Vol 14, No 2 (2021)
Legal Thought: History and Modernity
Law and Digital Transformation
Abstract
The coexistence of the phenomena of digitalization and law determines their mutual influence and actualizes the scientific task of studying the impact that manifests itself in relation to each other and the changes that it causes. The technicalization of society contributed to its further development, its goals and directions were largely determined by public and other social institutions, including law. In the modern period, digitalization is in the same vein of combining social and technical mechanisms for managing processes in society, moreover, in a wide socio-economic context and in connection with the implementation of the state's strategic national goals. A noticeable influence of similar phenomena and processes is observed in foreign countries. These circumstances predetermine the challenges for the law. The article presents an attempt to consider the legal problems of digitalization from the point of view of a comprehensive, cross-sectoral and systems analysis, which made it possible to overcome the excessive specialization of legal sciences' branches, keep in mind the dynamics of the relationship between national and international law and also take into account the context of the achievements of other social sciences. New digital technologies fill the functional impact of law with new content, which, firstly, is reflected in the dynamically developing sectoral legislation, and secondly, in a concentrated form it is manifested in the formation of general regulatory legal acts that create the basis for digitalization. Digitalization transforms the nature of the activities of legal entities and the volume of their legal relations, generates new forms of making managerial decisions and responsibility for their failure, problematizes the legal nature of a technical (electronic) legal act and its place in the system of normative legal regulation, raises the question of the possibilities and limits of automation of law. As a result of the study, the authors come to the conclusion that in the context of the digital transformation of the economy, social sphere and governance law retains its stable role as a regulator of socio-economic and other processes in society, ensuring both sustainable stability and the necessary transformative activities of people and public institutions.
Law. Journal of the Higher School of Economics. 2021;14(2):4-23
4-23
Russian Law: Condition, Perspectives, Commentaries
Electronic Interaction and Digital Technologies in Corporate Governance of a Joint Stock Company in Russia
Abstract
The article is devoted to key issues in the development of legal regulation of electronic forms of interaction between participants in corporate relations in Russia. The author consistently examines the development of legislation and the practice of its application since the mid-1990's until present day. The impact of the emergency legislation created to counter the spread of coronavirus infection in 2020 is separately considered. The author analyzes in detail the materials of the Bank of Russia, various political attitudes. For the first time in special literature, the correlation of the development of electronic forms of interaction in private and public relations is shown. The fundamental current legislative initiatives are considered. The purpose of the study is to formulate the main directions of the development of legal regulation, based on the analysis of the experience of the development of legislation, including regulating public relations. To implement this, the first part of the study (introduction) shows the traditional approach to corporate actions, evaluates its pro and contra; then the second part of the study describes and evaluates the first attempts of the electronic Interaction and digital prospects in the 2000's, including elements of electronic interaction in legal regulations; then (in the third part) a radical change in the legislator's approaches to regulation in 2010 is shown, estimates are given of the state of regulation for the period from late 2019 to early 2020 (before the start of the coronavirus pandemic); in the fourth part of the assessment of current draft laws, as well as the author's proposals in terms of directions of regulation are formulated and argued. The main conclusion was made about the need to expand the use of electronic forms of interaction for all legal entities, as well as the correlation of private law and public law regulation.
Law. Journal of the Higher School of Economics. 2021;14(2):24-64
24-64
Strategic Planning in the Natural Resource Sphere: Legal Aspect
Abstract
The subject of the research appear relations on strategic planning as an instrument for ensuring the rational use and protection of natural resources. The purpose of the research is to identify the problems of formation of the institute of state strategic planning in the sphere of using and protecting natural resources in the Russian Federation, as well as to formulate scientifically based proposals to overcome them. The article examines the main legal problems of improving the institute of state strategic planning in the use and protection of natural resources sphere, describes the socio-economic prerequisites and difficulties in the development of this Institute in the system of state management of natural resources, formulated proposals for the modernization of conceptual approaches and legislative regulation of natural resource relations for these purposes. In the course of their research, the authors use a number of special legal methods of cognition, in particular, methods of legal modeling and legal forecasting. Using the method of legal modeling, the authors consider the possibility of extrapolating legal tools used in the field of strategic planning to the sphere of use and protection of natural resources. In turn, using the method of legal forecasting, the authors identify the main promising directions for the development of the strategic planning system in the natural resource sector, as well as suggest possible ways to improve the legal regulation of relations in this area. As a result of the scientific research conducted in this article, the authors come to conclusions about the need to formulate and consolidate the basic principles and approaches to state strategic management of natural resources as an independent direction of state strategic planning; to consolidate a number of categories and norms that determine the role of the corresponding natural resource in the socio-economic development of society; development of the concept of state strategic management of the use of natural resources to ensure coordination of activities of state authorities and local authorities in this area. Both the legislation and the legal doctrine should more clearly define the main priorities of state policy in the field of natural resources management, and also need to develop principles and provisions aimed at their harmonization with the legal and organizational conditions of state strategic management in the field of natural resources management.
Law. Journal of the Higher School of Economics. 2021;14(2):65-86
65-86
Damages Recovery Claims Regulation in Civil Code of RF and in Principles of European Contractand Tort Law
Abstract
Liability constitutes a key concept of the Civil Law science. Its universal implication lies in the monetization of another person's negative property consequences and the assignment of its financial results to the complicit party. In the present paper the evolution of the said legal institution is reviewed. At the dawn of our civilization the liability manifested a response to a non-compliance with prescriptions of law and represented a fine to be paid in a multiple amount of the loss. As our society progressed, we started classifying the monetary repressions into civil and criminal liability, into liability acting as a response to personal affronts and liability for failure to perform contractual or non-contractual property obligations. At the same time penalty failed to restore one's financial position in some cases and, conversely, allowed for abuse of rights. Another way of legal protection became widely adopted — damages for losses. The concept of loss of profit was also accepted into widespread professional use as an important component of damages. The Russian Civil Code provided for the development of the said instrument, as it was defined as “future losses for the restoration of the violated right”. Unfortunately, at the present time it does not find a widespread application among litigants. Judges also fail to comprehend such a broad understanding of possible damages. The comparison between the traditional and modern concepts regarding this issue found its reflection in the corresponding chapter. The structure of gross domestic product (GDP) with prevailing services sector is the economic parameter of the post-industrial society and its fundamental attribute. The civil liability of service producers is of a much stricter nature. For instance, they are forced to pay damages for a rightful unilateral repudiation of the contract, no matter customers are citizens or not, whereas the legal tradition prescribes to pay damages only if the party acted in breach of law. In the present work the author draws a conclusion on the increasing importance of damages and their new role.
Law. Journal of the Higher School of Economics. 2021;14(2):87-108
87-108
Acquisitive Prescription Requisites and the Need of their Reform
Abstract
The article considered such requisites of acquisitive prescription as bona fide possession and possession of a thing as one's own. The author reveals problems of their application existing in practice; analyzes the ways of possible changing article 234 of the Civil Code of the Russian Federation, including a proposal to remove bona fide possession from necessary requisites of acquisitive prescription. The author comes to the conclusion that requisites of acquisitive prescription depend on its goals as a basis for acquisition of property rights: as a mode to fill in the missing basis for the acquisition of this right, or as a mode to replace the owner who has actually removed himself from the possession of the thing. In some cases, the law enforcement practice demonstrates the need for a broader understanding and application of the acquisitive prescription as the basis for the acquisition of property rights. This justifies the possibility of a differentiated approach to the presentation and interpretation of the requisites of the acquisitive prescription, but not their exception from the norms of the Civil Code of the Russian Federation.
Law. Journal of the Higher School of Economics. 2021;14(2):109-138
109-138
Liability for Non-Filing of a Bankruptcy Petition (the Novels of Insolvency Legislation and Current Corporate Rules)
Abstract
The article is devoted to the analysis of the problems concerning the definition of the grounds of subsidiary liability of those who are responsible for initiation of the insolvency process by filing the debtor's petition. The emphasis is put on the results of the bankruptcy legislation reform of 2017: the research covers court practice over the period of last three years; gaps and controversies of the renovated legislation revealed by representatives of the legal doctrine. One of the key aspects of the research is the correlation of the novels of bankruptcy legislation with the basic current rules regulating corporate relations. The role of the director of the corporation is examined in correlation with other bodies or controlling persons who directly influence his / her decisions regarding filing the bankruptcy petition or refraining from doing this. The authors highlight the ambiguity of the situation when there are two or more chief executive officers who can potentially represent opposite positions of different shareholders within the pre-bankruptcy period. Special attention is given to the problem of non-logical correlation of powers of the chief executive officer and the general meeting of shareholders authorized to make a decision on the liquidation of the corporation. The formal absence of grounds of liability of the members of the collegial bodies of the corporation and controlling persons (such as shareholders putting pressure upon the director in order to avoid the initiation of the insolvency process at the stage of the occurance of the debtor's obligation to file the petition) seems to be a major gap in current legislation. The authors are demonstrating the necessity of spreading liability on the informed members of the board of directors and controlling persons, non-acting or acting against filing the petition. Also the research presents the analysis of the legal barriers for imposing the initial obligation to make a decision to file a bankruptcy petition on the collegial body of the corporation, such as uncertainity of the scope of persons liable for non-using the right to request to convene an extraordinary meeting of shareholders; ignorance of the role of the board of directors in the corporation; lack of attention to differences in the scope of powers of the general director in a joint-stock company and a limited liability company; impossibility to demand to vote for liquidation; unreasonably shirt terms of convening an extraordinary meeting under the new rules of Bankruptcy Act. The authors are proving that the scope of liable persons should depend on the type of the corporation. The conclusions concerning the limits of shareholders' liability are suggested as well.
Law. Journal of the Higher School of Economics. 2021;14(2):139-160
139-160
The Concept and Nature of Sports Responsibility
Abstract
The article explores the concept of sports responsibility and its legal nature. The polemic of the views of a number of scientists on the definition of the concept of legal liability is given. The author concludes that legal liability is a legal relationship arising from the fact of an offense between the offender, the victim and the state, in which the offender's duty to undergo the adverse legal consequences of their illegal actions corresponds, firstly, to the state's obligation to apply state coercive measures to it, and secondly, the right of the victim to demand that the state bring the offender to legal liability and redress. This approach to understanding legal responsibility should serve as a methodological basis for considering the concept of sports responsibility and allows a more focused study of its content. It is proved that sports responsibility is an independent type of legal responsibility, which is a legal relationship arising from the fact of violation of sports norms and rules adopted by the law by an individual (athlete) or sports organization recognizing such norms, and the content of which is the obligation the subject of physical culture and sports who violated the sporting norm to undergo adverse consequences provided for by the sanction of sports standards, and enshrined in law the right of the All-Russian sport federation apply to the offender provided sport rules coercion. The characteristic features of sports (sports and legal) responsibility that distinguish it from other types of legal responsibility are: Features of the subject of sports responsibility, which consists in the fact that a person recognizing the sports norm is subject to bringing to sports responsibility; features of the coercive measures applied, which consist in the fact that coercive measures against the offender are established and applied by a non-governmental organization (the All-Russian Sports Federation) with the direct authorization of the state, fixed by federal law. These features determine the main specificity of sports (sports and legal) responsibility. This specificity consists in the fact that, being a legal responsibility, sports responsibility carries some (residual) signs of public responsibility.
Law. Journal of the Higher School of Economics. 2021;14(2):161-176
161-176
Criminal Evaluation of the Exercise and Abuse of Right
Abstract
The article examines the issues of harm caused by a person who acts on the basis of his subjective right. This problem is one of the constitutional foundations of criminal law and has of a cross-sectoral nature. The article analyzes both theoretical provisions and legal positions of the Constitutional Court of the Russian Federation, the practice of the European Court of Human Rights and the Supreme Court of the Russian Federation. The constitutional principle of proportionality was used to develop a methodology for criminal law assessment of the abuse of human right, and its applicability was checked with specific examples. The analysis shows the importance of the use of the right as a circumstance precluding wrongfulness of the action. Due to the free use of natural rights, it cannot be identified with the execution of the law or duty. The need for differentiation of the primary and derivative rights, determination of the real right holder is shown. Situations of refusal of subjective right and its delegation were analyzed. Criteria have also been proposed for distinguishing between the lawful use of a right and its abuse, which serves as a legal guarantee of individual rights. Signs of abuse that may be taken into account by the legislator are the caused harm, the way in which the right is used, and the purposes and motives for its realization. The assessment of public danger depends on comparing these signs and determining the degree of their manifestation in a particular action. The author concludes that criminal liability for abuse of a person's constitutional right is inadmissible if the abuse itself is minor or has minor consequences. Abuse of the right must be distinguished from an independent act — arbitrariness. Two factors are recognized as key to assessing the methods of exercising a right — the typical or atypical nature of the chosen behavior for a particular competence in a specific historical period, as well as its relationship to the content of the right. Cases of cover by the subjective right to commit a crime were analyzed. When assessing subjective signs, it is also necessary to determine the predominance of lawful or unlawful intentions in a person's behavior.
Law. Journal of the Higher School of Economics. 2021;14(2):177-203
177-203
Law in the Modern World
Intra-Branch Method of Codifying Private International Law (Case of Latin American States)
Abstract
The codification of legislation on Private International Law (PIL) is a process representing the structural and substantive ordering of legal rules to systematize and optimize the regulation of private law relations that have a legally significant connection with the legal order of two or more countries. It is advisable to designate the following methods of codification of PIL. Intra-branch codification — the act of general codification of civil law includes a special section that regulates most of the institutes of PIL. Within the framework of this method, two main forms of its result can be distinguished: a) a simple intra-branch form where the regulation of the general part of PIL and the rules for choosing the applicable law is allocated in a separate section of the Civil Code. The rules of International Civil Procedure (ICP) are fixed in the acts of codification of civil procedure law; b) a complex intra-branch form where the act of codification of civil law includes the institutions of the general part of PIL, conflict-of-laws rules and rules of ICP (jurisdictional and procedural rules). Inter-branch codification — the act of general codification of civil law includes a special section containing the main rules and institutions of PIL. Separate institutions of the Special part of PIL are included as independent sections in the acts of special branch codifications. Autonomous branch codification — the adoption of a special law codifying the general provisions and conflict-of-laws rules of PIL. Complex autonomous codification (full-scale codification of PIL/ICP) — the adoption of a separate law or code containing both the fundamental principles and conflict-of-laws rules of PIL and the main rules of ICP. The modern legislator demonstrates all the variety of forms and ways of codifying PIL, while it is interesting to see what preferences are shown by certain countries. The legislation of Latin American countries is chosen for the analysis, since from the middle of the 19th century to the present time, the processes of codification of PIL are extremely active there. According to the results of the study, it is concluded that the majority of Latin American countries choose the path of intra-branch codification of PIL (its simple or complex form). This method of codification is not free from drawbacks; the best option is a complex autonomous codification, which has a three-part structure: (1) international jurisdiction, (2) applicable law, (3) recognition and enforcement of foreign judgments and arbitral awards. In writing this study, the authors used the methods of formal logic, comparative law, and the historical method.
Law. Journal of the Higher School of Economics. 2021;14(2):204-235
204-235
Legal Jurisdiction Concerning the Disputes in Cyberspace in the USA
Abstract
In the context of the development of modern digital means of communication, the article raises the question about the mechanism for establishing judicial jurisdiction for resolving cross-border private law disputes. The author makes comparison flexible and strict jurisdictional criteria regarding in relation to cyber-disputes. The article reveals both positive aspects of flexible criteria for establishing jurisdiction that are more appropriate for cyberspace platform and negative aspects that increase the probability of a jurisdictional conflict. The problems of the conflict of jurisdiction actualize the author's appeal to the study of the bases of the realization of judicial jurisdiction. The author raises the question to what extent the manifestation of the jurisdiction based on flexible criteria in the era of cyberspace differs from the manifestation of jurisdiction before cyberspace. The author also analyzes the restrictive mechanisms developed in USA in relation to relations in cyberspace (the Calder test, the Zippo test), which leads to the conclusion that law enforcement agencies need to use a multidimensional differentiated analysis that includes the study of several factors, excluding a formal, mechanistic approach. Subjective factors include such circumstances as the analysis of the plaintiffs‘ interest in considering the dispute in the plaintiff's court; the assessment of the burden on the defendant when considering the case in a court of another state; the defendant's purposeful activity in the country of the court; the defendant's foresight of the possibility of considering the dispute in the state of the court. Among the objective factors, it is necessary to include the nature and number of links between the elements of the disputed legal relationship with the State of the court. At the same time, in all cases, along with objective and objective factors, the courts take into account legal factors that contain a formal and pragmatic component in the form of a manifestation of the public legal interests of the State of the court in the consideration of the dispute. In relation to disputes in cyberspace, the author suggests an approximate combination of the ratio of objective and subjective factors in establishing a close relationship. The author applied private scholar methods-formal legal, comparative legal, sociological methods, as well as methods of formal logic (analysis, synthesis, abstraction, concretization, deduction, induction, analogy).
Law. Journal of the Higher School of Economics. 2021;14(2):236-261
236-261