, 2021 (2) http://law-journal.hse.ru en-us Copyright 2021 Thu, 22 Jul 2021 07:46:53 +0300 Law and Digital Transformation https://law-journal.hse.ru/en/2021--2/488966202.html The coexistence of the phenomena of digitalization and law determines their mutual influenceand actualizes the scientific task of studying the impact that manifests itself inrelation to each other and the changes that it causes. The technicalization of society contributedto its further development, its goals and directions were largely determined bypublic and other social institutions, including law. In the modern period, digitalization isin the same vein of combining social and technical mechanisms for managing processesin society, moreover, in a wide socio-economic context and in connection with the implementation of the state’s strategic national goals. A noticeable influence of similarphenomena and processes is observed in foreign countries. These circumstances predeterminethe challenges for the law. The article presents an attempt to consider thelegal problems of digitalization from the point of view of a comprehensive, cross-sectoraland systems analysis, which made it possible to overcome the excessive specializationof legal sciences’ branches, keep in mind the dynamics of the relationship between nationaland international law and also take into account the context of the achievements ofother social sciences. New digital technologies fill the functional impact of law with newcontent, which, firstly, is reflected in the dynamically developing sectoral legislation, andsecondly, in a concentrated form it is manifested in the formation of general regulatorylegal acts that create the basis for digitalization. Digitalization transforms the nature of theactivities of legal entities and the volume of their legal relations, generates new forms ofmaking managerial decisions and responsibility for their failure, problematizes the legalnature of a technical (electronic) legal act and its place in the system of normative legalregulation, raises the question of the possibilities and limits of automation of law. As aresult of the study, the authors come to the conclusion that in the context of the digitaltransformation of the economy, social sphere and governance law retains its stable roleas a regulator of socio-economic and other processes in society, ensuring both sustainablestability and the necessary transformative activities of people and public institutions. Electronic Interaction and Digital Technologies in Corporate Governance of a Joint Stock Company in Russia https://law-journal.hse.ru/en/2021--2/488965607.html The article is devoted to key issues in the development of legal regulation of electronicforms of interaction between participants in corporate relations in Russia. The authorconsistently examines the development of legislation and the practice of its applicationsince the mid-1990’s until present day. The impact of the emergency legislation createdto counter the spread of coronavirus infection in 2020 is separately considered. The authoranalyzes in detail the materials of the Bank of Russia, various political attitudes. Forthe first time in special literature, the correlation of the development of electronic formsof interaction in private and public relations is shown. The fundamental current legislativeinitiatives are considered. The purpose of the study is to formulate the main directionsof the development of legal regulation, based on the analysis of the experience of thedevelopment of legislation, including regulating public relations. To implement this, thefirst part of the study (introduction) shows the traditional approach to corporate actions,evaluates its pro and contra; then the second part of the study describes and evaluatesthe first attempts of the electronic Interaction and digital prospects in the 2000’s, includingelements of electronic interaction in legal regulations; then (in the third part) a radicalchange in the legislator’s approaches to regulation in 2010 is shown, estimates are givenof the state of regulation for the period from late 2019 to early 2020 (before the start ofthe coronavirus pandemic); in the fourth part of the assessment of current draft laws,as well as the author’s proposals in terms of directions of regulation are formulated andargued. The main conclusion was made about the need to expand the use of electronicforms of interaction for all legal entities, as well as the correlation of private law and publiclaw regulation. Strategic Planning in the Natural Resource Sphere: Legal Aspect https://law-journal.hse.ru/en/2021--2/488965636.html The subject of the research appear relations on strategic planning as an instrumentfor ensuring the rational use and protection of natural resources. The purpose of theresearch is to identify the problems of formation of the institute of state strategic planningin the sphere of using and protecting natural resources in the Russian Federation, as wellas to formulate scientifically based proposals to overcome them. The article examinesthe main legal problems of improving the institute of state strategic planning in the useand protection of natural resources sphere, describes the socio-economic prerequisitesand difficulties in the development of this Institute in the system of state management ofnatural resources, formulated proposals for the modernization of conceptual approachesand legislative regulation of natural resource relations for these purposes. In the courseof their research, the authors use a number of special legal methods of cognition, inparticular, methods of legal modeling and legal forecasting. Using the method of legalmodeling, the authors consider the possibility of extrapolating legal tools used in the fieldof strategic planning to the sphere of use and protection of natural resources. In turn,using the method of legal forecasting, the authors identify the main promising directionsfor the development of the strategic planning system in the natural resource sector, aswell as suggest possible ways to improve the legal regulation of relations in this area. As aresult of the scientific research conducted in this article, the authors come to conclusionsabout the need to formulate and consolidate the basic principles and approaches tostate strategic management of natural resources as an independent direction of statestrategic planning; to consolidate a number of categories and norms that determinethe role of the corresponding natural resource in the socio-economic development ofsociety; development of the concept of state strategic management of the use of naturalresources to ensure coordination of activities of state authorities and local authoritiesin this area. Both the legislation and the legal doctrine should more clearly define themain priorities of state policy in the field of natural resources management, and alsoneed to develop principles and provisions aimed at their harmonization with the legal andorganizational conditions of state strategic management in the field of natural resourcesmanagement. Damages Recovery Claims Regulation in Civil Codeof RF and in Principles of European Contractand Tort Law https://law-journal.hse.ru/en/2021--2/488965732.html the monetization of another person’s negative property consequences and the assignmentof its financial results to the complicit party. In the present paper the evolution ofthe said legal institution is reviewed. At the dawn of our civilization the liability manifesteda response to a non-compliance with prescriptions of law and represented a fine to bepaid in a multiple amount of the loss. As our society progressed, we started classifyingthe monetary repressions into civil and criminal liability, into liability acting as a responseto personal affronts and liability for failure to perform contractual or non-contractualproperty obligations. At the same time penalty failed to restore one’s financial positionin some cases and, conversely, allowed for abuse of rights. Another way of legal protectionbecame widely adopted — damages for losses. The concept of loss of profit wasalso accepted into widespread professional use as an important component of damages.The Russian Civil Code provided for the development of the said instrument, as it wasdefined as “future losses for the restoration of the violated right”. Unfortunately, at thepresent time it does not find a widespread application among litigants. Judges also failto comprehend such a broad understanding of possible damages. The comparison betweenthe traditional and modern concepts regarding this issue found its reflection in thecorresponding chapter. The structure of gross domestic product (GDP) with prevailingservices sector is the economic parameter of the post-industrial society and its fundamentalattribute. The civil liability of service producers is of a much stricter nature. Forinstance, they are forced to pay damages for a rightful unilateral repudiation of the contract,no matter customers are citizens or not, whereas the legal tradition prescribes topay damages only if the party acted in breach of law. In the present work the author drawsa conclusion on the increasing importance of damages and their new role. Acquisitive Prescription Requisites and the Need of their Reform https://law-journal.hse.ru/en/2021--2/488965755.html The article considered such requisites of acquisitive prescription as bona fide possessionand possession of a thing as one’s own. The author reveals problems of their applicationexisting in practice; analyzes the ways of possible changing article 234 of the CivilŠ”ode of the Russian Federation, including a proposal to remove bona fide possessionfrom necessary requisites of acquisitive prescription. The author comes to the conclusion that requisites of acquisitive prescription depend on its goals as a basis for acquisitionof property rights: as a mode to fill in the missing basis for the acquisition of this right, oras a mode to replace the owner who has actually removed himself from the possessionof the thing. In some cases, the law enforcement practice demonstrates the need for abroader understanding and application of the acquisitive prescription as the basis for theacquisition of property rights. This justifies the possibility of a differentiated approach tothe presentation and interpretation of the requisites of the acquisitive prescription, butnot their exception from the norms of the Civil Code of the Russian Federation. Liability for Non-Filing of a Bankruptcy Petition (the Novels of Insolvency Legislation and Current Corporate Rules) https://law-journal.hse.ru/en/2021--2/488965859.html The article is devoted to the analysis of the problems concerning the definition of thegrounds of subsidiary liability of those who are responsible for initiation of the insolvencyprocess by filing the debtor’s petition. The emphasis is put on the results of the bankruptcylegislation reform of 2017: the research covers court practice over the period of last threeyears; gaps and controversies of the renovated legislation revealed by representatives ofthe legal doctrine. One of the key aspects of the research is the correlation of the novelsof bankruptcy legislation with the basic current rules regulating corporate relations.The role of the director of the corporation is examined in correlation with other bodiesor controlling persons who directly influence his / her decisions regarding filing thebankruptcy petition or refraining from doing this. The authors highlight the ambiguity of the situation when there are two or more chief executive officers who can potentiallyrepresent opposite positions of different shareholders within the pre-bankruptcy period.Special attention is given to the problem of non-logical correlation of powers of the chiefexecutive officer and the general meeting of shareholders authorized to make a decisionon the liquidation of the corporation. The formal absence of grounds of liability of themembers of the collegial bodies of the corporation and controlling persons (such asshareholders putting pressure upon the director in order to avoid the initiation of theinsolvency process at the stage of the occurance of the debtor’s obligation to file thepetition) seems to be a major gap in current legislation. The authors are demonstratingthe necessity of spreading liability on the informed members of the board of directorsand controlling persons, non-acting or acting against filing the petition. Also the researchpresents the analysis of the legal barriers for imposing the initial obligation to make adecision to file a bankruptcy petition on the collegial body of the corporation, such asuncertainity of the scope of persons liable for non-using the right to request to convenean extraordinary meeting of shareholders; ignorance of the role of the board of directorsin the corporation; lack of attention to differences in the scope of powers of the generaldirector in a joint-stock company and a limited liability company; impossibility to demandto vote for liquidation; unreasonably shirt terms of convening an extraordinary meetingunder the new rules of Bankruptcy Act. The authors are proving that the scope of liablepersons should depend on the type of the corporation. The conclusions concerning thelimits of shareholders’ liability are suggested as well. The Concept and Nature of Sports Responsibility https://law-journal.hse.ru/en/2021--2/488965947.html The article explores the concept of sports responsibility and its legal nature. The polemicof the views of a number of scientists on the definition of the concept of legal liability isgiven. The author concludes that legal liability is a legal relationship arising from the fact ofan offense between the offender, the victim and the state, in which the offender’s duty toundergo the adverse legal consequences of their illegal actions corresponds, firstly, to thestate’s obligation to apply state coercive measures to it, and secondly, the right of the victimto demand that the state bring the offender to legal liability and redress. This approach tounderstanding legal responsibility should serve as a methodological basis for consideringthe concept of sports responsibility and allows a more focused study of its content. It isproved that sports responsibility is an independent type of legal responsibility, which is alegal relationship arising from the fact of violation of sports norms and rules adopted bythe law by an individual (athlete) or sports organization recognizing such norms, and thecontent of which is the obligation the subject of physical culture and sports who violated thesporting norm to undergo adverse consequences provided for by the sanction of sportsstandards, and enshrined in law the right of the All-Russian sport federation apply to theoffender provided sport rules coercion. The characteristic features of sports (sports andlegal) responsibility that distinguish it from other types of legal responsibility are: Featuresof the subject of sports responsibility, which consists in the fact that a person recognizing the sports norm is subject to bringing to sports responsibility; features of the coercivemeasures applied, which consist in the fact that coercive measures against the offenderare established and applied by a non-governmental organization (the All-Russian SportsFederation) with the direct authorization of the state, fixed by federal law. These featuresdetermine the main specificity of sports (sports and legal) responsibility. This specificityconsists in the fact that, being a legal responsibility, sports responsibility carries some(residual) signs of public responsibility. Criminal Evaluation of the Exercise and Abuse of Right https://law-journal.hse.ru/en/2021--2/488966015.html The article examines the issues of harm caused by a person who acts on the basis ofhis subjective right. This problem is one of the constitutional foundations of criminal lawand has of a cross-sectoral nature. The article analyzes both theoretical provisions andlegal positions of the Constitutional Court of the Russian Federation, the practice of theEuropean Court of Human Rights and the Supreme Court of the Russian Federation.The constitutional principle of proportionality was used to develop a methodology forcriminal law assessment of the abuse of human right, and its applicability was checkedwith specific examples. The analysis shows the importance of the use of the right as acircumstance precluding wrongfulness of the action. Due to the free use of natural rights,it cannot be identified with the execution of the law or duty. The need for differentiationof the primary and derivative rights, determination of the real right holder is shown.Situations of refusal of subjective right and its delegation were analyzed. Criteria havealso been proposed for distinguishing between the lawful use of a right and its abuse,which serves as a legal guarantee of individual rights. Signs of abuse that may be takeninto account by the legislator are the caused harm, the way in which the right is used, andthe purposes and motives for its realization. The assessment of public danger depends oncomparing these signs and determining the degree of their manifestation in a particularaction. The author concludes that criminal liability for abuse of a person’s constitutionalright is inadmissible if the abuse itself is minor or has minor consequences. Abuse of theright must be distinguished from an independent act — arbitrariness. Two factors arerecognized as key to assessing the methods of exercising a right — the typical or atypicalnature of the chosen behavior for a particular competence in a specific historical period,as well as its relationship to the content of the right. Cases of cover by the subjective rightto commit a crime were analyzed. When assessing subjective signs, it is also necessaryto determine the predominance of lawful or unlawful intentions in a person’s behavior Intra-Branch Method of Codifying Private International Law (Case of Latin American States) https://law-journal.hse.ru/en/2021--2/488966067.html The codification of legislation on Private International Law (PIL) is a process representingthe structural and substantive ordering of legal rules to systematize and optimize theregulation of private law relations that have a legally significant connection with the legalorder of two or more countries. It is advisable to designate the following methods of codificationof PIL. Intra-branch codification — the act of general codification of civil law includesa special section that regulates most of the institutes of PIL. Within the framework of this method, two main forms of its result can be distinguished: a) a simple intra-branchform where the regulation of the general part of PIL and the rules for choosing the applicablelaw is allocated in a separate section of the Civil Code. The rules of International CivilProcedure (ICP) are fixed in the acts of codification of civil procedure law; b) a complexintra-branch form where the act of codification of civil law includes the institutions of thegeneral part of PIL, conflict-of-laws rules and rules of ICP (jurisdictional and proceduralrules). Inter-branch codification — the act of general codification of civil law includes aspecial section containing the main rules and institutions of PIL. Separate institutions ofthe Special part of PIL are included as independent sections in the acts of special branchcodifications. Autonomous branch codification — the adoption of a special law codifyingthe general provisions and conflict-of-laws rules of PIL. Complex autonomous codification(full-scale codification of PIL/ICP) — the adoption of a separate law or code containingboth the fundamental principles and conflict-of-laws rules of PIL and the main rulesof ICP. The modern legislator demonstrates all the variety of forms and ways of codifyingPIL, while it is interesting to see what preferences are shown by certain countries. Thelegislation of Latin American countries is chosen for the analysis, since from the middleof the 19th century to the present time, the processes of codification of PIL are extremelyactive there. According to the results of the study, it is concluded that the majority ofLatin American countries choose the path of intra-branch codification of PIL (its simple orcomplex form). This method of codification is not free from drawbacks; the best optionis a complex autonomous codification, which has a three-part structure: (1) internationaljurisdiction, (2) applicable law, (3) recognition and enforcement of foreign judgments andarbitral awards. In writing this study, the authors used the methods of formal logic, comparativelaw, and the historical method. Legal Jurisdiction Concerning the Disputes in Cyberspace in the USA https://law-journal.hse.ru/en/2021--2/488966113.html In the context of the development of modern digital means of communication, the articleraises the question about the mechanism for establishing judicial jurisdiction for resolvingcross-border private law disputes. The author makes comparison flexible and strictjurisdictional criteria regarding in relation to cyber-disputes. The article reveals both positiveaspects of flexible criteria for establishing jurisdiction that are more appropriate forcyberspace platform and negative aspects that increase the probability of a jurisdictionalconflict.The problems of the conflict of jurisdiction actualize the author’s appeal to thestudy of the bases of the realization of judicial jurisdiction. The author raises the questionto what extent the manifestation of the jurisdiction based on flexible criteria in theera of cyberspace differs from the manifestation of jurisdiction before cyberspace.Theauthor also analyzes the restrictive mechanisms developed in USA in relation to relationsin cyberspace (the Calder test, the Zippo test), which leads to the conclusion that law enforcementagencies need to use a multidimensional differentiated analysis that includesthe study of several factors, excluding a formal, mechanistic approach. Subjective factorsinclude such circumstances as the analysis of the plaintiffs ‘ interest in consideringthe dispute in the plaintiff’s court; the assessment of the burden on the defendant whenconsidering the case in a court of another state; the defendant’s purposeful activity inthe country of the court; the defendant’s foresight of the possibility of considering the dispute in the state of the court. Among the objective factors, it is necessary to includethe nature and number of links between the elements of the disputed legal relationshipwith the State of the court. At the same time, in all cases, along with objective and objectivefactors, the courts take into account legal factors that contain a formal and pragmaticcomponent in the form of a manifestation of the public legal interests of the State of thecourt in the consideration of the dispute. In relation to disputes in cyberspace, the authorsuggests an approximate combination of the ratio of objective and subjective factors inestablishing a close relationship. The author applied private scholar methods-formal legal,comparative legal, sociological methods, as well as methods of formal logic (analysis,synthesis, abstraction, concretization, deduction, induction, analogy).