, 2018 (3) http://law-journal.hse.ru en-us Copyright 2018 Mon, 29 Oct 2018 15:35:39 +0300 On Concretization of Law in Conditions of Digitalization of Public Practice https://law-journal.hse.ru/en/2018--3/226956443.html The article analyzes the phenomenon of concretization of law in the conditions of digitalization.An example of the problem of countering terrorism with the use of telecommunicationsnetworks shows the significance of concretization in modern conditions. Theauthor considers concretization as a tool for improving legal regulation in conditions ofdigitalization. Attention is drawn to the fact that the need for concretization of legal normsin modern conditions is conditioned by their specialization, which takes into account thetechnological features of digitalization, and the level and nature of the theoretical comprehensionof this phenomenon lags behind the existing needs of legal practice, the processesof updating legal matter. The article points out that the problem of specifying thelaw with regard to the sphere of digitalization of networks and technologies related tocounteracting terrorism has not been adequately studied at either the theoretical or thepractical level, although the transition to electronic management of technological processesin production, according to Russian and foreign experts, are a prerequisite forthe implementation of terrorist activities using information and telecommunications networks.At the same time, a significant part of Internet services are now interdependent,because “cloud” technologies allow the availability of distributed computing powers betweendifferent jurisdictions, i.e. the modern Internet service represents the system of legalrelations, architecturally distributed across several jurisdictions, within the frameworkof which the users of such Internet service belong to different jurisdictions. Regulatoryprogramming is considered as a promising tool for specifying. It is noted that the specificationis intended to give the law maximum certainty in the process of law enforcementactivities on the basis of the methodology of the concept of “minimum contacts” and arisk-oriented approach and monitoring of legislation using artificial intelligence. Normativity and Facticity in Protection of Religious Freedom https://law-journal.hse.ru/en/2018--3/226956779.html The paper considers the legal and philosophical issue of the correlation between facticityand normativity in the aspect of regulation and protection of religious freedoms in thepast contemporary Russian law. The paper suggests considering in this aspect the gapbetween the normative content and the meaning of the corresponding norms of Russianconstitution and statutory law and the implementation of these norms in court and lawenforcementpractice. The author argues that the liberal norms transplanted from Westernlegal orders into Russian law do not fit well the symbolic sphere of the post-SovietRussia where religion itself serves as one of the cornerstones of national identity and asa major constituent element of the state ideology. In factual court practice, constitutionaland statutory norms about freedom of conscience are shaped contrary to their primafacie meaning. The lack of tolerance in Russian society leads to the fact that many nontraditionalreligious denominations are considered as socially unacceptable, and for thisreason there emerges a societal attitude against the non-traditional religious denominations.Being formally under the authority of the law, judges and other adjudicators arein fact under the influence of many factors among which one can mention different programsand declarations by the political leadership and by state officials, as well as thepublic opinion. In author’s opinion, this leads to the integration of the religious conceptionsof the «traditional» denominations into Russian legal order, which is illustrated in therecent statutory amendments concerning the protection of “religious feelings’ and in thepractice of enforcement of the anti-extremist legislation. From the legal and philosophical standpoint, this situation shows the ambiguity of the interrelation between the normativepropositions that guarantee the freedom of conscience and the factual frameworks ofapplication of these propositions in Russian law. In author’s opinion, this example of thisambiguity of the facticity/normativity divide in what concerns the protection of religiousfreedoms justifies also addressing this divide and its implications in other fields of legalregulation. General Principles of Fiqh as Reflection of Juridical Features of Islamic Law https://law-journal.hse.ru/en/2018--3/226957032.html The prevailing in Russian legal science view understands Islamic law as synonymous withSharia which is a system of prepositions of Quran and Sunna that is the mode of life ofProphet Muhammad fixed in so called hadiths (sayings) of his fellows. Being reducedto Sharia Islamic law is approached to as complex of different social norms in which legalrules are not separated in principle from religious commands. However, an in-depthanalysis enables us to conclude that on the basis of normative part of Sharia Islamic lawas a legal phenomenon emerged. It was Fiqh that played a key role in this process. TheIslamic thought understands Fiqh as a science dealing with Sharia rules of human behaviortogether with these norms themselves. Within such prescriptions there are suchrules which meet juridical criteria and therefore may be recognized as norms of Islamiclaw in scientific meaning of the term. Fiqh was not limited by elaboration of particular andseparate norms of legal character but it succeeded in formulation of detailed system ofits general principles. They are the main argument for the benefit of existing of Islamiclaw as legal phenomenon in proper sense. The modern Islamic thought puts forward differentclassifications of the general principles of Fiqh. The most appropriate one is thatwhich distinguishes a few groups of such principles devoted to concrete themes. Each ofthese groups has its core including a key independent principle. Most of these principlesare a concentrated manifestation of legal nature of Islamic law. Their emergence is theremarkable contribution of Fiqh understood as a legal doctrine in the development of IslamicLaw as well as in the world legal culture. These principles are legal by their contentsand do not bear direct religious features on themselves. They determine legal nature ofIslamic law which is a juridical phenomenon because of the mentioned principles and notfor being based on religious revelation. That is the principles of Fiqh which let Islamic lawto cooperate with other legal cultures on the basis of many joint juridical characteristicsshared by them. The Idea of Constitutional Identity in the Modern Constitutional Thought https://law-journal.hse.ru/en/2018--3/226957224.html The constitutional identity is the originality, individuality and uniqueness of the given constitutional system, which includes not just the originally existing features, providing the given system with a quality of uniqueness, but also the features of larger systems, which are borrowed by the constitutional system and with which the latter starts to identify itself. Because of it, the constitutional identity should be perceived not as a feature, initially belonging to a given social system, but a feature, which is formed and transformed as the result of social interactions. At the same time, all the newly formed peculiarities, including the ones are borrowed from other systems, also become features, defining originality and individuality of the given system. Hence, while borrowing constitutional-legal peculiarities of international and supranational institutions or of any other state, it should be taken into account that mechanical import or not accepting and artificially preserving the mechanically imported features will not in any way contribute to finding a balance between peculiarities of a concrete constitutional system and features borrowed from the mentioned systems. This, in its turn, will lead to the complete distortion of the idea of constitutional identity. At the contemporary stage of development of constitutional law doctrine it is preferable to discuss the notions of “state identity” and “constitutional identity” not as a correlation of correspondingly the whole and the part, but from the viewpoint of different levels, though in some cases they can have points of coincidence. The reason is that within the framework of the mentioned doctrine notions “Constitution”, “Constitutional stability” should per se be perceived not just from the aspect of the written text of the Constitution, but from the viewpoint of constitutional values and their implementation in real social development. Charity in Russia: from Alms to “Tax For the Poor” and Back https://law-journal.hse.ru/en/2018--3/226957704.html Social spending is the first-largest spending of the Russian Federation consolidated budgetbut it still remains insufficient. Such spending was not planned at all in the state list onehundred years ago, and all social insurance was carried out as part of charitable activities.The article presents the evolution of charitable activities from alms to current “humanitarianspending” and shows the prospects and tendencies for its further development. The articlecovers the history of the origin and concept contents of “state charity”, “public charity”,“social security”, “social protection” and “state social insurance” in Russia. It touchesupon the issue of “monetization” of social benefits in Russia in 2004 that have generateda good deal of excitement. In the article, charitable activity is being considered for the firsttime through the prism of budget expenditures as one of the aspects of public economy.It describes the history of changes in public policy relative to assistance to the poor in theRussian Empire from the 16th century, in the Soviet period till the present time. In addition,the author made assumptions about the prospects of social spending, which is associatedwith the implementation of such modern ideas at the international and national level, as theconcept of human capital development and unconditional basic income. The sources ofsecurity of the most complicated system of state and public charity, which was formed in theRussian Empire by the beginning of the 20th century, have been analyzed for the first time.The article examined the idea of the “tax for the poor” that has appeared at the end of the19th century due to the activity of Konstantin Grot’s committee, which is not only a means toensure expenditures for state charity, but also a logical stage in the consistent developmentof charitable activities that was interrupted after the Russian Revolution. In addition, it coversthe ratio of the “tax for the poor” and modern insurance contributions and the transformationof the purpose of the “tax for the poor”. Consolidation in the Law of Quantitative Parameters Cost Criteria of Crimes in Sphere of Economic Activity: Regularities and Calculation Methods https://law-journal.hse.ru/en/2018--3/226958321.html (no title) https://law-journal.hse.ru/en/2018--3/226959632.html Eurasian Economic Union and Issues of International Organizations Succession https://law-journal.hse.ru/en/2018--3/226959240.html The former Soviet Union Republics striving to integrate have created several integrationorganizations during the past 30 years — the Economic Union, the Free Trade Zone, theCustom Union, the Eurasian Economic Community and the Eurasian Economic Union.The Councils of the Heads of State and the Councils of the Heads of Government havealways been among the organs of the organizations with as a rule a commission providedspecially to act not on behalf of the member states, but on behalf of the organization itselfand empowered to take decisions of compulsory character for the member states. Theanalysis shows that the succession in the integration organizations is similar to those inother international organizations. Though there is no single normative act providing forthe succession of international organizations several regularities are of relevance. Thesuccession in international organizations is performed not by the organizations themselves,but by the member states; the basis for the succession is not territory as during thestate succession, but the transfer of functions from the predecessor organization to thesuccessor. Integration organizations created in the post-Soviet territory possess differentidentity, they do not continue one another, they are separate subjects of internationallaw and they implement their own succession through member states. The Commissionof the Customs Union is of special interest. Its personality ceased to exist in 2014 due tothe creation of the Eurasian economic commission of the EAEU. The succession of thepredecessor to the successor commissions is implemented concerning the three parts:the Commission itself, its functions and its decisions. The Commission is abolished, itsfunctions are inherited by the Eurasian Economic Commission and the decisions havebeen implemented in the national legislation of the member states, and in the norms andrules of the acts adopted by the Customs Union and the Eurasian Economic Union. Thedecisions of the Commission continue to act as far as they do not contradict the EAEUTreaty. The general legal basis of the EAEU is not the same as existed within the CustomsUnion and if contradictions arise, it must be changed since the basic norms of the newlegal order have been altered. Common Law Presumption jura novit curia and Branch Presumption jura aliena novit curiain International Civil Process https://law-journal.hse.ru/en/2018--3/226960078.html One of the purposes of the article is to provide an up-to-date account for the Romanmaxim jura novit curia (the court knows the law). Traditionally jura novit curia means thatthe court alone is responsible for determining which law applies to a particular case,and how without being limited to the legal arguments advanced by the parties. On thebasis of the systematic investigation of different elements of legal technology (legalfictions, principles, axioms or presumptions) the author formulates the conclusion thatjura novit curia can be attributed to the general legal presumption, which is related tothe characterization of law enforcement activities of state bodies. Moreover, taking intoaccount the interconnection of presumptions and principles of law, the author indicatethat there is a corresponding functional principle of legality to the presumption juranovit curia. In the second part of the article the author criticizes scientific assessment ofthe presumption of jura novit curia as confirmation of position on the exclusion of legalknowledge from the scope of special ones. It was argued in favor of legitimation of thelegal advices on interpretation and permissible application of law in order to increase thedegree of probability of the presumption of jura novit curia. Other substantial elementsof the presumption of jura novit curia, namely, an initiative and independent study of therules of law by the court without being limited to the legal arguments advanced by the parties do not conflict with the possibility of a court to get legal advices from specialistswho do not intervene the competence of the judge making the final decision. In the thirdpart of the article, the author finds the arguments for exclusion maxim jura novit curiaform foreign laws are not conclusive. It may be suggested that this assumption can leadto the negative consequences that can be expressed in the unreasonable restrictionof the application of foreign law. On the basis of the analysis it is possible to indicatethat jura aliena novit curia is the branch presumption of the international civil process,which correlates with the content of the principle of legality and the principle of theinternational civil process — the establishment of the content of foreign law ex officio.The author reasons that ignoring presumption of jura aliena novit curia obviously leadsto difficulties for the principle of applying foreign law ex officio, since it is impossible toapply foreign norms based on presumption jura non aliena novit curia. The presumptionof jura aliena novit curia should cover not only the content of foreign law, but also severalconditions for its application based on national law. The article challenged the theory thatthe requirement to apply foreign law in the same way as it is applied abroad is the fiction.The author justified that the notion of “foreign law” can be attributed to the fictions takinginto account that the court can apply only private foreign law and some foreign proceduralrules with considering national law restrictions. Alternative Dispute Resolution https://law-journal.hse.ru/en/2018--3/226960321.html Alternative dispute resolution (ADR) becomes a synonym for different techniques as alternative to the long and costly court procedure. Alternative dispute resolution became popular in the middle of 1990’s. At first, it was seen as a tool for the reduction of court’s backlogs. With the diminishing role of national chambers of commerce — as promoters of arbitrage courts — also the arbitrage became less and less popular among small and medium size enterprises. These processes were even more radical in ex-Socialist/Communist countries with no small and medium enterprises developed1. So, the new millennium with the developed IT infrastructure has brought out also new ideas about the society development. The Alternative dispute resolution is now presented as a procedure that is faster and cheaper than the court procedure. To avoid the negative sides of arbitrage more elements of court procedure were introduced (like role of experts, provisional measures…). To make Alternative dispute resolution more popular it was promoted as a procedure in which the parties can choose their own judge, produce their own law and even sell the risk of the possible decision. But the latest judgement of EU court in investment arbitrage2 could be the end of such approach. The main question is whether the arbitrage could be still an effective method of dispute resolution also for small and medium size enterprises. For the adequate answer the analysis of historical development of ADR should be seen. Through the historical development the essence of ADR could be explained. Submission is divided in three parts. Introduction presents the historical developments and logic behind ADR. Second part deals with goals and interests in ADR. Understanding the goals and interests helps in understanding the nature of disputes. The last part presents cases in which ADR could be still effectively used. The solutions presented is a synthesis of first and second part findings. Issue of Tax Conflict Qualification and its Solution Based on UN Model Tax Convention https://law-journal.hse.ru/en/2018--3/226960659.html Despite the positive influence on the economies of developed and developing countries,cross-border economic activities of subjects of tax law promote to the emergence newchallenges and hitherto novel problems in the branch of the international tax law. In thispath, the dilemma of double non-taxation that is based on the fact of negative conflict oftax qualification became one of the main problems of modern international tax law. Thefight against provision of such kind of illegal tax benefits have a double nature: on one sidethis fight is conducted by the countries at the local level by introduction of new punctualanti-abuse rules; on the other side organizations such as the Organization of EconomicCooperation and Development (OECD) and the United Nations (UN) separately combatagainst conflict of tax qualification at international level. In this regard, internationalacceptable instruments of combating such as treaties for the avoidance of double taxationreceive the main role at the subnational level. Notwithstanding quantitative superiorityof the agreements based on model tax convention of OECD, nowadays a similar modeltax convention, drafted by UN, plays an important role for developing countries. Thisarticle deals with the theoretical and practical emergence aspects of conflict of tax qualification, as well as with the relevant methods of fighting against the above-statedtax phenomenon in the UN model tax convention. The research was aimed at the analysisof the rules directed at suppression of conflict of tax qualification. For more detailedacquaintance with the features of the mentioned above convention, this article givesshort historical outline concerning stages of development of United Nations model taxconvention and regarding the main ways and means of overcoming a problem of doubletaxation. With thorough research of protective mechanisms against the conflict of taxqualification, the comparative analysis of the previous and current rules of the conventionregarding mentioned tax phenomenon was carried out. At last, the final part of the articleis providing legal appraisal of the current rules of mentioned convention concerning theraised questions and summarizing the results of research.