Volume 14, Nº 3 (2021)
Legal Thought: History and Modernity
The Law of a Technogenic Civilization to Face Technological Dehumanization Challenges
Resumo
Law as a regulatory system based on the principle of formal equality in freedom is a social phenomenon immanently inherent in a technogenic civilization with its cultural matrix, in which “gene” of techne (skill based on knowledge) was rooted. The specifics of the current stage in the technogenic civilization development are determined by NBIK technologies, NBIK technologies, which contain not only tremendous opportunities to improve the quality of human life, but also no less large-scale dangers of dehumanization, due to their intentions on the posthuman perspectives. The need to resist the destructive potential of these technologies in order to keep the techno-humanitarian balance, which still protects humanity from self-destruction, requires the mobilization of all socio-normative resources, the most important of which is law. However, the problem is modern law, being primarily a system of human rights, is not able to prevent threats to future generations and humanity as a whole. This is especially clearly seen in the example of research and technologies for inherited editing of the human genome, which development cannot be channeled into the mainstream of global legal regulation. The international norms of “soft law” and the world academic community self-regulation can no longer restrain technological expansion into human nature. An attempt to solve the problem along the path of a post-secular turn in the hope that religious consciousness will become that saving spiritual resource, which help humanity to keep its technological power within the proper boundaries, is unlikely to be successful due to the differences in religious anthropologies inherent in different types of religious ideologies. Therefore the task is to develop such a new approach to law understanding that goes beyond the technogenic civilization's spiritual matrix, which, on the one hand, would preserve the basic guarantees of individual freedom, and on the other, would integrate the idea of the rights of future generations.
Law. Journal of the Higher School of Economics. 2021;14(3):4-35
4-35
Authentic (Author’s) Interpretation: Theoretical-Legal and Constitutional Legal Aspects
Resumo
The aim of the research is to study the legal nature of authentic interpretation, its content and meaning as an independent type of interpretation of law, as well as to establish the set of subjects of such interpretation. The methodological basis of the research is formed by General scientific methods: dialectical, logical, system-structural, comparative, etc.; as well as private scientific methods: historical-legal, formal-legal, comparative-legal. It is noted that the term «authentic interpretation» was given diverse meanings at different stages of the development of Russian legal science. In the 19-early 20th century, authentic interpretation was identified with law-making. In Soviet legal science, an authentic interpretation was considered to come from both the subject of law-making and other authorized bodies. Modern research focuses on the government Agency that interprets the norm. It is proposed to replace the term «authentic» with the term «author's», since this name more accurately characterizes this type of interpretation. The article shows the main approaches to understanding authentic (author's) interpretation in Russian and foreign jurisprudence. It is established that when determining the range of subjects of the author's interpretation, it is necessary to consider the presence or absence of legal formalization of the power to interpret the norm. If we assume that the right to create and formalize norms automatically generates the right to interpret them, then the subject of authentic (author's) interpretation can be any state or non-state body that is the subject of law-making. If we assume that the author's authority to interpret their acts and its implementation should be regulated by the law, the range of subjects of author's (authentic) interpretation will be sharply narrowed. In addition, the research examines the relationship between the range of subjects of authentic (author's) interpretation and the form (source) of law in which the author puts the norm. Several controversial problems are identified: the subject of author's interpretation when creating an act in the order of delegation, and people's law-making, judicial author's interpretation, the author's interpretation of religious texts and normative agreements. The relationship between the subject and the object of authentic (author's) interpretation is demonstrated.
Law. Journal of the Higher School of Economics. 2021;14(3):36-55
36-55
Russian Law: Condition, Perspectives, Commentaries
Dialectics of Contradictions in Legal Regulation of Value Added Taxation
Resumo
The article examines a set of contradictions in the taxation of value added in the contemporary Russia, which can be found at the borders of the systems of public administration, fiscal distribution, social and economic reproduction. Among the social contradictions that cannot be overcome within the framework of existing legislation and which tend to increase in all groups in legal relations, allocated: economic-legal (manifested mainly in the sphere of production of material goods) between the nature of legal regulation of taxation of value added and the level of development of productive forces; between labor and capital as the main factors of production, affecting the performance of the mechanism of legal regulation of taxation of value added; financial and legal relations: between the actual nature of the modern Russian model of financial redistribution of added value and socially-oriented target settings for the use of funds received from value-added taxation; law enforcement: between the declarations of the fight against corruption and the situation when the majority of VAT tax fraud detected in the Russian Federation is based on schemes organized and executed with the participation of officials themselves within regulatory and law enforcement agencies; between the costs of effort and resources that are diverted to improving the legal regulation of VAT, and the persistent inability of the state institutions to eliminate the criminal networks of VAT fraud that form a new sector of criminal business; social and legal issues that are manifested in the process of structural deformations of civil society. The conclusion is made about the need to reform VAT in line with the conscious and systematic resolution of contradictions in the legal regulation of value-added taxation, expressed in the current Russian Federation legislative acts. The main conditions for overcoming the contradictions within the legal regulation of VAT have to become the following legislative restrictions: the state's legal policy have to be purposed at a fair financial and legal distribution of VAT revenues and the actual reduction of income inequality between the richest and poorest strata of the population; the largest part of tax payments is spent on the needs of the majority of citizens; the state's industrial policy must be aimed at the growth of capital-intensive modern production and labor productivity.
Law. Journal of the Higher School of Economics. 2021;14(3):56-81
56-81
The Proportionality Principle as a Tool for Achieving Balance of Interests in Tax Relations: Theory and Law Enforcement in Russia and abroad
Resumo
One of the problems of Russian tax science that we have to face in practice is the lack of clear legal mechanisms and forms of coordination of antinomic interests. The “balance of interests” construct is used as often as it is unintelligent in legal literature and judicial acts. Many questions remain unanswered: what exactly is the balance of interests and what are its criteria, how it is achieved, what tools and algorithms exist for this. The balancing itself is almost always implicit. Both in the theory of tax law and in practice, it is something new (terra incognita). Due to a lack of understanding of the essence of the balance and how to achieve it, in the absence of a developed methodology for assessing and weighing interests, tax hard cases are resolved more intuitively, based on the law enforcement officer's own ideas about what is due. This approach does not add legitimacy and openness to judicial acts, and often causes misunderstandings in the professional law community. The problem of subjectivism creates a real threat of infringement of the legitimate interests not only of the parties to tax relations, but also of the rule of law in general. The subject of this study is the principle of proportionality, which is considered as a methodological basis for achieving a balance of private and public interests in tax relations field. The aim of the work is to identify possibilities of the proportionality doctrine hidden from the Russian law enforcement, and thereby to add rationality to the issue of achieving (justifying) legal balance in the resolution of tax conflicts. With the help of dogmatic, comparative legal and other methods developed by legal science, instrumental potential of principle of proportionality is revealed. The article considers possibility of receiving achievements of foreign legal thought in the domestic theory of tax law and adapting it to practice of tax relations. The article analyzes the proportionality test (the structure of criterion and the content) in foreign and Russian jurisdictions. Additional requirements for the court to substantiate the conclusions of the decision are identified. With the help of a mathematical model, a problem of the commensurability of weight of the value of interests, as well as issue of formalization of the process of weighing interests, is investigated; the concept of the weight formula promoted by Robert Alexy is critically evaluated. The article analyzes application of principle of proportionality in foreign practice and in Russia. It is concluded principle mentioned is the legal embodiment of the Pareto-optimum principle.
Law. Journal of the Higher School of Economics. 2021;14(3):82-105
82-105
Crimes Related to Cryptocurrencies: Features of Qualification
Resumo
Process of penetration of digital financial assets into the daily lives of citizens and the activities of business entities, as well as the steady increase in crimes committed using, with respect to and about cryptocurrencies, actualizes the need for a scientific understanding of the features and problems of their qualifications. The purpose of the study is to develop theoretical recommendations to overcome the problems that arise in connection with the qualification of crimes committed using, in relation to and about cryptocurrencies. The implementation of this goal was achieved by examining the existing positions on the problem in the domestic doctrine of criminal law, assessing the state of domestic criminal legislation, identifying problems in judicial investigative practice. The study is based on the application of general and special methods of research (analysis, synthesis, induction, formal legal, abstract logical, etc.). Based on the study, the author formulates the following conclusions: in modern conditions the following main groups of crimes associated with the use of digital financial assets (cryptocurrencies) in one form or another can be distinguished: a) crimes in which cryptocurrency acts as a means of committing them; crimes in which cryptocurrency acts as an object of encroachment; crimes committed for the purpose of generating (mining) cryptocurrency; the use by a person of cryptocurrency cannot a priori indicate that legalization has taken place. A simple disposal of virtual currency (in order to pay for goods or services) without the intention of giving a legitimate form to criminal proceeds does not contain signs of corpus delicti provided for in Art. 174.1 of the Criminal Code; as an illegal business (Article 171 of the Criminal Code of the Russian Federation), one should qualify a person to carry out activities related to the exchange of cryptocurrency for fiat money and vice versa, aimed at making profit by charging a commission for each operation. Considering that obtaining a license to provide such services is not possible under applicable law, a person will be liable for illegal business, provided that he carried out the specified activity without registration; when qualifying encroachments on cryptocurrency, law enforcement authorities as a systemic problem note the absence in the territory of Russia of a body authorized to assess its value on a specific date. Currently, in the investigation of criminal cases, the determination of the amount of damage caused to the victim is based either on the expert's opinion or by obtaining information about the cryptocurrency rate at the time the crime was committed.
Law. Journal of the Higher School of Economics. 2021;14(3):106-125
106-125
Models of Legal Regulation of Smart Contract: Generalities and Specifics
Resumo
The smart contract' term and its peculiarities are already regulated by different legal systems. Author distinguishes and analyzes the following models of legal regulation of a smart contract: technically oriented (smart contract as a computer program); deal-oriented (smart contract as a legally binding contract or provision of a contract); combined model (smart contract simultaneously as a computer program and as a contract). Acts on smart contracts are enacted on national or subnational level in the form of amendments to existing laws on contracts, e-commerce, information technologies or in a separate legal bill (act) regulating also such issues as application of blockchain (distributed ledger) technology, issue and turnover of tokens and cryptocurrency. In case of use of technically oriented model such legal issues as conclusion and interpretation of a smart contract, its invalidation, amendment and termination, application of means of defence and responsibility, choice of applicable law to a smart contract and competent authority that is to settle a dispute arising out of a smart contract, remain unresolved. Deal-oriented and combined models (even with pitfalls of combined model due to confusion between smart contract as a computer program and as a contract) are more preferred since these models define peculiarities of conclusions and performance of smart contracts in contract law for its practical use. Besides this, definition of automated performance of obligations that is inherent to a smart contract as a contract (contract type) in the form of a program code concluded and performed in special information system (decentralised distributed ledger) is to be reflected. Overall trends of legal regulation of a smart contract are the use of special technical terms (such as blockchain, token, cryptocurrency) that are firmly established in practice, statements on smart contract conclusion and performance (even if a smart contract is defined as a computer program), and creating non-discriminatory legal basis for the use of smart contracts along with contracts in written form and other means of proof.
Law. Journal of the Higher School of Economics. 2021;14(3):126-147
126-147
Law in the Modern World
General Principles of Law in the System of International Law
Resumo
The general principles of law recognized by civilized nations, as defined in the Statute of the International Court of Justice, remain an important legal tool designed to regulate interstate relations, including those used in the settlement of disputes between states. The need for their application, as a rule, arises when a particular issue is not covered by international treaties and international customs and it is required to fill a gap in international law. At the same time, since the introduction of the term “general principles of law recognized by civilized nations” (hereinafter, general principles of law) into international legal circulation, its official interpretation has not yet been given. In the science of international law, there is also no common position regarding the content of general principles of law, their legal nature, and an unambiguous answer to the question of whether they refer to the sources of international law is not given. Nonetheless, a general approach is emerging, according to which such principles are general principles of law arising from national legal systems, and general principles formed within the framework of the international legal system. General principles of law arising from national legal systems are the norms of domestic law and remain so regardless of whether there is a need for their use, which is carried out by transposition into the international legal system. The article proposes such methods as: general or general transposition — international legal inclusion of general principles of law arising from national legal systems into international law; reception — a reflection of the general principles of domestic law in international treaties or international customs; reference — a provision of an international treaty or a decision of an international judicial body, according to which the law enforcement officer refers to the general principles of law arising from national legal systems. General principles of law are applicable law, elements of which are often found in the founding treaties establishing international judicial bodies. They can be found in other practice of law enforcement. In author's opinion, the general principles of law can only be conditionally attributed to the source of international law, since they represent the norms of international or domestic law. In this work, an attempt is made to reveal the legal nature of the general principles of law, to reveal their role and place in international law and the Russian legal system.
Law. Journal of the Higher School of Economics. 2021;14(3):148-174
148-174
Specialized State Courts — a Relevant Forum for Resolving International Commercial Disputes
Resumo
States in Asia, the Middle East and Europe improve their commercial contract law, reform judicial procedures and create innovative specialized courts to handle international commercial disputes so that their legal systems can play a meaningful role in the development of national economies in a globalized world. In a number of countries the creation of such specialized courts has broadened the choice of ways to protect participants in the global business community. Over the past ten to fifteen years, international trade (commercial) courts have been constituted in China, France, Kazakhstan, the Netherlands, and Singapore. New initiatives to constitute such courts are underway; for example in Switzerland this issue is on the agenda of governmental authorities. The proliferation of international trade (commercial) courts in Europe, some Asian countries and other regions of the world raises considerable interest among an academic community as well as practitioners. This article provides an overview, based on foreign sources, of the procedure for resolving international commercial disputes by specialized courts. It identifies their key features (also in terms of procedural innovations) and the main reasons for their creation within the legal systems of individual states. The growing number of specialized courts, which adjudicate international commercial disputes, is conditional due to a number of reasons. Among them there are: 1) the need to strengthen the national economy, ensuring its competitiveness on a global scale; 2) increased competition for legal services markets; 3) the interest in ensuring the rule of law in international trade and financial activities; 4) the specialization of judicial activity; 5) increasing the prestige and reputation of national law in international markets. The formation of international trade (commercial) courts is an example of states support their economies in the arena of international business by using their power in the form of the judicial system, offering appropriate comfort, benefit, and advantage.
Law. Journal of the Higher School of Economics. 2021;14(3):175-207
175-207
Early Warning Mechanism as Control Tool Compliance with the Principle of Subsidiarity in Legislative Process of the European Union (Regional Dimension)
Resumo
The subject matter of the research is legal principles regulating the mechanism of early warning as an instrument to monitor subsidiarity on the European Union. The aim of the research is the analysis of public law measures able to improve the formula (model) of participating of regional parliaments in the mechanism of early warning to decrease the deficiency of democracy caused by the dislocation scheme of various actors within the European Union. The methodology of the article represents formal legal, comparative legal, historical, structural and hermeneutic methods added with analysis, synthesis, deduction and induction. The research features the problems of regulation in European law the participation of regional legislatures to check the compliance of legislative proposals of the European Union to the subsidiarity principle. A special attention is given to the lack of the definition of regional parliament with legislative authorities. The article stresses the problem of securing efficiency mechanism of early warning, determined by the necessity to comply with the principles of proportion and competencies when checking the subsidiarity in the European Union legislation project. A special attention is given to the dispositive formula of the implementation of rights and obligations when national parliaments consult with regional legislatures. The article shows the optionality of regional parliaments to conduct the control over the compliance of the European Union bill to subsidiarity. The article draws the attention to the questions of the differentiation of the opportunities for regional parliaments to participate in assessing the subsidiarity in terms of the modification of the formation of upper chambers of national parliaments. The paper arrives at the conclusion that the regional dimension of the mechanism of early warning is characterized with fragmentary (discreet) and optional (dispositive) forms of implementation. Constitutional legal status of regional legislatures in terms of the mechanism of early warning is characterized with limited resources.
Law. Journal of the Higher School of Economics. 2021;14(3):208-230
208-230
Constitutional Law Consequences of Brexit: Sovereignty of Parliament or of People
Resumo
The exit of Great Britain from the European Union (Brexit) has actualized a lot of political, economic and legal issues. The latter issues include the relevant aspects of European law, as well as national, first of all, constitutional law. Constitutional aspects of Brexit touch, from one side, the theme of revising and renovating traditional principles, including parliamentary sovereignty principle, and from other side, emergence and development of new institutions like referendum. Indeed, the British referendum of 2016 about exit from the European Union has become a legal base for the Brexit procedure. The implementation of this procedure has demanded a solution to a number of doctrinal constitutional issues, first of all about the priority of people's sovereignty that was expressed at the referendum, and about the position of the British parliament. The principle of parliamentary sovereignty for centuries determined the specifics of constitutional institutions of that state. The institute of referendums historically was not accepted in Great Britain exactly as a reason of contradiction between principles of parliamentary supremacy and principle of direct popular voting. However, the practice of referendums took place in the United Kingdom since the end of 20th century, especially ones connected with entry of Britain in the European Union and with her exit from it, turned to be a reason for the British constitutional doctrine to research and clear once more a modern understanding of parliamentary supremacy principle. Even more important problem was to elaborate ways and means of coexistence of both principles. It was necessary to answer the following questions: if parliamentary supremacy still exists in its traditional meaning, or it has a sense to change content of that principle for inclusion of the people's sovereignty into the British constitutional law; what is correlation of parliamentary and people's sovereignty in modern law as a whole. Because of the traditional British legal continuity way, for sure, it was impossible to wait for a full refuse from parliamentary sovereignty principle in favor of the people's sovereignty. The compromise was reached at the stage of Brexit itself. As a consequence, we see that in the present time traditional parliamentary sovereignty principle is maintained, but in the same time contours of referendum institute development in the British constitutional law are designed.
Law. Journal of the Higher School of Economics. 2021;14(3):231-253
231-253
Review
254-262