Volume 14, Nº 1 (2021)
Legal Thought: History and Modernity
Corporate Control in Russian and Foreign Law: Relations of Economy and Law
Resumo
The accelerating pace of development of socio-economic relations is a powerful impetus for the modernization of legislation, which in the conditions of globalization of markets should not only preserve the stability properties, providing a balance of private and public interests, but also create conditions for the further development of entrepreneurship. Legislation-designed models for regulating corporate relations and control are in the zone of close attention of business, regulators, and the legal community. Over the entire history of the development of corporate law, the legislator has not found the optimal form of combining the dispositive and peremptory regulation of corporate legal relations, providing an adequate reflection of economic realities and resolving the conflict of multidirectional interests of participants in corporate relations. The issues of choosing the priority of protected interests, determining the limits for exercising and protecting corporate rights, finding acceptable forms of concentration and implementing corporate control in business are relevant. The market knows a wide arsenal of multifunctional contractual methods for acquiring and splitting corporate control (repos, equity loans, options, swaps, derivatives, securities difference agreements, etc.) that ensure the private interests of investors and lenders. However, ensuring the freedom to exercise private interest in choosing a corporate control model presumes that the public interest is in the stability of turnover and the protection of an indefinite number of persons participating in it, which can be ensured through mandatory public disclosure of corporate control information in the corporation. In modern conditions, the legal regulation of the concentration and implementation of corporate control is a prerequisite for creating a healthy investment and business climate in the economy, guarantees for the interests of investors and participants of the corporation, which should be taken into account when developing corporate legislation. The definition and differentiation of the economic content and legal form of corporate control is necessary for the further development of mechanisms and models for the implementation and protection of corporate rights. The legal regulation of corporate control is not homogeneous and is not limited only to the subject of civil law regulation of corporate relations; according to industry, certain segments of corporate control relations can be regulated by competition and financial law.
Law. Journal of the Higher School of Economics. 2021;14(1):4-36
4-36
Axiological Aspects of State Control and Supervision
Resumo
The subject of research is state control and supervision from the point of view of axiological approaches. The first level of the latter makes it possible to determine value of state control and supervision as administrative forms; the second level forms variants of theoretical and legal substantiation of the correlation between the control and supervisory activities of the state and the totality of values protected by law. The aim of the article is to propose methodological techniques for determining the value of state control and supervision, which is understood as the importance of these institutions in the public administration system as a whole in the context of the possibility of using other administrative forms to achieve regulatory goals. The value of the control and supervisory activities of the state is substantiated from the point of view of the possibility of replacing state control and supervision with other regulatory mechanisms within the framework of deregulation processes (horizontal approach), as well as taking into account previous development of these administrative forms (evolutionary approach). Value of state control and supervision is seen as the ability to ensure the protection of legally protected values with minimal interference of public authorities in controlled activities. Value of the considered management forms is substantiated using the category of deregulation, which is understood as: process of development of a certain sphere of social relations; process of delegating state powers; trends to expanding the freedom of subjects, transition to “soft” regulation; process of reducing and simplifying administrative procedures (procedural deregulation). Determination of the value of state control and supervision is associated with the justification of the possibility of replacing these management forms with others in relation to a certain area of regulation, which determines a specific ratio of various management forms and mechanisms. From the point of view of evolutionary approach, value of state control and supervision is determined by the previous development of these administrative forms in the system of state power. Within the framework of the theoretical and legal substantiation of the category “values protected by law” in the system of state control and supervision, a variety of positions are highlighted. As a conclusion, a modern formula is proposed: state control and supervision — socially significant results — mandatory requirements — values protected by law.
Law. Journal of the Higher School of Economics. 2021;14(1):37-61
37-61
Category of Object in the Theory of Prosecutorial Activity: Theoretical and Applied Aspects
Resumo
The article discusses the problem of determining the object of prosecutorial activity, taking into account the current level of development of legal science, federal legislation, development of supervisory and non-supervised activities. The subject of the research are the normative acts regulating the activities of the prosecutor, the conclusions of researchers on the issues of determining object of prosecutorial supervision and prosecutor's activities, the content of legal relations with the participation of the prosecutor. The purpose of the study is to explore the characteristics of the object for academic purposes and practical prosecutorial activities. At present, the theory has not developed a consensus on the subject of the prosecutor's activity; various approaches and concepts are proposed that are not without flaws. In this regard, the article defines and substantiates approaches to determining the content and essence of the object in relation to prosecution activities as a practice, science, for research. The content of legal relations with the participation of the prosecutor within the supervisory and non-supervisory functions of the prosecutor's office of the Russian Federation has been analyzed. For a detailed acquaintance with the opinions of scholars, the article analyzed a brief way of establishing views on the studied issue in the legal science of the Soviet period and in modern times. The conclusion is made about the need to separate the object of legal relations with the participation of the prosecutor and the object of prosecutorial activities. The authors support the view that the object of prosecutorial supervision is the behavior, actions, decisions of the supervised entities. The bodies, organizations, and their officials inspected by the prosecutor are subjects of legal relations with the participation of the prosecutor, but not the object of supervision. As a result of the research, it is proposed to consider the activity of the subjects of legal relations, the specific subject of which is the prosecutor when exercising the relevant non-supervising powers, as the object of nonsupervision activities of the prosecutor. The object of prosecutorial activity as a whole is also determined. The study of the formulations of the object of study in dissertations devoted to prosecution activity led to the conclusion that at present there are no common positions in the formulation of the object and subject of research, which requires that home researchers pay more attention to this problem.
Law. Journal of the Higher School of Economics. 2021;14(1):62-79
62-79
Muslim Law in the Context of Law-Genesis
Resumo
The subject of this article is actually first of all in consequence of insufficient investigation of a general theoretical conception of the law-genesis in the frame of which the formation of the Muslim law can prove its correctness. Conception prevailing in Russian legal literature and proceeding from the inseparable connection between state- and law-genesis is “stall” in some aspects of this problem. The clarification of a reason for this situation is one of the purposes of this article. The other purpose is the attempt to mark a methodology of the investigation of a problem of a law-genesis — on its theoretical level and in reference to Muslim law. Author examines law-genesis in the context of a world evolution. In the frame of this approach to social factors of the origin of the law preceded the natural factors of the same character and a thesis about the origin of the law at the same time as a human society stands as a starting. A conclusion that the law-governed nature of the development of the behavior and of the mechanisms of its regulation was formed into the natural stage of the world evolution — this conclusion acquires the most importance. They arise in the form of reflexes and then were perceived by the sincrete norms of the custom mononorm. In his way sharia as a basis of the Muslim law perceived in general in the new historical condition thus parameters of the mononorm as over natural character of its origin, sincretism of its norms, immutable, the absence of the necessity of the apparat which is possible to compel to observe the norms of the charia. A structure of the Muslim law reflects also an influence of the conceiving civilization. Typically various character of this legal cultures stipulates the necessity of the religious-legal schools as a connection section between immutable norms of the sharia and the changeable social relations. As a result, the Islamic jurisprudence, or fikh appears. In a character of functions of this schools which are direct to maintenance in working conditions of the sincret norms of the sharia author sees the law-governed phenomenon which is typical for an early-class system of law and not enough theoretically comprehend. Today the structure of the Muslim law includes also any elements of the early-class epoch.
Law. Journal of the Higher School of Economics. 2021;14(1):80-106
80-106
Russian Law: Condition, Perspectives, Commentaries
Institutional Obstacles for Initiating a Criminal Case
Resumo
The nature of institutional obstacles to initiating a criminal case is analyzed in the article. By virtue of Part 8 of Art. 448 of the Code of Criminal Procedure of the Russian Federation initiation of a criminal case under Art. 305 of the Criminal Code is possible only after a preliminary reasoned judgment of a higher court (in relation to the court that adopted the unjust judicial act) on the circumstances that indicate the commission of this crime. The given example reveals in detail the problems of such legal regulation, and also analyzes other elements of a crime, which, as a basis for criminal liability, presuppose the presence of a preliminary motivated judgment about the circumstances that subsequently become the subject of proof in a criminal case (Articles 157, 197 of the Criminal Code). The presence of institutional obstacles to the initiation of a criminal case, in particular, prejudgment, raises the question of the legal nature of this institution, since in case of prejudgment, criminal prosecution is possible only subject to a preliminary motivated judgment of one or another state body. Based on the example of the historical comprehension of similar provisions (part 1.1 of Article 140 of the Criminal Procedure Code), the conclusion is drawn about the dual material-procedural nature of this institution, as well as the fact that when such provisions are included in the Criminal Procedure Code of Russia, it is necessary to change the criminal law. Consistent, predictable legal regulation can be ensured only if the introduction of institutional obstacles to the initiation of a criminal case is simultaneously accompanied by a change in the norm of the criminal law by fixing the condition of punishment in its hypothesis. Ignoring the material and legal component will lead to a violation of the constitutional principles of action in time of the law that worsens the punishment, namely Part 2 of Art. 54 of the Constitution of the Russian Federation in the interpretation given by the Constitutional Court, as well as in violation of paragraph 1 of Art. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the European Court of Human Rights.
Law. Journal of the Higher School of Economics. 2021;14(1):107-129
107-129
Relations On Actual Upbringing of a Child: Family and Legal Institutionalization
Resumo
Analyzing the current state of the doctrinal problem and considering actual upbringing of a child as a type of family upbringing, the author asks what requirements a relatively complete theoretical concept of the actual upbringing of a child should meet in order to recognize the problem if not solved, then at least bring research novelty to it. Its current state is seen as critical from the point of view of a set of theoretical tools, in the structure of which analysis prevails over synthesis and there is a constant immersion in reality with the issuance of recommendations to the legislator in the language of social service specialists. While the question of what is due to the current position of the legislator, who has renounced the positive status regulation of relations on the actual upbringing of the child and left them in the category of direct, science does not ask. The doctrinal attitude to such a position is usually exhausted by disagreement. Such views not only do not reflect the current social mood of state policy in matters of family and child-saving, but also inform the problem of the quality of cultural limitations, the consequence of which is the underestimation of relations on actual education as a significant intra-family educational resource. Answering the theoretical question, the author offers a more spacious view of the problem, which allows us to give it the necessary dynamics, competition of concepts, methods and methods of description. Comparing the problem under study with achievements of socio-humanitarian research surrounding it, the author finds no grounds to support the widespread scientific views that actual upbringing is a weakened and unprotected phenomenon from the point of view of the child's interests. Discussing the ways of possible legislative participation in this type of social relations, the author argues that modern legislative attempts to interfere in these relations are possible only in one direction, by giving them qualities that indicate the derivation of these relations from relations for the family upbringing of a child.
Law. Journal of the Higher School of Economics. 2021;14(1):130-153
130-153
Law in the Modern World
The Legal Status of International Organizations as Third Parties to International Treaties in Accordance to Principle pacta tertiis nec nocent nec prosunt
Resumo
The article is devoted to the genesis of the principle of pacta tertiis nec nocent nec prosunt (treaties do not create either obligations or rights for third states without their consent) in the law of treaties with respect to international organizations. This principle, originated from the Roman law, was enshrined in the existing law of treaties through the relevant provisions of the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations of 1986. The authors reveal a number of defects related to the duplication of provisions of the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations of 1986 concerning the legal consequences of treaties in relation to third parties, originally established in the Vienna Convention on the Law of Treaties in 1969. Such an approach does not allow to cover the whole possible range of international relations with participation of international organizations, especially when it comes to the establishment of obligations and rights of member States of international organizations. In practice, it emerges the questions as to the activities of the secretaries-general of international organizations as depositaries of international treaties, as well as the expenditures of member States relating to the functioning of the organs of international organizations. The article concludes that, in fact, the proper regulatory effect of the provisions of the Vienna Convention of 1986 is only manifested with respect to one of the possible types of third organizations, namely international organizations that are not parties to the relevant international treaty. The issue of the legal effects of treaties concluded by an international organization on its member States stands aside. In this regard, it is suggested that in the near future, addressing the remaining legal uncertainty and the search for legal mechanisms to resolve the mentioned issue will be carried out within the international organizations themselves through the adoption and establishment of their own internal rules of activity.
Law. Journal of the Higher School of Economics. 2021;14(1):154-173
154-173
International Legal Mechanisms for Counteracting Health Emergencies
Resumo
The pandemics of the coronavirus infection COVID-19, which broke out in 2020, in a few months has affected almost every state regardless of the level of economic welfare, resulting in catastrophic socio-economic damage, an unprecedented loss of GDP, increase in unemployment, and a collapse of health systems. The consequences of the infection spread have become a vivid ineffectiveness indicator of the international legal mechanisms responsible for regulating health issues at the global level. The International Health Regulations have demonstrated their total failure in countering new epidemiological threats, and WHO has once again proved a total failure to act as a global leader in addressing health problems. The lack of a vaccine, as well as other health technologies at the time of the pandemic onset, was an indicator of systemic challenges in implementing global strategies to protect from non-military threats and achieve universal health coverage. This article discusses the main stages of the international cooperation development in action against the spread of infectious diseases, and also formulates their importance on the agenda of international organizations in the formation of the concept of global security. The article analyzes the practice of applying international health regulations in the context of the emergence of new infectious pandemics and formulates recommendations for improving the regulation of processes aimed at preventing and fighting against infectious diseases. Special attention is paid to assessing the effectiveness of the mechanism for defining a “public health emergency of international concern” based on the example of the most recent declared pandemics since the revision of the IHR. The article articulates the main barriers to the development of vaccines as the main health technology for countering the spread of infectious diseases, and also examines the main international mechanisms for ensuring universal coverage of essential health care, including successful international initiatives to attract funding. Based on the identified systematic threats in the system of global health management, the article formulates a number of recommendations for improving the activities of WHO.
Law. Journal of the Higher School of Economics. 2021;14(1):174-197
174-197
Development of International Law Regulations of Combating Spread of Infectious Diseases
Resumo
Infectious diseases are a significant danger for every country in the world. Active spread of coronavirus (COVID-19) today is another striking example of the issue. States have long been making joint efforts to achieve effective results in combating infectious diseases through the adoption legal and various other measures. The paper gains an insight in the theoretical issue of the key developments that occurred in the field of study throughout history. It improves understanding of importance of main goals that states pursued while developing international law. In order to achieve such results, the main international legal documents adopted throughout history in this area, and their contents are analyzed. Throughout history three main historical phases identified. Two very opposite approaches on combating infectious diseases were found by the author in legal documents. The analysis indicates that currently international cooperation, the involvement of states in joint activities to combat diseases in the framework of international organizations has increased. However, highly criticized approach based on Westphalian principles is still underlines international regulations on combating infectious diseases. The methods employed in the paper include inductive and deductive analyses, as well as historical and teleological method. The work is the starting point for further research in this area.
Law. Journal of the Higher School of Economics. 2021;14(1):198-217
198-217
Consumer Credit Regulation in EAEU States
Resumo
Treaty on the Eurasian Economic Union of May 29, 2014 has constituted the Eurasian Economic Union. The current economic crisis, fraught with the coronavirus pandemic, clearly shows necessity for legal protection of entrepreneurs' and individuals' economic interests first of all in the field of financial services and consumer lending. The purpose of this publication is to research contemporary issues of consumer lending, comparative analysis and application of legislation (case-law) of Member States of the Eurasian Economic Union. The analysis is carried out in order to identify the level of protection of the rights and legitimate interests of individuals while concluding a consumer credit. Considering that independent states before the formation of the Union have formed their own regulatory and legal framework, including on lending issues, the legislative acts of the analyzed Member States varied significantly. Moreover, they did not adequately protect the rights of the parties to these agreements, especially individuals. Financial institutions significantly violated the rights of citizens, the conditions under contracts they concluded were of a one-sided nature, which led to numerous complaints, lawsuits in courts, as well as coverage in the media of high-profile cases related to the inability of individuals to pay off debts to financial and microfinance organizations. The Member States, having united in the Eurasian Economic Union, carried out coordinated work to improve legislation in mentioned area, as a result of which the rights of individuals — participants of a consumer credit are protected to a greater extent. However, according to the author, work in this direction, especially in the context of the economic crisis and pandemic, should be continued. The author makes proposals for improving both national legislations and the law of the Eurasian Economic Union, as well as the practice of its application. As a result of the research, the author comes to the conclusion that the EAEU should adopt a special Agreement on the credit contract and the principles of consumer lending. Therefore, it is necessary to adopt a special law on consumer lending in the EAEU Member States.
Law. Journal of the Higher School of Economics. 2021;14(1):218-243
218-243
Legal Regulation of Employment Probation Period: Experience of Foreign Countries
Resumo
In times of economic instability, organizations are looking for minimization costs and increase its efficiency. The legal regulation of labour offers possibility of conducting probation at the beginning of employment to check employee's labour qualities and compliance with the work. The employee could also evaluate the working conditions at the new employer. Probation is attractive for the employer as a simplified and cost-effective way to dismiss employees. The employer has the right to select permanent employees who have successfully passed the probation, since employees on probation are subject only to minimum labour standards. The aim of the research is a comprehensive analysis of the balance of flexibility and rigidity in employment legal regulation in foreign countries in order to develop recommendations for optimizing probation labour legislation. The methods are analysis and synthesis, abstraction and generalization. The features of legal regulation in the main legal families affect legal regulation of labour in foreign states, important from the point of view of finding a balance between employers and employees interests in terms of flexibility and rigidity of regulation of labour. The article considers two main models of legal regulation of probation abroad. They are characterized by both general and special patterns. Common patterns include: lack of a state definition of probation; consolidation of a single list of criteria for regulation of probation (duration, rules for its changing and termination); prevention of discrimination and consideration of the legal status of special subjects to eliminate it and improve position in labour market. Special patterns are associated with mechanism of fixing maximum period, types of employment contracts, concepts of regulation of labour, other legally fixed periods of work that can affect legal status of employee on probation. The result of the analysis is proposals for improving regulation of labour in terms of combining flexibility and rigidity of legal regulation of labour.
Law. Journal of the Higher School of Economics. 2021;14(1):244-269
244-269