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Legal thought: history and contemporarity
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4–27
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The article is devoted to the implementation of the regulatory guillotine in Russia, when the government abolished many legal acts containing regulatory requirements that entered into force earlier than January 1, 2020 . The article reveals the concept and procedure for the implementation of the regulatory guillotine, and also presents its results . The aim of the study was to assess the results of the regulatory guillotine in terms of real changes in government regulation . The analysis of the changes was quantitative . As part of this analysis, the authors assessed the impact of the regulatory guillotine on the lists of legal acts enforced by the inspection authorities . The authors compared legal acts from such lists (relevant for February 2020) with the lists of legal acts that fell under the regulatory guillotine . The study made it possible to conclude that out of 11 .6 thousand normative legal acts and documents canceled according to official data during the guillotine, only 1/10 of them were really checking during the inspections and supervision activities of the authorities . Such a low efficiency is explained by the fact that among the regulations that were enforced during the inspections and supervision activities in February 2020, 70% of acts were excluded from the regulatory guillotine due to the rules of the guillotine itself, 6% of acts were forgotten, 9% of acts were included in the “white list” for preservation actions and only 15% of the acts were canceled . The study also revealed a number of problems in the implementation of the regulatory guillotine: lack of an appropriate stage of system design of the target regulation model; limited competence of working groups on the implementation of the regulatory guillotine; a significant number of areas for which the regulatory guillotine has not been applied; removal from the regulatory guillotine of the mandatory requirements established by federal laws . The authors proposed to extend the project of the regulatory guillotine, focusing efforts on deregulation on certain areas that are most burdensome for the entrepreneurs . For citation: Knutov А. В., Plaksin С. М., Сiniatullin Р. К., Chaplinskyi А.В. (2022) Regulatory Guillotine in Russia and its Quantitative Results. Law. Journal of the Higher School of Economics, no 2, pp. 4–27 (in Russ.). DOI:10.17323/2072-8166.2022.2.4.27. |
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28–59
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The article contains a scholar position regarding the recent legislative initiative implemented (June 2021), which has changed the legal regime of hunting grounds and the procedure for concluding hunting agreements as a basis for granting hunting grounds to private individuals for use and the right to carry out activities in the field of hunting, including the extraction of hunting resources . The position is formed on the basis of a comprehensive study conducted using formal legal and systematic methods, as well as methods of modeling and comparative jurisprudence . The analysis of the current legal regulation, norms at the stage of their design, new provisions of the Federal Law “On Hunting”, as well as factual circumstances is presented . It is concluded that the novelties that have changed the Federal Law mentioned do establish, in the interests of private individuals — hunting users, the regime of ownership, use and disposal of hunting grounds owned by the state on the right of ownership, and according to the actual consequences are aimed at the privatization of hunting grounds, their inclusion in civil turnover between private individuals, and together with the right of extraction of hunting resources and conducting other types of activities in the field of hunting . This violates the principle of priority of public interests in the field of nature management, and the purpose and true subject of legal regulation of the analyzed novels, including the method of their introduction into the legal system, have signs of “dubious legitimation” and have a hidden form, since hunting grounds are a single natural and immovable complex, are in state ownership and cannot be subject to turnover between private faces . The provision of hunting grounds on behalf of the State to private individuals should not be carried out except exclusively for use, which has a strictly defined purpose, reasonable time and personalized fulfillment of obligations, without the possibility of exercising the powers of the order . The procedure for the provision of hunting grounds by the state for the use of private individuals should be competitive, with the use of bidding, paid and public . The forecast of negative consequences of the result of changing the Federal Law “On Hunting” through the introduction of innovations in 2021 is given . For citation: Gorokhov D.B. (2022). On Law-Making in the Field of Nature Management: What are the True “Features of National Hunting”. Law. Journal of the Higher School of Economics, vol. 15, no 2, pp. 28–59 (in Russ.). DOI:10.17323/2072-8166.2022.2.28.59. |
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60–84
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The subject of the study of the article is legalistics — a new direction of foreign legal science and legal activity, which are aimed at improving the law as the main element of the legal system. The formation and development of legalistics was a kind of reaction to the decline in the role and quality of lawmaking in foreign countries. The very process of devaluation of the law is due to many factors: the crisis of parliamentarism, the uncontrolled growth of legal acts, the decline in legal security, legitimate trust. Legal security, which is designed to protect those to whom the law applies, from properties that cannot be attributed to its merits: large volume, low quality of the text, inconsistency with other regulations, frequent changes, etc., is considered as a criterion for assessing the quality of the law. Trust in the authorities through the prism of “legitimate trust”, which is the subjective side of legal security, reflecting the perception of the law by society and citizens in the feedback parameters, is certainly an important factor affecting the effectiveness of its application. The purpose of the study is to reveal the content characteristics of legalistics as scientific knowledge and its refraction in practical activities for the development of legal acts. This goal determined the internal structure of the work. Assessment of the regulatory impact of the bill, organization of legislative work, the role of law developers — these issues of legal work became the object of the article’s analysis. At the same time, both general scientific (logical, historical, systemic) and special research methods were used: formal legal and comparative legal methods, the method of doctrinal interpretation of law. Based on the results of the analysis, one can state the formation of legalistics abroad in two manifestations: as an applied science, initially focused on improving lawmaking, and legalistics as an organizational and legal algorithm, the task of which is to build a stable and effective legal system. In this context, foreign experience in the development of legalistics seems to be not only of speculative interest, but can be practically useful to Russian legislators, as well as specialists involved in organizing similar activities. For citation: Pilipenko A.N. (2022) Legistics: Legal Science and Practice (Foreign Experience). Law. Journal of the Higher School of Economics, vol. 15, no. 2, pp. 60–84 (in Russ.). DOI:10.17323/2072-8166.2022.2.60.84. |
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85–104
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The question of the essence and nature — that is, about validity and efficacy (effectiveness) — of international law is at the same time quite old and still relevant. In the 20th century it acquired special significance, and, of course, was considered by leading researchers. One of the main ideas was considering this question from the standpoint of the problem of the validity and effectiveness of law. Danish legal philosopher Alf Ross, professor of international law and judge of the European Court of Human Rights was one of these researchers and participants in the discussion, and he questioned the legal nature of international law. The reconstruction of Ross’s views on international law in the context of his famous concept of the validity and effectiveness of law, based on some Kelsen ideas and methodology of psychological legal realism, made it possible to reveal the contradictions in Ross’s approach: if one of the main foundations of legal validity is organized force, which has monopoly on coercion, then international law can’t be considered as law, despite its institutional character. However, Ross draw an original conclusion about the psychologically derivative (from national law) nature of the validity and effectiveness of international law. A significant part of Ross’s legal thinking is his concept of sources of law. Ross states that in the minds of law enforcement officials (judges, mainly) there is a special ideology of sources of law, which determines the way of searching and formulating norms decisive for the question at issue. Accordingly, sources of law are understood as factors of psychological influence on this process. Sources of international law are considered in the same vein — as general factors and motivational components that determine the specific content of international law through the international law enforcement decisions. A special normative ideology in the minds and psyche of the judges in national legal system can be identified through studying their actions. In an analogical manner a special international legal attitude that can be identified by studying the actions of international bodies, leading political actors, as well as internal actions of states affecting internationally significant issues. It is the international legal attitude that has a decisive influence on the validity and effectiveness of international law, since internal convictions play a major role in the legal order based on autonomy, not power. For citation: Vasilieva N.S. (2022) The Problem of Legal Validity and Efficacy of International Law in Alf Ross’s Legal Thinking. Law. Journal of Higher School of Economics, vol. 15, no 2, pp. 85–104 (in Russ.). DOI:10.17323/2072-8166.2022.2.85.104 |
Russian law: conditions, perspectives, commentaries
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105–127
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The article deals with the characteristics of the principle of constitutionality of the activities of subjects of legal relations, namely, the property of axiomaticity, the property of presumptiveness and the property of fictitiousness. The purpose of the research is to test the hypothesis that constitutional principles are in fact full-fledged legal tenets that are endowed with all the necessary properties necessary for achieving the constitutional goals. Examining the properties of the principle of constitutionality of the activities of subjects of legal relations, this researcher used the methods of structural systemic analysis, comparative legal analysis, method of formal logic and other methods. Using a combination of these methods, this researcher was able to address not only the issues of constitutional law of current importance, but also issues pertaining to law theory, as well as other branches of law, and this approach enabled the researcher to examine the properties of constitutional principles in a most objective and comprehensive manner. The study of the properties of the principle of constitutionality of the activities of subjects of legal relations is based on the fact that informing a basic rule and defining directions for the legal system’s development, constitutional principles are therefore axiomatic.At the same time, constitutional principles are presumptive because law practitioners have the obligation to proceed from the presumption that all subjects of legal relations observe these principles, and this obligation ensures the necessary stability of the state’s legal system. At the same time, in order to achieve a robust stability of the legal system, the presumption that subjects of law observe constitutional principles is not sufficient; it should be also possible to monitor such compliance. The solution can be found in the application of legal presumptions. In turn, the property of presumptiveness inseparably interlinks constitutional principles and their corresponding legal presumptions. And fictitiousness of constitutional principles allows to flexibly interpret them and, as a result, to create the necessary regulatory framework. Thus, the principle of the constitutionality of the activities of the subjects of legal relations, possessing the above-mentioned properties, fully defines the universally binding basic rules and determine directions of the legal system’s development, ensure stability of the state’s legal system, and also can evolve in a timely manner. For citation: Mosin S.A. (2022) Properties of the Principle of Constitutionality of Subjects of Legal Relations Activities. Law. Journal of the Higher School of Economics, vol. 15, no 2, pp. 105–127 (in Russ.). DOI:10.17323/2072-8166.2022.2.105.127 |
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128–163
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The article examines the problems of the doctrinal and normative division of legal entities in Russian civil law into various types. The question is raised about the necessity and scientific validity of the existing classification of legal entities and the criteria for their differentiation. The analysis of proposals on the system of legal entities in the Concept for the development of civil legislation and their implementation in the current corporate law of Russia is carried out. Various classifications of legal entities are investigated, including the division of legal entities into associations of persons and associations of capital, public and non-public companies, corporate and unitary, commercial and non-commercial organizations, etc. It is concluded that these classifications are imperfect and unclear. It is proposed to abandon the rigid normative division of organizational forms of legal entities by the type of rights of participants (property or corporate rights); by type of activity (commercial and noncommercial organizations); by the presence of corporate rights of participation (corporate and unitary). Instead, one should use a functional approach and apply certain regimes to different legal entities, depending on the actual presence of the relevant features. At the same time, it is advisable to preserve the division of organizational forms into commercial or non-commercial on the basis of the presence or absence of the organization’s right to distribute the received income in favor of the participants. Possible approaches to the division of legal entities according to organizational forms are considered from the standpoint of the main theories of a legal entity (theory of fiction, theory of reality, contract theory). It is concluded that, regardless of the theories used, such a division should be due to utilitarian considerations based on practical needs and convenience for participants in civil turnover. The author’s definition of the organizational form of a legal entity and a set of basic civil legal parameters are given, according to which its constitutive characteristics should be determined, based on which a list of individual organizational and legal forms of commercial and non-commercial organizations is proposed. The necessity of preserving the division of all legal entities into organizational forms according to the principle of numerus clausus is substantiated. For citation: Gutnikov O.V. (2022) Classification of legal entities in modern corporate law: organizational forms and criteria for their differentiation. Law. Journal of the Higher School of Economics, v ol. 15, no. 2, pp. 128–163 (in Russ.). DOI:10.17323/2072-8166.2022.2.128.163 |
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164–186
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The purpose of a actio prohibitoria is to eliminate the possibility of a second similar violation of a right in rem, when there are reasonable grounds to believe that the defendant has committed a violation of the same nature. The purpose of the study was to determine the evolution of views on the actio prohibitoria from Roman law to modern private law, and on this basis to propose a legal model of the modern actio prohibitoria. In spite of its long history, the actio prohibitoria remains one of the most unexplored real actions, because it is overshadowed by the actio negatoria, whose scope is very broadly construed.The research was carried out by means of historical method, comparative law methods, and the basic theory of legal understanding was the jurisprudence of concepts, which allows to determine the characteristic features, scope and conditions of satisfaction of the actio prohibitoria. As a result of this study, the following conclusions can be made. Firstly, the evolution of actio prohibitoria has passed through four main stages: parallel existence with actio negatoria; convergence of these real actions; absorption of actio prohibitoria by actio negatoria; renewal of discussion about the relationship between these two real actions, as part of the growing interest in preventive measures of protection. Secondly, it is necessary to expand the list of real actions and to discuss the possibility of separating the actio prohibitoria in modern law. Third, confusion between the prohibitionist interdict and the actio prohibitoria in Roman law is quite common, which creates difficulties for research. Fourth, a actio prohibitoria has the following features: it is an action for an award of inaction; it is preventive in nature; it has a special legal ground of application; and it has a sanction for violation of the injunction in the form of a fine payable in favor of the plaintiff. Fifthly, the actio negatoria and the actio prohibitoria may be aimed at eliminating a future violation, but in different situations — the actio negatoria eliminates a new possible violation, and the actio prohibitoria is focused on eliminating a repeated violation in the future, the prohibition of similar violations. For citation: Podshivalov T.P. (2022) The Actio Prohibitoria: Past, Present, and Future. Law. Journal of the Higher School of Economics, vol. 15, no. 2, pp. 164–186 (in Russ.). DOI:10.17323/2072-8166.2022.2.164.186. |
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187–215
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In contemporary doctrine an insignificant part of the works is devoted to the issues of transactions in labor law. At the same time, the current legislation and judicial practice increasingly use the concept of “invalid employment contract” and even allow the application of regulatory provisions on civil transactions to it. Based on the general theoretical doctrine of legal facts, the author studies the theory of transactions in labor law through the prism of the concept of “legal composition”, the elements of which are objective (content and form of transactions) and subjective (subjects of transactions in labor law, their will). The conditions are highlighted in the content of transactions that allow them to be assessed for the needs of theory and practice — qualifying, individualizing and proactive. In addition, a comprehensive research assessment of the principles of legality, the actual possibility of execution and certainty in the content of the transaction allows the author of the article to come to the conclusion that in labor law they have their own content. Due to the obvious subjective orientation, moral and ethical provisions are not considered as sources to which labor transactions must correspond. The doctrine of the form is characterized by many sources of its regulation, insufficient research of non-traditional forms and legal consequences of its non-observance. By the form of a labor transaction, the author of the article understands a permitted way of expressing the will of subjects, as well as a legal institution (in the form of a set of general and special norms of law that establish requirements for the external procedure for fixing this legally significant act of behavior in the social and labor sphere). The paper investigates the problematic aspects of the ability to deal (as a special type of labor personality), identifies such aspects as general, special and individual. Since the will of a legal entity when concluding a labor transaction is actually expressed by a person acting on its behalf, the author notes that it is advisable to foresee the consequences of exceeding or lacking the powers of officials when concluding labor transactions. The strong-willed component of transactions is expressed in the system of needs, interests, motives and goals of the parties to the transaction, which together are of particular importance in assessing the regulatory power of the transaction. For citation: Luzyanin T.Yu. (2022) Legal Structure of Transactions in Labor Law. Law. Journal of the Higher School of Economics, vol. 15, no. 2, pp. 187–215 (in Russ.). DOI:10.17323/2072- 8166.2022.2.187.215. |
Law in the modern world
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216–243
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Whereas value added tax, as an indirect tax, is largely harmonised within the European Union by the comprehensive Directive on the Common System of Value Added Tax, the law of the European Union does not directly make any general specifications for the area of direct taxes, i.e. above all income, corporation and trade tax. There are only individual directives of the European Union that regulate specific sub-areas of direct tax law. However, according to the case law of the Court of Justice of the European Union, the fundamental freedoms of the Treaty on the Functioning of the European Union constitute a European law standard for the provisions of the national tax law of the individual Member States, also in the field of direct taxation. As a result of the rulings of the Court of Justice of the European Union on the fundamental freedoms of the Treaty on the Functioning of the European Union, the Member States have repeatedly been forced to amend provisions of national law on direct taxation which, in the opinion of the Court of Justice, were incompatible with the fundamental freedoms, and to adapt them to the requirements of the Court derived from the fundamental freedoms. On the basis of landmark decisions of the Court of Justice of the European Union, this article explains how the fundamental freedoms and the case law of the Court of Justice in this regard indirectly harmonise the national law of the Member States of the European Union in the area of direct taxation as well. For citation: Stober M. (2022) The Significance of the Fundamental Freedoms of the European Union for German and European Tax Law. Law. Journal of the Higher School of Economics, vol. 15, no. 2, pp. 216–243 (in Russ.). DOI:10.17323/2072-8166.2022.2.216.243 |
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244–263
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In the developing world of modern digital technologies, the question arises of the need to adopt a uniform mechanism of the regulation of crypto-assets issuers, including a comprehensive regulation of the position of all entities involved in the trade in crypto-assets. However, we are currently examining the inconsistent and abstract regulation of the main crypto-assets traders resulting from Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU. Under pressure from policy makers and the professional public, the European Commission has presented a proposal for a longawaited Proposal for a Regulation of the European parliament and of the Council on Markets in Crypto-assets, and amending Directive (EU) 2019/1937, COM (2020) 593 final (MICA) to ensure common regulation of crypto-assets, which is applicable in all Member States of the European Union. The present proposal for a MICA regulation has the ambition to unify the fragmented legislation on crypto-assets that nowaday as a result of lack of wider regulation at EU level. The primary goal of this paper is to analyze newly defined concepts, including categorizations of crypto-assets falling under MICA. In this context, the basic aspects of the functioning of the crypto-assets issue process, including the obligation to publish a white paper, are examined. In particular, the position of the EBA (European Banking Authority) as a supervisory authority for issuers of significant crypto-assets is examined. Based on the analysis, the author comes to the conclusion that the application of the MICA may well be associated with a number of problems, which are then specified in more detail. We see ambiguity when applying MICA caused, for example, by rather general language of the terms defining crypto-assets, or by absence of further explanation of cooperation process between relevant EU and third country authorities. The several scientific methods were used in writing this paper, such as: comparison, analysis, synthesis, analogy, induction and deduction. For citation: Daudrikh Y. (2022) Legal Status of Issuers of Crypto Assets in the Light of the Project of MICA Regulation. Law. Journal of the Higher School of Economics, vol.15, no 2, pp. 244–263 (in Russ.). DOI:10.17323/2072-8166.2022.2.244.263 |
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