2022. No. 3

Restricting human rights and freedoms in order to prevent the commission of crimes is one of the most important and difficult directions of the state’s legal policy. Here intersect, on the one hand, constitutionally significant requirements regarding the grounds for limiting human rights and on the other hand, criminological postulates about the desirability of early crime prevention at the pre-criminal stage; constitutional ideas about the strict limits of human rights restrictions and criminological evidence of the need to control the behavior of a person at the post-criminal stage; standards of limiting the rights of a person who committed a crime, only within the framework of criminal law and the need to impose other legal sanctions on him outside of criminal law. These contradictions create an integral complex of problems of legal regulation, including discussions about the types, purposes, grounds of legal restrictions and their constitutional admissibility. Based on the analysis of the decisions of the Constitutional Court of the Russian Federation, the provisions of normative legal acts, the article presents the author’s reasoning about the system of law-restrictive measures to counter crimes. Such a system includes: measures applied at the pre-criminal stage, procedural measures, measures of criminal punishment, measures of a criminal-legal nature, measures applied at the post-criminal stage, non-criminal consequences of committing crimes. With regard to each group of measures, the legal positions of the Constitutional Court of the Russian Federation are determined, the observance of which allows, on the one hand, to coordinate all these measures in a single set of legal restrictions, and on the other hand, to very clearly oppose them to each other in order to avoid violation of the sectoral legal nature and violation of the principle justice. Special attention is paid to the specific features of criminal punishment in the general range of legal restrictions. It has been proven that these are associated with the basis, essence and purpose of punishment. Only the punishment is the appointment precisely for the commission of a crime, expresses a moral reproach to the personality of the offender and is focused on its correction. A  distinctive essential characteristic of punishment is the presence in it of a pronounced moral reproach on the part of society against the offender. Only punishment imposed specifically for the commission of a crime expresses such a concerted reproach and, therefore, is oriented towards the correction of the offender.
For citation: Guzeeva O.S. (2022) Constitutional Foundations for Understanding Criminal Punishment in System of Measures to Counteract Crimes. Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 4–27 (in Russ.). DOI:10.17323/2072-8166.2022.3.4.27.

Current legal norms of the Russian Federation Criminal Code, aimed at struggle against abuse of power in regard to public procurement, are rarely implemented, in spite of the fact that there are many socially dangerous acts in this sphere and a lot of cases. The paper is devoted to the Article 200.4 of the Russian Criminal Code and contains its interpretation based on purposes of that Article. The author states that the crime is targeted at public finances and connects this statement with the range of perpetrators limited by the legislator. The specific target of the act proscribed in the Article 200.4 of the Criminal Code is the procedure that is established by public procurement legislation. Problems of large-scale damage are discussed (for instance, whether it is possible to consider civil liability of the company as damage or to include expectation loss in the amount of damage). It is claimed that principals are those who as a rule have some administrative, management functions, but while committing that crime do not realize them. This conclusion is exemplified with public procurement managers and other possible perpetrators. Causation between the act and the damage creates difficulties because of the interference of innocent actions of third parties. It is necessary to admit that this crime is in fact a specific kind of crimes perpetrated through innocent agents, otherwise the requirement will never be satisfied. As for mens rea, the crime is committed knowingly. Author concludes that liability for abuses in regard to public procurement requires a difficult detailed inquiry of all its elements by law enforcement agencies though the sphere of public procurement is extremely important and has to be protected from abuses by means of criminal law.
For citation: Filatova M.A. (2022) Interpretation of Elements of Crimes Connected with Abuses in the Sphere of Public Procurement. Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 28–50 (in Russ.). DOI:10.17323/2072-8166.2022.3.28.50.

The article is devoted to the key issues that arise when digital objects are included in the heritage. The author consider how the classical theory of inheritance law can be used in the case of digital inheritance and what clarifications should be made to this theory. The purpose of the research is to examine the features of the category “objects of hereditary succession” and its transformation in the case of the digital transformation in society. In order to achieve this purpose the author in the first part of the research studies the general issues of the theory of objects of inheritance. The second part of the article it is analyzed the problems of attributing some objects of civil legal relations that have arisen in the process of digitalization of society to the hereditary mass (digital rights, cryptocurrency, social nets accounts). Finally, in the third part, using inductive reasoning, the researcher formulates general conceptual problems of the development of legislation related to digital objects of inheritance. Based on the results of the research, it was concluded that the following legislative solutions to the identified problems are possible: the establishment of a complete ban on inheritance of digital assets; the creation of a separate legal regulation of inheritance relations specifically for digital assets; the assumption of the fact of inclusion in the hereditary mass of a digital object only if it is really possible to put it into circulation; the assumption of some features of inheritance of “digital objects”. Undoubtedly, the choice of approach strongly depends on the state’s policy in the field of the digital economy, which in turn should proceed from sound concepts and practical proposals. The position of the author of the article is that the legal regulation of “digital” hereditary relations in Russia has be based on a mixed method,including a combination of traditional and technological methods. Such a method is most correlated with the assumption of the fact of inclusion in the hereditary mass of a digital object only if it is really possible to put it into circulation.
For citation: Volos A.A. (2022) Digitalization of Society and Objects of Hereditary Succession. Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 51–71 (in Russ.). DOI:10.17323/2072-8166.2022.3.51.71.

The article deals with the aspects of the dependence of the legal status of legal entities on their economic indicators. In the context of discussions about the problems of ensuring the differentiation (flexibility) of the legal regulation of economic activity, a key question is raised about the construction of legal norms that link economic indicators with the legal status of legal entities. In this regard, some legally significant economic indicators are analyzed and the possibility of their constant accounting and monitoring is studied, and some examples demonstrate the relationship of economic indicators with legal consequences that determine the legal status. The purpose of the study is to formulate research provisions: on the functional dependence of the legal status of legal entities on economic indicators; on the legal and individual regulation of economic activity, where economic indicators should be considered; on the construction of flexible norms of law that link the economic indicators of legal entities with the consequences that determine their legal status. When writing the article, the author applied both general scholar methods (systemic, game theory, functional, a group of formal logical methods: deduction, induction, analysis, synthesis, etc.) and special legal methods (formal legal, comparative legal, economic analysis of law, legal modeling method). The paper concludes that there is a need for a consistent and systematic differentiation of the legal regulation of the economic activity of legal entities. A functional approach to the construction of legal norms is substantiated, in which the norm is considered as a dependence (function) of certain legal consequences, enshrined in dispositions or sanctions that determine the legal status of legal entities, on economic indicators that are achieved by legal entities because of their activities. A unified system for disclosing information about legal entities is proposed, based on which it would be possible to record economic indicators of legal entities within one information resource. The applied value of the relationship between economic indicators and the legal status of legal entities is shown by examples of regulation of corporate relations, insolvency, and individual state regulation of economic activity.
For citation: Efimov A.V. (2022) Economic Activities and Status of Legal Entities. Law. Journal of the Higher School of Economics, vol.15, no. 3, pp. 72–95 (in Russ.). DOI:10.17323/2072- 8166.2022.3.72.95.

The article examines the existing approaches of understanding administrative process and its structure in Russia and a number of foreign countries. The increasing interest in the development of a “synthesizing”, general theory of the administrative process, including that based on the integrative methodology, is revealed in the Russian administrative procedural science. In this context, the specificity of approaches to its understanding in foreign countries is revealed and two main codification models of administrative procedural regulation are conceptualized: a model of separate codification, involving the regulation of administrative procedures and administrative judicial process (administrative proceedings) in two independent acts, and a model of general (unified) codification, which is characterized by the unification of these types of administrative process in one codifying act. Particular attention to the implementation of the model of general codification of administrative procedures and administrative proceedings is paid. Within the framework of this model, the administrative process is identified exclusively with administrative legal proceedings.  In turn, there is a growing trend towards the use of a general codification model, which combines in one code the principles and norms that regulate both administrative procedures and administrative legal proceedings. Some features of the legal technique in carrying out such codification are revealed, the level of systemic integrity of these unified codifying acts is analyzed from the standpoint of the integrative methodology of the general theory of administrative process. The logic of the research and practical interest have determined the need for a careful study of the experience of implementing the unified codification model in the postSoviet states and determining the place of proceedings in cases of administrative offenses in national administrative procedural systems. The study of the experience of application of unified codification models and its scientific understanding create additional incentives and prerequisites for the development of an integrative concept of the administrative process, understood as an integral phenomenon in the unity of its jurisdictional and non-jurisdictional (positive) components. The article reveals the features of the application of integrative methodology to the understanding and interpretation of the administrative process in Russian doctrine and the problematic issues of building a general theory of the administrative process on its basis.
Forcitation: Zelentsov A.B., Yastrebov O.A. (2022) Modern Models of Administrative Procedural Regulation: Experience of Comparative Legal Research. Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 96–130 (in Russ.). DOI:10.17323/2072-8166.2022.3.96.130.

Based on an analysis of the current state of legislation and judicial practice and also of certain specific development trends, this article considers the issues relevant to administrative and judicial reforms, identifies a number of terms important for understanding the matter in question, and highlights various problems in trying administrative cases in courts as well as in pre-trial (extrajudicial) proceedings. The new Code of Administrative Judicial Procedure of the Russian Federation is examined closely for its consistency with other procedural laws. The article also points out the problem in jurisdiction over administrative cases that may arise among the several panels of the Supreme Court of the Russian Federation, which may arrive at different outcomes in similar disputes. The general jurisdictional approach used by courts to consider administrative offenses related to entrepreneurial activities is critically assessed. The disadvantages of rulemaking in administrative cases exercised by the economic panel of the RF Supreme Court are also outlined. After analyzing the problem of pre-trial compensation for damages caused by illegal actions of administrative bodies, a number of statutory innovations for establishing pretrial damages and tightening the procedures and measures of such liability for administrative entities are suggested. It is advisable to establish a special centralized administrative body for out-of-court settlement of administrative cases within Russia’s executive system. This would ensure the effectiveness of the institution for handling a general administrative complaint and provide administrative protection of citizens’ rights. Such a body would be able both to depoliticize and de-bureaucratize administrative authorities, and it would reduce caseloads and relieve the courts of the punitive function of prosecuting small administrative claims, a duty that is not typical for the judiciary.
For citation: Panova I.V., Zaraiskiy A.A. (2022) Administrative Justice. Pravo. Zhurnal Vysshey shkoly ekonomiki, vol. 15, no. 3, pp. 131–148 (in English). DOI:10.17323/2072- 8166.2022.3.131.148.

In 2018 the Russian government introduced an option for the self-employed to pay a newly designed professional income tax instead of the ordinary personal income tax. This new tax regime has been widely examined by Russian scholars; however, the potentially discriminatory nature of the tax has not been studied. The tax is based on citizenship, and the authors’ principal hypothesis is that it conflicts with the fundamental principles of Russian tax law because it is not consistent with the principle of non-discrimination in Russian law. The article studies the issues arising from taxing the self-employed (i.e. the professional income tax) in a cross-border scenario and the potential for tax discrimination on grounds of nationality, tax nexus, and citizenship in taxing the self-employed in Russia. Moreover, the article raises the question of “general” tax discrimination among employees caused by the professional income tax. The authors use academic studies and judicial findings to examine the way other countries define the relationship between citizenship and taxation in order to clearly establish the discriminatory character of the professional income tax, and they conclude that the citizenship or nationality of the taxpayer is primarily a political connection rather than an economic one. The tax reflects an economic connection and should be understood as a payment for the “consumption” of public goods. In the contemporary understanding of taxation, the citizenship-based approach should be regarded as discriminatory in principle. The political ambitions of Russia in promoting integration across the EAEU cannot justify the restriction of the self-employed status only to citizens of EAEU member states. The authors recommend redesigning the professional income tax on the basis of residence and revising treaties pertaining to dual taxation in order to extend their provisions to the professional income tax.
For citation: Ryabova E.V., Machekhin V.A. (2020) Taxation of the Self-Employed in Russia: Potential Discrimination. Pravo. Zhurnal Vysshey shkoly ekonomiki, vol. 15, no. 2, pp.149– 172 (in English). DOI:10.17323/2072-8166.2022.3.149.172.

The article is devoted to the assessment of changes in Russian budget legislation in recent years. These changes are connected with norms on the treasury account system, treasury service and treasury support. Collectively, these changes are assessed as reforms of the cash structure of the state. The article analyzes the advantages and potential capabilities of the new cash register system, including from the point of view of financial stability. It gives a classification of the existing type of cash structure in Russia, which is characterized as mixed (combining the competence of the banking system and the government), subject to the regime of unity of the cash register. At the same time, the concept of cash monopoly is introduced, which corresponds to the state monopoly on banking activities. In addition, the author concluded that it is advisable to update the definition of the principle of the unity of budget account, enshrined in the Budget Code of the Russian Federation. This decision is associated with the actual extension of state control to new types financial assets, any private finances and the functioning of the state payment system (treasury payment system). The author’s version of this definition is proposed. The new definition includes a feature that allows the cash register to be separated in compliance with the unity of the cash register from the cash monopoly mode. This feature makes it possible to establish a systematic connection between the unity of the cash register, as a legal principle, with other legal principles, including the constitutional level. The proposed changes, according to the author, on the one hand create an opportunity to concentrate significant financial resources in the hands of the government and provide new opportunities for analysis, management and control in the field of public finance, and on the other hand, avoid the introduction of emergency measures, in particular, in the form of a cash monopoly. The part of the article is devoted to the limits of the spread of treasury support and the unity of the cash register, which are considered through a number of dichotomous pairs that arise at the junction of public and private interests, where the freedom of the parties to the contract is limited by the norms of budget legislation. In particular, this is a limitation of the payment obligations of the budget arising from concluded state (municipal) contracts and the problem of transferring ownership of funds allocated from the budget. This method is proposed to implement to test the legal regulation of the budget process.
For citation: Komyagin D.L. (2022) New Unity of Government Cash Desk and Reform of the Cash Register in Russia. Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 173–194 (in Russ.). DOI:10.17323/2072-8166.2022.3.173.194.

International custom, as we know, is one of the main sources of international law. At the same time, it is not directly indicated in the Constitution of the Russian Federation. The mention of international custom is quite rare in other Russian regulatory legal acts. As a rule, the general phrase “generally recognized principles and norms of international law” is used. Its association with international customs causes controversy both in the doctrine of international law and among law enforcers. Based on the dialectical approach, as well as the use of general academic research methods, the article assesses the correlation between international customs legally binding on the Russian Federation and the provisions of the Constitution, laws and by-laws of the Russian Federation. The place of international customs in the Russian legal system is specified. It is emphasized that the formed international custom, recognized by the Russian Federation or its predecessors, is an international obligation of our state, regardless of its possible contradiction with certain provisions of Russian legislation. It is indicated that with the help of a law or a subordinate regulatory legal act of the Russian Federation, it is impossible to revoke the recognition of an international custom. It is shown that the Constitution of the Russian Federation is based on imperative universally recognized principles and norms of international law that exist in the form of international custom. Ways out of the situation when there is a contradiction between the international custom previously recognized by our country and the Constitution of the Russian Federation, the use of the rebus sic stantibus clause in some cases are proposed. It is explained the failure of the formulation of the first provision of Part 4 of Article 15 of the Constitution. It is proposed to use an approach in its interpretation, according to which “International customs recognized by the Russian Federation, or containing peremptory norms of general international law, international treaties of the Russian Federation are an integral part of its legal system. In law enforcement practice, it is also proposed to take into account the approach — “If an international custom recognized by the Russian Federation, or containing mandatory norms of general international law, provides for rules other than the law, then the rules of international custom are applied.” It is proposed to take into account in the practice of law enforcement the mechanism of succession in relation to international customs, based on the general principles of law inherent in international law. The significance in the Russian legal system of particular (local) international customs, the norms of which are recognized by the Russian Federation, is shown.
For citation: Romashev Yu. A. (2022) International Custom in the Russian Legal System. Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 195–221 (in Russ.). DOI:10.17323/2072-8166.2022.3.195.221.

The aim of the work is to study the institution of restriction of human rights and freedoms in the face of an emergency danger to human health, the legal grounds and limits of such restrictions in the doctrine of international law. The empirical basis of the study was the norms of international treaties and other legal acts, as well as materials from foreign periodicals. In the course of the study, the corresponding special-legal methods were applied: formal-legal, comparative-legal, hermeneutic. The author came to the conclusion that international law allows in some cases the restriction of human rights and freedoms, including in the presence of a serious threat to public health. The institution of human rights and freedoms in the context of the COVID-19 pandemic is undergoing a major transformation, which may result in the emergence of a new paradigm of human rights. Many states that are the founders of the European humanism, which appeared to be a fundament of modern international law, but, under the influence of the pandemic, they are gradually moving away from its basic principle of recognizing a person as the highest value, implemented through the idea of autonomy and universality of the individual. Some modern states are actively cultivating other values and principles compared to European humanism, in which the public (collective) good, in particular, the health of the whole society, is a priority, while limiting the autonomy of human person and individual rights. Arbitrary introduction by states of restrictions on human rights and freedoms, bypassing international law, and in particular ignoring the recommendations of the World Health Organization, a specialized international body authorized to ensure public health at the global level, undermines the international legal order and creates additional difficulties in the fight against the pandemic. The scientific novelty lies in the fact that the study substantiated the criteria for restricting human rights and freedoms in the face of a global threat to public health in a pandemic. Such restrictions must be proportionate to the threat and scientifically justified. When introducing restrictions, arbitrariness or discrimination is excluded; restrictions must be limited in time and must not prejudice the democratic functioning of society. The practical significance of the study is that significant contradictions were identified between the proper (formal) procedure for restricting human rights and freedoms established by international law and the actual practice of subjects of international law. Overcoming these contradictions is possible only through strict observance of the norms and principles of international law. Significant changes in the political and legal essence of the modern state are revealed. The model of the state that developed in the Modern Times is undergoing a major transformation: the concept of a social contract based on the limitation of state power in the interests of the individual is increasingly giving way to the unlimited right of state intervention in private life.
For citation: Skvoznikov A.N. (2022) Limitation of Human Rights and Freedoms in the Context of the COVID-19 Pandemic: International Legal Aspects. Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 222–240 (in Russ.). DOI:10.17323/2072-8166.2022.3.222.240.

The processes of codification of Private International Law in the last 30–35 years have been extremely active and global in nature, affecting both continental and common legal families. In view of the fundamentally different understanding of PIL in the two legal systems, the fate of its codification in the third legal system, the family of mixed law, arouses curiosity. Until recently, of all mixed jurisdictions, PIL was codified only in Louisiana, USA, and Quebec, Canada, but at the end of 2020, a third participant was added to this circle — Puerto Rico, where a new Civil Code came into force, the introductory title of which contains chapter VI “Conflict rules”. Puerto Rican PIL seems to be an interesting field for research, both because of the novelty of the adopted regulation, and in connection with the specific position of Puerto Rico: it is not a sovereign state, but not just a part of a federal state, it is a free unincorporated (associated) territory, special status of which confirms its independent membership in the institutions of inter-American regional integration. Using traditional legal methodology (comparative analysis, comparative law, historical and legal analysis, semantic and dogmatic interpretation of the law), the article analyzes: the specifics of Puerto Rico as a mixed jurisdiction; the formation of PIL of this country; development of the Project of its codification; regulation of issues of the General Part of PIL in the new Civil Code of 2020. The approach of the Puerto Rican legislator to the normative fixing of the institutions of the General Part of PIL is the focus of the study, since the elaboration of the fundamental principles of conflict of laws is the key to a correct and fair choice of applicable law. If the legislator establishes clear, understandable, demanded and predictable general principles, a “sane” road map, then judicial practice is quite capable of developing adequate specific conflict decisions. It is concluded that, unfortunately, it was the institutions of the General Part that the legislator of Puerto Rico “succeeded” to the least extent, and it is this part that demonstrates the greatest number of shortcomings.
For citation: Erpyleva N.Yu., Getman-Pavlova I.V., Kasatkina A.S. (2022) Codification of Private International Law in Mixed Jurisdictions (on the Puerto Rico Example). Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 241–277(in Russ.). DOI:10.17323/2072- 8166.2022.3.241.277.

The review analyzes the monograph “Change of technological patterns and legal development of Russia” (Moscow: Norma, 2021. 184 p.), written by D.A. Pashentsev, M.V. Zaloilo, A.A. Dorskaya. The reviewed work consistently examines the process of changing technological patterns and related transformations in the field of Russian law and legislation. The regularities are revealed and the specifics of each of the technological structures are determined. Based on the analysis of a variety of theoretical and empirical material, the authors have identified important prospects for the transition to a new technological cycle, possible risks and problems associated with it. The comprehensive approach used by the authors, taking into account various factors in characterizing the changes taking place in the legal system, make the reviewed monograph interesting and useful for a wide range of readers. It is noted that for the first time the scholar foundations of legal monitoring were formulated by the Commission of the Federation Council on the Methodology of the implementation of constitutional powers by the Federation Council.
For citation: Arzamasov Yu.G., Nazaikinskaya V.A. (2022) About the change of technological patterns and the transformation of law. Law. Journal of the Higher School of Economics, no.3, pp. 278–286 (in Russ.). DOI:10.17323/2072-8166.2022.3.278.286.