Law Journal of the Higher School of Economics

Law as a Socio-cultural Phenomenon: Harmonization on Basis of the Principle of Humanism

Igor Levakin — Tue, 01 Apr 2025 00:00:00 +0300

The socio-cultural approach, which synthesizes legal and cultural knowledge on the basis of a modern understanding of the principle of humanism, actualizes the problem of harmonizing the defining characteristics of law, formed in different historical periods of development of societies/civilizations. Analysis of law from the point of view of the unity of sociality and culture, created and transformed by social practice, makes it possible to define, connect and harmonize the ideas of different communities about law and humanity, and promote inter-civilizational dialogue. The purpose of this work is to interpret (clarify, explain) law as a socio-cultural phenomenon in order to search a mutually acceptable basis for harmonizing its characteristics, determined by the specifics of life in different societies, with their inherent diversity of ideas, values, norms and institutions. The achievement to this purpose is realized through the consistent solution of tasks to identify the main socio-cultural features, meanings and traditions of law, developed in the practice of conventional pre-industrial, industrial and postindustrial communities: civilizational approach is combined with a universal typology, mainly taking into account the peculiarities of economic development. Generalization (Latin: generalis — “general, main”) — a method of identifying homogeneous characteristics of law inherent in a particular type of community, it was used as the main methodological approach in this research. Searching a mutually acceptable basis for harmonizing the characteristics of law of pre-industrial, industrial and post-industrial communities, was applied the method of socio-cultural analysis, taking into account the research principles of historical and logical, allowing us to consider law as an element of the relevant socio-cultural environment. As a result of the research, it was confirmed that modern international legal acts, liberal constitutions and law of national states do not adequately address the issues of the conflict of socio-cultural formations (“civilizations”). It is concluded the shortcomings of modern law are largely due to the inconsistency of law enforcement in upholding humanistic values, their substitution by political and/or economic interests. It is concluded that the shortcomings of modern law are largely due to the inconsistency of law enforcement in defending humanistic values, their substitution by political and/or economic interests. Harmonization of conflict characteristics of the law of diverse societies on the basis of the development and implementation of universally recognized norms can not be provided solely by good wishes of declarations, it is necessary to imperatively enforce the requirement of respect for the “life, freedom and personal integrity” of each person.

Genesis of Term “Private International Law” in the Russian Doctrine of the 19th Century: from Legal Heritage to Modernity

Natalia Erpyleva, Irina Getman-Pavlova — Tue, 01 Apr 2025 00:00:00 +0300

The article is the result of the authors' study of the texts of Russian pre-revolutionary scholars in order to establish when exactly and by whom the term “Private International Law” was introduced into legal content by publishing in a publicly available printed publication. The purpose of the study is to search for new data and facts to introduce them into scientific circulation, to try to eliminate gaps and close the “blank spots” in the history of the science of Private International Law. The methodology of the study is historical and dogmatic methods, deduction and induction, methods of comparative analysis and comparative law. The article emphasizes that any “well-known facts” in legal science (especially those related to its history) should be approached with great caution, not allowing them to transform into cliches that hinder the search for and perception of new information. The authors analyze how the “well-known fact” that the first to introduce the term “Private International Law” belongs to prof. N.P. Ivanov has become established in the Russian doctrine. The focus is also on the works of modern Russian experts who have refuted this “fact”, but whose discoveries are still practically not in demand in educational and scientific literature. In the course of studying the prerevolutionary legal heritage, the authors were able to establish that the term “Private International Law” was first published in print in 1856, and its authorship belongs to prof. D.I. Kachenovsky. The second author to publish this term in print was V.I. Perogovsky (1859), the third was N.S. de Galet (1860), and the fourth was prof. A.N. Stoyanov (1862). It is concluded that to date, the merit of introducing the term “Private International Law” into scholar circulation in Russia belongs to prof. D.I. Kachenovsky. Of course, these data are relevant only until new information is found. Contrary to popular belief, Russian pre-revolutionary literature on Private International Law is extremely rich and has not been fully studied; its careful study is always necessary from both a theoretical and a practical point of view.

Legal Design of Economic Relations for Property Management

Irina Emelkina — Tue, 01 Apr 2025 00:00:00 +0300

The author considers theoretical and practical aspects of legal registration of economic relations arising when the owner transfers property to professional management. The prerequisites for creating a special legal regulation of these relations are analyzed. Common features inherent in different types of private property management are revealed, principles of professional management are formulated, its legal forms are defined, and trends in the development of Russian legislation in this area are outlined. The following legal regimes for transferring property to professional management are proposed: trust management of property under the law of obligations (management of someone else's) and management of property through specially created legal entities — personal funds, with the latter being granted the right of ownership of the transferred property (management of one's own). The legal nature of the right of ownership of a personal fund as a property right of a legal entity limited by the will of the founder and the purposes of creating the fund is substantiated. The relationship between the categories of “management” and “ownership” of a personal fund is determined through explaining management as an economic relationship, and the right of ownership as a legal category. The conclusion is made about the use of the term “property management” in relation to a personal fund as a legal and technical device expressing the economic concept of “management with property”. The legal form of this management is the right of ownership. A general description of individual legal forms of professional management of private property is given: trust management, including the property of mutual investment funds and international funds, as well as management of the property of a personal fund. Conclusions are formulated and ways to solve the identified problems are proposed. In this regard, the object of the study was the relationship on the transfer of property by the owner to professional management. The purpose of the article is to form scientifically based approaches that contribute to the development of legal regulation of economic relations in the professional management of private property. The works of Russian and foreign legal scholars, legislation on property management passed in various legal systems are studied. Research methods of the author are: analysis, synthesis, legal modeling, comparative law, contributing to formulation of new theoretical provisions for improving legal framework for professional management of private property.

Differentia specifica of Legal Principles in Context of Judicial Reasoning

Daria Fatalieva — Tue, 01 Apr 2025 00:00:00 +0300

The semantic uncertainty of legal texts is most evident in abstract normative formulations of legal principles. In order to determine the correct methodology of principles use, it is necessary to identify objective criteria that allow correctly qualifying the relevant standard as a legal principle, to identify the specifics of the application of legal principles that determine the methods of their use in judicial reasoning. The author considers theoretical discussions concerning the concept of “legal principle” from the point of view of the position of normative dualism and distinguishing principles from the related category of legal rules, as well as taking into account the differentiation of principles into types, including the isolation of the category of legal postulates mainly based on the argumentative approach to law. The author concludes that the position of “weak” distinction, which considers principles along with rules as a type of legal norms, is more reasonable. At the same time, abstractness and semantic uncertainty as a property of legal principles themselves should be specified, since they are characteristic of any legal propositions. Legal principles initially represent open statements, which is associated with greater discretion of the law enforcer. The process of argumentation is also affected by the specificity of different types of legal principles, including their division into principles stricto sensu, expressing the highest values of the legal order, and principles — program norms, providing for the obligation to achieve certain goals, which implies the possibility of being implemented to a certain extent. The presence or absence of an explicit positivisation of the principle in legal texts should also be taken into account, as it affects the binding force of the principle. An important addition to the dichotomy “legal principles — legal rules” is the category of normative postulates or methodological principles, which are addressed directly to the subjects of interpretation and determine the application of other legal norms, stands out, as it highlights methodological differences in the application of legal principles as legal norms — grounds for dispute resolution — and as legal postulates determining the specifics of the application of other legal norms.

Making Gratuitous Business Contracts in Russia: Limits of Permissibility

Aleksandra Burova — Tue, 01 Apr 2025 21:55:30 +0300

The paper is devoted to analysis of current limits during making gratuitous business contracts in Russia. The aim of the research is determination of the Russian legislator's attitude to making gratuitous business contracts and estimate of need of its prohibition. For this purpose the author goes into category «consideration» and pays attention to presumption of compensatory nature of civil contracts relations irrespectively to its parties. On the base of the norms of the Russian Civil Code four restraints concerned gratuitous business contracts are set up. Critical assessment of actual prohibition on donation between commercial companies fixed in the Code is made. It is concluded that the sole rational reason for this prohibition is protection of interests of minority corporate members or corporate members who did not know and could not know about making such contracts. It is stated there are abusive practices appeared in contradictory behavior of a party that makes gratuitous contract and afterwards claims for invalidity of such a contract. Also there are abusive practices concerned with denial of judges in recognition of partial debt release as a donation. One more negative aspect of prohibition on donation between merchants is placing burden of evidence of consideration presence for a respondent party because of difficulties in probation of negative fact about absence of consideration. During analysis of judicial practice and doctrine the trend is revealed а provision prohibiting donation between merchants is enlarged upon other contracts. Such practice should be blocked because of different thrusts of contracts and impossibility of appliance by analogy of statute. It is conceptually concluded provisions of civil legislation prohibiting making gratuitous business contracts should be excluded, as there is another way to protect interested parties — to contest gratuitous contract on the base of clause 2 of Article 174 of the Code.

The Consistency of Evidence as a Condition for Sentencing in a Special Order of the Trial

Vladislav Filatyev — Tue, 01 Apr 2025 00:00:00 +0300

Simplified procedures for proving charges are in demand in modern Russian criminal proceedings. The question of the fairness of the implementation of proceedings with their use remains complex and debatable one, it is relevant both in doctrinal terms and in connection with the significance and prevalence of the use of appropriate procedural forms. In this situation, the search for ways to optimize special procedures for the consideration of criminal cases in line with the basic principles of justice is of scientific interest. The purpose of the study is to identify shortcomings in the legal regulation of a special procedure for considering a criminal case with the consent of the accused with the charge brought, related to the assessment of its validity by the court, and, if found, to determine ways to eliminate them. The methodological basis of the study was up of general and particular methods of knowledge like the dialectical method, analysis and synthesis, deduction and induction, a systematic approach, comparative legal, logical and legal ones. Author concludes without proper guarantees of judicial control over the legality and validity of a guilty verdict in a special procedure for criminal proceedings, an objective assessment of the reliability and sufficiency of the evidence of the prosecution is not provided and the main fundamental mechanisms of protection against unjustified conviction (in particular, the presumption of innocence) are paralyzed. The author has developed a new criterion designed to assess the validity of the accusation by the court when considering a criminal case in a special procedure of trial, which can be the consistency of evidence. It is argued that they are insufficient for passing a sentence if there is at least one evidence contradicting the prosecution in the case. In connection with this position and taking into account its discrepancy with the normatively fixed general rules for evaluating evidence, which have no exceptions, the necessity of specifying in the law the appropriate grounds for refusing to apply a special procedure for making a judicial decision is substantiated.

Splitting of Contractual Statute In Standard Master Agreements in the Over-the-Counter Derivatives Market

Aleksey Klementyev, Aleksandra Kasatkina — Tue, 01 Apr 2025 23:12:41 +0300

The article considers the splitting of the law governing clause as a phenomenon to a certain extent spread in international private law based on the example of standard documentation for derivatives (derivative financial instruments) elaborated by International Swaps and Derivatives Association (ISDA) and other industry organizations including the European Banking Federation (EBF) and Foreign Exchange Committee (FXC). The said documentation is complex in character and is comprised of various elements including the master agreement, schedule thereto, confirmations and credit support annexes (deeds) addressing the transfers of financial collateral. These elements of documentation comprise the single contractual arrangement between the parties by virtue of the single agreement principle. The law applicable to the master agreement and therefore to the single agreement as a whole is determined in the While using the standard documentation two basic scenarios are possible. However, whenever the credit support annexes (deeds) are used the parties may invoke depecage as the law applicable to these instruments may be different from the law chosen with respect to the single agreement. In line with the prevailing approach to the said phenomenon in the legal doctrine and the main sources of private international law, depecage is acceptable on the condition that no discrepancies arise, especially in case when two distinct legal systems are applied to the same issue. At first glance, payments under derivative transactions and credit support instrument are separated from one another, although in the presence of an event of default and subsequent early termination of transactions under a master agreement contradictions may theoretically arise. To overcome the contradictions the parties to those contracts are recommended to advise legal opinions on the issues of netting and collateral available to the members of ISDA, EBF and FXC.

Decentralized Autonomous Organizations (DAOs): Challenges of Qualification and Choice of а Law Applicable

Elena Krutiy — Tue, 01 Apr 2025 00:00:00 +0300

Decentralized Autonomous Organizations (DAO) are becoming increasingly popular in the Internet space, and with it the recognition in the legal systems of various states. This process is primarily associated with development of the crypto-industry, legalization of mining, including in Russia. The mining can be carried out by entities both independently and by joining mining pools, which have a nature similar to a DAO. The distinctive feature of these organizations is the decentralized nature of management and functioning processes, in which almost all participants of the network community are involved. The activity of DAO is of a cross-border nature, which allows to consider it as a specific subject of private international legal relations. This legal phenomenon requires a separate study of such problems in the PIL as the qualification of DAOs and the resolution of the subsidiary conflict of laws question, as well as the formulation of the main approaches to the choice of applicable law. On the basis of comparative-legal and formal-legal methods the following qualifying features of DAOs are identified and considered: digital form of corporate legal relations, decentralization, autonomy, confidentiality and subordination to lex cryptographica. The optimal solution to the subsidiary conflict of laws question is to qualify the DAO under the law of the country where it was created. If it is impossible to establish the place of the creation of the DAO, then its qualification by lex forum is permitted. The choice of the competent law depends on the type of DAOa. Traditional conflict of laws principles would apply to digital legal entities and legally constituted elements of a hybrid DAO. The law applicable to a “pure” DAO is proposed to be the law governing the underlying agreement between the participants of the network community. Taking into account these approaches, the author attempts to determine the legal status of DAOs and their conflict of laws regulation from the point of view of Russian private law. The DAO is correlated with such corporate forms known to the law as simple partnership, social organization without the status of a legal entity and civil law community.

Determining the Applicable Law to Copyright Ownership: National Treatment Principle in Tension with Legacy Copyright Treaties

Jan Hodermarsky — Tue, 01 Apr 2025 00:00:00 +0300

The present article examines a potential conflict between the national treatment principle, which is enshrined in most significant multilateral copyright treaties, on the one hand, and legacy copyright treaties — primarily bilateral ones, but also certain multilateral treaties such as the Montevideo Convention — containing conflict-of-laws rules not fully compatible with the national treatment principle, on the other. The analysis places special focus on the conflict-of-laws issue of copyright ownership. While the national treatment principle is often interpreted as mandating the application of lex loci protectionis, some legacy copyright treaties prescribe the application of lex originis or use other connecting factors for determining the law applicable to copyright ownership. The paper analyzes how such conflicts are to be resolved, focusing particularly on the interpretation of Article 20 of the Berne Convention. Through examination of case law and scholarly views, it is argued that Article 20 allows for the application of particular provisions of legacy copyright treaties on the condition that their application implies granting authors/right holders in the particular case more extensive rights, even if these provisions contradict the national treatment principle, which is one of the fundamental principles of the Berne Convention and, in general, of modern international copyright law. It is concluded that courts must assess the applicability of provisions contained in specific international treaties on a case-by-case basis, striving to reconcile competing provisions where feasible, in line with the principle of systemic interpretation inherent in international law. Overall, the analysis reveals that the applicability of conflict-of-laws rules contained in legacy copyright treaties, which might be non-compliant with the national treatment principle, is, under certain conditions, not excluded, even when the Berne Convention is on the particular case generally applicable. The complex relationship between sources of particular international law requires a nuanced approach to resolving potential conflicts between them.

Legal regulation of platform employment in BRICS

Denis Novikov, Fatima Nogaylieva — Wed, 02 Apr 2025 00:47:27 +0300

The purpose of the article is to review the state of legal regulation of platform employment in the BRICS member states, assess common problems and work out ways to solve them. To achieve the goal, the method of comparative legal research was chosen as the main one. Study consists of several sections. In the first section the advantages and disadvantages of using platform employment for different participants are considered, as well as possible areas of mutual coordination of interests for the purpose of a legal settlement of the relations mentioned are modeled. The following sections provide a detailed analysis of the state of legal regulation and existing law enforcement practices in each of the BRICS countries. A brief analysis of the legal regulation in the new BRICS states is provided as a separate section. In all the studied states, there has been an increase in the volume of platform employment to one degree or another; there is a similar distribution structure between countries by gender, age, and professional characteristics of those employed on platforms, fields of activity of platforms, salary levels, as well as problems and risks for those employed on the platform. It has been revealed, the measures taken by states in response to the growth of the virtually unregulated sector of the economy and the growing platform employment vary as following. Some countries are taking a wait-and-see attitude regarding the introduction of regulatory changes, others are introducing soft regulation with a minimum of mandatory requirements, while others are developing special regulation of platform employment, introducing special legal statuses for those employed on platforms, while not always maintaining the line of the real features of these categories of employees. In all the countries considered, there are similar potential areas for further legal regulation: the regulatory definition of the categories of platform employment, the consolidation of the list of responsibilities of digital platforms in front of employees (issues of access to social programs and medical packages, transparency of access to the platform and to conditions of work distribution on it, the possibility of working of one person on multiple platforms, collective rights, clear framework regarding the work regime and recreation, safety of working conditions and the place of its implementation).

Wage Security in Hybrid Legal Regimes

Sergey Chucha — Tue, 01 Apr 2025 00:00:00 +0300

The review analyzes theoretical problems, historiography contexts of conceptualization and legal regulation of the institution of remuneration in Russia in the context of hybrid legal regimes studied in the monograph. The high demand for the research is emphasized due to a long break in monographic works on this complex and dynamic issue. Attention is drawn to the array of scientific works, regulatory material used by the author, including numerous by-laws and social partnership acts, as well as the widespread use of judicial practice. The structure of the monograph is due to the multifaceted nature of the problems of legal regulation of wages in Russia, corresponds to the designated target guidelines, the model of the industry institute and the logic of the presentation of issues. The author of review expresses a wish to strengthen interdisciplinary approach to improve guarantees of receiving wages in the event of the employer's insolvency and payment of wages using digital financial assets, including the digital ruble. The monograph under review makes a significant contribution to the science of labor law, legal regulation of wages, and allows, on the basis of domestic and foreign experience, to form a scientifically substantiated and practically verified original national legal model of normative regulation of wages in the context of hybrid law enforcement accompanying the global transformation of industrial and social relations.