Law Journal of the Higher School of Economics

Definitions of Concepts in the Acts of the Russian Legislation — Pro et Contra

Evgeniya Yurtaeva — Wed, 04 Sep 2024 00:00:00 +0300

The article presented review the practice of using definitions of concepts in the texts of legal acts. The author analysis of the popular, but unreasonable practice when are drawn up the lists definitions and included in the acts of Russian legislation as special — often very voluminous — inclusions fully dedicated to the definitions used in one legal act (federal law or other regulatory legal act). These inclusions most often time represent a separate article, and lists of concepts can be supplied with explanations that the proposed concepts are defined for the purposes of this act only (but not all acts which regulate a similar subject), or that the lexical meaning proposed in this article of the law concepts should be considered unless otherwise specified in the text of the act. Meanwhile, the absolute requirement for the formation of legislative regulation in the domestic practice of law-making is that concepts introduced into legislation should serve its entire array, regardless of the branch or thematic affiliation of an act. If the definitions refer to one single act only, then the legislation gets archaic attributes. The author notes that in almost all cases the definitions are very unfortunate: concepts are not logically complete; there are no indications of those of the signs of the concept being defined that are of significant importance; definitions are characterized by the coincidence of the word being defined and the defining one. The analysis of the federal acts leads to the conclusion that the definitions have a purpose other than the purpose of normative regulation: it is do not formulate rules of behavior, do not create models of legitimate activities. The author questions the correctness of the construction of the regulatory framework with an arbitrary interpretation of the words features. The inclusion of elements of interpretation in the texts of federal laws is blurring the difference between academic knowledge and practical activities in matters of legislation. If the practice of including arbitrary definitions in the texts of federal laws continues, this will have a negative impact on the law-enforcement situation.

The Concept of Meme (Memetics) and the Primary Mechanisms of Socio-cultural Evolution of Law

Maksim Zaloilo — Wed, 04 Sep 2024 00:00:00 +0300

New technologies and change of technological order associated with their spread affect the change of value orientations and attitudes of the individual, society and nation, determine the dynamics of the legal behavior of individuals and collectives. The Russian legal culture is facing previously unknown challenges caused by the new cultural dominant of a high-tech society, determined by the technological imperative. Postmodernism is losing its relevance and “dying” is being replaced by digimodernism, automodernism and cyberculturalism, leading to a significant shift in the cultural paradigm and its redefinition. The tasks of ensuring the preservation of its essential characteristics and modernization of basic parameters on the basis of project forecasting, combining the project and forecast into a single whole are being updated. The objectives of the study are to determine, by analogy with genetics, the evolutionary algorithm, strategy, programming of the transformation of legal culture and to identify the primary mechanisms of its formation, reproduction and development in the light of legal memetics and coding of relevant information in legal memes. The research is based on legal forecasting and modeling, postclassical methodology of law, cultural approach, the principles of constructivism and anthropocentrism. Based on the appeal to a new and developing interdisciplinary field — memetics, that explains cultural evolution through the concept of memes (conditional units of transmission of cultural heritage), the importance of legal memetics and legal memes in the mechanism of formation and development of legal culture is analyzed. The key memes of law-making, factors, ways and means of their variations and selection, which may contribute to the development or restriction of legal norms and practices are identified. The models of managing of memes and of ensuring of their functioning within the framework of the legal system are determined. It is concluded that the primary mechanism of the reproduction of memes in law is law-making, and legal memetics allows us to study the dynamics of changes in legal culture and law-making culture in the context of the formation and change of legal systems, to solve problems of maintaining the stability of legal regulators and giving them the necessary degree of adaptability, to determine national legal identity.

Expression of the Parties’ Will in Context of Digital Transformation: Current Trends in Law Enforcement

Evgenia Frolova, Alisa Berman — Wed, 04 Sep 2024 00:00:00 +0300

In the article authors examine modern ways of expression of will of the parties in the context of digital transformation and their impact on the practice of law enforcement. Specific attention is paid to such aspects as digitalization, smart contracts, click-wrap, browse-wrap and shrink-wrap agreements, as well as the use of biometric identification for transactions. A new trend — the use of emoji as a substitute for a signature in a contract–is also analyzed. The article examines foreign and domestic judicial practice, which testifies to the legal significance of emojis. Special attention is paid to cybersecurity issues in the context of digital transactions. The author’s vision of understanding smart contracts, click-wrap agreements, browse-wrap agreements, shrink-wrap agreements is proposed. Benefits and risks of using these tools are analyzed and recommendations for ensuring the legal validity, security and efficiency of such digital transactions are offered. There is a trend of multiple growth of new digital phenomena that deserve legal regulation, keeping pace with the rapid penetration of technologies into the sphere of property relations, revolutionizing it with fundamentally new business opportunities. They have created a range of new categories that, to one degree or another, become objects of legal regulation or deserve to become them — “big data”, “blockchains”, “digital assets”, “digital rights” and others. Digital transformation, integrating into entrepreneurial activity, qualitatively changes it. Often, the entire process from the moment of conclusion of the transaction to its completion is carried out electronically. For the most effective economic cooperation, it is necessary to create fast and flexible ways to resolve disputes. It is possible to achieve these goals by integrating modern information and telecommunication technologies into this process. The general trend in the dispute resolution process is the transition to electronic form. The authors analyze the domestic and foreign literature devoted to identifying the role and importance of law in regulating relations of digitalization and conclude that legal science has begun a large-scale and in-depth study of the content and methods of regulating relations regarding artificial intelligence.

Concept of Weak Party in Civil Matter in Context of Digitalization

Aleksei Volos — Wed, 04 Sep 2024 00:00:00 +0300

The article is devoted to key issues connected with qualification of subject in civil relation as a weak party. According to the author’s aim it is chosen the situation when the subject uses the digital technologies for the purpose of forming, changing, termination of civil rights and duties. It is considered how we can use the methodological decisions of the issue connected with the definition of the category “weak party in civil relation”. It can be significant in order to understand the directions of effective protection of weak party in civil relation under the circumstances of digitalization. The purpose of the research is to examine the features of the category “weak party of civil relation” and its transformation in the case of the digital transformation in society. To achieve the purpose the author in the first part of the research studies the general issues of the theory of weak party in civil relation. The second part of the article is connected with the unique features of weak party in civil relation in the case of the digitalization. Then it is discussed the issue arising from the protecting weak party’s interests in several cases connected with digital sphere (digital rights, digital assets, corporate relations, intellectual property). It was concluded the weak party’s essence and features should not be determined by the criteria of the legal status. The weakness of a party is the result of the difficulty of the specific rights’ exercising or of the several rights’ exercising in certain civil relation. The author’s point is than the basis of weak party protection in digital sphere is the criteria of transparency. It is meant than the procedure of contractual concluding and executing, the public offer’s content, possible mechanisms of termination should be open and understandable ones. Moreover, any participant in the relation should have access to all the information required by a specific agreement. Also, according to the author’s point, the rules of adhesion contract have a special purpose. It has a sense to use the Article 428 of the Civil Code of Russia for clearing definition and criteria of weak party. The most useful instruments of weak party protection are the rules of norms interpretation and the rules of contractual interpretation.

Оwnership Structure in the Building: History, Current Legislation and Possibilities for its Reform

Vadim Alekseev — Wed, 04 Sep 2024 00:00:00 +0300

The first part of the article is devoted to the analysis of the history of development of legal regulation of the ownership structure in houses divided in negotiable premises. The current concept of the legal divisibility of the building into premises and its relationship with the theoretically justified recognition of the building as an indivisible immovable thing is considered. Referring to the latest changes in the norms of the Civil Code of the Russian Federation on real estate, the author states the establishment of a unified regulation of the issues of the ownership structure in any building (structure) in § 2 Chapter 16 and Art. 287.5 of the Code, but comes to the conclusion that it is most likely impossible to refuse to apply, by analogy, some rules on the legal regime of apartment buildings to other buildings divided into premises. The signs of a “divisible building” are analyzed, which, under the new legislation, act as the basis for applying the regime of shared ownership of a special kind to the common property of the building (§ 2 Chapter 16 of the Code). Noting a certain crisis in the development of legislation in the field of ownership structure in buildings divided into negotiable parts, the author proposes to return to the possibility of considering a building as an indivisible real estate object and gives an argument justifying the expediency of this decision.

Parents as ‘Secondary Victims’ in Case of Injury to a Child

Maksim Kratenko — Wed, 04 Sep 2024 00:00:00 +0300

Only the injured person is traditionally considered a victim. It is he or she who is entitled by law to claim compensation for lost income, additional expenses for medical treatment and other care. However, in practice, many parents of disabled children, instead of seeking professional services from third parties (psychologists, carers, etc.), themselves provide daily care necessary for the child, after which they turn to the tortfeasor with a claim for compensation for lost income. The article analyses the approaches of Russian and foreign courts to the resolution of such claims, as well as examples of direct legal regulation of issues related to the payment of gratuitous care provided by relatives and friends. It is concluded that under certain conditions the parents of an injured child are entitled to claim compensation for lost income: the need for daily childcare limits the parent’s ability to work; the defendant has not proved that it is possible to provide the child with the necessary care for less than the parent’s lost income, etc. The standard of proof for involuntary termination of employment should not be too high; it is sufficient that the parent’s decision meets the requirements of reasonableness and good faith. De lege lata the parents’ claim may be satisfied with reference to the provisions of Article 15, Article 1064 of the Russian Civil Code on full compensation and Article 1081 on recourse, or the provisions of Article 1102 on recovery of unjust enrichment. De lege ferenda it is advisable to expand the concept of legally relevant damage in the case of personal injury, indicating the indemnification of persons providing necessary care to the injured person on a gratuitous basis and the possibility of calculating the amount of indemnity through their lost income.

Soviet Family and Demographic Policy in Landmarks of Law in Great Patriotic War Period

Vladimir Boldyrev, Denis Karkhalev — Wed, 04 Sep 2024 00:00:00 +0300

The appeal to the experience of the Soviet Union in solving the demographic problem that arose during the Great Patriotic War of 1941–1945 due to the latest decisions of the Russian state: the approving the Fundamentals of State Policy for the Preservation and Strengthening of Traditional Russian Spiritual and Moral Values, the restoration of the title “Mother Heroine” in the award system, the announcement of the Year of the Family. The purpose of the work is to assess the impact on society of legislative decisions taken to improve the demographic situation during the Great Patriotic War, from the standpoint of modern academic ideas about human needs. The objectives of the study are: description and characterization of new legal measures in the field of demography, establishing the impact of legislative decisions on family values in order to determine the prospects for their use at the present stage. The authors implement historical-legal, formal-dogmatic, statistical and comparative research methods. The measures taken to stimulate the birth rate are analyzed: a tax on childlessness; financial material support for families with many children and single mothers, the abolition of the right to claim to establish paternity; complicating the divorce procedure; moral encouragement of motherhood. It is concluded that the demographic policy was aimed at stimulating reproductive behavior by playing on the vital and role needs of a person. The issue of illegitimate pregnancy and the birth of an illegitimate child has become a problem for women and society as a whole, but not for the biological father. The developed legal strategy was an alternative to the legalization of polygamy and stimulated the plurality of actual family relationships. The need for self-development, the value of personal transfer of father’s experience to children within the framework of the chosen strategy turned out to be almost impossible to take into account. Soviet procreation policies can hardly be called familial one: the prohibition of paternity suit and other legal measures encouraged reproductive behavior, leading to an increase in the number of single-parent families and the placement of children in child care institutions. The change in public morality — the manifestation of tolerance towards men who are indifferent to the fate of their offspring, which led to the aggravation of the question of fatherlessness — was a “side effect” of the radical novelization of family law and changes in the norms on the social security of citizens.

International Law Norms Hierarchy in Applying Them and in the Rule-making Process

Yuri Romashev — Wed, 04 Sep 2024 00:00:00 +0300

In the practice of states the correct application of international law is important, effectiveness of legal regulation directly depends on it. Quite often, the importance of certain norms, their hierarchy in the international legal system, and the methodology of this issue are not fully taken into account. The practical significance of assessing the hierarchy of norms lies in answering the question: which norm is or should have been applicable in a particular situation? Within the framework of international rule-making, the need to take into account the hierarchy of rules is to prevent the emergence of future conflict of laws rules. In this work, from the position of a dialectical approach, the use of general academic and special legal research methods, the main approaches to taking into account the hierarchy of international law norms in their application and the rule-making process are considered. The work shows the features inherent in various types of norms of international law, which can be used as the basis for the assessment. Particular attention is paid to assessing the hierarchy of norms when their conflicts arise, and the reasons for their appearance are investigated. Methods for resolving emerging conflicts and the legal tools used are shown. Attention is drawn to the importance of assessing the hierarchy of norms of international law in conjunction with assessing the hierarchy of homogeneous and heterogeneous sources containing such norms. The paper presents an algorithm for taking into account the hierarchy of international law norms when applying them. Cases where it is impossible to resolve collisions and the main actions in such situations are considered. Ways to counter the emergence of potential conflicts of international law in the future are presented. The complexity of the situation in international law is shown, associated with its fragmentation and the increase in the number of conflict of laws rules, their diversity, which significantly complicates the application of the rules of international law and the choice of the optimal solution. It is pointed out that solving that multifaceted problem requires a high quality of academic research and implementing modern technologies, including artificial intelligence.

Renvoi’s Exclusion in the Hague Principles on Choice of Law in International Commercial Contracts

Natalia Erpyleva, Irina Getman-Pavlova, Alexandra Kasatkina — Wed, 04 Sep 2024 00:00:00 +0300

The party autonomy is a universal and indisputable principle of modern private international law. According to numerous studies, the vast majority of international commercial contracts include provisions on the choice of law applicable to this agreement. Nevertheless, the doctrinal problems of the conflict-of-laws party autonomy not only do they not disappear, but also continue to multiply, and those aspects of them that have not previously caused controversy are actualized, in particular, the combination of renvoi and the choice of law by the parties to the relationship. Despite its complexity and even controversial nature, the renvoi institute “penetrates” into the acts of lex mercatoria, including those devoted to the party autonomy in international transactions. The Hague Principles on Choice of Law in International Commercial Contracts enshrine article 8 “Exclusion of renvoi”, where the latter seems to be prohibited, but at the same time allowed in specified cases. The article presented examines the question of what does that formulation mean — the prohibition of renvoi or its permission? It is hypothesized that article 8 establishes precisely permission if the parties have explicitly expressed their intention to do so. An overview of various national and international acts containing similar provisions is provided as evidence. In the work, methods of comparative jurisprudence, comparative analysis, contextual interpretation of the law, formal logic, and retrospective analysis were used. It is underlined the fundamental aim of private international law is to achieve justice and international uniformity of decisions, and its successful implementation involves the use of the entire range of conflict-of-laws tools, including the renvoi mechanism. It cannot be argued that renvoi has a detrimental effect on the choice of applicable law, but at the same time it must be remembered that its unrestricted application may violate the reasonable intentions of the parties. However, the functioning of renvoi and the possibility of its harmonious combination with the party autonomy should be considered as a rule, not as an exception.

Taxation of Professional Income on Digital Platforms: World Experience in Regulation

Karina Ponomareva, Aleksey Batarin — Wed, 04 Sep 2024 00:00:00 +0300

The theme of taxation of income of individuals from activities in that they do not have an employer and do not hire employees under contracts is becoming increasingly relevant in many countries. There are especially many issues of the taxation of citizens who carry out economic activities using digital platforms. This issue is also urging one for contemporary Russia. The purpose of the article is to develop ideas for improving tax legislation in terms of taxation of income of individuals from activities they carry out using digital platforms, in which they do not have an employer and do not hire employees. It is planned to develop these proposals, including on the basis of the researching and implementing best practices. The authors examine the foreign experience of taxation of income of persons who works using digital platforms, as well as experience in designing models of tax agency of digital platforms in foreign countries and integration associations; analyze the practice of taxation of income of individuals from activities in they do not have an employer and do not attract employees under contracts in various countries. The proposals for improving Russian tax legislation are formulated. Given that models of digital platforms’ participation in tax relations are in the process of formation in most countries, the Russian legislator can both use best practices and take into account the mistakes of other states and avoid constructing models that have already shown their shortcomings. It is noted that in most states the main attention is paid to the problem of indirect taxation, while the issues of taxation of the self-employed working on digital platforms have not yet been practically settled. The authors have implemented in the study formal legal and comparative legal methods of research.

Legal Regulation of Obligations from Public Competition in the CIS States

Tatyana Guseva, Marina Kazakova, Elena Nizamova — Wed, 04 Sep 2024 00:00:00 +0300

The article is devoted to the research of legal regulating public competitive obligations within the Commonwealth of Independent States (CIS) countries and the assessment of its compliance with modern needs of socio-economic, cultural and spiritual development of the Commonwealth countries. The purpose of the comparative analysis and assessment of the national legislation and law enforcement of the CIS countries is to develop a unified approach to the legal regulation of public tender obligations, which will promote international cooperation and exchange of best practices in solving significant socio-economic and innovative issues. The dynamics of the public tender obligation, the legal status of the parties to the obligation, the ways of protecting their rights and legitimate interests are examined by analyzing doctrinal sources, national legislation and law enforcement practice on public tender in the Commonwealth states. The authors found the extremely laconic legal norms on public competitions in the Commonwealth countries sometimes contradict the principles of civil law, create grounds for abuse by the organizer of the tender and do not ensure protection of the rights of its participants, and the identified gaps and contradictions hinder purpose of public competitions. In the study, a model of legal regulation of the public competition obligation covering all its stages is proposed, which, together with the existing arsenal of provisions regulating significant aspects of the public competitive bidding obligation, but remaining outside the legal sphere, will serve as a basis for the harmonization of the national legislation of the Commonwealth member states and, as a result, will contribute to the convergence and creation of a common legal framework for public competitive bidding obligations. The developed approaches to the legal regulation of public tender obligations will, on the one hand, serve as a basis for the harmonization of the national legislation of the CIS states and, as a consequence, contribute to its convergence and the creation of a common legal space in the territory of the Commonwealth, and, on the other hand, ensure compliance with the principles of competitive obligations: competitiveness and transparency of public tendering, independence and objectivity of the evaluation of the works of participants, protection of their rights and legitimate interests. A well-functioning mechanism of legal regulation can contribute to the social purpose of public competition and the expansion of its application in various spheres of life.