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Legal thought: history and contemporarity
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4–27
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Discrimination poses a threat to equality as a basic concept of the rule of law . In the digital age, the use of artificial intelligence to make important legal decisions has added a new dimension to the problem . More specifically, artificial intelligence is capable of making faulty decisions which are often based on discrimination about individuals . The aim of the article was to examine the risks of discrimination in order to account for and avoid them in future legal regulation . The research is based on an analysis of doctrinal and regulatory sources from various countries and an examination of existing experience with the use of artificial intelligence. A specific method of data mining is profiling, which leaves little room for individual autonomy and self-determination . In this context, it is suggested that the theory of information self-determination be reassessed, exploiting its potential to divide responsibility between the data owner and the processor . Due to the clear discriminatory risks of profiling, some operations are already banned (e .g . redlining in the USA, genetic profiling in insurance and employment in several countries) . The undeniable predictive potential of data deserves careful consideration, especially when it comes to personalization, where the predictive abilities of artificial intelligence are used to legally assess the behavior of an individual . Experience with algorithmic prediction of human behavior in the USA criminal justice system suggests the probabilistic nature of such assessments, which has the potential to infringe human rights to a fair trial and individualization of punishment if algorithmic assessment becomes the sole basis for adjudication . In general, the development of applications to solve routine legal problems that will produce results based on past judicial decisions is particularly relevant in common law countries where case law is prevalent . Given that Russia belongs to the continental law system and that case law even on a one type of dispute is often contradictory and not consistent across the country, the prospects for using American experience are doubtful . Consideration of specific types of deficiencies that can lead to discriminatory data processing, namely incorrect data collection, aggregation of erroneous data, insensitivity of artificial intelligence to regulatory settings, allowed drawing conclusions on the contours of future legislation regarding the activities of artificial intelligence, taking into account all analyzed risks of discrimination . For citation: Talapina E.V. (2022) Artificial Intelligence Processing and Risks of Discrimination. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 4–27 (in Russ.). DOI:10.17323/2072-8166.2022.1.4.27. |
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28–58
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The subject of the study is the phenomenon of soft law in relation to national law. The purpose of the study is to analyze this phenomenon and identify its essence, role and place, as well as its impact on legal stability. The methodological apparatus of the article is formed on the basis of methods of formal logic, system and structural analysis, thought experiment, methods of legal forecasting and interpretation of legal norms, modeling using ideal models, comparative analysis and extrapolation. Based on the analysis of current achievements of foreign and domestic scientific thought, the signs of soft law are identified and systematized, allowing it to be distinguished from both traditional law and non-legal phenomena. This analysis is carried out in the context of updating the category of “soft law”, which has been widely studied in relation to international relations, to national legal systems. The author’s definition and classification of soft law are proposed, the phenomenon of “legal legitimacy” and the determinants of the creation of soft law are revealed. The conclusion is formulated that in order to recognize the soft-legal essence of the norm, it is necessary that it, without possessing at least one of the mandatory features of the norm of traditional law, most often mandatory normativity, be able to generate indirect legal consequences or significant consequences of a non-legal nature. Some official documents are also considered, which are widely represented in the domestic legal regulation and can be designated as acts of national soft law. An attempt has been made not only to postulate their special status, but also to justify the presence of signs of soft law in them. According to the results of the study, it is possible to declare the presence of such signs in official explanations, planning documents and acts of a recommendatory nature. The influence of such documents on the stability of Russian legislation is also considered. Their significant potential in this area has been revealed, since acts of national soft law, firstly, have greater stability in themselves than acts of traditional law, and secondly, they allow avoiding additional changes in legislation. For citation: Usenkov I. A. (2022) National Soft Law as a Legal Phenomenon and a Tool for Increasing Stability of Legislation. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 28–58 (in Russ.). DOI:10.17323/2072-8166.2022.1.28.58. |
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59–79
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In this article, the author attempts, on the basis of theoretical developments of the general theory of law on organizational norms and the discussion of domestic jurists on criminal procedural relations, to identify a special type of norms and relations in the criminal process system, called criminal-organizational. The task of such norms is to create organizational conditions for the effective functioning of criminal procedural institutions. In this regard, the author examines the prerequisites that contribute to the identification of criminalorganizational relations in the system of criminal procedure. Further, the author examines the functional purpose of criminal-organizational norms and relations in the system of current legislation, examines their internal structure and suggests the appropriate conceptual apparatus for the selected elements of relations. In particular, there are such concepts as “organization of criminal proceedings”, “criminal organizational norms of criminal procedural law”, “object of criminal organizational relations”, “subjects of criminal organizational relations”, “criminal organizational relations in criminal proceedings” in both broad and narrow sense. Further, the author formulates a range of issues related to the sphere of criminal and organizational relations, and also highlights the main directions of their theoretical and practical development. In conclusion, the author formulates a number of proposals for improving the Russian criminal process, taking into account the role of criminal and organizational relations. Conclusions are drawn that criminal organizational relations act as a superstructure to the basic institution and criminal justice in general, allowing it to work properly in accordance with the intention of the legislator. In this regard, the author proposes to distinguish criminal-organizational relations as a kind of legal relations with a number of features that require reflection in the presentation of laws and other regulatory legal acts, i.e. to introduce new rules of legislative technique. Proceeding from this, it is proposed to separate the criminal organizational norms into an independent section of the legislative act (Code of Criminal Procedure of the Russian Federation), which, according to the author, will significantly simplify law enforcement practice and will contribute to the qualitative improvement of the work of criminal procedural institutions and criminal proceedings as such. For citation: Bushtets N. V. (2022) The Concept and Structure of Criminal-Organizational Relations. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 59–79 (in Russ.). DOI:10.17323/2072-8166.2022.1.59.79. |
Russian law: conditions, perspectives, commentaries
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80–95
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The article deals with the problem of the legal nature and place of the pre-trial (claim) procedure for settling a dispute in the system of methods and procedural forms of protection of violated or contested civil rights. Often, pre-trial settlement of a conflict only further complicates and delays the process of protecting a violated or contested right. In addition, the existence of out-of-court conciliation agreements is not a reason for the court to refuse to accept a statement of claim on the same subject and grounds. Consequently, pre-trial (claim) settlement of disputes in any of its forms (mediation, online settlement, etc.) will not be in demand by society until the state provides appropriate guarantees for its results. The ideal solution to the problem would be the normative fixing of the right to receive a writ of execution for out-of-court conciliation agreements, but this path requires fundamental changes in the system of pre-trial settlement: it should be carried out by entities with a higher legal education, the procedure for their activities and organizations should be subject to state control (according to analogy with arbitration courts), and for the results of their activities (the conclusion under their leadership of agreements that violate the law or the rights of other persons), these entities should bear special (rather than general civil law) responsibility. At this stage, it is proposed to fix the notarization of not only mediation agreements, but all out-of-court conciliation agreements. It is also noted that mandatory pre-trial settlement of a dispute today is one of the forms of out-of-court reconciliation, the proper observance of which must be proven when applying to a state court. In order to avoid possible abuses, it would be advisable to notarize the documents confirming the use of the online dispute resolution procedure as well. It is noted that the procedure for pre-trial settlement of the dispute should not be formal, and the obligation to comply with it applies only to the copyright holder (plaintiff). For citation: Mikhailova E.V. (2022) Pre-trial Procedure for Resolving a Dispute in the System of Protection of Civil Rights. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 80–95 (in Russ.). DOI:10.17323/2072-8166.2022.1.80.95.
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96–114
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The article examines insurance as a way to ensure the fulfillment of obligations under Russian law. The author explores the classification of security structures, different points of view of scientists are compared, using the system and functional methods of interpretation of legal norms, which further helps to unlock the potential of using insurance as a security structure of the main obligation. An insurance contract can act as an unnamed way of securing the main obligation, corresponding to the signs of accessory (system), which are formulated by the legislator in Article 329 of the Civil Code of the Russian Federation. However, the author draws attention to the fact that in the past, in such documents that were in force before the adoption of the modern Civil Code of Russia, there was no indication of signs of accessory in the legislation. The article proves that accessory, (system) acting as a system method can only be applied to unnamed ways of ensuring the fulfillment of obligations, and also the use of such legislative signs of accessory specified in Article 329 of the Civil Code of the Russian Federation (termination, connectedness, invalidity), which must correspond to the unnamed method of securing the obligation, is argued. It is not possible to apply accessorism to all named obligations, since all seven named ways of ensuring performance of obligations (forfeit, surety, deposit, security payment, independent guarantee, retention, pledge) cannot be reduced to a single feature, and this contradicts the principle of consistency. The article concludes that it is possible to use an insurance contract as a method of securing the performance of an obligation. The author also takes into account the fact that the insurance contract has certain features that are inherent in this obligation, which is expressed in the mandatory presence of specific risks from which insurance is carried out. As a result, a new concept is introduced-conditional accessory. A conditional-accessory method of securing the performance of obligations is an insurance contract that is concluded as a method of securing the performance of obligations not against all existing risks of non-performance (improper performance), but only against those specified in the insurance contract. For citation: Stepin M.G. (2022) The Peculiarity of the Insurance Contract as an Unnamed Way of Ensuring the Fulfillment of Obligations in Russian Law. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 96–114 (in Russ.). DOI:10.17323/2072-8166.2022.1.96.114. |
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115–139
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In the context of the ongoing reforms of modern Russian criminal law, one of the key areas over the past two decades has been the liberalization of criminal responsibility, including the decriminalization of a number of crimes, the reduction of criminal sanctions for certain types of illegal acts, the exclusion of qualified signs of repetition and a number of others. A special place in the issues raised is occupied by the introduction of criminal misconduct into Russian legislation, in connection with which a whole range of issues to be discussed and resolved, which, among other things, are of an interdisciplinary nature, arises. In this scientific article, the authors, using scientific methodological tools, disclose the stated problem in the theoretical and applied aspect and suggest ways to solve it. Based on the example of historical comprehension, it is concluded that the idea of a criminal offense is not new to Russian criminal legislation, and in modern reality there are all the prerequisites for its return, which is supported by the arguments of the authors, as well as the results of other scientific studies. The purpose of the study is to provide a scientific and theoretical substantiation of the need to improve the legislation of the criminal legal complex, including the development of legislative proposals for amending criminal and criminal procedural legislation aimed at protecting the rights and legitimate interests of participants in criminal proceedings, as well as criminal proceedings in reasonable time. Research methods: dialectical, formal logical, specific sociological, historical and legal, statistical, content analysis, legal and technical analysis. Results and key findings. The study allowed the authors to form a conclusion that the improvement of the legislation of the criminal legal complex is seen in the context of the differentiation of illegal acts into criminal offenses and crimes and the introduction of criminal procedure legislation for this category of acts — the protocol form of the investigation, which in general is designed to increase the level of legal and social protection of both persons and organizations affected by crimes, and persons who have committed illegal acts for the first time, the correction of which is possible without the use of criminal repression measures. For citation: Gavrilov B.Ya., Krymov V.A., Shpagina Y.V. (2022) Criminal Misconduct: New Facets of Russian Legislation. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 115–139 (in Russ.). DOI:10.17323/2072-8166.2022.1.115.139. |
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140–163
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The possible criminal liability of a legal entity is the most famous dispute. Understanding the nature of the legal person as a fiction or reality is the main argument of the parties. Then other approaches to the involvement of a legal entity in criminal law began to be developed. For example, the legal entity is not considered as a perpetrator of crime, but as a means, a method, and a weapon of committing a crime. We will turn to the arguments presented in theoretical approaches on the recognition of a legal entity as a means, a method, a weapon of committing a crime, as well as judicial practice. Legal entity is proposed to be considered not as a perpetrator, but as a weapon of a crime based on the fictitious nature. Opponents of this approach argue that a weapon is always a real material object. However, judicial practice generally shows the recognition of a legal entity as a weapon of a crime. In this case, if an organization is used as a weapon, the reality of its activity is not taken into account. The focus is made only on the individual — the perpetrator of the crime, and the legal entity and its autonomy are ignored. Theoretical approaches suggest that a legal entity should be viewed as a means of committing a crime. But not the legal entity as a whole, but only the institutionallegal forms of legal entities. A legal entity is also recognized as a means of committing a crime in jurisprudence. It is argued that the infrastructure and legal structure of a legal entity is also used as a method of committing a crime. In judicial practice we see a direct indication that a legal entity has been created by an individual for the purpose of committing a crime. In this way, the theories of fiction and reality of a legal entity are used by the parties to the dispute. Courts directly indicate that the legal entity has been used as a weapon and means of committing a crime, while ignoring its autonomy and focusing on an individual. For citation: Balzhinimaeva V.V. (2022) Legal Entity as a Means, a Method, a Instrument of Committing a Crime . Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 140– 163. (In Russ.). DOI:10.17323/2072-8166.2022.1.140.163. |
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164–179
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The aim of the study is to attempt to form a theoretical model and a technical and legal design of the legal category “priority duty,” by deepening the existing and obtaining new scientific knowledge about the objective determinants of its existence and the influence on state legal development. The subject of the study is the regularities of the formation of the concept, essence and meaning of such a kind of legal duty as the predominant, legal rules that affirm it. Substantive and informative consideration of preferential duties has been carried out, both from the point of view of the doctrine of law, and from the point of view of historical and modern legislation, as well as law enforcement practice. Based on the use of a variety of means of scientific knowledge, the general of which was the dialectical method, as well as the formal legal approach, by analyzing and interpreting the norms of legislation, judicial and other law enforcement practice, the thesis is argued about the presence of signs of parity of preferential rights and obligations, the latter is interpreted from the point of view of doctrinal perception and technical and legal use, definitive, essential and substantive aspects, relationship with generic legal categories (legal duty, legal advantage), the problems of the implementation mechanism, as well as the risks (corruption, discrimination) arising therefrom. Characteristic signs of preferential duty have been identified and relationships have been established both with the special legal status of the person as a whole and with its individual structural elements, namely, with legal responsibility, legal guarantees. The role of priority duty as a means of reducing illegal behavior is shown. Arguments are given proving the presence in the legal system of Russia not only of negative points related to the deviation from universal equality, but also of positive phenomena caused by the need to establish priorities for state legal development. The need for further study of priority duties in the context of the special legal status of the individual and special legal regimes has been proved. The steps taken should contribute not only to improving the effectiveness of the regulation of public relations through a system of legal advantages, but also to reducing discriminatory and corruption risks, the possibility of subjective (private) discretion associated with exceptions to general legal norms and their addition in the form of preferential duties. For citation: Repev A.G., Senyakin I.N. (2022) Legal Category “Priority Duty”: Theory, Legislation, Practice. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 164– 179 (In Russ.). DOI:10.17323/2072-8166.2022.1.164.179. |
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180–207
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Federal Law «On Mandatory Requirements in the Russian Federation» defines the rules for «better regulation» for economic relations. The Law pursues the idea of the regulatory lifecycle with engaging the public in the development of regulatory acts and evaluating their influence on business, society and State. Also, the Law defines the principles to be applied in these processes (principles for establishing and evaluating the application of mandatory requirements). In the article the principles of law are considered on the example of the principles stipulated by the Federal Law. The content of these principles gives reason to assume that they have a constitutional nature disclosed in the decisions of the Constitutional Court of the Russian Federation. This may mean that the content of the principles of establishing and assessing the application of mandatory requirements is broader than literally formulated in Federal Law and in practice can be supplemented by the positions of the Court in terms of understanding the relevant principles. Therefore, the main purpose of this article is to demonstrate the constitutional nature of the principles and show their content and usage. Author claims that the principle of legality, the principle of substantiation of mandatory requirements, the principle of enforceability of mandatory requirements develop the constitutional principles of proportionality of restrictions on rights and freedoms, balance of private and public interests, forming a test for proportionality of restrictions generated by mandatory requirements. In the article it is also shown that the principle of legal certainty and consistency, the principle of openness and predictability are based on the principle of maintaining confidence in the actions of the state, arising from the constitutional principles of legal equality and justice. In considering the principles of the Law, the author focuses on their regulatory potential and problems of implementation, including the issues of regulatory impact assessment and ex post evaluation. Moreover, the article examines the legal content of the basic notions of the Federal Law: mandatory requirements, legally protected values, the risk of harm (damage) to legally protected values. For citation: Velichinskaya Y.N. (2022) Principles of Law: Problems of Enforcement. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 180–207 (In Russ.). DOI:10.17323/2072-8166.2022.1.180.207. |
Law in the modern world
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208–231
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The article addressed the issue of the regulatory foundation and a current practice of the use of advisory jurisdiction by international courts authorized to perform it. In the absence of universally accepted international rules governing advisory jurisdiction, international courts vary significantly regarding to a list of entities authorized to seek an advisory opinion, as well as a scope of the rules of international law which might be a subject of the opinion sought. Current practice of advisory opinions of international courts reveals that their advisory jurisdiction might be effectively used not for the interpretation of the existing rules of international law, but also as a tool for problem solving in international organizations where relevant courts have been established as well as to circumvent or neutralize limitations or omissions in contentious jurisdiction of the relevant court. The article expresses a rather unpopular view that advisory opinion could not only develop international law but also cause a range of significant problems including attempts to use judicial opinions to solve interstate disputes despite a lack of consent and objections of disputing parties. Talking about legal force or legal effect of advisory opinions which as a rule could not have biding force, it is submitted that such opinions have a force of persuasion (res interpretata) which by no means is a priori given and constant feature. Such force of judicial opinions varies from court to court and inside the court from opinion to opinion depending from the authority of the court in question, from the persuasiveness of arguments. Despite from the fact that a practice of advisory opinions is still emerging in the activity of the Court of the Eurasian Economic Union, all specific features of the use of advisory jurisdiction of international courts and all risks connected to them are fully relevant to this Court. For citation: Kadysheva O.V. (2022) The Role of Advisory Opinions in International Justice and in the Practice of the EAEU Court. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 208–231 (in Russ.). DOI:10.17323/2072-8166.2022.1.208.231. |
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232–258
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American antitrust regulation is a fairly balanced system of legal norms and court precedents that allows individuals, along with government agencies, to actively participate in law enforcement activities, thereby contributing to both the protection of their rights and the suppression of relevant violations of the law. In the context of the efforts made by the European Union and Russia to develop private antimonopoly law enforcement, the study of American experience in this area will help identify possible directions for improving Russian legislation. The subject of this study is the antitrust and civil procedure laws of the United States, the precedent decisions of the judicial authorities that form the basis of the system of legal proceedings on claims filed in connection with violations of antitrust rules. The purpose of this work is to identify the main features of American antitrust regulation and law enforcement that contribute to the active participation of private entities in countering anticompetitive behavior, to conduct a comparative study of the provisions of the US and Russian legislation regarding ways to protect the rights of individuals from monopolistic activities, and to suggest possible directions for the development of Russian antimonopoly regulation. The work uses the methodology of formal-logical analysis and comparative jurisprudence, which makes it possible to reveal the legal essence of certain methods of protecting civil rights, as well as to reveal the features of civil proceedings in antitrust claims. As a result of studying the issues of the topic, a conclusion was made about the possibility of improving Russian antimonopoly legislation based on both the experience of US legal regulation and taking into account the fundamental principles of Russian civil law. So, for the development of private law enforcement in the field of competition protection, it is proposed to establish a fine for non-compliance on a voluntary basis with the justified requirements of the victim or introduce compensation for violation of antimonopoly legislation, taking as its basis, for example, the amount of the offender’s profit for the relevant period. The paper also concluded that the current system of class actions in the United States is more effective in terms of stimulating private enforcement than that provided for by Russian procedural law. For citation: Istomin V.G. (2022) Protecting the Rights of Subjects from Antitrust Violations in the United States in Civil Proceedings. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 232–258 (in Russ.). DOI: 10.17323/2072-8166.2022.1.232.258. |
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