, 2018 (1) http://law-journal.hse.ru en-us Copyright 2018 Thu, 19 Apr 2018 12:36:07 +0300 Doctrinal Acts as the Main Instrument of Legal Policy https://law-journal.hse.ru/en/2018--1/218417901.html Legal policy is considered in the article as an instrument for ensuring systematic andeffective development of the legal system in the information society. To build up thelegal policy of modern Russia one must, firstly, define its priorities, and, secondly, ensurethe legal policy with the relevant means. With regard to the problem of the content ofmodern legal policy, the authors propose their methodology of the research: throughthe identification of priorities of legal policy and dividing the latter into meaningful and instrumental ones. We prove the thesis that instrumental priorities, in particular,the formation of special tools of legal policy activities, are nowadays of paramountimportance for the formation and implementation of effective legal policy of the stateas a whole. With regard to the problem of legal policy, the authors justify the need fordistinguishing a special group of legal acts — doctrinal legal instruments designed toensure the formation and development of the legal policy as a form of state activity.Doctrinal acts can reflect scientific, strategic and targeted character of legal policy, butat the same time they require formal inclusion into the system of legal acts of the stateand giving them legal force and legal significance. In recent years, political (political andprogram) acts are actively used in the Russian legal system; however, they have neithera clear understanding in legal theory nor a clear legal regulation. Researchers often donot recognize their legal nature, considering them as political instruments. The moderntheory of legal acts must be based on a “broad” approach to legal acts’ understanding,which involves the recognition of acts in various forms (not only written ones) as legalacts and by various actors (including individuals). Following this approach, the doctrinaldocuments become part of the system of legal acts. All elements of the system of legalacts must have certain legal and technical characteristics and fulfill specific functions inlegal regulation. The authors of the article offer their own concept and characteristics oflegal acts in order to explore the specific doctrinal acts on this basis. The paper considersthe problems of legal regulation of doctrinal legal acts, examines the features of legalnature of these groups of acts, and their relationship with other legal acts. On Creating and Using Text of the Russian Federation Corpus of Legal Acts as an Open Dataset https://law-journal.hse.ru/en/2018--1/218418304.html Methods of computer-aided text analysis that are currently being developed can be usefulfor research in legal science and in practice. An obvious requirement for such an analysisis the availability of an open and structured corpus of texts. The article presents such acorpus of texts of legal acts of federal and regional legislation in a machine-readable form(of a dataset) RusLawOD. It is publicly available on the Github Internet portal. The created data set is based on open sources of legal acts, primarily on the data of the Official InternetPortal of Legal Information (pravo.gov.ru) as a result of integration of open data aboutpublished officially legal acts and the Zakonodatelstvo Rossii legal information system.The main research issue in the field of law in the development of this resource was thequestion how to publish the texts of legal acts and metadata about them. It is necessaryto come on a nationwide scale to the general standard for the description of legal actsin machine-readable form for the possibilities of data exchange between differentinformation systems. To do this, we need to determine the uniform name of the attributesthat identify the document, as well as its internal structure. The article suggests solutionsthat can be taken as a basis for this. In addition to describing the data, examples are givenhow the data presented can help in solving research legal problems. Such examples arethe classification of legal acts and the definition of the frequency of collocations of certainterms. On the basis of analysis of metadata about documents published in the official site,the classifier of really used themes was reconstructed, and theme usage was counted. Theauthor compares existing classification of legal acts and the use of methods of computerlinguistics to determine the most frequently used subjects in legislation, coming to theconclusion that modern methods of computer-based text analysis make it possible to getvaluable and proven results. Subsidiary Liability in the Legislation on Legal Entities: Issues of Legal Regulation and Legal Nature https://law-journal.hse.ru/en/2018--1/218418672.html The article deals with theoretical and practical issues of legal regulation of subsidiaryliability in the legislation on legal entities. It is noted that the norms on subsidiary liabilityin the legislation lack a system approach. They do not provide clear answers to a numberof key questions: applying subsidiary liability including the nature and size of claims whichmay be set by creditor for the subsidiary debtor; on the grounds of such claims (illegalbehavior of the principal debtor or a wrongdoing of a subsidiary debtor); the conditionsof lodging a claim and the conditions of meeting such claims; the procedural status ofthe principal debtor and involving it to the action against subsidiary debtor; confirmingthe lack of property or money as to the principal debtor as a condition of meeting claimstowards the subsidiary debtor; the nature and size of regressive claims of the subsidiarydebtor against the principal one; the grounds of changing or terminating subsidiaryliability etc. The legislation on legal persons does not contain general provisions onsubsidiary liability in corporate relations. However, in the legislation on legal persons thisinstitute is mentioned frequently. Unfortunately, the current decision of the RF SupremeCourt Plenum lacks the provisions about applying the legislation on subsidiary liability.The court practice is not developed. Besides, it is often inconsistent and controversialone. Due to this, the paper studies separate most significant issues of subsidiary liabilityin the legislation on legal persons. An analysis of these issues draws conclusions aboutdiversity of subsidiary liability, which essentially includes three completely different legaleffects: (1) one of the types of obligations with plurality of persons; (2) a special devicefor securing the performance of obligations; (3) a kind of civil liability. The article gives ageneral description of each of these types of subsidiary liability. It concludes emphasizingthe need to separate the legal regulation of these types of subsidiary liability in the RussianCivil Code and the legislation on legal entities. Targeted Social Aid: History, Modernity, Perspectives https://law-journal.hse.ru/en/2018--1/218418912.html Targeted social support as a kind of state social assistance represents an academic andpractical interest, especially in terms of addressing Russian and foreign experience. Theinterest is determined on the one hand by the recent changes in legal regulation as tothe large scale social assistance to low-income citizens, on the other hand, a seriousneed to intensify tackling poverty. Unstable material condition of citizens and limitedstate funds make the state create new opportunities to modernize the current systemof rendering social assistance to low-income citizens which are regarded as poor inRussia. In the modern conditions, determining the level of poverty which is formallyconsidered as a ground to get a social support is a relevant but not sufficient elementof targeted social assistance and does not reflect the principle of addressed allowance.This type of assistance is available for a wide range of people, which does not strengthenthe mechanism of tackling poverty and efficient distribution of material resources.In this regard, the authors express the opinion on the necessity to apply the foreignexperience to determine the approaches in terms of providing social assistance to thepoor. The research arrives at the conclusion that the current Russian practice of renderingtargeted social support to the poor, which is based on the principles of social contract,is far from being perfect due to two interrelated causes. First, there is a necessity toassess objectively the number of the potential participants of the targeted aid programparticipants with who social contracts are to be made. Secondly, the social contract asa form of providing targeted social support is still not absolutely available in terms ofthe availability of information. The authors argue that an important step in solving this problem will be a single register of the recipients of the measures of social support toidentify, inform and register the most needy citizens. Joint Physical Custody or Determining Place of Residence of the Child on a Parity Basis? https://law-journal.hse.ru/en/2018--1/218419340.html The article examines the relationship that arises between parents in their separateresidence, regarding the definition of a child’s place of residence in court in the absenceof any appropriate agreement.The aim of the paper is to identify the main features of thelegal institution of a similar foreign “joint custody” of parents in the Russian legal system.For the research, the following methods were used: sociological, modeling, comparativelegal one. The court decision to determine the place of residence of a child with onlyone of the parents is in a certain conflict with the principle of their equality. Besides, thisimplementation is difficult in practice, since the court’s ability to obtain reliable informationabout relations within family is extremely limited. In the judicial practice of disputes overthe determination of the place of residence of the child, there is an unjustified bias infavor of the abandonment of the child with the mother, which, of course, does notcomply with the rules and principles of family law. Family researchers — sociologistsand psychologists note the detrimental nature of this approach and, based on foreignexperience, propose to establish principle of “joint physical custody” of parents duringtheir divorce in Russia. In the context of the Russian legal system, it is proposed to checkthe corresponding relations as the definition of the place of residence of the child on aparity basis. In addition, it is necessary to determine the conditions (relating to the will andactual circumstances) in which the application of such a rule is possible. Such conditionsshould be: the desire of each of the participants in the dispute to engage in the upbringingof the child; presence at them the relations developed with the child; absence of thefact of deprivation of parental rights or restriction in them; the presence of each of theparents the opportunity to engage in the child’s time; their place of residence should notbe removed from the center of the existing interests of the child. Actions that prevent theestablishment of this regime (for example, the change of residence of a parent living witha child without justification by his interests) should be considered an abuse of the law. Theapplication of this regime does not contradict the current legislation; therefore, there isno formal need to introduce changes into the Family Code. Nevertheless, such changesare advisable, and since such an approach is fundamentally new for our legal system andsince there is a need to define clearly the conditions for its use by the judicial authorities. Genesis of Approaches to Legal and Doctrinal Definition of Criminal Offense https://law-journal.hse.ru/en/2018--1/218419596.html The concept of a criminal offense according to experts has been known to the nationallegislator and law enforcement for about three centuries. In the pre-revolutionary period,the notion of misdemeanor along with the concept of crime was enshrined in the Code ofCriminal Laws of 1832, in all editions of the Code of Criminal and Correctional Penaltiesof 1845, in the Criminal Code of 1903. In these legal acts, offense, like crimes, wereconsidered as a variety of criminal illegal acts. In the Сriminal Сodes of the RSFSR in1922, 1926, 1960, the concept of a criminal offense was not fixed. In the draft Code of Criminal Offenses (1973), which was not adopted, the criminal offense was proposedto be considered as а non-criminal offence. In 1977, the Fundamentals of CriminalLegislation of the USSR and the Union Republics of 1958 and the Criminal Code of theRSFSR in 1960 introduced provisions on crimes that do not pose a great public danger. Inthe early 1990s, the introduction of criminal offenses as an independent group of criminalacts was proposed in some projects of the Criminal Code. The problem of a criminaloffense is not new for the domestic science of criminal law. In the criminal legal doctrineof the pre-revolutionary period, the allocation of criminal offenses was justified by dividing“according to the kind of iniquity”. In the Soviet period, the problem of a criminal offensebegan to be actively discussed from the 1960s. Most of academics considered thecriminal offense as a kind of crime, which has a certain degree of public danger. It wasquite popular that the criminal offense was viewed as a kind of socially dangerous actprohibited by Criminal Code along with a crime. Some researchers considered it as an actthat was not at criminal-illegal and criminally punishable. In the modern Russian doctrineof criminal law, essentially the same three basic positions have been preserved in thematter of determining the nature of a criminal offense.In the case of implementing thelegislative initiative, issued in the form of Resolution of the Plenum of the Supreme Courtof the Russian Federation of October 31, 2017 No. 42, the Criminal Code of the RussianFederation will introduce the concept of a criminal offense, which will be understood onlyas a sub-category of crimes of small gravity. Complex Reorganization of Legal Entities https://law-journal.hse.ru/en/2018--1/218419739.html The paper features legal relations concerning the novella on combined reorganization oflegal persons according to civil law. The author studies historical stages of this categoryin Russian legislation, the relevant problems have been identified. It is noted that legalscience is approaching the concept of combined reorganization not as a special formof reorganization but a way of making reorganizational procedures characterizedwith qualitative and quantitative characteristics, which enable to reveal three types ofcombined reorganization, i.e. mixed, merged and the mixture of these options referredto as complex reorganization in the paper. Under the research, the author arrives at thefollowing conclusions: 1) fixed and merged reorganizations have specifics which allowdifferentiating them from normal reorganization and from each other. This feature is seenin quantitative and qualitative criteria: the shared reorganization unlike the normal one isnot a form but a mixture of two forms, i.e. quantity is the major criterion. In turn, the majorcriterion differentiating mixed reorganization from the normal one is quality. This is shownin the fact that in the case of mixed reorganization there appear legal entities establishedunder the results legal entities, which is impossible under normal reorganization.; 2) ithas been determined that a significant criterion separating merged reorganization fromthe mixed and normal ones is the criterion of the objective of reorganization. Both undermixed and normal reorganizations both economic (optmization) and legal (establishingand terminating legal entities established in the process of reorganization) the objectivesof reorganization remain the same and aim to achieve the final result and therefore donot have any legal significance and serve as a link for the final result, i.e. merger and On the State Regulation of Alcohol Market https://law-journal.hse.ru/en/2018--1/218420075.html The article deals with the conceptual model of state regulation of production and turnoverof alcoholic products based on the systemic and complex application of administrativeand legal forms and methods of regulation, as well as mechanisms of public control andself-regulation, with the interaction of state authorities with subjects not endowed withstate-power authorities, but fulfilling certain functions of public legal nature, namely withself-regulating organizations and public associations. Currently, the main tasks of stateregulation of production and turnover of alcoholic products are to reduce the shadowmarket segment, protect the morality and health of citizens, as well as reduce the levelof consumption of alcoholic beverages. In the current conditions of the development ofthe alcohol industry, the administrative bodies will not be able to solve these tasks andcompletely legalize the alcohol market without interacting with its participants and society,which will require further modernization of the system of state regulation of the industry.It is substantiated that the development of self-regulation and public control mechanismsis an objective necessity of introducing new forms of struggle against illegal turnover ofalcoholic products in the system of state regulation of the alcohol market. Public controland self-regulation will reduce the degree of excessive state interference in the alcoholindustry, increase efficiency and optimize state control, ensure the balance of state,public and private interests, take into account the position of the business community inmaking decisions on the regulation of the alcohol market. In order for self-regulation tobe an effective and effective tool in the mechanism of administrative and legal regulationof the turnover of alcoholic beverages, the state should create conditions for encouragingmarket participants to voluntarily unite in self-regulating organizations. Meanwhile, atpresent the legislator does not create mechanisms that motivate the development ofvoluntary self-regulation in the alcohol market. To develop this form of self-regulation,which is the most acceptable for the alcohol industry, it is necessary to introduce anadministrative-legal regime to stimulate market participants. In addition, the existinginstruments of public control do not allow fully exerting regulatory influence on legalrelations in the production and turnover of alcoholic beverages, since the legislation doesnot sufficiently define the legal basis for their activities. The necessity of establishing inthe law the procedure for exercising public control on the alcohol market is substantiated. Public Finance: Process of Constitutionalization and Internationalization https://law-journal.hse.ru/en/2018--1/218420272.html The subject-matter of this article is the processes of constitutionalization andinternationalization of public finances. The modern system of government is constitutional.The activities of the governmental bodies in the financial and budgetary spheres areexercised in legal forms. The fundamental principles and rules of this activity are laid down bythe constitutions. It relates to the key directions of the financial regulation (the elaborationand adoption the law on budget, the legislation on taxes etc.). The constitionalization ofpublic finances is a long historical process. Due to it, new principles and rules of financialregulation have been established in the organization and functioning of the government.Constitutionalization of public finances meant the transition from the era of absolutism tothe system of constitutional (responsible) government. The era of constitutionalism led tothe expansion of the financial provisions in the national constitutions. Some of the modernconstitutions are called therefore “financial”. Surely, the process of constitutionalizationis uneven. It is manifested in the embodiment of financial rules and norms in the textsof the constitutions as well as in their implementation in the practice of governmentalbodies. There are some peculiarities of constitutionalization of public finances in theRussian Federation, due to some special features of its historical evolution. One cansee the growing interest of the Russian legal scientists to the problem. The process ofconstitutionalization of public finances is not completed yet. It will be expanding becausethe growing role of public finances in the economic and social development. In the era ofglobalization, the internationalization of public finances has become a universal trend. Itis manifested in various forms. First of all, it is strengthening of the supranational financialstandards. It is also the structural changes concerning national governmental bodies andinstitutions of the supranational organizations. The most evident example is the EuropeanUnion. The general trend is going on the direction of expansion of financial activities. TheUnion has its own budgetary system. The list of the budgetary principles and rules isincluded in the Treaty of European Union and the Treaty on functioning of the EuropeanUnion. Some of rules have been reproduced from the constitutional law of the memberstates.The new phenomenon is the implementation of the rule of the budgetary discipline,which was elaborated on the supranational level, in the national constitutional systems ofsome Member-states. One can see the trend towards the growing harmonization andconvergence of the national and supranational financial systems in the modern world. Private International Law in Context of Globalization: from Privatization to Fragmentation https://law-journal.hse.ru/en/2018--1/218420337.html Globalization has changed the face of the world, gave rise to the restructuring of society,the transformation of the state and its sovereignty and led to the «denationalization» oflaw. Today, the future of law is formed, which must be adequate to the new society. Thegreatest changes occur in international private law, where we are witnessing an increasein the number of norm-making actors with norm-making being adhocratic in nature;strengthening and modification of the delocalization process of law, standardizationand the search for new legal identity; an unprecedented growth of the bulk of non-stateregulation norms and searching for ways to legitimize them; the active development ofalternative non-state and supranational systems for transboundary dispute resolution;paradigmatic shifts in the field of law, due to the interpretation of the concept of “rulesof law”; updating of the institute of autonomous legal qualification, etc. The privatizationof law contributes to its fragmentation, which in the framework of private internationalhas two areas of development: normative and institutional. All this creates an effect of“parallel” social realities, with two, in fact, colliding systems of regulating transboundaryrelationships and two dispute resolution systems based on state law and non-state law,developing. The emerging new society and a new civilization form the request for a newlaw, which is in search of its new identity. Incurred in connection with this doctrines ofglobal /transnational /non-state law require their understanding and conceptualization,and a new social practice: lexinformatica, lex digitalis, lex electronica or lex networkia,sportivа lex, lex constructionis, lex laborisinternationalis, — need to be adopted to themodern paradigm of private international law. The article explores the multi-layerednormative pluralist architecture, and makes some assumptions about the future regulatorylandscape with regard to cross-border private-law relations. The emerging world order,the center of which is the global economy with supporting cross-border private-lawrelations, still governed by the law emanating from the state, but the latter loses itsregulatory monopoly, and therefore require a rethinking of the normative superstructureand the formation of a new legal language, able to explain and comprehend the effects ofglobalization in the legal field. Dissenting Opinions at International Courts: Doctrine and Practice https://law-journal.hse.ru/en/2018--1/218420410.html In the article author critically assesses rile and significance of the dissenting opinions ofthe international judges and arbitrator pointing out its obvious insufficient coverage bythe Russian scholar literature. An absolute majority of the authors looks at the dissentingopinions as either something non-significant or undisputable positive for internationaljustice. At the same time activity of numerous international courts and arbitration providesextensive empirical data allowing to evaluate an impact of the dissenting opinions on theprocess of judicial deliberation and on the acceptance of the judgment of specific courtand of the court itself by the parties of the dispute and by the states that created thecourt or tribunal in question. Assessing “pro” and “contra” arguments in relation to thedissenting opinions on the international justice, the author argues that the dissentingopinions continues to be a highly controversial feature of contemporary internationaljustice. Obvious procedural uncertainty regarding admissibility of the dissenting opinionsresults in practical impossibility to separate “good” dissenting opinions from “bad” or“ugly” and true level of influence of the dissents remains to be determine by the innerrestraints and a character of every judge discovering itself in a minority, and by the judicialculture and traditions of the courts in questions. Age of the court and its reputation andauthority may present an effective shield against bad or ill-fated dissenting opinions.Newly-created courts may be less immune against such dissenters which may bringharm to the authority of the court and its legitimacy. A current practice of the Court ofthe Eurasian Economic Union provide a persuasive example how unrestrained dissentingopinions may undermine integrity and collegiality of international court and thus the useof the dissents shall be either limited or fully forbidden or the dissents shall be used in avery responsible manner. Aspects of Legal Regulation of Protecting Personal Data in the EU Internal Market https://law-journal.hse.ru/en/2018--1/218420548.html The paper features an aspect of combining economic freedoms of the European Unioninternal market and the protection of human rights shown on the example of protectingpersonal data the observance of which is especially topical. The internal market as acentre of European integration is a significant achievement of the European integrationbut its potential is not fully grasped. The legal regulation of the internal market should beharmonized with the modern conditions including technological progress, which impedesthe respect of the rights to the protection of personal data and creates a barrier on theway to implement economic freedoms of the internal market. To identify the meaning of respecting rights in protecting personal data, the author examines some documents ofthe European Commission, including the Strategy for the single market, annual reviewsof growth, reports on applying the EU Charter. In particular, an instrument to raise theefficiency of the single internal market is the protection of personal data. The right to theprotection of personal data is specified in the acts of primary and secondary EuropeanUnion law. A special attention is given to the reform of the EU regulation in this regard,especially The General Data Protection Regulation 2016/679. The paper compares theapplicable Data Protection Directive 95/46. The reform introduces a single legal regulationfor the whole EU, which will enforce the right to the protection of personal data and savethe entrepreneurs from excessive expenses. Besides, the paper draws attention to theEU Court practice. The latter reminds the EU institutes and member states about theobligation to observe the EU Charter related to the protection of personal data.