waste generated by production and consumption; it explains problems are common to most post-Soviet states. Waste from production and consumption is a global problem and requires solutions at an international level. The article builds on studies of the legal basis for managing waste in order to avert harmful effects on human health and environment, as well as to keep that waste circulating in the economy as an additional source of raw materials. The authors analyze effectiveness of administrative methods for preventing pollution and elucidate the differences in the powers of federal, regional and local authorities in these matters. They conclude that all the authorities should improve coordination of their efforts to protect environment from all types of waste. The article provides an assessment of municipal solid waste management reform, often referred to as “waste reform”, that came into force in Russia on 1 January 2019. This reform attempted a radical change in the principles and methods for collecting, sorting, processing and disposing of waste. It also envisaged creating a new household culture in society and improving environmental well-being. The authors critique content of the reform and note both its positive and negative aspects. One significant drawback is the high cost of this reform, which is borne mainly by population at large, and is producing vigorous popular discontent. The negative financial consequences of the reform for citizens can be reduced by arranging an effective system of environmental payments, including payments for pollution from production and consumption waste following the principle that polluter should pay. In Russia, economic regulation for preventing environmental pollution from production and consumption waste is centered on setting fees for negative environmental impacts when disposing of waste and charging recycling and ecological fees that are paid by organizations and individuals. The authors contend that, despite its steady improvement, current system of environmental payments is ineffective in achieving environmental objectives, and they regard the system of environmental payments as primarily a tool of state fiscal policy. To promote low-waste production, fiscal mechanisms for encouraging use of waste and secondary resources should be developed. As things stand, the state is to take responsibility for handling severe environmental degradations affecting a number of regions in the Russian Federation due to pollution of the environment waste from production and consumption. Specific public authorities are empowered to arrange the regulatoryframework in these matters, to organize effective control over law enforcement, and to provideadministrative and financial monitoring of state environmental programs. For citation: Kozyrin A.N., Yalbulganov A.A. (2020) Russian Legislation and Protection from Production and Consumption Waste Pollution. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 181–193 (in English) DOI: 10.17323/2072-8166.2020.4.181.193 |
Law in the modern world
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194–215
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The rebus sic stantibus clause is well-known in the theory of international law andallows the parties to the agreement to deviate from their obligations in strictly definedcircumstances. Most researchers consider this clause mainly in the law of internationaltreaties and civil law. In the case of international customs, its role is rarely heard in thedoctrine of international law. However, the clause has an important place in the law ofinternational customs. In our view, the approach should be taken to ensure that the SouthIs a general principle of law common to both domestic law and international law. Underthe influence of the Vienna Conventions on the law of international treaties, as a result ofthe half-century-old practice of applying their provisions to the rebus sic stantibus clause,this principle is reflected in the customary rule of international law, common to the law ofinternational treaties and the law of international customs. The relevant specific standardof international law regarding the rebus sic stantibus clause in relation to internationalcustoms has not yet been formed. In the practice of inter-state relations, the generalcustom of international law should be used in relation to this clause, taking into accountthe characteristics of international custom. The main features of the fundamental changein circumstances that constitute a substantial basis for the consent of the parties to theobligatory international custom allowing the parties to deviate from their obligations are: theexceptional and objective nature of such circumstances; the contradiction that arises fromsuch changes between the practices underlying international custom and the patterns ofsocial development, the needs for the development of inter-State relations, and the commoninterests of States. The main consequences of changing circumstances that fundamentallychange the scope of obligations under international custom still to be implemented include:the disappearance or impossibility of achieving the goal that the parties had in mind whenentering into the relevant legal relations; unjustified burdens, which the party associatedwith international custom did not count on, recognizing the relevant international custom,including the emergence of a threat to the vital interests of that party. This approach, in ourview, is appropriate to use in the interpretation and application of the general customaryrule of international law in relation to international customs. For citation: Romashev Yu. S. (2020) The Clause rebus sic stantibus in the Law of International Customs. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 194–215 (in Russian) DOI: 10.17323/2072-8166.2020.4.194.215 |
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216–239
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Legal regulation of the development of marine resources in the Arctic is carried out inaccordance with international treaties and the legislation of coastal states. Internationallegal regulation of the extraction of marine living resources is carried out at different levelsof international legal regulation — universal, regional and local. Regional internationaltreaties aimed at regulating the extraction of marine living resources, which would extendto all the maritime areas of the Arctic or to the Arctic Ocean, are absent now. Amongthe universal international treaties include a series of treaties governing the legal regimeof the maritime spaces within which sets out regulations governing the production ofmarine living resources in their regulatory kinds of maritime areas, as well as treaties withother subject of legal regulation. Subregional treaties on the regulation of the extractionof marine living resources in the Arctic marine spaces can be classified into two maincategories: treaties regulating the fishing of a specific type of marine living resourcesthat inhabit the marine spaces of the Arctic, as well as treaties dealing with fishingin various marine spaces that are part of the Arctic waters. The effect of such treatiesextends to certain parts of the waters of the Arctic, Atlantic and Pacific Oceans. TheInternational local treaties regulate relations regarding the extraction of marine livingresources between states located in close proximity to each other and having adjacentsea spaces. The main objects of the relevant international treaties are social relationsbetween states bordering each other on the delimitation of maritime spaces. And in thisregard, the state determines the legal regime for the extraction of marine living resourcesin the border waters. Each Arctic state has adopted its own legislation on the harvestingof marine living resources in the region. The cooperation of states in this sphere of activityis carried out both in the bilateral and multilateral international cooperation. One of themajor problems of international legal regulation of fishing of marine living resources isthe lack of international treaties that could be directed at regulating the fishing of marinemammals in the Arctic, with the exception of a few treaties applicable to the Arctic marine environment on a common basis. For citation: Avkhadeev V.P. (2020) Legal Regulation of the Arctic Marine Bioresources Development: International Law and State Cooperation Mechanisms. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 216–239 (in Russian) DOI: 10.17323/2072-8166.2020.4.216.239 |
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240–260
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The authors study the legal regulation of research mobility within the European researcharea established in the European Union and the European higher education area, whichhas a wider range of member States of the Bologna process. The author emphasizesthe relationship between the legal policies of the European Union in the research andinnovation, education, as well as the free movement of workers, and the legal policyimplemented within the European higher education area, which gives the phenomenonof research mobility an integrated character. The legal regulation of research mobility inthe EU for third-country nationals, many of whom are members of the European highereducation area, serves as an additional confirmation of integration. The article deals withlegal acts of EU law that directly or indirectly affect the problem of international mobilityof researchers, as well as soft law acts, including policy documents. See the genesis anddevelopment of this area of legal regulation, we consider the so-called “limited edition” joint competence of the EU in the field of research and the “movement of knowledge”,claiming the status of “fifth” freedom, and also noted while a minor role of the EU Courtpractice in the field of mobility of researchers. The article analyzes the European legalmechanisms, the experience of which is a necessary tool for building their own model ofexchange of scientists, contributing to the scientific development of the countries of theEurasian economic Union. Based on the results of this work, the authors conclude that theexperience of legal regulation of research mobility in the EU can be used by the RussianFederation in formulating proposals for the development of the EAEU, provided that thisexperience is adapted to the conditions of Eurasian integration. The adaptation of thesemechanisms can also be used to support relations between the Russian Federation andthe European Union in the implementation of the agreement on cooperation in the fieldof science and technology of November 16, 2000. In addition, it was found necessaryto develop recommendations on academic and research mobility within the Europeanhigher education area, using the experience of legal regulation of mobility in the law ofthe European Union and taking into account the interests of all States participating in theBologna process, including the Russian Federation. For citation: Davletgildeev R.S., Tsygantsova S.I. (2020) Researchers Mobility as a Manifestation of Integrated Legal Regulation in Europe. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 240–260 (in Russian) DOI: 10.17323/2072-8166.2020.4.240.260 |
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