, 2021 (1) http://law-journal.hse.ru en-us Copyright 2021 Mon, 15 Mar 2021 16:32:03 +0300 Corporate Control in Russian and Foreign Law: Relations of Economy and Law https://law-journal.hse.ru/en/2021--1/452142895.html The accelerating pace of development of socio-economic relations is a powerful impetusfor the modernization of legislation, which in the conditions of globalization of marketsshould not only preserve the stability properties, providing a balance of private and publicinterests, but also create conditions for the further development of entrepreneurship.Legislation-designed models for regulating corporate relations and control are in thezone of close attention of business, regulators, and the legal community. Over the entirehistory of the development of corporate law, the legislator has not found the optimal formof combining the dispositive and peremptory regulation of corporate legal relations,providing an adequate reflection of economic realities and resolving the conflict ofmultidirectional interests of participants in corporate relations. The issues of choosingthe priority of protected interests, determining the limits for exercising and protectingcorporate rights, finding acceptable forms of concentration and implementing corporatecontrol in business are relevant. The market knows a wide arsenal of multifunctionalcontractual methods for acquiring and splitting corporate control (repos, equity loans,options, swaps, derivatives, securities difference agreements, etc.) that ensure theprivate interests of investors and lenders. However, ensuring the freedom to exerciseprivate interest in choosing a corporate control model presumes that the public interestis in the stability of turnover and the protection of an indefinite number of personsparticipating in it, which can be ensured through mandatory public disclosure of corporatecontrol information in the corporation.In modern conditions, the legal regulation of theconcentration and implementation of corporate control is a prerequisite for creating ahealthy investment and business climate in the economy, guarantees for the interests ofinvestors and participants of the corporation, which should be taken into account whendeveloping corporate legislation. The definition and differentiation of the economic contentand legal form of corporate control is necessary for the further development of mechanismsand models for the implementation and protection of corporate rights. The legal regulationof corporate control is not homogeneous and is not limited only to the subject of civil lawregulation of corporate relations; according to industry, certain segments of corporatecontrol relations can be regulated by competition and financial law. Axiological Aspects of State Control and Supervision https://law-journal.hse.ru/en/2021--1/452144874.html The subject of research is state control and supervision from the point of view of axiologicalapproaches. The first level of the latter makes it possible to determine value of state controland supervision as administrative forms; the second level forms variants of theoreticaland legal substantiation of the correlation between the control and supervisory activitiesof the state and the totality of values protected by law. The aim of the article is to proposemethodological techniques for determining the value of state control and supervision,which is understood as the importance of these institutions in the public administrationsystem as a whole in the context of the possibility of using other administrative formsto achieve regulatory goals. The value of the control and supervisory activities of thestate is substantiated from the point of view of the possibility of replacing state controland supervision with other regulatory mechanisms within the framework of deregulationprocesses (horizontal approach), as well as taking into account previous development of these administrative forms (evolutionary approach). Value of state control andsupervision is seen as the ability to ensure the protection of legally protected values withminimal interference of public authorities in controlled activities. Value of the consideredmanagement forms is substantiated using the category of deregulation, which isunderstood as: process of development of a certain sphere of social relations; process ofdelegating state powers; trends to expanding the freedom of subjects, transition to “soft”regulation; process of reducing and simplifying administrative procedures (proceduralderegulation). Determination of the value of state control and supervision is associatedwith the justification of the possibility of replacing these management forms with othersin relation to a certain area of regulation, which determines a specific ratio of variousmanagement forms and mechanisms. From the point of view of evolutionary approach,value of state control and supervision is determined by the previous development of theseadministrative forms in the system of state power. Within the framework of the theoreticaland legal substantiation of the category “values protected by law” in the system of statecontrol and supervision, a variety of positions are highlighted. As a conclusion, a modernformula is proposed: state control and supervision — socially significant results —mandatory requirements — values protected by law. Category of Object in the Theory of Prosecutorial Activity: Theoretical and Applied Aspects https://law-journal.hse.ru/en/2021--1/452145649.html The article discusses the problem of determining the object of prosecutorial activity,taking into account the current level of development of legal science, federal legislation,development of supervisory and non-supervised activities. The subject of the researchare the normative acts regulating the activities of the prosecutor, the conclusionsof researchers on the issues of determining object of prosecutorial supervision andprosecutor’s activities, the content of legal relations with the participation of theprosecutor. The purpose of the study is to explore the characteristics of the object foracademic purposes and practical prosecutorial activities. At present, the theory has notdeveloped a consensus on the subject of the prosecutor’s activity; various approachesand concepts are proposed that are not without flaws. In this regard, the article definesand substantiates approaches to determining the content and essence of the object inrelation to prosecution activities as a practice, science, for research. The content of legalrelations with the participation of the prosecutor within the supervisory and non-supervisoryfunctions of the prosecutor’s office of the Russian Federation has been analyzed. For adetailed acquaintance with the opinions of scholars, the article analyzed a brief way ofestablishing views on the studied issue in the legal science of the Soviet period and inmodern times. The conclusion is made about the need to separate the object of legal relations with the participation of the prosecutor and the object of prosecutorial activities.The authors support the view that the object of prosecutorial supervision is the behavior,actions, decisions of the supervised entities. The bodies, organizations, and their officialsinspected by the prosecutor are subjects of legal relations with the participation of theprosecutor, but not the object of supervision. As a result of the research, it is proposed toconsider the activity of the subjects of legal relations, the specific subject of which is theprosecutor when exercising the relevant non-supervising powers, as the object of nonsupervisionactivities of the prosecutor. The object of prosecutorial activity as a wholeis also determined. The study of the formulations of the object of study in dissertationsdevoted to prosecution activity led to the conclusion that at present there are no commonpositions in the formulation of the object and subject of research, which requires thathome researchers pay more attention to this problem. Muslim Law in the Context of Law-Genesis https://law-journal.hse.ru/en/2021--1/452145865.html The subject of this article is actually first of all in consequence of insufficient investigation ofa general theoretical conception of the law-genesis in the frame of which the formation ofthe Muslim law can prove its correctness. Conception prevailing in Russian legal literatureand proceeding from the inseparable connection between state- and law-genesis is “stall”in some aspects of this problem. The clarification of a reason for this situation is one ofthe purposes of this article. The other purpose is the attempt to mark a methodology ofthe investigation of a problem of a law-genesis — on its theoretical level and in referenceto Muslim law. Author examines law-genesis in the context of a world evolution. In theframe of this approach to social factors of the origin of the law preceded the naturalfactors of the same character and a thesis about the origin of the law at the same time asa human society stands as a starting. A conclusion that the law-governed nature of thedevelopment of the behavior and of the mechanisms of its regulation was formed into thenatural stage of the world evolution -this conclusion acquires the most importance. Theyarise in the form of reflexes and then were perceived by the sincrete norms of the custommononorm.In his way sharia as a basis of the Muslim law perceived in general in the newhistorical condition thus parameters of the mononorm as over natural character of itsorigin, sincretism of its norms, immutable, the absence of the necessity of the apparatwhich is possible to compel to observe the norms of the charia. A structure of the Muslimlaw reflects also an influence of the conceiving civilization. Typically various character ofthis legal cultures stipulates the necessity of the religious-legal schools as a connectionsection between immutable norms of the sharia and the changeable social relations. Asa result, the Islamic jurisprudence, or fikh appears. In a character of functions of thisschools which are direct to maintenance in working conditions of the sincret norms ofthe sharia author sees the law-governed phenomenon which is typical for an early-classsystem of law and not enough theoretically comprehend. Today the structure of the Muslimlaw includes also any elements of the early-class epoch. Institutional Obstacles for Initiating a Criminal Case https://law-journal.hse.ru/en/2021--1/452146133.html The nature of institutional obstacles to initiating a criminal case is analyzed in the article.By virtue of Part 8 of Art. 448 of the Code of Criminal Procedure of the Russian Federationinitiation of a criminal case under Art. 305 of the Criminal Code is possible only after apreliminary reasoned judgment of a higher court (in relation to the court that adopted theunjust judicial act) on the circumstances that indicate the commission of this crime. Thegiven example reveals in detail the problems of such legal regulation, and also analyzesother elements of a crime, which, as a basis for criminal liability, presuppose the presenceof a preliminary motivated judgment about the circumstances that subsequently becomethe subject of proof in a criminal case (Articles 157, 197 of the Criminal Code). The presenceof institutional obstacles to the initiation of a criminal case, in particular, prejudgment,raises the question of the legal nature of this institution, since in case of prejudgment, criminal prosecution is possible only subject to a preliminary motivated judgment of oneor another state body. Based on the example of the historical comprehension of similarprovisions (part 1.1 of Article 140 of the Criminal Procedure Code), the conclusion isdrawn about the dual material-procedural nature of this institution, as well as the factthat when such provisions are included in the Criminal Procedure Code of Russia, it isnecessary to change the criminal law. Consistent, predictable legal regulation can beensured only if the introduction of institutional obstacles to the initiation of a criminal caseis simultaneously accompanied by a change in the norm of the criminal law by fixing thecondition of punishment in its hypothesis. Ignoring the material and legal component willlead to a violation of the constitutional principles of action in time of the law that worsensthe punishment, namely Part 2 of Art. 54 of the Constitution of the Russian Federation inthe interpretation given by the Constitutional Court, as well as in violation of paragraph 1of Art. 7 of the European Convention for the Protection of Human Rights and FundamentalFreedoms as interpreted by the European Court of Human Rights. Relations On Actual Upbringing of a Child: Family and Legal Institutionalization https://law-journal.hse.ru/en/2021--1/452146710.html Analyzing the current state of the doctrinal problem and considering actual upbringingof a child as a type of family upbringing, the author asks what requirements a relativelycomplete theoretical concept of the actual upbringing of a child should meet in order torecognize the problem if not solved, then at least bring research novelty to it. Its currentstate is seen as critical from the point of view of a set of theoretical tools, in the structureof which analysis prevails over synthesis and there is a constant immersion in realitywith the issuance of recommendations to the legislator in the language of social servicespecialists. While the question of what is due to the current position of the legislator, whohas renounced the positive status regulation of relations on the actual upbringing of thechild and left them in the category of direct, science does not ask. The doctrinal attitude tosuch a position is usually exhausted by disagreement. Such views not only do not reflectthe current social mood of state policy in matters of family and child-saving, but alsoinform the problem of the quality of cultural limitations, the consequence of which is theunderestimation of relations on actual education as a significant intra-family educationalresource. Answering the theoretical question, the author offers a more spacious viewof the problem, which allows us to give it the necessary dynamics, competition ofconcepts, methods and methods of description. Comparing the problem under studywith achievements of socio-humanitarian research surrounding it, the author finds nogrounds to support the widespread scientific views that actual upbringing is a weakenedand unprotected phenomenon from the point of view of the child’s interests. Discussingthe ways of possible legislative participation in this type of social relations, the authorargues that modern legislative attempts to interfere in these relations are possible only in one direction, by giving them qualities that indicate the derivation of these relations fromrelations for the family upbringing of a child. The Legal Status of International Organizations as Third Parties to International Treaties in Accordance to Principle pacta tertiis nec nocent nec prosunt https://law-journal.hse.ru/en/2021--1/452147713.html The article is devoted to the genesis of the principle of pacta tertiis nec nocent necprosunt (treaties do not create either obligations or rights for third states without theirconsent) in the law of treaties with respect to international organizations. This principle,originated from the Roman law, was enshrined in the existing law of treaties throughthe relevant provisions of the Vienna Convention on the Law of Treaties between Statesand International Organizations or Between International Organizations of 1986. Theauthors reveal a number of defects related to the duplication of provisions of the ViennaConvention on the Law of Treaties between States and International Organizations orBetween International Organizations of 1986 concerning the legal consequences oftreaties in relation to third parties, originally established in the Vienna Convention on theLaw of Treaties in 1969. Such an approach does not allow to cover the whole possiblerange of international relations with participation of international organizations, especiallywhen it comes to the establishment of obligations and rights of member States ofinternational organizations. In practice, it emerges the questions as to the activities of thesecretaries-general of international organizations as depositaries of international treaties,as well as the expenditures of member States relating to the functioning of the organsof international organizations. The article concludes that, in fact, the proper regulatoryeffect of the provisions of the Vienna Convention of 1986 is only manifested with respectto one of the possible types of third organizations, namely international organizations thatare not parties to the relevant international treaty. The issue of the legal effects of treatiesconcluded by an international organization on its member States stands aside. In thisregard, it is suggested that in the near future, addressing the remaining legal uncertaintyand the search for legal mechanisms to resolve the mentioned issue will be carried outwithin the international organizations themselves through the adoption and establishmentof their own internal rules of activity. International Legal Mechanisms for Counteracting Health Emergencies https://law-journal.hse.ru/en/2021--1/452148005.html The pandemics of the coronavirus infection COVID-19, which broke out in 2020, in afew months has affected almost every state regardless of the level of economic welfare,resulting in catastrophic socio-economic damage, an unprecedented loss of GDP, increasein unemployment, and a collapse of health systems. The consequences of the infectionspread have become a vivid ineffectiveness indicator of the international legal mechanismsresponsible for regulating health issues at the global level. The International Health Regulationshave demonstrated their total failure in countering new epidemiological threats, and WHO hasonce again proved a total failure to act as a global leader in addressing health problems. Thelack of a vaccine, as well as other health technologies at the time of the pandemic onset,was an indicator of systemic challenges in implementing global strategies to protect fromnon-military threats and achieve universal health coverage. This article discusses the mainstages of the international cooperation development in action against the spread of infectiousdiseases, and also formulates their importance on the agenda of international organizationsin the formation of the concept of global security. The article analyzes the practice of applyinginternational health regulations in the context of the emergence of new infectious pandemicsand formulates recommendations for improving the regulation of processes aimed atpreventing and fighting against infectious diseases. Special attention is paid to assessingthe effectiveness of the mechanism for defining a “public health emergency of internationalconcern” based on the example of the most recent declared pandemics since the revisionof the IHR. The article articulates the main barriers to the development of vaccines as themain health technology for countering the spread of infectious diseases, and also examinesthe main international mechanisms for ensuring universal coverage of essential healthcare, including successful international initiatives to attract funding. Based on the identifiedsystematic threats in the system of global health management, the article formulates anumber of recommendations for improving the activities of WHO. Development of International Law Regulations of Combating Spread of Infectious Diseases https://law-journal.hse.ru/en/2021--1/452148318.html Infectious diseases are a significant danger for every country in the world. Active spread ofcoronavirus (COVID-19) today is another striking example of the issue. States have longbeen making joint efforts to achieve effective results in combating infectious diseasesthrough the adoption legal and various other measures. The paper gains an insight in the theoretical issue of the key developments that occurred in the field of study throughouthistory. It improves understanding of importance of main goals that states pursued whiledeveloping international law. In order to achieve such results, the main international legaldocuments adopted throughout history in this area, and their contents are analyzed.Throughout history three main historical phases identified. Two very opposite approacheson combating infectious diseases were found by the author in legal documents. Theanalysis indicates that currently international cooperation, the involvement of states injoint activities to combat diseases in the framework of international organizations hasincreased. However, highly criticized approach based on Westphalian principles is stillunderlines international regulations on combating infectious diseases. The methodsemployed in the paper include inductive and deductive analyses, as well as historical andteleological method. The work is the starting point for further research in this area. Consumer Credit Regulation in EAEU States https://law-journal.hse.ru/en/2021--1/452148655.html Treaty on the Eurasian Economic Union of May 29, 2014 has constituted the EurasianEconomic Union. The current economic crisis, fraught with the coronavirus pandemic,clearly shows necessity for legal protection of entrepreneurs’ and individuals’ economicinterests first of all in the field of financial services and consumer lending. The purposeof this publication is to research contemporary issues of consumer lending, comparativeanalysis and application of legislation (case-law) of Member States of the EurasianEconomic Union. The analysis is carried out in order to identify the level of protection of the rights and legitimate interests of individuals while concluding a consumer credit.Considering that independent states before the formation of the Union have formed theirown regulatory and legal framework, including on lending issues, the legislative acts of theanalyzed Member States varied significantly. Moreover, they did not adequately protectthe rights of the parties to these agreements, especially individuals. Financial institutionssignificantly violated the rights of citizens, the conditions under contracts they concludedwere of a one-sided nature, which led to numerous complaints, lawsuits in courts, as wellas coverage in the media of high-profile cases related to the inability of individuals to payoff debts to financial and microfinance organizations. The Member States, having unitedin the Eurasian Economic Union, carried out coordinated work to improve legislation inmentioned area, as a result of which the rights of individuals — participants of a consumercredit are protected to a greater extent. However, according to the author, work in thisdirection, especially in the context of the economic crisis and pandemic, should becontinued. The author makes proposals for improving both national legislations and thelaw of the Eurasian Economic Union, as well as the practice of its application. As a resultof the research, the author comes to the conclusion that the EAEU should adopt a specialAgreement on the credit contract and the principles of consumer lending. Therefore, it isnecessary to adopt a special law on consumer lending in the EAEU Member States. Legal Regulation of Employment Probation Period: Experience of Foreign Countries https://law-journal.hse.ru/en/2021--1/452149041.html In times of economic instability, organizations are looking for minimization costs andincrease its efficiency. The legal regulation of labour offers possibility of conductingprobation at the beginning of employment to check employee’s labour qualities andcompliance with the work. The employee could also evaluate the working conditions at thenew employer. Probation is attractive for the employer as a simplified and cost-effectiveway to dismiss employees. The employer has the right to select permanent employeeswho have successfully passed the probation, since employees on probation are subjectonly to minimum labour standards. The aim of the research is a comprehensive analysisof the balance of flexibility and rigidity in employment legal regulation in foreign countriesin order to develop recommendations for optimizing probation labour legislation. Themethods are analysis and synthesis, abstraction and generalization. The features of legalregulation in the main legal families affect legal regulation of labour in foreign states,important from the point of view of finding a balance between employers and employees interests in terms of flexibility and rigidity of regulation of labour. The article considerstwo main models of legal regulation of probation abroad. They are characterized byboth general and special patterns. Common patterns include: lack of a state definitionof probation; consolidation of a single list of criteria for regulation of probation (duration,rules for its changing and termination); prevention of discrimination and consideration ofthe legal status of special subjects to eliminate it and improve position in labour market.Special patterns are associated with mechanism of fixing maximum period, types ofemployment contracts, concepts of regulation of labour, other legally fixed periods ofwork that can affect legal status of employee on probation. The result of the analysis isproposals for improving regulation of labour in terms of combining flexibility and rigidityof legal regulation of labour.