Law. Journal of the Higher School of Economics

History of Criminal Law as a Field of Knowledge and a Structural Element of Domestic Legal Science: Concept and Theoretical Methodological Aspects

Evgeny A. Shatalov — Tue, 24 Mar 2026 00:00:00 +0300

The article is devoted to the study of understanding the nature, status, structure and, mainly, the functional significance of the history of criminal law as a specific field of scholar theoretical-legal knowledge. In this context its axiological, methodological, ontological, epistemological, and ethical essence are mentioned, each one is accompanied by author’s argumentation and explanations of the arguments put forward. Within the framework of this problem, the main stages of development, the essence of numerous academic views, ideas, approaches of representatives of various areas of legal science, underlying the discussion on this, were not left without attention. By means of numerous techniques and methods of cognition, including analysis, synthesis, formal logical, comparative, functional and systemic methods, the author presents the characteristics of the elements of scholar knowledge of the history of criminal law. It, taking into account the research issues being solved in the cognition of individual branch components of the legal heritage of the past, includes: a) history of military criminal law; b) history of canonical criminal law; c) history of (customary) folk criminal law and of international criminal law; d) comparative history of criminal law; d) history of legal technique in the field of criminal legislation; e) history of the science of criminal law. In process of studying theoretical and methodological nuances of the history of criminal law and formation of an idea of it, author came to the conclusion that, due to the features mentioned above, it is an integral component of historical jurisprudence, that in turn is a sub-branch of historical and legal science, and not the science of criminal law, while possessing its distinctive subject uniqueness and specific features. It is explained by its inseparable connection with historical processes of development of human society, both legal and cultural, socio-economic, ethnic and other properties, but also necessarily by the nature of the source study base used in this regard, as well as the methodology of its cognition, which to a greater extent certainly has a historical and legal basis.

Criminal Trial: from Dogmatism towards Realism

Yuri A. Tsvetkov — Tue, 24 Mar 2026 00:00:00 +0300

Russia has become famous for masterpieces of realism in art and literature. In the Soviet Union, realism (albeit with the definition of «socialist») became the dominant creative method. The leaders of the Soviet state, without abandoning communist phraseology and support for revolutionary movements, were able to pursue foreign policy and build relations with the capitalist world in line with political realism. However, before legal realism, the powerful flow of which covered two continents at once for half a century, a solid barrier was placed in Soviet jurisprudence, which has not been removed to this day. In the research the author sets the following tasks in this regard: 1) to form a general idea of legal realism, focusing on the promotion of realistic ideas in Russian legal science in general and criminal procedure science in particular; 2) to consider a number of the most relevant and controversial problems of the criminal process from the point of view of legal realism; 3) to propose the basic principles of scientific research in the criminal procedure sphere in the paradigm of legal realism. The subject of the study is the individual norms of criminal procedure law in the form in which they are applied in reality, the differences between the normative model and the real content of criminal procedural relations. Thus, the author discusses the purpose of criminal proceedings, as well as the principle of competition in relation to the methods of evaluating the results of investigative activities. The relationship between criminal procedural and managerial relations in criminal justice bodies is shown, and the assessment of the procedural independence of the investigator, the public prosecutor and the independence of judges in relation to the norms of organizational behavior is given. Applying legal realism as the main academic approach, the author uses both the dogmatic method in the article in order to identify the content of the norms of written law, and the historical method in combination with comparative law in order to understand the origins and meaning of the transformation of certain criminal procedural institutions, and the sociological method (interview of investigators). The hypothesis of the study is changing the paradigm of legal understanding from dogmatic to realistic will provide a more accurate explanation of the causes of the contradictions that arise in the application of criminal procedure law, and will help to develop ways to optimize it more than just a mechanical change in legislation.

Specifics of Appeal Model in the Doctrine of Civilian Process

Anastasia A. Karpova — Tue, 24 Mar 2026 00:00:00 +0300

The institution of appeal within the Russian civil procedure is relatively young and has been undergoing various changes to date in the course of various reforms, taking into account its specific features in relation to civil, arbitration or administrative proceedings. In this regard, the theoretical foundations for constructing appellate models in comparative legal and historical aspects represent an important area for research. In a historical context it is interesting to look at the transformation of the German appellate model from its inception within the Civil Procedure Code to the present day. A study of the reasons for this metamorphosis and the historical and legal prerequisites for justifying the phenomenon can be useful in attempting to identify a number of general patterns, on the basis of which the process of appellate modeling of any system becomes clearer. The study was based on the hypothesis that appellate modeling cannot be an autonomous process and should not occur in isolation from the specifics of the formation and functioning of proceedings in the court of first instance. In the work the goal was to trace the process of formation and transformation of the appellate model of Germany in historical, hermeneutic and legal cultural aspects in comparison with similar models of France and Austria, as well as taking into account the analysis of legislative materials prepared during the development of the relevant procedural regulations (codes). It is concluded the process of changing the appellate model cannot be carried out in isolation from the mirror process of changing the judicial model of the first instance: an incomplete appeal is impossible in the conditions of an underdeveloped institution of judicial management of the case. The process of legislative transformation of the appellate model is inversely proportional to the transformation of the judicial model of case consideration in the court of first instance. The findings may be applied to the analysis of the Russian appellate model to explore potential avenues for its adjustment.

The Legal Concept of Performative Copyright

Ruslan A. Budnik — Tue, 24 Mar 2026 00:00:00 +0300

The advancement of neural networks in developing technologies for generating information objects rooted in humanity’s scientific and artistic heritage has intensified scholarly debate regarding the nature of computer-generated products, their eligibility for copyright protection, and the rightful ownership of such copyrights. This issue is exacerbated by the sociocultural landscape becoming inundated with an unbounded quantity of content artifacts characterized by ambiguous legal statuses. Such saturation adversely affects the efficacy of intellectual property rights protection for human authors and impedes their capacity to utilize publicly accessible information for creative endeavors. The article critically examines the feasibility of automatic copyright protection amid the extensive generation of quasi-creative forms. The analysis centers on the legal conditions under which the creator of a generated artifact qualifies as a competent subject and the neural network-generated output qualifies as a protected work. It scrutinizes the legal capacity of claimants asserting authorship alongside the protectability of the alleged works in accordance with intellectual property doctrine criteria. The primary objective is to enhance the copyright acquisition mechanism to fulfill the institution’s goals within the emergent technological paradigm. The study introduces the concept of performative authorship, advocating for replacing the prevailing principle of automatic protection with a formal registration procedure for copyright conferral. A verification process is proposed for assessing the author’s legal capacity against defined criteria. Legal attributes distinguishing potentially protectable content generation outcomes from those disqualified as protected works are delineated. The paper hypothesizes and substantiates that the creative act evidences an inherently human inseparability of intellect and coordinated motor activity, culminating in the manifestation of a work in tangible form — a phenomenon defined here as the objectivation motor activity of creativity. The conclusion advocates broadening the doctrinal aims of copyright law to include the protection of the human author as an additional institutional objective.

Change in the Boundaries of the Right for Integrity of a Work: Example of Theatrical Production

Timofei D. Teterin — Tue, 24 Mar 2026 00:00:00 +0300

The article examines the boundaries of the author’s right to the integrity of a work using the example of a theatrical production. The research is based on the application of general scientific methods (systemic analysis, synthesis, induction) and special legal methods (formal legal analysis, comparative law, legal modeling), as well as on an interdisciplinary approach drawing on philological and theatre studies scholarship. The analysis proceeds from the recognition of stage direction as an independent form of artistic creation, reinforced by the international legal principle of respect for the freedom necessary for creative activity. Against this background, the article identifies an inherent tension: the theatrical realization of a play inevitably involves interpretation and creative completion of the dramatic material, whereas the dramatic text itself is protected as a completed result of intellectual activity. Particular attention is paid to the figure of the stage director as a central subject of theatrical production. It is argued that the director’s role extends beyond an auxiliary or technical function and encompasses not only the formation of the artistic concept of the performance, but also responsibility for its integrity as a synthetic stage product. This approach allows directorial activity to be understood as possessing independent artistic and legal significance. The author’s right to the integrity of the work is analysed as a key legal mechanism limiting directorial freedom. It is shown that, in theatrical practice, conflicts related to this right generally do not arise from direct interference with the dramatic text, but rather from the stage reinterpretation of the work and the transformation of its semantic organisation. In this context, the concept of the aleatoric nature of drama is employed to explain the structural incompleteness of the dramatic text and its orientation toward subsequent scenic completion, manifested at the functional, textual, and performative levels. By comparing different legal models of theatrical production, the article demonstrates that the scope of the director’s creative freedom depends on the legal qualification of the performance—whether it is treated as an act of performance, a form of interpretative completion of the dramatic text, or an independent result of intellectual activity. The article concludes that the right to integrity retains its protective function with respect to the semantic core and the “textual matrix” of the play, without turning into a universal prohibition on directorial creativity or impeding the functioning of theatre as a distinct form of artistic activity.

Services For Organizing and Conducting Live Action Quests: From Practice to Regulatory Regulation

Marina N. Maleina — Tue, 24 Mar 2026 00:00:00 +0300

The article provides a legal assessment of a new direction in the creative industry — live action quests. A classification of quests is depending from environment they are held (online and offline games), location (at the organizer’s premises; on the city streets; in shopping centers, offices); and the age of the players. The legal status of players and organizers is defined. The prohibition on children under 6 years of age (including those accompanied by parents) from participating in quest rooms is justified, as establishment of a procedure for verifying age of minors to prevent the dissemination of information harmful to the health and development of minors. There should be no age limit for players. Restrictions on game participation may be based on health status, the type of quest (contact or non-contact), and the level of exposure. It is proposed that the essential terms of the contract for the organization and conduct of live action quests include the terms regarding the subject, place and time of the event, the rules of the game and physical contact with the actors-animators and other players, security, confidentiality, and payment. The limitations of physical and psychological impact of live-action actors on game participants are justified. The contract for organizing and conducting a live-action quest must be concluded in writing, with the legally stipulated consequence of non-compliance being invalidity (nullity). To protect players, regardless of their age, the storage period for game recordings from video cameras must be at least fourteen days from the date of the quest. A player’s consent to deliberate physical and psychological abuse during a quest does not exempt the organizer from civil liability. In emergency situations, the organizer must provide multiple ways to stop the game. It is proposed to regulate contractual relations in the quest industry not by approving new standards, but by creating norms at the federal law level. Research methods of the author are: general academic methods, as well as a systemic and logical analysis of Russian legislation, business practices and scholar literature.

Guarantee Term: A View through Prism of Positions of the Constitutional Court of the Russian Federation

Andrey A. Pavlov — Tue, 24 Mar 2026 00:00:00 +0300

The article analyzes current issues regarding of the guarantee term (period of third-party pledge), as reflected in decisions of the Constitutional Court of the Russian Federation: Resolution No. 18-P of April 15, 2020, and Resolution No. 8-P of February 26, 2024. The nature of the guarantee term (period of third-party pledge) is examined, and the relationship between the term and limitation period is discussed. Attention is drawn to the arguments of the Constitutional Court, that has recognized the guarantee term (period of third-party pledge) as a preclusive period. This approach is traditional in modern Russian civil law and judicial practice. However, this approach reveals a lack of consistency in the normative use of limitation period and preclusive period. The article demonstrates the need to develop a clear and consistent doctrine of preclusive periods in Russian law, similar to that in German law. The admissibility of applying the provisions of Chapter 12 of the Civil Code of the Russian Federation on the limitation period to the guarantee term (period of third-party pledge) is also analyzed. The validity and appropriateness of such an analogy in Russian law are demonstrated. In particular, the possibility and appropriateness of applying the rules on the suspension, non-running, interruption, and renewal of the limitation period to the guarantee term (period of third-party pledge) are examined. The thesis of the Constitutional Court of the Russian Federation that a need for special legal protection for the guarantor (the pledgor — a third party) through preclusive periods is determined by the desire of the legislator to eliminate uncertainty of his legal status as a person who secures someone else’s debt (Resolution of 15.04.2020 No. 18-P) is analyzed separately. The importance of this conclusion is demonstrated. It is noted the adoption of this conclusion could lead to a fundamental change in judicial practice. In particular, the temporal restrictions established by paragraph 6 of Article 367 of the Civil Code of the Russian Federation will be eliminated for guarantors (pledgors) who only formally have the status of a third party, but in reality economically secure their own debt. The study utilized general scientific methods (classification, generalization, description, comparison, analysis, synthesis, and others) and legal (methods: logical, systemic, and teleological interpretation. Comparative law was also used as a research method.

Illegal Termination of Pregnancy: from Criminalization to Decriminalization

Nina Yu. Skripchenko, Ekaterina D. Sungurova — Tue, 24 Mar 2026 00:00:00 +0300

The shift in public policy emphasis toward reproductive choice in favor of having children, modernization of healthcare, introduction of new technologies in obstetrics and gynecology, and transformation of social perceptions of reproductive autonomy all testify to significance of the regulatory role of Article 123 of the Criminal Code of the Russian Federation. The continued existence of legislative definitions of actions constituting the criminal termination of pregnancy, which essentially coincide with Part 2 of Article 116 of 1960 Criminal Code, highlights the need for a comprehensive analysis of acting Article 123 for its adequacy in contemporary social relations. Using general research methods (analysis and synthesis, dialectics) and specific scientific methods (historical legal, systemic structural, formal legal, and statistical) of academic knowledge, we can identify the genesis of criminalization and the underlying rationale for the current abortion ban and establish high effect of preventive measures that negate the significance of criminal law regulation. Since Article 123 is aimed at individuals without a relevant medical education, its wording fails to take into account modern requirements for admission to medical practice, where specialist accreditation, instead of a diploma, plays a key role. This regulatory defect allows for less stringent measures to be applied to certified specialists who have committed serious violations of established standards for performing abortions. Significant social changes in recent years have minimized the demand for the services of individuals whose actions fall under Article 123. The negligible number of convictions under this article, as well as the positive trend in abortions, testify to the effectiveness of the preventive measures and administrative oversight implemented by the state. By failing to protect life and health of women, Article 123 has become a legal anachronism, having lost its true regulatory significance. Removing this prohibition not only fails to annul sanctions for induced abortions performed by non-specialized specialists, since these actions are also covered by Article 235 of the Criminal Code, but will also eliminate excessive criminal regulation in this area.

Concept and Legal Conditions for Coordination of Interests of Parties to Labor Relations and State

Marina O. Buyanova — Tue, 24 Mar 2026 00:00:00 +0300

The task of labor legislation stated in Article 1 of the Russian Labor Code is to create the necessary conditions for achieving optimal coordination of the interests of the parties to labor relations and the state is not disclosed in detail anywhere else in the Code. There is no analysis of the mechanisms maintaining such coordination in doctrine. Based on the application of a set of methods of academic knowledge (analysis, synthesis, induction, deduction, generalization), concept and legal conditions for coordinating interests of the parties to labor relations and the state are considered. The conclusion is substantiated that one of the conditions for achieving optimal coordination of the interests of the parties to the employment relationship is to achieve a balance of interests of employees and employers, without skewing in any direction. It is proved the term «balance» (instead of term «optimal coordination»). It more accurately reflects the essence of the relationship between the state, employers and employees, and highlights the asymmetry of the parties. At the same time «balance» does not replace, but complements the concept of «optimal alignment», making it more specific and applicable. Based on methods of scholar thought, it is proved the balance mentioned should be understood as achieved and used balance of interests of employees, employers and the state, regulated by the norms of labor legislation at current stage of development of labor law. At the same time, interests are taken into account in certain parts, regardless of the equality of subjects. There are five groups of conditions for maintaining a balance of interests between the parties of labor relations and the state: principles and basic conditions of interaction between the parties; regulatory conditions of labor law; procedural conditions; material and economic conditions; institutional mechanisms of cooperation. The conclusion is substantiated the basic legal conditions for achieving optimal coordination of the interests of the parties to an employment relationship form a multidimensional system combining regulatory, procedural, material, economic and institutional elements. The systemic unity of these conditions is manifested in their complementarity. The procedural neutrality is enhanced by the economic justice, and institutional instruments guarantee their implementation. Together, they are transforming the conflict-prone nature of labor relations into a constructive dialogue ensuring not only the current alignment of interests, but also the adaptation of the whole system to the dynamics of socio-economic changes.

China–Africa Joint Arbitration Centre (CAJAC): the Result of International and Technological Collaboration

Ekaterina P. Rusakova, Evgenia E. Frolova — Tue, 24 Mar 2026 00:00:00 +0300

The article is devoted to studying the arbitral form of protecting the rights of participants in the “One Belt, One Road” investment project implemented by the PRC, including in African countries, using the example of the China–Africa Joint Arbitration Centre (CAJAC). Particular attention is paid to the procedural features of arbitration, taking into account the legal, economic, technological, and social differences between China and African states. The article examines the use of AI technologies in arbitration, in light of the adoption by the Executive Council of the African Union of the Continental Strategy on AI. The strategy is aimed at developing unified national approaches among African Union member states to bridge the digital divide and counter the effects of the technological multistructure of the economy caused by the development of artificial intelligence technologies, in order to strengthen regional and global cooperation in hightech. In the context of the digital transformation of African countries for 2020–2030, there is a rapid pace of technological progress in various spheres of life and sectors of socioeconomic relations. The African Union developed this strategy on the basis of existing ICT initiatives across Africa. A special role in creating the trajectory of the digital vector of development was played by the pandemic, the problem of poverty, and the lack of the necessary information and communication infrastructure. The Guidelines on the Use of AI in arbitration, published by the Association of Arbitrators (South Africa), are intended to serve as a reference for participants in the process. These guidelines set out the principles on which AI technologies should be used to enhance efficiency, cost-effectiveness, and to expedite arbitration. However, in order to fully realize these benefits, AI must be applied within a clearly defined and transparent procedure. The article identifies trends in the development of arbitration in the era of the creation of intelligent forms of protection of the rights and legitimate interests of individuals and business entities through the integration of artificial intelligence technologies into the dispute resolution process, as well as the threats and risks of digital transformation.

Regulating Independent Directors Impact in Brics States: Fundamental Issues and Contemporary Challenges

Olga V. Novikova, Kira A. Kurganova — Tue, 24 Mar 2026 00:00:00 +0300

The authors of the study investigate institution of independent directors in BRICS state members (Brazil, Russia, India, China, South Africa) as a transplanted element of Anglo-American corporate governance. A goal of exploration is to test the widespread assumption that increasing a number of “independent” directors automatically improves corporate oversight in jurisdictions with concentrated ownership and strong state participation. Methodologically the research relies on comparative doctrinal analysis of legislation, stock exchange rules and soft law codes, complemented by a critical review of empirical studies and statistics on corporate board composition and liability trends. The argument develops in three main parts. First, the legal framework section maps how independence requirements are formulated and enforced in BRICS, highlighting differences in the level, form and strictness of regulation. Second, the “fundamental issues” section links the independent director to contested corporate governance goals (shareholder value versus stakeholder welfare) and to the agency problem under capital concentration, showing why the classic U.S rationale does not straightforwardly apply here. Third, “contemporary challenges” section examines a gap between formal and real independence, specific tensions of independent directors in state-owned or state-influenced companies, incentive structures shaped by reputation, remuneration and liability insurance, and Russia’s anti-sanctions regime as an experimental suspension of board level independence. The authors conclude formal independence criteria and numerical quotas are neither sufficient nor context neutral. In the field of BRICS members the performance of independent directors depends on clarifying whose interests they are meant to protect and on aligning incentives so that genuinely autonomous judgment is possible despite concentrated ownership, state influence and rising personal liability risks.