, 2021 (3) http://law-journal.hse.ru en-us Copyright 2021 Tue, 12 Oct 2021 13:30:49 +0300 The Law of a Technogenic Civilization to Face Technological Dehumanization Challenges https://law-journal.hse.ru/en/2021--3/516493046.html Law as a regulatory system based on the principle of formal equality in freedom is a socialphenomenon immanently inherent in a technogenic civilization with its cultural matrix, inwhich “gene” of techne (skill based on knowledge) was rooted. The specifics of the currentstage in the technogenic civilization development are determined by NBIK technologies,NBIK technologies, which contain not only tremendous opportunities to improve thequality of human life, but also no less large-scale dangers of dehumanization, due to theirintentions on the posthuman perspectives. The need to resist the destructive potential ofthese technologies in order to keep the techno-humanitarian balance, which still protectshumanity from self-destruction, requires the mobilization of all socio-normative resources,the most important of which is law. However, the problem is modern law, being primarily asystem of human rights, is not able to prevent threats to future generations and humanityas a whole. This is especially clearly seen in the example of research and technologies forinherited editing of the human genome, which development cannot be channeled into themainstream of global legal regulation. The international norms of “soft law” and the worldacademic community self-regulation can no longer restrain technological expansion intohuman nature. An attempt to solve the problem along the path of a post-secular turn inthe hope that religious consciousness will become that saving spiritual resource, whichhelp humanity to keep its technological power within the proper boundaries, is unlikelyto be successful due to the differences in religious anthropologies inherent in differenttypes of religious ideologies. Therefore the task is to develop such a new approach tolaw understanding that goes beyond the technogenic civilization’s spiritual matrix, which,on the one hand, would preserve the basic guarantees of individual freedom, and on theother, would integrate the idea of the rights of future generations. Authentic (Author’s) Interpretation: Theoretical-Legal and Constitutional Legal Aspects https://law-journal.hse.ru/en/2021--3/516494245.html The aim of the research is to study the legal nature of authentic interpretation, its contentand meaning as an independent type of interpretation of law, as well as to establish theset of subjects of such interpretation. The methodological basis of the research is formedby General scientific methods: dialectical, logical, system-structural, comparative, etc.;as well as private scientific methods: historical-legal, formal-legal, comparative-legal. Itis noted that the term «authentic interpretation» was given diverse meanings at differentstages of the development of Russian legal science. In the 19-early 20th century, authenticinterpretation was identified with law-making. In Soviet legal science, an authenticinterpretation was considered to come from both the subject of law-making and otherauthorized bodies. Modern research focuses on the government Agency that interpretsthe norm. It is proposed to replace the term «authentic» with the term «author’s», sincethis name more accurately characterizes this type of interpretation. The article shows themain approaches to understanding authentic (author’s) interpretation in Russian andforeign jurisprudence. It is established that when determining the range of subjects ofthe author’s interpretation, it is necessary to consider the presence or absence of legalformalization of the power to interpret the norm. If we assume that the right to create andformalize norms automatically generates the right to interpret them, then the subject ofauthentic (author’s) interpretation can be any state or non-state body that is the subjectof law-making. If we assume that the author’s authority to interpret their acts and itsimplementation should be regulated by the law, the range of subjects of author’s (authentic)interpretation will be sharply narrowed. In addition, the research examines therelationship between the range of subjects of authentic (author’s) interpretation and theform (source) of law in which the author puts the norm. Several controversial problemsare identified: the subject of author’s interpretation when creating an act in the order ofdelegation, and people’s law-making, judicial author’s interpretation, the author’s interpretationof religious texts and normative agreements. The relationship between the subjectand the object of authentic (author’s) interpretation is demonstrated. Dialectics of Contradictions in Legal Regulation of Value Added Taxation https://law-journal.hse.ru/en/2021--3/516497542.html The article examines a set of contradictions in the taxation of value added in the contemporaryRussia, which can be found at the borders of the systems of public administration, fiscaldistribution, social and economic reproduction. Among the social contradictions thatcannot be overcome within the framework of existing legislation and which tend to increasein all groups in legal relations, allocated: economic-legal (manifested mainly in the sphereof production of material goods) between the nature of legal regulation of taxation of valueadded and the level of development of productive forces; between labor and capital as themain factors of production, affecting the performance of the mechanism of legal regulationof taxation of value added; financial and legal relations: between the actual nature of themodern Russian model of financial redistribution of added value and socially-orientedtarget settings for the use of funds received from value-added taxation; law enforcement:between the declarations of the fight against corruption and the situation when the majorityof VAT tax fraud detected in the Russian Federation is based on schemes organized andexecuted with the participation of officials themselves within regulatory and law enforcementagencies; between the costs of effort and resources that are diverted to improving the legalregulation of VAT, and the persistent inability of the state institutions to eliminate the criminalnetworks of VAT fraud that form a new sector of criminal business; social and legal issuesthat are manifested in the process of structural deformations of civil society. The conclusionis made about the need to reform VAT in line with the conscious and systematic resolutionof contradictions in the legal regulation of value-added taxation, expressed in the currentRussian Federation legislative acts. The main conditions for overcoming the contradictionswithin the legal regulation of VAT have to become the following legislative restrictions:the state’s legal policy have to be purposed at a fair financial and legal distribution of VATrevenues and the actual reduction of income inequality between the richest and pooreststrata of the population; the largest part of tax payments is spent on the needs of themajority of citizens; the state’s industrial policy must be aimed at the growth of capitalintensivemodern production and labor productivity. The Proportionality Principle as a Tool for Achieving Balance of Interests in Tax Relations: Theory and Law Enforcement inRussia and abroad https://law-journal.hse.ru/en/2021--3/516497928.html One of the problems of Russian tax science that we have to face in practice is the lack ofclear legal mechanisms and forms of coordination of antinomic interests. The “balance ofinterests” construct is used as often as it is unintelligent in legal literature and judicial acts.Many questions remain unanswered: what exactly is the balance of interests and what areits criteria, how it is achieved, what tools and algorithms exist for this. The balancing itselfis almost always implicit. Both in the theory of tax law and in practice, it is something new(terra incognita). Due to a lack of understanding of the essence of the balance and how toachieve it, in the absence of a developed methodology for assessing and weighing interests,tax hard cases are resolved more intuitively, based on the law enforcement officer’sown ideas about what is due. This approach does not add legitimacy and openness tojudicial acts, and often causes misunderstandings in the professional law community. Theproblem of subjectivism creates a real threat of infringement of the legitimate interestsnot only of the parties to tax relations, but also of the rule of law in general. The subject ofthis study is the principle of proportionality, which is considered as a methodological basisfor achieving a balance of private and public interests in tax relations field. The aim ofthe work is to identify possibilities of the proportionality doctrine hidden from the Russianlaw enforcement, and thereby to add rationality to the issue of achieving (justifying) legalbalance in the resolution of tax conflicts. With the help of dogmatic, comparative legal andother methods developed by legal science, instrumental potential of principle of proportionalityis revealed. The article considers possibility of receiving achievements of foreignlegal thought in the domestic theory of tax law and adapting it to practice of tax relations.The article analyzes the proportionality test (the structure of criterion and the content) inforeign and Russian jurisdictions. Additional requirements for the court to substantiatethe conclusions of the decision are identified. With the help of a mathematical model, aproblem of the commensurability of weight of the value of interests, as well as issue of formalizationof the process of weighing interests, is investigated; the concept of the weightformula promoted by Robert Alexy is critically evaluated. The article analyzes applicationof principle of proportionality in foreign practice and in Russia. It is concluded principlementioned is the legal embodiment of the Pareto-optimum principle. Crimes Related to Cryptocurrencies: Features of Qualification https://law-journal.hse.ru/en/2021--3/516499731.html Process of penetration of digital financial assets into the daily lives of citizens and theactivities of business entities, as well as the steady increase in crimes committed using, withrespect to and about cryptocurrencies, actualizes the need for a scientific understandingof the features and problems of their qualifications. The purpose of the study is to developtheoretical recommendations to overcome the problems that arise in connection with thequalification of crimes committed using, in relation to and about cryptocurrencies. Theimplementation of this goal was achieved by examining the existing positions on the problemin the domestic doctrine of criminal law, assessing the state of domestic criminal legislation,identifying problems in judicial investigative practice. The study is based on the applicationof general and special methods of research (analysis, synthesis, induction, formal legal,abstract logical, etc.). Based on the study, the author formulates the following conclusions:in modern conditions the following main groups of crimes associated with the use of digitalfinancial assets (cryptocurrencies) in one form or another can be distinguished: a) crimes inwhich cryptocurrency acts as a means of committing them; crimes in which cryptocurrencyacts as an object of encroachment; crimes committed for the purpose of generating(mining) cryptocurrency; the use by a person of cryptocurrency cannot a priori indicate thatlegalization has taken place. A simple disposal of virtual currency (in order to pay for goodsor services) without the intention of giving a legitimate form to criminal proceeds does notcontain signs of corpus delicti provided for in Art. 174.1 of the Criminal Code; as an illegalbusiness (Article 171 of the Criminal Code of the Russian Federation), one should qualify aperson to carry out activities related to the exchange of cryptocurrency for fiat money andvice versa, aimed at making profit by charging a commission for each operation. Consideringthat obtaining a license to provide such services is not possible under applicable law, aperson will be liable for illegal business, provided that he carried out the specified activitywithout registration; when qualifying encroachments on cryptocurrency, law enforcementauthorities as a systemic problem note the absence in the territory of Russia of a bodyauthorized to assess its value on a specific date. Currently, in the investigation of criminalcases, the determination of the amount of damage caused to the victim is based either onthe expert’s opinion or by obtaining information about the cryptocurrency rate at the timethe crime was committed. Models of Legal Regulation of Smart Contract: Generalities and Specifics https://law-journal.hse.ru/en/2021--3/516500140.html The smart contract’ term and its peculiarities are already regulated by different legalsystems. Author distinguishes and analyzes the following models of legal regulation ofa smart contract: technically oriented (smart contract as a computer program); dealoriented(smart contract as a legally binding contract or provision of a contract); combinedmodel (smart contract simultaneously as a computer program and as a contract). Acts onsmart contracts are enacted on national or subnational level in the form of amendmentsto existing laws on contracts, e-commerce, information technologies or in a separatelegal bill (act) regulating also such issues as application of blockchain (distributedledger) technology, issue and turnover of tokens and cryptocurrency. In case of use oftechnically oriented model such legal issues as conclusion and interpretation of a smartcontract, its invalidation, amendment and termination, application of means of defenceand responsibility, choice of applicable law to a smart contract and competent authoritythat is to settle a dispute arising out of a smart contract, remain unresolved. Deal-orientedand combined models (even with pitfalls of combined model due to confusion betweensmart contract as a computer program and as a contract) are more preferred since thesemodels define peculiarities of conclusions and performance of smart contracts in contractlaw for its practical use. Besides this, definition of automated performance of obligationsthat is inherent to a smart contract as a contract (contract type) in the form of a programcode concluded and performed in special information system (decentralised distributedledger) is to be reflected. Overall trends of legal regulation of a smart contract are theuse of special technical terms (such as blockchain, token, cryptocurrency) that are firmlyestablished in practice, statements on smart contract conclusion and performance (evenif a smart contract is defined as a computer program), and creating non-discriminatorylegal basis for the use of smart contracts along with contracts in written form and othermeans of proof. General Principles of Law in the System of International Law https://law-journal.hse.ru/en/2021--3/516502190.html The general principles of law recognized by civilized nations, as defined in the Statute of theInternational Court of Justice, remain an important legal tool designed to regulate interstaterelations, including those used in the settlement of disputes between states. The need fortheir application, as a rule, arises when a particular issue is not covered by internationaltreaties and international customs and it is required to fill a gap in international law. At thesame time, since the introduction of the term “general principles of law recognized bycivilized nations” (hereinafter, general principles of law) into international legal circulation,its official interpretation has not yet been given. In the science of international law, thereis also no common position regarding the content of general principles of law, their legalnature, and an unambiguous answer to the question of whether they refer to the sourcesof international law is not given. Nonetheless, a general approach is emerging, according to which such principles are general principles of law arising from national legal systems,and general principles formed within the framework of the international legal system.General principles of law arising from national legal systems are the norms of domesticlaw and remain so regardless of whether there is a need for their use, which is carried outby transposition into the international legal system. The article proposes such methodsas: general or general transposition — international legal inclusion of general principlesof law arising from national legal systems into international law; reception — a reflectionof the general principles of domestic law in international treaties or international customs;reference — a provision of an international treaty or a decision of an international judicialbody, according to which the law enforcement officer refers to the general principles of lawarising from national legal systems. General principles of law are applicable law, elementsof which are often found in the founding treaties establishing international judicial bodies.They can be found in other practice of law enforcement. In author’s opinion, the generalprinciples of law can only be conditionally attributed to the source of international law,since they represent the norms of international or domestic law. In this work, an attemptis made to reveal the legal nature of the general principles of law, to reveal their role andplace in international law and the Russian legal system. Specialized State Courts — a Relevant Forum for Resolving International Commercial Disputes https://law-journal.hse.ru/en/2021--3/516502273.html States in Asia, the Middle East and Europe improve their commercial contract law, reformjudicial procedures and create innovative specialized courts to handle international commercialdisputes so that their legal systems can play a meaningful role in the developmentof national economies in a globalized world. In a number of countries the creation of suchspecialized courts has broadened the choice of ways to protect participants in the globalbusiness community. Over the past ten to fifteen years, international trade (commercial)courts have been constituted in China, France, Kazakhstan, the Netherlands, and Singapore.New initiatives to constitute such courts are underway; for example in Switzerland thisissue is on the agenda of governmental authorities. The proliferation of international trade(commercial) courts in Europe, some Asian countries and other regions of the world raisesconsiderable interest among an academic community as well as practitioners. This articleprovides an overview, based on foreign sources, of the procedure for resolving internationalcommercial disputes by specialized courts. It identifies their key features (also in terms ofprocedural innovations) and the main reasons for their creation within the legal systems ofindividual states. The growing number of specialized courts, which adjudicate internationalcommercial disputes, is conditional due to a number of reasons. Among them there are:1) the need to strengthen the national economy, ensuring its competitiveness on a globalscale; 2) increased competition for legal services markets; 3) the interest in ensuring therule of law in international trade and financial activities; 4) the specialization of judicial activity;5) increasing the prestige and reputation of national law in international markets. Theformation of international trade (commercial) courts is an example of states support theireconomies in the arena of international business by using their power in the form of thejudicial system, offering appropriate comfort, benefit, and advantage. Early Warning Mechanism as Control Tool Compliance with the Principle of Subsidiarity in Legislative Process of the European Union (Regional Dimension) https://law-journal.hse.ru/en/2021--3/516502481.html The subject matter of the research is legal principles regulating the mechanism of earlywarning as an instrument to monitor subsidiarity on the European Union. The aim of theresearch is the analysis of public law measures able to improve the formula (model) ofparticipating of regional parliaments in the mechanism of early warning to decrease thedeficiency of democracy caused by the dislocation scheme of various actors within theEuropean Union. The methodology of the article represents formal legal, comparative legal,historical, structural and hermeneutic methods added with analysis, synthesis, deductionand induction. The research features the problems of regulation in European lawthe participation of regional legislatures to check the compliance of legislative proposalsof the European Union to the subsidiarity principle. A special attention is given to the lackof the definition of regional parliament with legislative authorities. The article stresses theproblem of securing efficiency mechanism of early warning, determined by the necessityto comply with the principles of proportion and competencies when checking the subsidiarityin the European Union legislation project. A special attention is given to the dispositiveformula of the implementation of rights and obligations when national parliamentsconsult with regional legislatures. The article shows the optionality of regional parliamentsto conduct the control over the compliance of the European Union bill to subsidiarity. Thearticle draws the attention to the questions of the differentiation of the opportunities forregional parliaments to participate in assessing the subsidiarity in terms of the modificationof the formation of upper chambers of national parliaments. The paper arrives at theconclusion that the regional dimension of the mechanism of early warning is characterizedwith fragmentary (discreet) and optional (dispositive) forms of implementation. Constitutionallegal status of regional legislatures in terms of the mechanism of early warningis characterized with limited resources. Constitutional Law Consequences of Brexit: Sovereignty of Parliament or of People https://law-journal.hse.ru/en/2021--3/516502931.html The exit of Great Britain from the European Union (Brexit) has actualized a lot of political,economic and legal issues. The latter issues include the relevant aspects of European law, as well as national, first of all, constitutional law. Constitutional aspects of Brexit touch, from one side, the theme of revising and renovating traditional principles, including parliamentary sovereignty principle, and from other side, emergence and development of new institutions like referendum. Indeed, the British referendum of 2016 aboutexit from the European Union has become a legal base for the Brexit procedure. The implementation of this procedure has demanded a solution to a number of doctrinal constitutional issues, first of all about the priority of people’s sovereignty that was expressed atthe referendum, and about the position of the British parliament. The principle of parliamentary sovereignty for centuries determined the specifics of constitutional institutions of that state. The institute of referendums historically was not accepted in Great Britainexactly as a reason of contradiction between principles of parliamentary supremacy and principle of direct popular voting. However, the practice of referendums took place inthe United Kingdom since the end of 20th century, especially ones connected with entry of Britain in the EuropeanUnion and with her exit from it, turned to be a reason for the British constitutional doctrine to research and clear once more a modern understanding of parliamentary supremacy principle. Even more important problem was to elaborate ways and means of coexistence of both principles. It was necessary to answer the following questions: if parliamentary supremacy still exists in its traditional meaning, or ithas a sense to change content of that principle for inclusion of the people’s sovereignty into the British constitutional law; what is correlation of parliamentary and people’s sovereignty in modern law as a whole. Because of the traditional British legal continuityway, for sure, it was impossible to wait for a full refuse from parliamentary sovereignty principle in favor of the people’s sovereignty. The compromise was reached at the stage of Brexit itself. As a consequence, we see that in the present time traditional parliamentary sovereignty principle is maintained, but in the same time contours of referendum institute development in the British constitutional law are designed. Twists and Turns of Hans Kelsen’s Biography https://law-journal.hse.ru/en/2021--3/516503068.html The review of a book: Olechowski T. Hans Kelsen. Biographie eines Rechtswissenschaftlers.Tubingen: Mohr Siebeck, 2020, 1027 S.