Law. Journal of the Higher School of Economics

Preambles of Constitutions: Current State of Academic Research

Galina Andreeva — Thu, 04 Dec 2025 00:00:00 +0300

The purpose of the article is to analyze the prevailing and identify currently emerging approaches to the interpretation of the provisions of the preambles of modern constitutions. To identify the relationships and patterns of development of scientific knowledge about the preambles of constitutions, a comparative method was used. Features of the preambles of constitutions as an object of scientific research are shown. It is determined which aspects of the preambles most often are an object of exploration. The main research discussions conducted regarding the content and meaning of the preambles are characterized. The author focuses on the state of research on three interrelated problems: the origin of the preambles of constitutions, their content and legal nature. The analysis of the origin of the preambles of constitutions carried out in the article was used to identify the origins of the currently observed diversity of their content and their modern role in constitutional regulation. It is shown what features of the first constitutions became the basis for the development of the content of the preambles of later constitutions. Due to the significant diversity of the content of modern constitutions, scientists are trying to identify common features of the provisions of their preambles. The types of classifications developed to date for the content of preambles of constitutions are shown. It was revealed that their variability depends on the regional affiliation of the constitutions selected for analysis, and on the number of constitutions considered. The decision on the legal force of the preamble is predetermined by the peculiarities of the content and wording of the provisions of the preambles of the constitutions, the prevailing doctrinal approach, as well as the position of the constitutional control bodies, which may change from the denial of the legal force of the preamble to its recognition. The main options for approaches of constitutional control bodies to the issue of the legal force of constitutions are described. According to the author, the current changes in the role and meaning of the preambles of constitutions are predetermined primarily by the fact that, along with traditional components, they include new ideas and principles significant for the state and society, derived from international law and from the constitutions of other countries.

Comprehensive Territorial Development Contract as a Civil Law Contract of Mixed Type

Vladimir Rubashkin — Thu, 04 Dec 2025 00:00:00 +0300

The study aim is to determine the civil-law nature of the Comprehensive Territorial Development Contract (CTD) in the Russian Federation legislation. The purpose of the work is to provide a legal qualification of the agreement mentioned and to identify the applicable legal regime to address practical issues arising during the implementation of complex, long-term comprehensive development projects. The research is based on the application of both general research methods (critical and systems analysis, synthesis, induction) and specific methods of cognition: formal legal, teleological, and comparative legal ones. The analysis encompasses the norms of the Russian Urban Development Code and the Russian Civil Code, standard forms of CTD agreements, as well as relevant court practice. It is established that the CTD Contract, despite the presence of public law elements in its conclusion procedure, is civil law in nature. In this regard, that agreement is governed by the general provisions of the Russian Civil Code and the special provisions of the Russian Urban Development Code, altogether. Its subject constitutes a complex of heterogeneous mutual obligations of the parties, which precludes its classification as any single named contract. However, it is argued that the CTD agreement is not an unnamed contract within the meaning of Clause 2, Article 421 of the Russian Civil Code. The compensated nature of the contract is proven, manifested by the existence of a counter-provision from the public partner. The most accurate qualification of the CTD agreement is recognized as a mixed contract, which may include elements of work contracts and lease agreements. The legal relations arising from the CTD Contract are subject to application of the special norms of the Urban Planning Code of the Russian Federation, and subsidiarily — the general provisions of the Civil Code on obligations and the rules governing those named contracts whose elements are present in the specific obligations of the parties. This approach allows regulating key practical problems, particularly enabling the application of norms on construction contracts to assert claims regarding the quality of works and objects transferred to public ownership.

Control of Factual Grounds of Administrative Acts in the Russian Law

Denis Andreev — Thu, 04 Dec 2025 00:00:00 +0300

The correct or incorrect establishment of the factual circumstances of the case in the course of administrative procedures determines the substantive legality of administrative acts. In this regard, the verification of the factual circumstances on which decision of public administration was based should not be confused with the control over proper procedure for taking the decision. Factual errors in administrative acts may be caused by actions of public administration or private individuals. This classification is based on the distribution of the burden of proof in administrative proceedings. The investigation of a case under administrative procedures is based on the principle of an ex officio or inquisitorial principle. This determines that, in most cases, the factual groundlessness of administrative acts results from actions or omissions by public administration. Factual errors may arise from the use of unacceptable evidence, insufficient evidence, a lack of mandatory evidence and disregard for or other assessments of the circumstances set out in judicial acts that are in force. The factual groundlessness, caused by the actions of individuals who provide the public administration with false information or forged documents for adoption of administrative decisions, is discussed in the article in detail. In such cases the Russian Federation legislation allows the revocation of administrative actions out of court and also provides a ban for private individuals from reapplying to public administration for a certain time period on the issue of adoption of similar administrative actions. Special attention is paid to the evolution of the modern Russian judicial doctrine of control of the factual validity of administrative acts. The role of the analysis of factual circumstances in the implementation of judicial control of the validity of discretionary administrative acts is demonstrated. Judicial review of the proportionality of negative administrative acts is essentially a comprehensive standard that includes verification of the factual and legal grounds for decisions of public administration. In the final part of the article, the author used the example of exam grades to demonstrate the possibility of a limited approach to verification of the factual basis for administrative acts by the courts.

Liability of Board Members for Infringing Damages to Corporation: Current Practice and Perspectives of Regulation

Yulia Zhukova, Anna Podmarkova — Thu, 04 Dec 2025 00:00:00 +0300

The article is devoted to the liability of members of the board of directorate in legal entities for losses incurred by organizations or driving them into bankruptcy in Russia. The research seems to be important because of increased attention to corporate governance issues during the period of rising insolvencies and cases of bringing directors of the company to liability. Still the director’s offense in the situation of causing only damages and bringing the company to insolvency seem to be the same: breaching of duty to act reasonably and in good faith. The authors emphasize that current legislation does not provide clear mechanisms for establishing grounds for directors’ liability, complicating differentiation between “good faith errors” and abuses. One of the most debatable issues in the field concerning director’s liability is the problem of evaluation of sufficiency of director’s actions to meet the standard of good faith and reasonableness while approving a transaction. Difficulties also arise when proving facts of “culpable inaction,” and distinguishing between concepts such as “reasonable risk-taking” and “unreasonable behavior.” The paper contains an analysis of judicial practice, highlighting variations in courts’ approaches to determining directorial responsibility–from strict personalization of accountability to justifying their actions based on procedural compliance and formal competency limitations. Researchers propose developing detailed criteria for evaluating the conduct of board members tailored specifically to collective decision-making bodies, differing from universal requirements applicable to individual executives. The article reveals key legal barriers impeding effective functioning of the institution of board member liability and offer directions for future research and development of legal regulation of corporate governance.

The Concept of a Digital Employment Relationship

Irina Filipova, Kirill Tomashevski — Thu, 04 Dec 2025 00:00:00 +0300

Employment relations are important for human society, affecting its economic and social fabric. Most persons are involved in employment relations for a part of their lives due to their prevalence and continuing nature. When society moved from the industrial stage of development (Society 3.0) to the post-industrial society (Society 4.0), employment relations received a powerful impetus to the changes provoked by the ongoing digitalization. The legal regulation is gradually changing due to these changes. The subject of the study is the emergence of the phenomenon of a digital employment relationship, which is characterized by the peculiarities of the composition of subjects, the object of this relationship and its content. The purpose of the research is to formulate and substantiate the concept of a digital employment relationship. To this end, the authors analyzed the signs of “classical” employment relations, examined the transformational processes taking place in the world of work, and named the main consequences of these processes. New entities are identified that can potentially take the place of digital employees and employers, and the conditions under which these forecasts will become reality are listed. The progressive development of cyberspace with further convergence of physical and virtual spaces can be considered as a vector of digital transformation. The result of this process will be the transition to the next stage of society’s development (Society 5.0). During the research, a set of general and special academic methods was used: dialectics, hermeneutics, historical, comparative legal and system-functional methods, as well as the method of forecasting and logical techniques. The authors substantiate the transition of a growing proportion of employment relations to the virtual space, propose the concept of a digital employment relationship in the context of further evolution of the post-industrial society, identify the features of the content of such relations, develop criteria for classifying new potential subjects of employment relations, formulate the definitions of a digital employment relationship, a digital employee and a digital employer, put forward a proposal to include relevant norms in employment legislation.

Social Determinancy of Criminal Legal Protection of Public Relations Connected to Artificial Intelligence

Ilya Mosechkin — Thu, 04 Dec 2025 00:00:00 +0300

This article addresses a theme of the social justification for criminal law protection of public relations associated with creation, dissemination, and use of artificial intelligence technologies. The aim of the author is to assess advisability of criminalizing acts committed using intelligent systems or directed against them, and to develop a concept for optimizing criminal law based on the criteria of social necessity. The paper demonstrates the high social value of public relations related to artificial intelligence, which is integrated into key spheres of public life. Acts both utilizing AI and targeting it possess significant social danger, characterized by substantial harmful potential, scalability, and high latency. The impossibility of countering such acts without criminal law measures is substantiated. A steady trend of increasing prevalence of these acts is noted. The current norms of the Russian Federation Criminal Code do not fully encompass specific methods of infringement, such as adversarial attacks and training sabotage, indicating the insufficiency of existing countermeasures. The existence of a public demand for establishing and enhancing criminal law protection is proven through references to sociological surveys, official documents, published interviews, and other theoretical works. Based on the analysis, the study concludes that the criminal law protection of the relations in question is socially justified. Proposed directions for legislative improvement include introducing qualifying features covering the use of AI technologies into relevant criminal statutes. The necessity of criminalizing the creation of AI for criminal purposes, as well as the improper creation or training of intelligent systems resulting in grave consequences (subject to comprehensive legal regulation), is argued. The work also justifies expanding Chapter 28 of the Criminal Code RF by incorporating special offenses directly protecting artificial intelligence, since certain methods of infringement fall outside the scope of Articles 272-274.2. It is proposed to amend the title of Chapter 28 of the Criminal Code RF to reflect artificial intelligence as a phenomenon distinct from all other computer programs.

Mutual Impacts of International Investment Law and Law of the Sea under the BITs and ISDS cases: a Fundamental Analysis of EEZ, Contiguous Zone, and Continental Shelf

Mostafa Abadikhan — Thu, 04 Dec 2025 00:00:00 +0300

The opportunities and resources contained in the Exclusive Economic Zone, the Contiguous Zone, and the continental shelf attract foreign investors to invest in the waters, living and non-living resources separately. Investment in these zones is admissible to be regarded as an interdisciplinary issue, given its capacity to establish a nexus between three distinct branches of international law: namely, investment law, the law of the sea, and environmental law. The coexistence of these three branches of government engenders a complex environment for investment in these zones. The fundamental question posed in this study is: what are the key considerations in relation to successful investment in the Exclusive Economic Zone, contiguous zone and continental shelf, which should be taken into account at the outset? A comprehensive analysis of the United Nations Convention on the Law of the Sea, Bilateral Investment Treaties, Investor-State Dispute Settlement cases and pertinent environmental regulations was conducted to ascertain the factors that contribute to a successful investment in these regions. The analysis concluded that a successful investor must consider four key aspects when contemplating investment in these zones. Firstly, the nature of the relevant zones must be taken into account. Secondly, investment permits must be based on the nature of the zones. Thirdly, the Exclusive Economic Zone, Contiguous Zone and continental shelf under Bilateral Investment Treaties must be considered. Finally, the establishment of peaceful coexistence is paramount. It is evident that an absence of consideration for each of the four aspects results in a challenge for the investment.

Legal Basis for Imposing Additional Customs Duties by the President of the United States

Roman Shepenko; Irina Ryzhkova — Thu, 04 Dec 2025 00:00:00 +0300

The canonized predictability of the multilateral trading system, ensured, among other things, by the agreements of the World Trade Organization, was nullified 30 years after its establishment, although the process of destruction began somewhat earlier. This became possible because of unilateral actions by one member state of this international organization. This study attempts to identify the specifics of the American legislation in additional customs duties imposed by the US President. Sources of law at both the national and international levels are examined, as well as current practice and the results of cases considered by arbitration panels to establish the compliance of relevant decisions with WTO obligations. The study was conducted with using general methods of study — systematization and logical analysis helped to determine specifics of US national legislation in the field of presidential powers to impose additional tariffs. This work also used special scientific methods of cognition, such as the formal dogmatic method, the method of generalization and hermeneutics, and the historical legal method. The analysis revealed the specific features of substantive and procedural regulations used by the US President when making decisions on the imposition of additional tariffs. The relevant provisions of national legislation were examined, as well as the specifics of the wording used in international bilateral and universal multilateral trade agreements and agreements with a limited number of participants. Particular attention is paid to the controversial issue of the admissibility of applying the provisions of the International Emergency Economic Powers Act, which was first used by the US President in 2025 as a legal basis for an unprecedented increase in customs duties. Based on an analysis of the current practice of considering cases by arbitration panels of the WTO Dispute Settlement Body, the most compelling legal grounds that were successfully used by the parties as arguments in their defense against unilateral US actions to increase tariffs have been identified. The influence of contemporary geopolitical challenges on the transformation of the WTO dispute settlement mechanism is demonstrated.

Digital Technologies in Ecological Legal Regulation and Environmental Protection Management in China: Advantages and Risks

Irina Umnova-Koniukhova, Yasin Ten — Thu, 04 Dec 2025 00:00:00 +0300

The intensive introduction of digital technologies in contemporary China, that has declared its goals and objectives of promoting an ecological civilization in the country, has brought about significant changes in the processes of ecological legal regulation and environmental management. This has made it relevant to analyze the advantages and risks of the digitalization of ecological legal relations in this country. The purpose of this study is to analyze the current state of the application of digital technologies in ecological legal regulation and environmental management in the People’s Republic of China, identify the associated risks, and propose ways to adapt to the advantages and risks of the digital era. The research methodology was based on the use of dialectical and systemic general scientific methods, as well as special methods of formal legal and comparative legal analysis. To achieve the research goal, the conceptual basis of ecological legal regulation and environmental management in the context of digital development is consistently revealed; a general assessment of the current advantages and risks of using digital technologies in ecological legal regulation and environmental management is provided; the issues of regulating relationship between traditional ecological legal regulation and the technological regulatory system that maintaines it are raised; and the main risks associated with the use of digital technologies in environmental management in China are identified. Special attention is paid to the application of the basic principles of ecological law, taking into account the technological support for ecological development (precaution, cost-benefit analysis, availability of ecological information, etc.), the implementation of sustainable development and ESG concepts, ensuring the reliability and accessibility of data, introducing legal restrictions on “technological power,” minimizing algorithmic errors, and finding a balance between the sustainability and flexibility of the ecological legal regulation and management system in the context of the country’s technological development. The main conclusion is that the future of ecological legal regulation and environmental protection management in China should be based on a dynamic legal system that can integrate technological advancements, minimize associated risks and challenges, and ultimately ensure the ecological well-being of the population.

International Legal Guarantees for Access to Healthcare Technologies: Cultural and Religious Aspects

Vladislav Malichenko — Thu, 04 Dec 2025 00:00:00 +0300

The healthcare system of every country must maintain respect for cultural and religious differences and take into account traditional preventive measures and treatment methods, including various aspects of access to healthcare technologies. Neglecting cultural and religious characteristics in the provision of medical care is one of the most significant obstacles to protect the right to the highest attainable standard of health in context of emerging threats and challenges to human security. It emphasizes scholar and practical importance of research on this issue. The object of the study is the system of social relations formed in the sphere of the development, production, and application of healthcare technologies, regulated in accordance with religious requirements, as well as the principles of protecting traditional knowledge and genetic material. The aim of the study is to develop normative content of the human right to the highest attainable standard of health in the context of ensuring the protection of the rights of indigenous peoples and religious groups. The author argues the uncontrolled process of development, production, and use of herbal medicinal products, as well as other health technologies based on traditional knowledge, creates a number of challenges to human security and the protection of sovereign rights of states over their genetic resources. To counter this threat, the article outlines the main directions for developing special legal mechanisms to regulate access to traditional knowledge at the international and national levels. Proposals for forming a balanced approach to using intellectual property protection mechanisms are scientifically substantiated, aiming to safeguard rights of access to traditional knowledge and scientific developments derived from it. Acknowledging the importance of complying with religious requirements in the production of vaccines and other medicines used to combat infectious diseases, this aspect is recognized as an important element of national security for states. The article provides a list of recommendations aimed at improving the pharmaceutical and medical industries to ensure compliance with halal requirements.

Mobile Applications and Ecosystems in Healthcare: Legal Aspects

Albina Gadzhieva, Violetta Trubina, Anna Solovieva-Oposhnyanskaya — Thu, 04 Dec 2025 00:00:00 +0300

Over past decade healthcare sector has undergone a qualitative transformation. Digitalization of healthcare is one of the most important global development trends, aimed at making medicine more accessible to the population and improving the speed and quality of medical care. In healthcare the following advanced digital solutions are in active use: telemedicine services, mobile applications, big data processing technologies, machine learning and artificial intelligence systems. In view of their usability, individual approach, accessibility, and informativeness, the use of mobile applications has become an integral part of human life in modern society. Mobile applications are in demand in medical organizations for diagnostics, decision support and remote patient monitoring. Despite the obvious advantages, the widespread use of mobile applications, including for medical purposes, raises questions of personal data protection, mobile applications definition and legal regime clarification, as well as regulatory control. Mobile health apps accumulate large amounts of data, passively collected by automatic means and voluntarily provided by users. In the absence of preliminary control of mobile applications for compliance with legal requirements, as well as for adopted measures ensuring the confidentiality and security of data, there are substantiated risks of violation of user rights, leakage of personal data, and discrimination against users by employers and insurance companies. The article examines certain aspects of the legal regime of mobile health applications, as well as the specifics of protecting the personal data they accumulate. The need to establish a legal definition of the concepts of “mobile application” and “mobile medical application”, subject to preliminary regulatory control, is affirmed. Based on a analysis of the legislation of the Russian Federation and certain foreign countries, the authors formulated a series of recommendations aimed at improving the effectiveness of protecting users of mobile applications used for medical purposes, in the context of rapidly evolving digital transformation.