Law Journal of the Higher School of Economics

Properties of the Principle of Constitutionality of Normative Acts

Sergey Mosin — Thu, 06 Jun 2024 00:00:00 +0300

The article studies the principle of constitutionality of normative legal acts in terms of its properties: axiomaticity, presumptiveness and dogmatic fictitiousness. Such methods of research, as comparative, systemic-structural and formal logical, in their combination allowed to consider and characterize these properties and thus to study this principle in the most comprehensive manner. Assuming the constitutional principles guide the development of the whole legal system, while ensuring its stability and ability to adapt it
in a timely manner to changing circumstances, as appropriate, such principles among other properties have the properties of axiomaticity, presumptiveness and dogmatic fictitiousness. In this connection the purpose of the present study is to confirm the hypothesis that the principle of constitutionality of normative legal acts, characterized as a requirement of strict conformity of the Constitution of the Russian Federation with the provisions of normative acts, has a set of these properties. Thus in the course of the study it was established that while the principle in question is axiomatic, it formulates the basic rule — “the law must be constitutional”, which has the character of anormative legal act must be lawful”. In turn, obliging the enforcer to proceed from the assumption of conformity of normative legal acts with the provisions of the Constitution,
this principle has the property of presumptiveness, and the legal presumption of the constitutionality of normative legal acts is an essential tool for monitoring compliance with the supremacy of the Constitution. At the same time, a high degree of normative generality gives the considered principle of constitutionality of normative legal acts the property of dogmatic fictitiousness. This property determines the potential of the given constitutional principle and allows to reveal its legal content. It has been substantiated that, within the limits of its constitutionality, the normative legal acts adopted must meet, inter alia, the requirements of the principle of maintaining citizens’ trust in the law and actions of the state, the requirements of certainty, clarity, unambiguity and consistency with legal regulation. In addition, there should be no corruption factors in legal acts.

E-commerce in Regulatory Architecture: Searching for a Balance of Interests

Olga Sergeeva — Thu, 06 Jun 2024 00:00:00 +0300

The development of digital technologies significantly simplifies the entry of small and medium-sized businesses into both national and foreign markets. However, overcoming territorial barriers through limitless Internet technologies leads to the question of legal mechanisms for regulating relations in the field of e-commerce, about the adequate response of Russian society to great challenges, taking into account the interaction of man and technology, social institutions at the present stage of global development.
Such big challenges include, first of all, a qualitative change in the legal space itself, which is being formed under the influence of new actors — electronic trading platforms (online platforms). Private stakeholders — representatives of the business community and Internet service providers — also actively participate in the development of standards for non-state regulation of e-commerce. The digitalization of contractual relations has influenced not only the tools, but also made qualitative adjustments to the foundation of the regulation of private law relations, which requires a comprehensive study, conceptualization and development of a scholar approach to the regulation of contractual relations in the Internet environment, taking into account the positive experience of foreign countries that are leaders in the field of electronic commerce,
however, focusing on our own legal traditions. The article examines the debate about the applicability of traditional legal approaches to relations in the digital environment; approaches to the legal regulation of electronic commerce are analyzed, including those adopted by international organizations (UNCITRAL), regional integrations in the European and Eurasian space, as well as national legislators; models of non-state regulation of electronic commerce are explored. It is concluded that in the current conditions of digitalization of the business environment, establishing a balance of rights and interests of all participants in electronic commerce seems possible only through the introduction of special mandatory regulatory requirements. The task at hand will be met to a greater extent by approving of a special legislative act that would form the basis for carrying out trade activities in the digital space and take into account modern trends in legal regulation in this area.

Sales Agreement Using Machines in Structure of Vending Business

Marina Maleina — Thu, 06 Jun 2024 00:00:00 +0300

The vending business is presented as a type of innovative entrepreneurial activity. This area includes several groups of relations between: the manufacturer of vending machines and the buyer of the machines; the owner of the vending machines and the operator who uses them; the operator and the legal entity for the placement of vending machines; the operator and the legal entity for purchase of goods for sale, purchase of materials to perform work, provision of services through machines, and in the role of a victim; the operator and the legal entity for the repair of machines; the operator and the consumer for the purchase and sale, exchange of goods, performance of work, provision of services, temporary use of things; operator of the fandomat as a buyer of used packaging and a citizen-seller; the owner of vending machines (manufacturer,
operator) and a third party (not a party to the contract) as a violator or as a victim; between operators, as well as between each operator and a self-regulatory organization in this area. It is proposed to expand the scope of vending to include, in addition to purchase and sale, the activities of exchange, temporary use of things, provision of services, performance of work, donations. The central retail purchase and sale agreement is characterized as an agreement by virtue of which the seller (operator), without personal
presence using a vending machine, undertakes to transfer ownership to the buyer of goods intended for use not related to business activities, after the buyer has completed payment actions and selection of goods, and the buyer pays for the goods. Reverse vending has its specificity in the form of a purchase and sale agreement using a machine to accept used containers for a fee, where the seller is a citizen and the buyer is an organization or individual entrepreneur. Problematic issues related to the conclusion
and execution of a sales contract using vending machines are highlighted (form of the contract, type of product sold, ensuring the quality and safety of the product, amount of payment for the product, preservation of the buyer’s personal data), and ways to solve them are shown. The author justifies the enshrinement in law of a list of goods the sale of which is unacceptable through vending machines or is prohibited for sale in certain places. Research methods: general scientific methods, as well as systematic and logical analysis of scientific literature, norms of Russian legislation, comparative law method.

Inheritance of Legalized Digital Assets: Conflicts and Possible Areas of Improving Russian Legislation

Yuliya Kharitonova — Thu, 06 Jun 2024 00:00:00 +0300

Digital financial assets, utilitarian digital rights, digital ruble can belong to citizens, but when drawing up orders in case of death, as well as when executing inheritance, notaries and law enforcers find themselves in a deadlock due to the incompleteness of legal regulation of this sphere of public relations. The author’s goal was to analyze the possibility of applying the general procedure of hereditary registration of the transfer of rights to digital rights and digital rubles, to identify gaps and to formulate proposals for solving both practical and doctrinal difficulties. The methods of collecting empirical information, generalization methods, comparative legal, formal legal ones were implemented. The conclusions are formulated about the possibility of singling out an independent type of dispositions in case of death in respect of such special objects of turnover as digital rights in the framework of interaction with the platform on which such rights are issued and circulated. In the absence of a clear consolidation of the rules of inheritance of digital rights, the testators have to carry out conditional inheritance planning by taking actual actions to ensure the transfer of information about the login and password from the digital wallet to the heirs; it does not allow to protect interests of compulsory heirs and surviving spouses. Comparing the rules of execution
and execution of testamentary disposition in case of death in respect of funds on the citizen’s account in a credit organization, which the legislator extended to the digital ruble, with the peculiarities of interaction between the citizen and the platform regarding the turnover of digital financial assets and utilitarian digital rights allowed us to conclude that for the hereditary succession in respect of digital rights the most simple in the execution and execution will be just a testamentary disposition. Since the registration on the platform creates a personal account of the user, the platform operator conducts the identification of the user, transfer of rights to his heirs can be ensured by applying directly to the platform operator for access to digital assets.

Legal Status of a Sleeping Shareholder within a Corporation

Tavus Abdulkadirov — Thu, 06 Jun 2024 00:00:00 +0300

The relevance of the theme is due to the annual discussions over the past 20 years of legal status of “idle” shareholders, who, by their inaction, create obstacles to the conducing business of the joint-stock company. Over the past five years, position of the Supreme Court of Russia on the consideration of claims for recognition of shares as ownerless has changed dramatically. Arbitration courts are trying to establish uniformity of judicial practice on the distribution of the burden of proof in corporate disputes, the
subject of which is to determine the ownership of shares of absent shareholders. The excluded shareholders are finally beginning to seek the eradication of the controversial and unreasonable practice of the Supreme Arbitration Court, justifying the retirement of shareholders who disagree or are not interested in the transformation of a jointstock company into an organizational and legal form of a limited liability company. For determining circumstances established by courts on claims for recognition of shares as
ownerless, as well as the forms of protection of the corporation’s rights that depend on disinterested and dormant shareholders, the author conducted a literal and systematic interpretation of legal norms, as well as analyzed judicial and arbitration practice. In the last few years, executive authorities and supervisory authorities have been making attempts to regulate the legal status of a dormant shareholder. Efforts are also being made to ensure the interests of joint-stock companies without violating rights of shareholders, which ensures that the interests of the parties to corporate legal relations are balanced and that the company and its participants are equal. The terminology “sleeping shareholder”, “lost shareholder”, “dead souls” was analyzed and the legal meaning of the listed phrases was established. Criteria have been identified are the grounds for recognizing shares ownerless, result from the long-term inactivity of the shareholder, expressed in the non-receipt of dividends and postal correspondence for more than five years. It is proposed to allow the redemption of disputed securities from lost shareholders, and, by amending the legislation on joint-stock companies, oblige the corporation to form a fund of unpaid dividends in favor of “sleeping” shareholders and determine its legal status and the timing of the possibility of receiving unpaid funds.

Conceptualization of Exclusive Copyright Content

Dmitriy Bratus — Thu, 06 Jun 2024 00:00:00 +0300

The historical, philosophical, social foundations of exclusive copyright in terms of its content are explored. The prerequisites for the formation of this institute are outlined. Copyright in Rus’ began with state printing houses created by Ivan IV to control the impeccability of biblical texts and counteract their malicious distortion by supporters of Uniatism, thus provoking popular unrest. Peter I Great pursued the same policy. Hence the censorship and censorship regulations and the well-known theory of the normative prehistory of the institution. Western European copyright law, at the stage of its formalization, served the interests of capital, and the system of rules representing the prototype of Russian copyright law, protected spirituality and statehood. The generally accepted history of copyright is critically analyzed. Versions of the origin of this (young, as is commonly believed) institution vary over several centuries. This discrepancy indicates a lack of an objective historical approach and prevents a comprehensive qualification. The struggle for ownership of the results of creativity, on the one hand, and against the monopoly of the copyright holder (state of appropriation), on the other, is qualified in the study as the main source of development of the content of exclusive copyright. From the point of functional analysis it seems promising to clarify the characteristics of
the content of exclusive copyright and compare it with such related categories as the concept, structure, and system of exclusive copyright. Differences between the noted protective correlates are sometimes ignored in the modern doctrine of intellectual rights. An imperfect change of emphasis is emphasized: the category of content in the latest research is replaced by the category of the structure of exclusive rights. A conclusion is made about the need to develop a comprehensive concept of the content of exclusive copyright and approaches to its definition are outlined. The semantic meaning of the content of exclusive copyright is expressed in a legally established list of absolute property rights (the scope of subjective rights) to a work and in a system of methods for the economic exploitation of a given intellectual product that correlates with that list.

Information Bases of Modern Criminal Law Protecting Subjects of Digital Economy and Finance

Sergey Rastoropov, Vladimir Prorvich — Thu, 06 Jun 2024 00:00:00 +0300

The value of criminal law protecting digital economy and financial entities largely depends on the integrated application of tools created within the framework of the sciences of criminal law and information blocks. Computer modeling plays an important role in the proper criminalization of new social relations in the field of digital rights recently introduced into the current legislation, which are actively used by cybercrime of various types. The main sources of legal errors in the organization of criminal law protection of subjects of digital rights arise due to attempts to “mechanically” transfer some concepts from arithmetic, physics, microelectronics and other natural sciences to the field of criminal law. Moreover, the legislator linked the concepts of “digital rights” with the new legal concept of “rules of the information system”. At the same time, that rules are created by the “owners” of information systems, and there are no relevant legal regulations on their structure and content at the level of federal laws. At the same time, interconnected information systems have long been used in making exchange transactions with equity securities, and non-alignment of the rules of these systems often lead to legal errors in identifying relevant criminal events. To prevent them, new ways of proper implementation of the tools of the information block sciences in the field of criminal law sciences are proposed. One of the most effective is the identification of legal algorithms from certain sets of criminal and civil law norms, which make it possible to form a detailed criminal law characteristic of a specific cybercrime and identify the features of its composition for proper qualification. Other types of legal algorithms make it possible to identify the features of the subject matter and the limits of proof in a criminal case of cybercrimes of this type. Still others need to use the methodology for investigating such cybercrimes in a cyclical mode with feedback loops to identify each of the crimes committed in the aggregate and differentiate their elements. The formation of hierarchical systems of legal algorithms of various types and purposes makes it possible to create on their basis a number of problem-oriented computer programs that
ensure the proper enforcement of interactive information systems for the processing of electronic documents and other information in the identification, disclosure and investigation of crimes in the field of digital economy and finance.

Judicial Fine: Issue of Legitimization according to Goals, Grounds and Procedure for Termination of a Criminal Case

Tatiana Klenova, Valentina Lazareva — Thu, 06 Jun 2024 00:00:00 +0300

The value of criminal law protecting digital economy and financial entities largely depends on the integrated application of tools created within the framework of the
sciences of criminal law and information blocks. Computer modeling plays an important role in the proper criminalization of new social relations in the field of digital rights
recently introduced into the current legislation, which are actively used by cybercrime of various types. The main sources of legal errors in the organization of criminal law
protection of subjects of digital rights arise due to attempts to “mechanically” transfer some concepts from arithmetic, physics, microelectronics and other natural sciences to the field of criminal law. Moreover, the legislator linked the concepts of “digital rights” with the new legal concept of “rules of the information system”. At the same time, that
rules are created by the “owners” of information systems, and there are no relevant legal regulations on their structure and content at the level of federal laws. At the same
time, interconnected information systems have long been used in making exchange transactions with equity securities, and non-alignment of the rules of these systems
often lead to legal errors in identifying relevant criminal events. To prevent them, new ways of proper implementation of the tools of the information block sciences in the field of criminal law sciences are proposed. One of the most effective is the identification of legal algorithms from certain sets of criminal and civil law norms, which make it possible
to form a detailed criminal law characteristic of a specific cybercrime and identify the features of its composition for proper qualification. Other types of legal algorithms
make it possible to identify the features of the subject matter and the limits of proof in a criminal case of cybercrimes of this type. Still others need to use the methodology for
investigating such cybercrimes in a cyclical mode with feedback loops to identify each of the crimes committed in the aggregate and differentiate their elements. The formation
of hierarchical systems of legal algorithms of various types and purposes makes it possible to create on their basis a number of problem-oriented computer programs that
ensure the proper enforcement of interactive information systems for the processing of electronic documents and other information in the identification, disclosure and
investigation of crimes in the field of digital economy and finance.

Criminal Procedure: Issues of Regulating Pre-trial Proceedings

Lyudmila Volodina — Thu, 06 Jun 2024 00:00:00 +0300

Contacting law enforcement agencies is associated with the hope of obtaining protection, restoring violated rights and legitimate interests, and the possibility of exercising the constitutional right to access to justice. Article 6 of the Russian Code of Criminal Procedure fixing the purpose of criminal proceedings, establishes the target areas of criminal procedural activity related to the protection of human rights. The protection of a person and society from criminal encroachments requires a balance of interests between individual, society and the state. How it is better to maintain the balance of these interests in the field? Can we always count on the help of state mechanisms if criminal acts have been committed against us? Are our expectations associated with the justice as a standard of duty that provides protection justified? The procedure of criminal
proceedings under current Russian law is built as a system of relatively independent stages of the criminal case movement, assuming their clear sequence. The beginning of criminal proceedings is connected with the stage of initiation of a criminal case. However, its introduction into the stage system as an independent stage gave rise to a discussion about the significance of this stage, its expediency, and its tasks. The importance of the issues of legal regulation of pre-trial proceedings is related to the need to properly ensure the protection of human rights involved in one capacity or another in the criminal process. The research is based on the application of general research methods (systemic, structural and functional); on the use of private scholar methods (historical, statistical, comparative legal ones). The article analyzes the current criminal procedure
legislation regulating the commencement of criminal proceedings its comparison with the procedures implemented according to the Statute of Criminal Proceedings of 1864. There is an analysis of the practice of law enforcement, of statistical information, doctrinal publications devoted to the issue. The results of the study are proposals aimed at reforming the institution of pre-trial proceedings. A clear algorithm for the initial stage of criminal procedure proceedings is proposed. The author’s proposals are set out in the third section of the article and in the conclusion.

Foreign Experience in Legal Regulating Deepfake Technology

Vadim Vinogradov, Daria Kuznetsova — Thu, 06 Jun 2024 00:00:00 +0300

Deepfake technology has been gaining rapid popularity in recent years, developing at an extraordinary speed. With the help of various applications, anyone can create a photo, video or audio deepfakes on their own and without much difficulty. At the same time, their use raises various ethical issues related to misinformation and consent, and creates a risk of misuse, for example, in the sphere of politics, in various fraudulent schemes. All this indicates the need to build adequate models of legal regulation of
deepfake technology, to create a system of acts aimed at protecting human rights, including in the digital environment, and preventing improper use and commission of offences using this technology. At the same time, the deepfake technology can also be used for good purposes, it poses a very difficult task for the legislator to find a balance — it is necessary to fix an effective system of rules for the use of the deepfake technology and responsibility for their violation, without creating difficult to overcome obstacles to the development of technology in general or, without prohibiting the use of deepfake technology completely. The article reviews the experience of the USA, China and Singapore in the sphere of legal regulation of the deepfake technology in order to find the most successful model. Despite all the differences, the approach of the USA and China is similar in terms of adopting specialized regulation, while Singapore is moving in a different direction — adopting point changes to legislation and addressing issues through extensive enforcement. In any case, it can be stated that the legislative measures of all countries reflect the desire to adapt their legal systems to the challenges posed by emerging digital technologies. The reviewed experience (if it will be taken into account and adapted) may be useful for the creation of an optimal Russian model
of legal regulation of the deepfake technology. It is thought that labelling all types of deepfake content is the key solution.

The Republic of China (Taiwan) «Free Zones» Experience, or Origin of «Made in Taiwan» Tags

Roman Shepenko — Thu, 06 Jun 2024 00:00:00 +0300

Starting from the 1960s, many states began to create territories with a special business regime. They are called differently, but they are based on the concept of a free zone, within which imported goods are considered located outside the customs territory of the state. The establishment of free zones often does not bring the expected results. The problem lies in particular in the fact that the formal existence of a regulatory act providing for exemption from fiscal and other payments is not the main condition for attracting
foreign investment. Identifying a set of factors and determining the significance of legal regulation is important from a theoretical and practical point of view. The most famous and frequently mentioned are the special economic areas of the People’s Republic of China, but mainland China was not a pioneer. It was in Taiwan that the first export processing areas in Asia were established. Their specificity lies in the active role of the state and in the fact that foreign investments were used primarily as a source of technology transfer. Taiwan has made great strides in the economy and export processing areas have played a significant role in this. Based on the initial data on the creation and indicators of such areas, in this article attempts to comprehensively consider the relevant legislation and practice of Taiwan, taking into account its obligations under the WTO, as well as the identification of conditions that ensure the achievement of the goals of creating a free zone are given. Comparative legal and formal logical methods were used in the study. It has been established that the lack of raw materials, as well as the available market volume, are not determining factors for export processing areas. It is concluded that the role of regulatory act in the process of attracting foreign investment is limited. The absence of direct instructions in an international treaty does not mean an exception to legal regulation. The status of an unrecognized state and the absence of diplomatic relations do not have a negative impact on the export processing areas.