Vol 15, No 5 (2022)
Legal Thought: History and Modernity
The Index of Ethicality of the Law as an Applied Tool for Assessing the Correlation between Law and Morality
Abstract
The paper, first of all, contains a theoretical analysis of the relationship between law and morality as the two most important regulators of social relations is carried out. An analysis is given of both natural law and positivist approaches to the relationship between law and morality in the works of domestic and foreign legal scholars. According to the authors, despite the long history of the formation of relevant theoretical concepts, the development of a structured idea of the relationship between ethics and law in various areas of social relationsremains relevant. Both the basic model of the relationship between the two regulatory systems and special models of their relationship and mutual influence in specific areas of society, which determine the fairness and effectiveness of regulation in the context of conjugation of ethics, law, economic and social development, need to be defined. The practical result of the development of such a model is the creation of an index of ethicality of the law, and related indicators. The index of ethicality of the law is a digital product, a machine algorithm built on the principles of learning neural networks. The article describes the phases and content of the work on creating the index as part of the HSE research project, and draws attention to the theory of moral foundations, which forms the basis for the development of related tools. Comparison of the norms of legal acts or their drafts with moral norms and principles relevant to society, of course, requires a reliable picture of the content of the latter. The identification, by means of sociological methods, of the content of moral grounds as the basic criteria for the moral assessment of human behavior will make it possible to compare the ethical ideas of modern Russian society with the content of legal norms that have an ethical load. The index as product can be equally useful both in the legal regulation of social relations through the adoption of legal acts, and in their interpretation and application (including judicial). The authors are convinced that the formation of a social, industrial, cultural and business environment in which it would be comfortable for a person to live, work and pass on his life experience to a new generation requires a systematic reconciliation and correlation with each other of the two systems of social regulation. Such reconciliation can be carried out, among other things, with the help of the latest technologies available to mankind.
Law. Journal of the Higher School of Economics. 2022;15(5):4-23
4-23
Russian Law: Condition, Perspectives, Commentaries
The Right to Informational Self-Determination: On the Edge of Public and Private
Abstract
The right to informational self-determination, as the authority of the individual to decide fundamentally for herself, when and within what limits personal data may be disclosed, was formulated by German jurisprudence and has become a model for many States as well as for European Law in general. It is seen as a necessary tool for maintaining a vibrant democracy, on the basis that privacy is an integral part of society. The basis for the judicial decision was the Kantian theory of the moral autonomy of the individual. This explains the close connection of judicial reasoning with human rights and their Public Law protection. At the same time, under Anglo-Saxon influence, a property approach to personal data that may become the object of transactions is developing. The property approach views personal data as a valuable commodity that can be the object of transactions and operations with other people through licenses. In practice, access to personal data has recentlybeen increasingly provided as a counter performance (compensation) to contracts for the provision of digital content and in exchange for personalized services. The study shows that there are many interactions of public and private in the legal protection of data (information self-determination as a subjective public right requires the corresponding obligations of the State to be formalized, there is no unambiguous sectoral qualification of a persons consent to data processing, the insufficiency of the principle of confidentiality by default before the potential for harm is noted). Analysis of the evolution of the data legal protection leads to conclude that the public/private distinction is gradually levelling off. It seems that the problem of the circulation and protection of personal data cannot be solved in a sector framework, but only comprehensively, without violating the traditional logic of public and private. This means that the right to information self-determination, due to its complex nature, can be regarded as a principle that has an inter-branch nature which extends to both the Public Law data protection and the implementation of subjective civil rights in this area.
Law. Journal of the Higher School of Economics. 2022;15(5):24-43
24-43
Electronic Voters List as a New Element of Digitalizing Electoral Process: Legal and Organizational Basis
Abstract
The article studies the prerequisites for the implementation of electronic list of voters (ELV), legal regulation, the voting procedure considering the use of the ELV, enforcement of electoral rights during preparation and holding of elections, vote counting and further determination of elections results at a polling station. This article also deals with the first experience of the ELV use during Moscow municipal delegates elections. The introduction of the ELV made it possible to abandon the use of two different lists of voters during the same elections— the list of those who vote traditionally by visiting polling stations, and the list of those who vote remotely. The situation when there are two different lists of voters entailed significant difficulties both for electoral commissions and voters in realization of their electoral rights. With the introduction of electronic list of voters during municipal elections 2022 in Moscow, eligible registered voters did not have to submit in advance a remote voting request or to decide their method of voting (in person, remote, or electronic). Electronic list of voters excluded groundless deprivation of active electoral rights, what prior happened dueto technical errors or normative casuistry. Integration of electronic list of voters eliminated any possibility of repeated voting by the same individual. The article concludes that in terms of the digitalization of the voting process the ELV becomes an effective mechanism for strengthening legal and organizational guarantees of the electoral rights of Russian citizens. This article also contains proposals for further improvements of voting procedures especially related to the ELV in terms of information and digital society development.
Law. Journal of the Higher School of Economics. 2022;15(5):44-65
44-65
Expanding Boundaries of Antimonopoly Liability in Russian and European Law: Effective Market Regulation or Creating Legal Uncertainty?
Abstract
Today, the trends in the development of antimonopoly legislation are such that the industry is formed not only within the framework of the national legal regime of states, it is also built through the implementation of existing international legal institutions into the domestic legislation of a particular state. In this context, the Russian legal order is also making appropriate attempts toadapt some of the institutions of European law, in particular on the issues of imputing liability for violations of cartel prohibitions. In the presented article, the author made an attempt to assess the most striking trend in antimonopoly regulation— the prospects for introducing the institution of antimonopoly liability in relation to a corporate group into the Russian legal order (through the prism of analyzing the antimonopoly legislation of the countries of the European Union). The author pays special attention to the grounds for imputing liability to a legal entity for violation of antitrust laws committed by another legal entity within the same corporate group. Special attention is paid to corporate structures of the conglomerate type in the context of the applicability of Art. 101 of the Treaty on the Functioning of the European Union to these groups of companies. In a recent judgment in the Sumal case, the European Court of Justice ruled that the injured parties of a cartel could, under certain circumstances, bring a claim for damages against a subsidiary when the parent company was found guilty of this violation. While some authors argue that the court actually redefined the concept of an economic entity, the author refers to the case law of the European Court of Justice and proves the existence of a similar practice of imputing liability in the Russian legal order. The article draws conclusions regarding the contradiction between objectives of antimonopoly regulatory policy and the general principles of limited corporate liability. Also, the author emphasizes that the use of a formal approach, in which real violators of cartel prohibitions can refer to the limitations of their responsibility, while economically or administratively controlling the behavior of other economic entities within the group, is unacceptable in the conditions of the dominance of transnational and digital corporations.
Law. Journal of the Higher School of Economics. 2022;15(5):66-90
66-90
Fair Remuneration for Using Works and Phonograms on the Internet in Russia, USA and EU
Abstract
The article analyzes legal approaches that require the use of a large number of people, including the Internet, and the procedure for paying remuneration to copyright holders. The legislation of some foreign states provides for so-called equitable remuneration. It replaces the traditional way of concluding license agreements and is used only in cases established by law. Collection and distribution of such remuneration is made by a collective rights management organization (CMO). Article 1244 of the Civil Code of the Russian Federation entitles the CMOs to obtain a state accreditation. Accreditation authorizes a CMO to act on behalf of unlimited number of rightsholders and collect equitable remuneration for certain rights, in particular, public performance, broadcast or cable transmission of musical works and / or phonograms published for commercial purposes. In 2004 the law introduced making available right known as the Internet right. In Russia this right is narrower than publicperformance, broadcast or cable transmission and is not among the means covered by the scope of accreditation of the CMOs. Accredited CMOs interact with “traditional” off-line users, including theaters, TV and radio companies, cinemas, etc., collecting remuneration for rights holders for the use of musical works and phonograms. However, the legislation does not directly authorize the accredited CMOs to collect remuneration from online broadcasters, theaters and cinemas. Such legal uncertainty creates difficulties in respecting the rights of right holders in whose interests accredited CMOs act. In the EU and the US, the use of musical works and phonograms on the Internet is regulated in a different way that allows users in some cases to pay remuneration to right holders through national CMOs. It seems that even the lack of direct regulation allows the Russian accredited CMOs to collect remuneration for certain types of use of works and phonograms on the Internet.
Law. Journal of the Higher School of Economics. 2022;15(5):91-116
91-116
National Projects in Program Budgeting System: Legal Aspect
Abstract
The article is devoted to the key issues of legal regulation of national projects in Russia from the point of view of the methodology of result-oriented budgeting (BOR). Russia has already come a long way in trying to implement policy documents aimed at achieving results when using federal budget funds. This process of federal targeted programs (FTP) began, which were replaced by state programs. At the same time, there was a parallel layering of other documents: priority projects and decrees of the President of Russia. A new stage in the development of the BOR system was the adoption of national projects and the building of all planning systems based on them. However, until now, a full-fledged analysis of the reasons for the failures of the Federal target Program and state programs has not been carried out at the state level. In fact, the names of the documents change, but the very essence of their content and methodology does not change. In this regard, the norms of law become an important component of the analysis, since on the basis of them, the procedures for the development and implementation of strategic planning documents are developed and approved. In our opinion, they are the reasons and problems of the inefficiency of attempts to implement BOR in Russia. Therefore, the subject of the study is the process of developing and implementing national projects. The purpose of the study is to form theoretical positions: on systemic shortcomings in the implementation of BOR in Russia, on the effectiveness of the current legal regulation of national projects, on the creation of a unified methodology for the implementation of strategic planning documents, on the need for a systematic analysis of the implementation of such documents. The author uses the dialectical method and special legal methods of scientific cognition, in particular methods of interpretation of law, comparativelegal method, formal legal method. The paper draws conclusions about the need to improve legislation in terms of clarifying the procedure for regulating individual elements of national projects. One of the main reasons for the failure of the implementation of the Federal Target Program and state programs is formulated: the unclear and excessive methodology of their development, as well as the unclear nature of legal norms. It is proposed to continue building the BOR system led by national projects and bringing all other strategic planning documents in accordance with them.
Law. Journal of the Higher School of Economics. 2022;15(5):117-138
117-138
Patterns of Development and Functioning Institute of Exemption from Criminal Liability
Abstract
The emergence, development and functioning of the institution of exemption from criminal liability is characterized by several patterns. Their identification and description is the key to understanding its essence, evolution and current state. Despite numerous studies on the institution of exemption from criminal liability, no attempt has been made yet to study its socio-legal nature through patterns, which necessitates the conduct of this study. The work is based on the theoretical doctrines on social, historical, and criminological conditions of criminal law and criminal policy that have become established in Russian science. Theauthors adhere to a dialectical view on the development of criminal law and its institutions, which involves the identification and study of the underlying contradictions of social and legal development. To study the laws of development and functioning of the institution of exemption from criminal liability, historical, statistical, analytical, and documentary methods are used. The paper identifies and analyzes the patterns of the institution of exemption from criminal liability, characterizing: the humanization of criminal law; the development of criminal law as a means of social management; the conditionality of the content of criminal law norms by social behavior of people; the dependence of the type of settlement of criminal conflict on the concept of the relationship between the state and the individual in society; the socio-historical genesis of the institution of exemption from responsibility; trends in the internal development of the institution of exemption from criminal liability and its functioning in practice. According to the results of the analysis, the authors conclude that the institution of exemption from criminal liability, which naturally emerged and develops as a humanistic response to the shortcomings and costs of criminal punishment, aimed at correcting lowrisk criminals and compensation for harm caused by a crime, now functions as a dialectic opposite of the legislative trend of increasing the scale of criminalization, an intrasystem criminal law mechanism to deter and overcome criminalization redundancy of the criminal law, which distorts its social and legal nature and purpose.
Law. Journal of the Higher School of Economics. 2022;15(5):139-161
139-161
Privacy of a Child in the Digital Environment: New Risks Unaddressed
Abstract
Digital technologies have brought with them new possibilities for exercising and protecting human rights; however, their potential for violations of human rights has also grown exponentially. Use of ICT influences the daily lives of adults, but their impact on children is even greater, as the risks of harm they face are now mediated and exacerbated online. The importance of children’s right to privacy has manifested itself anew in the context of digital technologies. In addition to concerns about safety, there are other considerations such as data processing and the “digital footprints” created by children themselves. Parents have traditionally been considered the primary agents for guidance and support of children’s rights online as well as for the protection of their children, but they are now seen as their children’s main publicity agents. Nevertheless, the problem of “sharenting” remains unaddressed at both the national and international levels. Measures developed to protect the privacy of the child follow a paradigm of rendering support to parents without stressing their obligation not to disclose information about their child. The General Comment on children’s rights in relation to the digital environment adopted by the UN Committee on the Rights of the Child in 2021 reflects this approach. Its stance demonstrates the power of traditional perceptions that reinforce seeing the child as an object incontestably cared for and ruled by their parents This precludes consideration of parents’ online activities as potentially harmful to their children and also impedes the development of norms and remedies for protecting the right of the child to privacy against infringements by their parents.
Law. Journal of the Higher School of Economics. 2022;15(5):162-176
162-176
Russian Constitutionalism and the Mobilization Trend in the Economy
Abstract
In the conditions of aggravation of geopolitical problems, economic sanctions against Russia, the need to use the mobilization economy as a means of enhancing the effectiveness of the current economic model is stated. As a scientific problem, the question of the necessary framework of constitutional and legal support for the regime of the mobilization economy is highlighted. On the basis of an interdisciplinary analysis, the characteristic of the mobilization economy as a political and economic concept is given, in which there are important legal aspects: the expansion of public law regulation of market relations, the reduction of economic rights and freedoms and the extraordinariness in the use of legal means. The regime of the mobilization economy, although it contains significant aspects of political and economic expediency, should be based on the ideas of constitutionalism, the constitutional model of the economy. It is shown that in the global political and economic confrontation between Russia and unfriendly countries, the universal features of constitutionalism should not absorb the national constitutional identity of our state. Constitutional principles in the economy make it possible to more effectively use the potential of law, its supremacy, clarity, reasonableness and certainty of the law in overcoming critical problems on the basis of consolidating the efforts of the state and society. The concept of mobilization constitutionalism is highlighted and its characteristics are given. A number of practical proposals for improving the legislative and institutional framework of mobilization constitutionalism are substantiated. Thus, it is proposed be the author to adopt federal laws on nationalization, expropriation, and economicdevelopment plan in the context of global economic challenges; strengthening the expert and analytical role of the Russian Federal Assembly through the formation of the Supreme Economic Council; expanding the powers of the State Council of the Russian Federation in the field of coordination of strategic economic planning.
Law. Journal of the Higher School of Economics. 2022;15(5):177-197
177-197
Discussion Club
Legal Regulation of Treatment of Stray Animals in Russia
Abstract
The article analyzes the concept of “stray animals” provided in Russia, both from the point of view of potential competition between the norms of the Civil Code and Federal Law No. 498-FZ and in comparison with the foreign approach. The article offers the author’s vision of the legal “groups” of stray animals and establishes the application limits of the responsible treatment to such animals, which include the non-identical legal status of different groups of stray animals in Russia. Thus, the author distinguishes three categories: (i) stray animals, (ii) animals without owners, and (iii) animals that have been relinquished. The article proves that “stray animal” is general term which includes companion animals and farm animals, while “animals without owners” and “animals that have been relinquished” are only a variety of stray companion animals. The author compared the current regulation of the constituent entities of the Russia in terms of the procedure for identifying animals when catching and the possibility of catching owned animals. Also, it shows the results of author’s research of the entire regional legislation on the criteria of stray animals catching. Moreover, the article highlights the admissibility of euthanasia of stray animals both from the point of view of the current regulation and of humanity, and foreign approaches to euthanasia. The author studied the issues of humanity and effectiveness of the program for controlling the number of stray animals in Russia using the method caught-sterilization-vaccination-release, compared it with other methods used and presented an analysis of the experience of European countries in the implementation of stray animals control programs.
Law. Journal of the Higher School of Economics. 2022;15(5):198-227
198-227
Law in the Modern World
Emergence and Genesis of International Treaties on Recognizing Foreign Bankruptcies
Abstract
The article analyzes the history of emergence, as well as the genesis of international treaties governing the recognition of foreign bankruptcies. The author argues that historically, the issue of legal effect of a foreign insolvency procedure was resolved through the prism of the theory of statutes, according to which the laws of the state were divided into real and personal. At the same time, the article draws attention to the existence of significant contradictions regarding the attribution of insolvency legislation to the number of real or personal statutes in doctrine XIX. Thus, several authors argued that insolvency legislation fell into the category of the real statutes, since its main purpose was to distribute the property of an insolvent debtor. It followed from the above that the insolvency legislation had a purely territorial effect and in each individual state it was required to open a separate bankruptcy procedure. In contrast to this view, other scholars have argued that bankruptcy law is a personal statute, since its main purpose is to establish control over a debtor who has been unable to ensure the proper conduct of affairs. In order to eliminate contradictions between these approaches, between the states in the 19th century agreements on mutual recognition of foreign bankruptcies were concluded. In light of the fact that the conclusion of international agreements on the mutual recognition of bankruptcies was considered as an act of confidence in relation to a foreign state, as a rule, such international agreements were concluded between neighboring states. For these reasons, the conclusion of a multilateral treaty (international document) in thefield of mutual recognition of foreign procedures remained impossible for a long time. In this regard, at the moment, the conclusion of such international treaties (international documents) is possible precisely within the framework of regional and integration associations like the European Union. Also, for these reasons, the unification of legislation in the field of regulation of cross-border bankruptcy is often carried out on the basis of “soft law” acts — the 1997 UNCITRAL Model Law.
Law. Journal of the Higher School of Economics. 2022;15(5):228-250
228-250
Autonomy of the European Union Law: External Dimension and Role in Process of the EU Constitutionalization
Abstract
The principle of autonomy of the European Union law which sparked intensive debates after Kadi-1 judgment of the European Court of Justice and its Opinion No 2/13, is widely recognized as one of the key general principles of the Union law. The article suggests that the principle of autonomy plays a crucial role in the ongoing transformation of the European Union into a sort of quasi-federation in dynamics where the Court of Justice aims to arrange a sectoral transfer of sovereign powers from the EU member-states states on the level of that quasi-federation. The results of the practical application by the Court of Justice of the EU of “external dimension” of the principal of autonomy (articulating that EU law is not a part of international law) reveals intentions of the Court of Justice independently and according to its own rules decide the issues of validity and applicability of the norms of international law in the legal order of the European Union. The same must be said about the control from the side of the EU Court of Justice of international treaties concluded by the EU member-states as subjects of such quasi-federation and by the Union itself. A remarkable similarity between arguments used by the Court of Justice of the EU in such issues and reasoning of national constitutional courts of some European countries provides feasible grounds for an assumption to consider the EU Court of Justice as a sort of constitutional court of emerging quasi-federation which protect and secure a gradual sectoral transfer of sovereignty from the EU member states on the Union level. But it should not be taken as a legal autarchy from the side of the EU or a construction of insurmountable wall between EU law and international law. It is better to be views as a right of the Court of Justice of the EU to determine how international legal obligation of the EU or its member-states may affect autonomy of the EU legal order. From this point of view any accusations addressed to the Court of Justice of the EU in adding further fragmentation of international law look as missing a point because the Court of Justice takes European Union law as law of emerging quasi-federation, not as international law.
Law. Journal of the Higher School of Economics. 2022;15(5):251-277
251-277
Review
Institute of Public Legal Representation in the Russian Federation
Abstract
The review analyzes the content of the monograph “Representation in constitutional Law: issues of theory and practice” (Moscow: Justicinform, 2022, 484 p.) by S.A. Avakian. In the reviewed work the public legal relations of representation of the interests of various subjects are investigated: citizens, the president, territories. The substantive accents of representation are revealed mainly on the example of constitutional law. Based on the analysis of a variety of theoretical and empirical material, the author determined the legal content of the institution of representation, presented important patterns of implementation of public legal representation of interests in the Russian Federation. The comprehensive approach applied by the author, his study of various factors in the characterization of public legal representation of interests make the reviewed monograph interesting and useful to a wide range of readers.
Law. Journal of the Higher School of Economics. 2022;15(5):278-285
278-285