, 2023 (4) http://law-journal.hse.ru en-us Copyright 2023 Wed, 29 Nov 2023 07:00:01 +0300 The Genesis of Private International Law in the Ancient World https://law-journal.hse.ru/en/2023--4/876233852.html The problems of private international law genesis do not receive some special attention in the Russian doctrine. This situation is regrettable, since a study of history is the basis of the society’s legal culture. The article is aimed at partially filling this gap. It is devoted to the origin of conflicts of different national laws in Ancient Israel and Judea, Ancient Greece, Ancient Egypt. The main attention is paid to the nature of such collisions and the formation of ways to solve them. Attention is drawn to the difference in the nature of conflicts of laws in Israel and Egypt (interpersonal), on the one hand, and in Greece (interpolis), on the other. By writing the study, the author used the methods of comparative analysis and reconstruction, formal-logical, dialectical, natural science and historical methods. The states of the Ancient World were mostly theocratic despotisms characterized by xenophobia and a policy of militant isolationism. However, the objective needs of the economy dictate the need for international trade and recognition of the rights of foreigners. The attitude towards foreigners evolves from their complete lack of rights to the provision of national treatment to them, and this takes place in all states. In local courts, foreign personal law is recognized and applied, which makes it possible to assert the formation the connecting factor “lex personalis”. For foreigners, special courts are created, which in the process take into account the language of the contract, the origin of the parties and the place of conclusion of the contract. The main source of rules for choice of law is jurisprudence in all states; interpolis agreements play an important role in ancient Greece; the necessary regulation is derived through the interpretation of the Torah in Ancient Israel; conflict norms are fixed in the royal edict in Hellenistic Egypt. In conclusion, it is concluded that the PIL of the Ancient World is a collection of individual cases, this is “episodic private international law”. The limited amount of data does not allow drawing general theoretical conclusions, building a general line of evolution of the rules for applicable law. However, it is precisely the ancient and biblical approaches will subsequently become the intellectual foundation for the creation of scientific doctrines of PIL and its legislative regulation. The Development of Public Law Theory: from Glossators to Jean Bodin’s Comparative Method https://law-journal.hse.ru/en/2023--4/876325210.html The beginning of jurisprudence is usually attributed to the 11th–12th centuries, when the school of glossators created a general, scholastic-based methodological approach to the study and teaching of the Roman law. This textualistic method was later transformed by the so-called school of “commentators”, especially Bartolo da Sassoferrato. The commentators, unlike the glossators, were much more interested in particular public law questions. Mainly this interest was dictated by the political situation, including the threat to the autonomy of Italian cities. Nevertheless, a fundamental revision of the glossators’ method became possible only later, when, under the influence of humanist criticism, the idea of the historical-philological method spread among jurists, suggesting that Roman law should be interpreted in the context of the time in which it was created. The glossators and commentators’ belief in the universality and legal validity of the Roman law gone into the past. The new method (mos gallicus) was gradually transformed from a history- and philology-driven study of the Roman law texts into a general historicist point of view, which turned the main interest of jurists to domestic law and customs. Thus, the humanist approach became the basis from which the idea of the uniqueness of the domestic legal order was born. This idea was transferred to the field of public law and led to the belief that the principles of the domestic legal order should be derived not from universal categories of the alien Roman law, but from real political practices of the past, local customs and “ancient constitutions”. Nevertheless, the historical method itself, due to its focus on unique, specific features of legal orders, could not ensure the establishing of a new public law science. In this regard, Jean Bodin developed and later applied a peculiar comparative-legal approach, which, as the French jurist believed, should have served to create a system of universal concepts of public law theory. Institutions of Heir, Co-Ruler (Successor) and Receiver of Supreme Power in History of the Russian Law (15th — early 16th Centuries) https://law-journal.hse.ru/en/2023--4/876328793.html The article aims to investigate the domestic historical and legal experience of regulating the mechanism of the transfer of supreme power through the prism of the formation and evolution of institutions of the heir of supreme power, co-ruler (successor) and successor of the throne. The purpose of the study is to identify the specifics of the legal institutions of the co-ruler (successor) and successor of the throne, used in cases where it is impossible to transfer the supreme power by inheritance, as well as their role, significance and place in the mechanism of reproduction of the supreme state power. The object of the study is the legal mechanism of the transfer of supreme power in the history of Russian law, from the formation of a centralized state to the liquidation of the monarchy, the subject is the legal institutions of the heir, co-ruler (successor) and receiver of supreme power as independent components of the mechanism of the transfer of supreme power. The institutions of the co-ruler and receiver of the throne are considered in the context of the reception of the norms of Late Roman and Byzantine law, the legal structure of the receiver of the throne, dating back to canon law, is investigated. Guided by formal-logical, historical and comparative-legal research methods, based on historical and legal sources, it is concluded that in the case of a non-hereditary transfer of monarchical power in Russian law, the institution of the successor of the throne, which took shape in the legislation of the XVIII century, operated. The successor of the throne was opposed to the heir according to the criterion of the legal basis of the rights to the throne. The content of the institute of co-rule reveals the Russian specifics, consisting in a combination of signs of Byzantine co-rule and late Roman succession, which was due to the transition from the ancestral (ladder) order of succession to the family (from father to son) during the formation of the Russian centralized state. In the era of absolutism, the institution of a co-ruler (successor) of the supreme power is displaced from the sphere of legal regulation and subsequently develops only as a political institution. Procurator Office in the Russian State Mechanism: Theoretical, Historical and Normative Aspects https://law-journal.hse.ru/en/2023--4/876329939.html Although the Russian Procurator Office supervision has the centuries-old history, there is still no consensus in doctrine on its status and place in the state mechanism. The legal enactments of the Russian Empire and the USSR as well as current legislation in force do not certainly refer the Procurator Office to either agencies of state power or to other state agencies, and this fact is estimated by various scholars as a cue to doctrinal discussion. A lot of inconsistent arguments have been expressed about the Procurator Office’s disposition within a presidential, legislative, executive, judicial and even ‘supervisory-controlling’ branches. Such a diversity of opinions cannot be justified by ideological pluralism and is unacceptable from the perspective of legal studies, since the correct classification of a legal phenomenon can be only gained by means of due definition of its specific and stable characteristics Procurator Office, evidently, possesses with respect to its centuries-old history. The accurate consideration of this issue has not only theoretical, but also practical significance. Firstly, if the Procurator Office was declared to be agency of state power, it would be at once inserted in the relations within separation of powers principle. Secondly, it affects the constitutional stature of the institute having impact on the general patterns and the framework of the further development of Russian supervisory institution. The author has addressed the issue in respect of three dimensions: basic provisions of the legal theory, historical transformations of the Procurator Office within system of the Russian State and the normative (legislative) trends. As a result, the position has been elaborated that the longestablished legislative approach may be reckoned not as the silence of the legislator, but as a deliberate decision on the status of the Procurator Office as a supervisory institution sui generis. Addressing this issue, three factors have been identified and taken into account: derivative legal status of the Procurator Office (determination of its powers at the discretion of the legislator); historically determined systemic relationship between Procurator Office and the institution of supreme power; supervision over the legality and validity of the authority exercised by other state bodies as a distinctive feature of the Procurator Office in the state mechanism of Russia. The Scope of Public Contract https://law-journal.hse.ru/en/2023--4/876330332.html The scope of the public contract remains not fully clarified. In Russian literature and practice, an approach has been formed, according to which the list of public contracts is not limited to cases specifically mentioned in the law. Any contract can be recognized as public if it falls under the abstract criteria of Article 426 of the Civil Code of the Russian Federation. At the same time, the Russian literature has so far noted that a number of characteristic features of a public contract is quite difficult to establish. This applies, for example, to such elements as the nature of the activity of the obligated person and the circle of persons who have the right to demand the conclusion of an agreement and indicated in the Article 426 as consumers. In this regard, an extremely important task is to clearly define the characteristics of a public contract. To achieve these goals, the article uses both an analysis of Russian judicial practice and doctrine, and the experience of the German legal order, within which the content of the general obligation to conclude an agreement has a rather long history. The article also draws special attention to the fact that the obligation to conclude an agreement with everyone who applies may have at least three independent justifications: the intention of the legal order to provide a person with a specific benefit; requirement of equal treatment and prohibition of discrimination based on certain criteria. At the same time, a public contract is mostly associated with the first of the three justifications given, which significantly affects such a feature of a public contract as the nature of the activity of the obligated person. Based on the results of the study, the author comes to the conclusion that a public contract serves two different purposes: ensuring the usual needs of participants in the turnover and protecting competition. This duality leads to the fact that the characteristics of a public contract differ somewhat depending on which of the two specified goals the public contract provides within the framework of a specific contractual relationship. Trust Management of Social Facilities https://law-journal.hse.ru/en/2023--4/876423356.html The article considers the models of management of communal, transportation and social infrastructure facilities to meet socially useful purposes. Based on the results of analyzing experience of foreign countries, the author shows that the trust and its functional analogues are used for the management of social purpose objects. The author considers the approaches of common law countries and continental law countries (mainly Germany). For the management of social purpose objects in Germany legal and non-legal foundations and institutions are used. However, the use of the long-known trust structure does not give creditors the right to foreclose on the debts of the trust on social objects. The article attempts to show the possibility of using the Russian institute of trust management for the management of social objects instead of the institutes of the right of operational management and the right of economic management. However, this model of management of socially useful property cannot be used in the presence of an administrative legal relationship between a public-law entity and a state body. To use the model of trust management the subjects must be property separate from each other. Otherwise, the construction of a contractual legal relationship loses its significance. Russian law cannot take the category of “fiduciary property” or trust due to the fact that Russian law has been based on the unitary concept of property rights for several centuries. The concealment of the identity of the trust’s founder, which is characteristic of a trust, does not make sense when managing social objects. We are talking only about economic management of state property. The use of a trust management agreement for the management of social objects will allow solving the problem of participation of non-owner legal entities in the Russian turnover. However, even if such a model of state property management is chosen, there is still a need for the state to be liable for debts associated with managing social facilities. The choice of the model of state property management cannot solve the problem of economic unprofitability of achieving socially useful goals. Models of Legal Regulating Turnover of Digital Rights and Digital Currency https://law-journal.hse.ru/en/2023--4/876423489.html Currently countries of the world are forming legal norms that regulate the turnover of new digital objects of rights that are called differently as digital rights, tokens, digital assets, digital currency, and cryptocurrency. The difference in wording does not allow countries to develop common international approaches to the cross-border turnover of such new objects of rights. The purpose of research is to propose the model of legal regulation that would allow such objects of rights to be fully included in the civil circulation. The following research tasks are being solved: analysis of the legal norms that regulate the turnover of digital rights and digital currency; formulation of the models of legal regulation of the turnover of digital rights and digital currency; study of measures and means of legal regulation; analysis of different points of view of researchers on the issue of legal regulation of relations in the digital economy; proposal of measures and means of legal regulation, based on the chosen model of legal regulation. In carrying out the study, comparative legal, formal legal, legal modeling methods were implemented. General research methods of synthesis, analysis, induction, comparison, etc. were used. Approaches used in jurisdictions differ both in terms of adopted legal norms and in creation of special conditions for the functioning digital market. Countries use a prohibitive model of legal regulation of the turnover of digital rights and digital currency (prohibition of their issuance and turnover), partially prohibitive (restrictions on the turnover), partially permissive (admission of turnover, subject to certain conditions — licensing, regulatory sandboxes, etc.), and permissive model (allowing the turnover, subject to minimum requirements). From the experience of legal regulation of foreign countries, the attention of the legislator should be drawn to the need and possibility of licensing in relation to participants in the digital market, as well as to the successful experience of the functioning of regulatory sandboxes. When establishing law enforcement practice in the Russian Federation regarding the turnover of digital rights and digital currency, the existing experience in such jurisdictions as the United States, Great Britain, Australia as well as the effective legal regulation of the crypto industry in Japan shall be considered. Peculiarities of Tax Regulation of IT Industry in Russia and EAEU States https://law-journal.hse.ru/en/2023--4/876431572.html The article discusses the features of the application by the Russian Federation and by the member countries of the Eurasian Economic Union (EAEU) — republics of Belarus, Kazakhstan, Kyrgyzstan, mechanisms of tax incentives for the development of the domestic IT industry. Tax incentives, a simplified taxation system and the taxation regime in the territory of the Special Economic Zones (SEZ), Special Economic Zones (SEZ), High-Tech Park (HTP) are analyzed. The purpose of the article is to study the experience of applying tax incentives in the taxation of the IT industry in the Russian Federation and the member countries of the Eurasian Economic Union, substantiating the need to introduce into Russian tax legislation norms that stimulate the development of the domestic IT sector. Special attention is paid to the consideration of the procedure for access and accreditation of companies for the opportunity to work in the territory of the SEZ, FEZ or HTP with the use of a preferential tax regime. The article concludes that states as a whole apply all tax incentive mechanisms in a complex: tax incentives, a simplified taxation system, SEZ, SEZ, HTP, however, there are differences in their use, which ultimately affects the level of stimulation of domestic IT industries. The Russian Federation uses a selective and differentiated approach, which is why most IT companies are cut off from the preferential tax regime. The EAEU countries have developed more positive experience in this matter due to the simplification of the registration procedure required to enter the preferential zones, both for domestic and foreign IT companies and the admission to the HTP and SEZ of individuals  — IT specialists. The access of foreign companies from friendly countries as residents in the territory of the Russian SEZ will facilitate the introduction of new information technologies and the exchange of experience with domestic IT companies. In the study of the legal norms regulating the taxation of the IT industry in the INPP jurisdictions, special legal methods of research were used: comparative legal, method of interpretation of law, formal legal one. Legal Grounds of Director’s Liability within Corporate Relationships: New Trends of Court Practice https://law-journal.hse.ru/en/2023--4/876431709.html The article contains study in the civil liability of a director of a corporation both for inflicting damages and bringing to insolvency and infringement of creditors’ rights. The basic material for the present research is the most significant decisions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation of recent years, as well as current court practice on the issues of ascertainment of the grounds for director’s liability and qualification of the elements of his offence — breaching of his duty to act reasonably and in good faith in the best interests of the corporation. The authors state the same features of illegal behavior in both cases — corporate liability for damages and subsidiary liability. Meanwhile the article contains conclusion that the criteria of infringement of creditors’ rights are de facto isolated from the occasion of bringing the debtor to insolvency. The authors also underline inadmissibility of confusion of such elements of the offence as illegality, guilt, causal relation that can be frequently met in court decisions. Besides it, the research covers the aspects of qualification of unlawful behavior in cases, when decision is taken collegially by directorate and criteria of wrongful influence of a sole director in such situation. The unresolved problem of determination of the notion of guilt in corporate relations is highlighted in details; ideas for the criteria of innocence of the director are proposed. Considerable attention is also paid to evaluation of the notion of good faith in corporate law; the authors point out the increase of the standard of acting in good faith for the director and the uncertainty of legal boundaries of such behavior. Finally the research contains analysis of controversial court practice on the issue of imposing liability for making an unprofitable bargain by the director in case of a favorable conclusion upon such bargain made by the special committee of the corporation. Authors use system analysis, formal legal approach and other methods of exploration. Changing Developer of Problem Object: Analysis of Legal Regulation https://law-journal.hse.ru/en/2023--4/876500097.html The mechanism for transferring the rights and obligations of the original developer of a problem property to a new developer is not regulated at the legislative level. A change of developer in such cases is carried out according to the general rules of the Civil Code of the Russian Federation on changing persons in an obligation. This procedure acquires additional specificity when the developer is changed by attracting a private investordeveloper by the executive authorities of a constituent entity of the Russian Federation through preferences. The latter became possible relatively recently, after the novelties of 2014–2015, in the land legislation of Russia and not yet sufficiently researched in the legal literature, and also not universally recognized by regional authorities, and not fully taken into account in the legislation of the constituent entities of the Russian Federation. The purpose of the article is to study the innovations of the federal legislator aimed at correcting the situation with injured participants in shared construction, in the context of the implementation of the legal mechanism for change of original developer of a problem property by attracting a private investor-developer. As an illustration, process of changing the developer to a specific Problem Object located on the territory of the urban district of Volgograd City and the corresponding regional legislation adopted in pursuance of the legislative initiatives of the federal center. The criteria for analyzing the actual impact of legal regulation are a set of features of the Smart Regulation concept, in the presence of that a particular legal regulation can be considered as “smart” one. Consideration of the current legal regulation in this segment of the economy made it possible to state the positive nature of changes in legislation, which in a relatively short time led to a significant shift in solving the problem of affected participants in shared-equity construction. The problems faced by the developer-investor in the form of unintended negative consequences of taking over the rights to a problematic object, that are actually a dead end from the point of view of their resolution in court, but have an out-of-court legal solution, have also been studied. When writing the study, the following methods were inplemented: formal logic, system-structural analysis, interpretation of law. Legal Ground of Artificial Termination of Pregnancy at Woman Request: Russian and French Experience https://law-journal.hse.ru/en/2023--4/876504633.html The article provides a comparative legal analysis of legislation of Russia and France regulating relations linked with the question of the artificial termination of pregnancy (abortion) at the request of the woman. First, the evolution of the development of abortion legislation in Russia and France is examined, then the provisions of the legislation on abortion at the present stage are highlighted, the legal nature of the right to abortion is determined and how this right relates to the right to life of the unborn child is established. Special attention is paid to government support for families with children in both countries. The policy of the Russian (Soviet) state on abortion is not consistent. In 1920, abortions in Russia were allowed, in 1936 they were prohibited, in 1955 they were allowed again, and since 2011, some restrictions have been re-established for abortions. Abortion legislation in France has developed along the path of liberalization. The gestational age within which an abortion can be performed at a woman’s request has changed from 10 weeks (in 1975) to 12 weeks (in 2001), and since 2022 it is 14 weeks (in Russia — 12 weeks). In 2014, the condition previously required for a voluntary abortion, namely the woman’s distress, was removed. In 2016, the period for a woman to consider the abortion decision disappeared from French legislation. However, woman’s right to an abortion is in conflict with the unborn child’s right to life. This contradiction is resolved as follows: a woman’s right to freedom is limited by the duration of pregnancy, as well as other rules established by law; after this period, the law ensures protection of the unborn child’s right to life. High and stable birth rates in France are the result of government demographic policies aimed at rise of population by supporting families with children. The authors believe that the policy of banning and restricting abortion in Russia will not lead to an increase in birth rates. More effective measures of state support are needed. Restrictions on Father’s Rights in Criminal Law https://law-journal.hse.ru/en/2023--4/876575317.html In international and Russian criminal law, the issue of limitations on parental rights, particularly those of fathers, is among the most pressing and complex matters. Ensuring gender equality between women and men is an important task for the state. Inequality is also evident in the protection of family values, as, for example, the article will analyze the question of the lesser protection of fatherhood in Russia and the shift in focus towards motherhood, as demonstrated by the provisions of criminal law. The problem is seen as significant because contemporary trends indicate that society is gradually moving away from the unconditional dominance of women in matters of child-rearing. In certain countries, women still are compelled to defend their rights are infringed upon at the legislative level, while in most developed countries laws meticulously protect the interests of mothers in various aspects of public life. In some cases, one can even speak of gender discrimination against men. The Russian Federation can be considered as belonging to this group of countries based on several criteria. In this article, an attempt is made to analyze Russian criminal legislation for legal norms containing signs of restrictions on fathers’ rights. The authors explore the reasons for the insufficient protection of fathers’ rights and the diminishing role of fathers in child-rearing in the context of discrimination. This article contributes to a deep understanding of the issue and can be valuable for legislators, specialists in family law, and anyone interested in family and parenting issues in Russia. The relevance of the raised topic is due to the fact that Russian criminal legislation continues to contain norms that contradict the principles of gender equality enshrined in the Constitution of the Russian Federation. When conducting the study, the following methods were inplemented: content analysis, induction, classification. Features of –°ollection of Criminal Evidence Located Abroad https://law-journal.hse.ru/en/2023--4/876578299.html The article discusses a number of features of both the organizational, legal and procedural nature of the formation of evidence in criminal cases located on the territory of foreign states. The purpose is to list all legal ways to obtain criminal evidence from abroad. The analysis used materialistic dialectics, legal hermeneutics (legal exegesis), special legal, comparative legal methods, sociological approach and forecasting method. The study shows that the choice of a method for collecting evidence located abroad directly depends on the circumstances of international cooperation and the most evidentiary information. The author comes to the conclusion that today the collection of extraterritorial criminal evidence is possible through the use of the mechanism of mutual legal assistance in criminal cases or law enforcement assistance, including through the creation of joint (international) investigation teams, the provision of consular legal assistance in criminal cases, as well as during the direct production of investigative and other procedural actions on the territory of foreign states. In addition, an attempt was made to analyze the features and difficulties of obtaining electronic information on criminal cases, which is located abroad. The author gives a brief overview of the provisions of the so-called Cloud Law adopted in the United States of America. As an empirical basis for the study, materials of criminal cases that are in the production of Russian investigative bodies, sentences of Russian and foreign courts, as well as various documents of a departmental nature and international organizations were used. Comparative Analysis of Imposing Digital Services Taxes in Different Countries https://law-journal.hse.ru/en/2023--4/876579453.html Tax relations are seriously subject to changes caused by new challenges, since they are a direct consequence of the economic activity of business entities. At the same time, the problems that arise when taxing the activities of digital companies abroad are relevant for Russia. Currently, international tax coordination can no longer be identified only with traditional double tax treaties. Many jurisdictions have begun to formulate unilateral rules for taxation of the digital economy. Inconsistency of these rules is likely to increase the tax burden of a number of multinational corporations, given that each state seeks to protect its interests. The article identifies legal challenges to the fiscal interests of the Russian state related to changes in the forms and instruments of international regulation of taxation of global profits of digital business models and the development of unilateral tax measures as an alternative to these projects. Based on a comparative legal analysis of the legislation of the states in which digital taxes have been introduced, possible scenarios for the development of tax regulation in Russia have been developed. Autonomous Driving in the Digital Age and Legal Protection: Chinese Experience and Development Paths https://law-journal.hse.ru/en/2023--4/876580601.html In the digital age, autonomous driving, as an innovative development, is rapidly changing the perception of transportation and travel. The most important feature of autonomous driving is the dominance of artificial intelligence technology, and the driving process is system engineering, in which the machine continuously collects traffic information, analyzes the information and self-learns to achieve autonomous driving. In China, with the continuous progress of domestic technology and the development of commercial applications, autonomous driving technology is gradually entering daily life. Many Chinese automobile companies such as Great Wall, Changan and Xiaopeng have launched unmanned models, and other automobile companies have also started to launch autopilot cabs. The combination of technologies such as artificial intelligence, big data, and the Internet of Things (IoT) with the automotive industry has greatly contributed to the growing importance of artificial intelligence and the adoption of internet technology in China’s automotive industry. It should be noted that the autonomous driving technology itself is still in the development and improvement stage, so its management is also quite complex. All this creates a number of challenges for legislation in this area. The application of these technologies not only changes the traditional automotive market and industry, but also has an unprecedented impact on the current legal regulations in China. The current legal system in China faces challenges on key issues such as determining liability for road accidents and protecting data security. This article analyzes in detail a series of policies to support the development of the autopilot car industry in China. The major legislative challenges of autonomous driving are revealed and solutions are suggested. With the rapid development of the autonomous driving industry, only the accelerated establishment of an effective regulatory framework for autonomous driving safety adapted to future development can promote innovation and accelerate the realization of the plan to integrate autopilot vehicles into the human society of the digital age.