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Legal thought: history and contemporarity
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4–24
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When studying local regulatory acts, we are faced with the question of what branch of law they belong to. Depending on the subject of a particular study, local acts can be considered as sources of norms of administrative, civil, labor, corporate law. This leads to completely different interpretations of the concept of “local legal act”. The difficulty is that in today’s study of local acts there is almost no continuity with the studies of the previous period, because not only the concept, but also the very essence of this phenomenon in the Soviet period was significantly different from the modern one. At the same time, it is equally wrong to both reproduce uncritically the old theoretical constructions and completely reject them. As a result, rather contradictory and controversial approaches to the concept of “local legal acts” may arise. The article explores modern interpretations of the concept of “local regulatory legal act” in order to reveal the boundaries of the use of this term and the range of phenomena they cover. An analysis of possible interpretations of this concept from the standpoint of various concepts of legal thinking (sociological, natural law, positivist) allows us to conclude that the legal nature of local regulatory legal acts can be substantiated within the framework of all the existing concepts. In addition to conceptual ideas about law, the specificity of possible approaches to the concept of local acts may be due to the peculiarities of the legal branch from which the research is conducted (labor law, civil law, administrative law, municipal law). Using the formal legal and logical methods, the author analyzes each of the existing approaches, showing that today a comprehensive study of the system of local regulatory acts is possible only from the perspective of a general theory of law. It is the general theoretical approach that allows us to cover all varieties of local acts, revealing the signs that unite their various categories. The author substantiates the use of the term “local regulatory legal acts” (internal acts of the organization that regulate the behavior of its members) as a generic one. “Corporate normative legal acts” are considered as a kind of local acts. As for the municipal acts, they completely do not coincide with the local ones, because their action extends not to the members of the organization, but to all those who are on the territory of the municipality For citation: Davydova M.L. Local regulatory legal acts: terminological discussions. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 4–24. (In Russ.). DOI: 10.17323/2072-8166.2021.4.4.24 |
Russian law: conditions, perspectives, commentaries
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25–48
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The subject of the research is an unspoken social contract that has actually formed in Russian society between an employee and an employer as social groups. The aim of the work is to consider the prerequisites for the formation of a social contract in the field of hired labor, to identify its content and basic elements, to study its factual manifestations, to compile characteristics as a social phenomenon, to analyze the socio-economic consequences of its existence, to develop means of counteracting the negative aspects of the social contract. The research methodology involves the involvement of an intersectoral apparatus at the border of sociology and jurisprudence. The work was carried out in line with the sociology of law and represents an attempt to implement the sociological school of labor law and, more broadly, the developments in the anthropology of labor law. A consequence of the significant sociological emphasis was the specificity of the materials of a journalistic and sociological nature used in the article. The existence of the agreement is recorded according to the statistical data of state bodies, sociological organizations, and research by specialists. As a result of the study, it was concluded that the content of the social contract is characterized by reciprocal informal obligations of the parties: the employer provides work and pays wages, violating labor law in their economic interests; the employee performs work, obeys the will of the employer and puts up with violations of labor legislation refusing to protect labor rights. The fulfillment of obligations on the part of the employee is forced, due to psychological, informational, state-administrative, social, economic reasons. The convention is terminated only in the event of a radical violation of the employee’s interests — with prolonged non-payment of wages, illegal dismissal. The pattern is not absolute, but large enough to be presented as a national phenomenon. The consequence of the existence of this agreement is the precarization of labor relations in Russia, the exclusion of millions of workers from the scope of labor law norms, the undermining of the functionality of the industry norms, the destabilization and dehumanization of social life, the erosion of legal consciousness, and damage to the national economy. The means of counteracting the social contract on the refusal of the employee to protect labor rights are active legal education and reorganization of the system of protection of labor rights. For citation: Demidov N.V. Public contract in the system of labour relations in modern Russia. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 25–48. (In Russ.). DOI: 10.17323/2072-8166.2021.4.25.48 |
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49–79
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The article is devoted to legal issues of formation of a legal status of a self-employed person. Attention is focused on the mid-term results of the reforms introduced in 2016-2017, which led to consolidation of an opportunity of natural persons to conduct business legally without state registration by civil and tax legislation. The research contains analysis of the unrelated provisions of current legislation and other formal non-regulatory acts concerning the activity of self-employed persons, as well as court practice for some previous years, and also gaps and contradictions revealed by legal scientists, which seem to be a result of introducing of the new rules. Besides this the authors raise the issues of correlation of novels of civil and tax law with current provisions of labor law, legal regulation of protection of consumers’ rights and measures of governmental support of small business. The necessity of elaboration of a basic legal definition of a self-employed person applicable in for use in various areas of law is underlined in the article. The status of a self-employed person is compared with the status of an owner who uses property legally — an employee, an individual entrepreneur. It is proposed to approach the participation of self-employed persons in civil legal relations on an equal basis with entrepreneurs, according to the content and conditions of their activities. Also minding the existence of different categories of self-employed persons in tax legislation. The conclusion is made about the predominantly entrepreneurial nature of the activities of self-employed persons (with the exception for services exclusively for personal and household needs) to ensure a fair balance of interests of participants in civil legal relations. It is proposed critically comprehend and revise situations in which certain legal consequences depend on the status of an individual entrepreneur, and distinguish them from those where only the entrepreneurial nature of the activity is important. It is noted that a different approach to individual entrepreneurs and self-employed persons is permitted towards their responsibility within administrative legal relations. The authors also considered the possibilities of retraining of civil law relations to labor involving self-employed persons and the potential consequences of such retraining. The authors note the tendency of building a system of regulating of self-employed citizens activities in terms of incentives and benefits, but not their duties and responsibilities, and as a result the lack of a holistic legal regime for the legal regulation of their activities. For citation: Zhukova Yu.D., Podmarkova A.S. Self-employed persons: legal qualification of their activity and perspectives for formation of a special regime. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 49–79. (In Russ.). DOI: 10.17323/2072- 8166.2021.4.49.79 |
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80–101
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This paper examines the concept of inheritance by right of representation which applies in intestate succession. Analysis of this concept is based on civil law in Russia and France. This paper contains the analysis of the history of the development of the inheritance by right of representation in Russia and France from the beginning of the 19th century to the present time; the legal nature of the analyzed concept is explored; the latest changes in the civil legislation of both states concerning the analyzed concept are considered. It has been found that the term “inheritance by right of representation” applied in the current Russian and French legislation has conditional nature as it does not reflect the general theory which implies the transfer of the deceased represented heir’s image to the living representing heir. The analysis of the provisions of the Civil Codes both of Russia and France shows that the legal succession between the represented heir and the representing heir does not occur: the representing heirs exercise their own rights but not the rights of the represented heirs.In fact, inheritance by right of representation in Russia and France should be understood as a generational order of intestate succession by descendants of a more distant degree of kinship towards the ancestor, who take the vacant place of the heir of a closer degree of kinship and divide equally the share that would be due to their father or mother. The study of recent changes in the French Civil Code allows to make an inference that some tendencies in the development of inheritance by right of representation in the inheritance law of France may be perceived by Russian legislators. Firstly, inheritance by law of representation should be permitted in a case when the represented heir is an unworthy heir as its personality must not affect the rights of the representing heir. Secondly, an heir should be granted the right to disclaim an inheritance in favor of potential heirs by right of representation, who was not called upon to inherit by right of representation. Thirdly, both the Russian and French Civil Codes’ provisions about commorients must be amended. For citation: Rostovtseva N.V. Comparative analysis of the concept inheritance by right of representation in Russia and France. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 80–101. (In Russ.). DOI: 10.17323/2072-8166.2021.4.80.101 |
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102–123
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The subject of the study is the norms of civil law regulating the acquisition of the right in rem and its protection. The article argues the idea of the admissibility of the application of real actions to protect the legitimate expectation of a person on a level with the right and legitimate interest. Comparative legal method, the method of case study and the method of systematization became the methods of research. In the system of real actions legitimate expectations are protected by the action for the acquisition of the property right. It is applicable when a person has committed all necessary and sufficient actions to acquire the right, but by virtue of the prescription of the legislation requires a judicial establishment of the right in rem. Therefore, it is permissible to distinguish such a type of legal expectation as a property legitimate expectation. Peculiarities of property legitimate expectation, which distinguish it from the legitimate expectation, consist in several aspects. Firstly, property legitimate expectation is aimed at the acquisition of a right in rem. Secondly, property legitimate expectation is aimed at such acquisition, which is carried out only through a judicial establishment of the existence of the entire necessary totality of legal facts. Thirdly, the property legitimate expectation introduces legal certainty, through the decision on the completeness of the process of acquisition of the right in rem. The construct of legitimate expectation is developed at the level of judicial doctrine, because it is applied by the courts in a situation where there is no specific rule of law to provide protection to the legitimate expectation. This doctrine is based on the principles of law — legal certainty and good faith. The correlation of legitimate interest and legitimate expectation is manifested in the fact that they are aimed at creating a new right. The legitimate expectation is a more concrete legal phenomenon than the legitimate interest, which is more abstract. As part of the application of real actions, legitimate interest serves as a legal basis for an action for the termination of the property right. Having conducted a comparative legal study, it can be argued that the property legitimate expectation is known in the law of the countries of continental Europe and in common law countries; examples are, in particular, the German «Anwartschaftsrecht», common law categories of «future interest», «doctrine of acceleration» and «remainder». For citation: Podshivalov T.P. Property legitimate expectation as a basis for the application of real action. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 102– 123. (In Russ.). DOI: 10.17323/2072-8166.2021.4.102.123 |
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124–151
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After the reform of the commercial procedural legislation in 2016 pre-trial claim procedure became a procedure that is objectively necessary for most disputes considered by commercial courts. For five years a significant number of law enforcement approaches have accumulated in judicial case-law and at the same time contradictions, problems and controversial legal positions. Taking into account the fact that the presentation of a pre-trial claim is the first step towards obtaining legal protection, the practical problems of passing claim procedure require the most careful attention. The attempts of the Supreme Court of the Russian Federation to ensure the uniformity of judicial practice in matters of claim procedure can hardly be considered successful. Indeed, the Supreme Court conducts a lot of analytical work in this area, however many issues not only remain unresolved, but also create a situation of legal uncertainty for potential plaintiffs and defendants. It is curious that the questions that at first glance seem to be purely practical, at the same time test the strength and theoretical foundations of the commercial process. We did not receive proper coverage of the problem of the relationship between a pre-trial claim procedure and procedure for a counterclaim, the goals and general meaning of a pre-trial claim, the distinction between mandatory and optional cases of a pre-trial claim. Finally, the issue of the place of pre-trial claims procedure in the system of Russian law also requires attention. This study analyzes the practice of applying the provisions of the commercial procedural legislation on claim procedure over the past five years. The author begins with a general theoretical understanding of the institution of pre-trial claims, after which he moves on to specific practical issues. The subject of detailed analysis was both the legal positions of the judiciary on specific cases, as well as the materials of meetings, scientific advisory councils and other discussions of procedural issues on the basis of arbitration courts. The general conclusion of the study comes down to understanding pretrial claim procedure for resolving disputes as a complex substantive and procedural institution. For citation: Fokin E.A. Pre-trial Claim in Commercial Procedure: Evolution and Contradictions of Case-Law. Law. Zhurnal Vysshey shkoly ekonomiki. 2021, no. 4, pp. 124–151. (In Russ.). DOI: 10.17323/2072-8166.2021.4.124.151 |
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152–176
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The use of references in legal documents to private technological solutions that implement a particular process has the risks of leaving a wide range of illegal acts in the digital environment unappreciated. Such an approach risks describing only the technologies that exist at a certain moment and the consequences of their illegal use, which, observing the dynamics of modern technological development, does not look prudent. All this requires a revision of terminology of the Criminal Code of the Russian Federation in order to adequately parry existing threats in the field of computer information. A critical analysis of the need to indicate special means of protection and the need for authority in the qualification of actions that infringe on computer information is given. The fact of the presence or absence of special means of protection is not always essential in determining the criminality of an act. It is possible to provide access to information as a result of technological features of the means of information transmission or by mistake. The article analyzes the following methods of committing computer crimes. The paper points out that the malicious impact on information is not always the result of unauthorized access. In particular, the cases of such types of malicious influence on information as: denial of service; transmission of false information; intermediary attack; web injection; physical impact. The greatest criticism of the analyzed crimes is related to the formulation by the legislator of such consequences as the destruction, blocking, modification or copying of information. As a result, the author’s interpretation of the key concepts of signs of the elements of crimes provided for in Chapter 28 of the Criminal Code of the Russian Federation is proposed. As a conclusion, it is stated that information crimes should be classified as computer crimes, regardless of the method of influence. The consequences should be considered from the point of view of the impact on the information system as a whole. When qualifying computer crimes, you should not use as constitutive features that have a narrow technological specificity. The list of consequences can be open, and their enumeration should only be of an orienting nature. For citation: Gracheva Yu.V., Malikov S.V., Chuchaev A.I. Crimes in the sphere of computer information: critical look. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 152–176. (In Russ.). DOI: 10.17323/2072-8166.2021.4.152.176 |
Law in the modern world
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177–204
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The present article analyses the general principles and rules of competition stipulated in the Treaty on the Eurasian Economic Union in the light of the EAEU Court case law. The authors review the types of policies implemented within the EAEU, explain the difference between the general principles and rules of competition and emphasize the practical importance of the Court’s conclusion on the direct effect and direct applicability of the general rules of competition. A significant part of the article is devoted to issues addressed in the Court’s case law on the interaction between EAEU competition law and the antitrust legislation of the member states, as well as to the competence delimitation between the Eurasian Economic Commission and the national competition authorities. According to the authors, despite the fact that the provisions of the Treaty are aimed at excluding cases in which investigation is to be carried out by national authorities and the Commission simultaneously, the novelty of regulation and the complexity of the transboundary markets criteria made it necessary for the Court to foresee a scenario where parallel investigations will not be terminated and will result in decisions by both bodies. The solution to the problem was found in the entrenchment of the ne bis in idem principle in the advisory opinion of 18 June 2019. In terms of distribution of powers between supranational and national levels of legal regulation, the Court’s opinion on restraint of prohibited coordination of economic activities, stipulated in the advisory opinion of 17 December 2018, merits consideration. The Commission shall have competence to deal with this violation when the coordination of economic activities has an adverse effect on competition on a transboundary market. In the context of the substantive matters study, the authors take a close look at the position of the Court, set out in the Advisory opinion of 4 April 2017, related to the right of the member states to establish additional criteria for admissibility of “vertical” agreements in national legislation. Taking into account the influence of the law of the European Union on the development of EAEU competition law the authors undertake a comparative analysis of the EAEU Court’s advisory opinions with the case law of the Court of Justice of the EU, underlining the main similarities and differences. For citation: Diyachenko E.B., Entin K.V. The Role of the EAEU Court ‘s Advisory Opinions in Development of the Eurasian Economic Union’s Competition. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 177–204. (In Russ.). DOI: 10.17323/2072- 8166.2021.4.177.204 |
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205–229
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Economic dependence and prohibition of abuse thereof are traditional institutes of competition law. Although we cannot observe it in EU competition law, it exists and it is used very efficiently in many national laws. By prohibition of abuse of economic dependence it solves a crucial problem of prevention of abuse of dependent party position. The analysis is through and it embraces both law and practice. Comparing economic dependence and dominance as well as abuse thereof author identifies common and different features. Elements of power, influence on counterparties, ability to define their mode to conduct business and absence of any viable alternative are those in common. The different features are those connected with quantitative characteristics of the market dominance and the scale of the market power. Abuse of the economic dependence as well as abuse of market dominance also have much in common, especially if so called “contract related” abuses are in question. However author believes that the scope of the application of these prohibitions is absolutely different although the practices in question may look similar in similar situations. It is worth adding that prohibition of abuse of economic dependence covers and thus is capable to solve the problems that the prohibition of the abuse of dominance is unable to solve. In addition contract models admissible under traditional competition law are prohibited if applied to establish economic dependence or to abuse thereof. Upon the results of the comparison author believes that economic dependence is one of the categories of the economic law with very wide application scope and high functionality. For citation: Borzilo E. Yu. Concept of economic dependence in business regulation. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 205–229. (In Russ.). DOI: 10.17323/2072-8166.2021.4.205.229 |
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230–258
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The article analyzes current state of Russian-American cooperation in legal matters, namely in extradition of persons for the purposes of criminal prosecution. Moreover, it examines factors, which negatively affect such cooperation. It demonstrates that one of the consequences of deteriorating relations between the two countries is a politically motivated virtual US refusal to cooperate with the Russian Federation in extradition and the focus of the United States on mechanisms to ensure Russian citizens’ stay in the US territory, which is justified by the KerFrisbie Doctrine. The article studies US legal regulation and sources of the US law regarding extradition. Special attention is paid to the implementation of treaties as a legal basis for the US international cooperation in extradition. It indicates the difference both in the status and in application of bilateral treaties of the United States on extradition and multilateral treaties on extradition and on combating certain crimes, to which the US is a party. The author concludes that it is possible to positively resolve a matter of extradition from the US territory for criminal prosecution only provided that a bilateral agreement with the requesting party exists. The article studies significance and distinguishing characteristics of judicial precedents as sources of legal regulation of extradition in the United States. Furthermore, the article provides an examination as to how judicial precedents deal with matters decided at the consideration of requests for extradition, as well as distinguishing characteristics of the US criminal procedure in this sphere. It analyzes legal regulation of the reciprocity principle in the US international cooperation in extradition. It shows the impossibility of its implementation in Russian-American cooperation. The author strongly recommends to take into consideration polysystemic nature of legal regulation of extradition in Russian-American cooperation. Furthermore, the author stresses that legal requests for extradition must contain data on those matters that are decided by American courts. It is emphasized that in Russian-American cooperation it is impossible to refer to the principle of reciprocity as a legal basis for extradition, and that a bilateral Russian-American agreement on extradition is much needed. The article also provides reasons for implementation of Convention for reciprocal extradition of criminals of 1887, as neither Russia nor the United States after it became effective took actions to terminate the treaty or to withdraw from it. For citation: Volevodz A.G. International cooperation between Russia and the United States in extradition of persons for the purposes of prosecution: challenges and opportunities. Law. Journal of the Higher School of Economics. 2021, vol. 13, no. 4, pp. 230–258. (In Russ.). DOI: 10.17323/2072-8166.2021.4.230.258 |
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