Vol 15, No 4 (2022)
Legal Thought: History and Modernity
Islam and Constitutions of Arab Countries
Abstract
Islamic norms, principles and institutions are influencing very visibly upon constitutions of all Arabic countries excluding Lebanon. The article deals with main forms and directions of such influence. In particular Islam has an effect on defining the character of the state, pillars of power, society and legal system. Constitutions of some Arabic states name them as Islamic. At the same time, they underline the Islamic adherence of the given state, people or nation. Constitutions of almost all Arab countries provide for the status of Islam as state religion. Constitutions of majority of Arab countries define the role of Sharia as principal source of legislation. At the same time, Islamic norms are involved into the constitutional regulation of human rights and freedoms. It covers for example freedom of conscience is limited in some countries by Islamic rules. Such provisions are included in the notion of public order is normally fixed in some Arab countries. Islam and Sharia directly affect constitutional norms about legal status of women, family, education, freedom of speech and views, mass media activity and scientific creation as well as freedom of associations. Among human obligations constitutions of some Arab states mention defence of religion. Some constitutions provide that all human rights must be interpreted within Sharia limits. Regulation of organisation of state organs and their functioning is also influenced by Islamic fundamentals. Among them there are consultation, equality and justice are considered to be pillars of Islamic power. Islamic norms effect upon the status of a head of the state who is to be a Muslim in these countries. In a few countries the supreme legislative body is called «consultative council». Sometimes a strict observation of Islamic cult rules is included in conditions of candidate for seat of parliament member is to meet. Constitutions of some countries provide for establishment of special state and other institutions linked directly with Islam and Sharia. Among those units there are Al-Azhar complex in Egypt, Supreme Islamic council in Algeria or Supreme council for appeals and fetwas in Mauritania. The constitutional status of Islam and Sharia in Saudi Arabia has some specific features. In this country Quran and Sunna of the Prophet Muhammad are declared to be the constitution of the Kingdom. These two sources are considered to occupy the place beyond all legal normative acts of the country.
Law. Journal of the Higher School of Economics. 2022;15(4):4-23
4-23
Russian Law: Condition, Perspectives, Commentaries
Establishing of Subject of Rights to Intellectual Property Created with Use of Artificial Intelligence
Abstract
Artificial Intelligence (AI) applies now in all areas of the mankind activity, including creation of new films, music, modern technologies, etc. However, active use of AI during creation of intellectual property causes substantial problems for legislator and courts concerning definition of relevant legal regime of such works and finding the place of artificial intelligence in the legal system. Even the notion of AI is still the subject of discussion, all the more so there are active discussions regarding definition of a subject of rights to products created by AI. Traditional regulation requires protection of IP with human’s activity, and, in the framework of continental legal system, creativity. As a result firms applying AI indicate fictive authors to protect relevant intellectual property. In the doctrine some variants of protection of such works are suggested, including protection of rights of AI developer, person who organized of artificial intelligence, investor, AI’ user, AI itself, etc. In the article possible models of regulation are analyzed as well as perspectives of its implementation and possible results. The main conclusion is that among the many possible variants of definition of rights to the works created by artificial intelligence, only few deserve attention among which option of introduction of specific limited related rights of a person who organized of artificial intelligence is the most perspective. This model is similar with constructions are used in the civil law: phonograms producer rights, air and cable broadcasting bodies rights, database producers’ rights. There is some experience of use of such model in several countries. Thus, use of artificial intelligence in the intellectual property sphere requires developing of existing legal regimes rather than substantial reconstruction of the legal regulation.
Law. Journal of the Higher School of Economics. 2022;15(4):24-50
24-50
Issues of Legislator Approach to Features of a Special Subject in Corpus Delicti of Abuse and Bribery in the Public Procurement
Abstract
The relevance of the study is associated with the existing problems in determining the criminal legal status of individual employees of the state (municipal) customer in view of the approach chosen by the legislator to the design of new corpus delicti of corruption (Articles 200. 4, 200. 5 of the Criminal Code of the Russian Federation) in terms of describing the characteristics of a special subject. The objective of the study is to determine the features of the legislative structure of the novels of the criminal legislation of the Russian Federation on criminal liability for committing corruption-related crimes in the field of procurement to meet state and municipal needs (hereinafter referred to as the field of procurement), as well as to analyze the criminal legal status of individual employees of the state (municipal) customer. When preparing the article, the results of research of a wide range of Russian and foreign scientists were taken into account; in the article, in addition to research and legal information, sources of statistical information were used. To achieve the objective set in the study, the following methods were used: analysis, synthesis, induction, deduction, formal-legal, comparative-legal. The studycharacterizes the conceptual features of the legislative approach to describe the features of a special subject in the corpus delicti of abuse and bribery in the field of procurement. The disadvantages of the approach chosen by the legislator to describe the features of a special subject in the corpus delicti of abuse and bribery in the field of procurement have been identified: an unreasonably wide range of special perpetrators of abuse and receipt of the subject of bribery in the field of procurement; excessive formalization of norms in terms of describing the features of a special subject; unreasonable casuistry. The criminal legal status of contract managers, members of the procurement commission and persons accepting the supplied goods, work performed or services rendered was determined. It was concluded that inconsistency in the science of criminal law and possible problems of law enforcement in connection with the definition of the criminal legal status of the addressees of new criminal legal prohibitions are primarily due to the approach chosen by the legislator to reflect the features of a special subject of crimes provided for by Art. 200. 4 and 200. 5 of the Criminal Code of the Russian Federation.
Law. Journal of the Higher School of Economics. 2022;15(4):51-70
51-70
Duty of Bankruptcy Commissioner to Keep Debtor’s Documents: Issues of Theory and Practice
Abstract
The article is devoted to consideration of the storage of documents of the debtor with the arbitration manager. Purpose of paper is: to analyze the general procedure for storing thedebtors documentation by the arbitration manager, the criteria for classifying his actions on its management from the point of view of good faith or bad faith. Research methods applied are: methods of collecting empirical information, methods of generalization, formal-dogmatic (formal-legal), systematic approach. Results: the concept of representative storage, the concept of trust storage, the concept of labor storage, the storage concept of things, the functional storage concept and the concept of delegated public storage were formulated. On the basis of summarizing the conclusions of various theories of arbitration management the following theoretical provisions have been formulated for the storage of the debtors documents by the bankruptcy administrator: representation by the bankruptcy administrator of the interests of the debtor, creditors and society; transfer of documents for storage for a specified period, as well as organization of storage in the interests of interested parties; finding the stored documents in the possession of the bankruptcy commissioner; implementation of various functions of the insolvency practitioner for keeping the debtors documents in bankruptcy proceedings; vesting by the state of the insolvency practitioner with public functions of organizing the storage of the debtors documents. The custody of the debtors documents by the bankruptcy administrator means the activities of the bankruptcy administrator to carry out public functions delegated by the state to organize the storage of the debtors documents in bankruptcy proceedings within the established time limits in the interests of the debtor, creditors and society. The practical problems of obtaining (reclaiming) the debtors documents by the arbitration administrator, ordering the debtors archival documents, their personal storage by the administrator, transferring them for storage, destruction of documents, storage periods, and storage costs are analyzed, and ways of solving these problems based on the analysis of law enforcement practice are proposed. Conclusions: insufficient regulation of legal relations for the storage of documentation of the debtor leads to a violation of the rights and interests of various participants in bankruptcy relations: creditors, debtors, society, arbitration managers, which necessitates the improvement of the current legislation in order to ensure a balance of various interests.
Law. Journal of the Higher School of Economics. 2022;15(4):71-90
71-90
Legal Consequences of Marital Relationship Actual Termination for the Property Relationships of Spouses
Abstract
The specific of the regime of spouses property relations who have actually terminated marital relations is recognized and embodied in the legal norms of many European legal orders. In the Russian Family Code there is no concept of “actual termination of the marital relations”; the legal significance of the relevant fact for the property relations of spouses remains outside the scope of lawmaking attention. However, in juridical practice, this circumstance has a number of significant legal consequences that have not yet received generalization and understanding in the legal doctrine. The main goal of this study is, based on the analysis of judicial practice, to establish the real significance of the actual breakdown of the family for the property relations of the spouses, to identify its legal consequences through the systematization of the most frequently stated requirements and formulated law positions, and to assess these consequences in terms of their need for legislative systematization. It has been established that in the current jurisprudence the idea of “actual termination of marriage” as a full-fledged fact-state, entailing a number of legal consequences, united by the general principle is formed: in the opinion of the courts, with respect to the property relations of such persons, this fact has a meaning equivalent to that of the fact of termination of the marriage. The legal consequences of the actual termination of marital relations aresystematized and divided into two groups (expressed in the shift in the boundaries of the legal regime of marital property in time; in the transition from the presumption of joint use of income received from the sale or use of common property to the presumption of their distribution). It has been proved the expediency of law-making interpretation of the results of discretionary creativity of the courts for their compliance with social expectations and moral and ethical ideas of society, as well as the position and logic of the legislator, both in terms of recognizing the actual termination of marital relations of legal significance in principle, and in terms of linking to this fact to legal consequences.
Law. Journal of the Higher School of Economics. 2022;15(4):91-111
91-111
Impact of Current International Migration on the Legal and Regulatory Framework for Migration Management in the Russian Federation
Abstract
The article discusses international migration trends and their impact on the formation of migration regulatory framework in the Russian Federation, as well as the analysis offactors influencing these trends worldwide. The authors point out to different aspects of the illegal migration phenomenon as the universal problem that has a marked tendency to increase including its impact on the national security of hosting states. The article examines problems of legal regulation of forced migration in contemporary situation of increasing political instability, as well as migration replacement as one of the ways to dealing with the demographic crisis observed in a number of developed countries. The globalization of the world migration flows are taken into consideration as a significant modern phenomenon, while special attention is drawn to the need for legal regulation of the integration of migrants into the hosting community. The article also explores into the changes in the structure of contemporary migration flows trends, examines their transformation in accordance with the socio-economic and political necessities of nations. The policy of attracting highly qualified specialists from abroad is replacing the guidelines for unskilled work force and the Russian Federation is actively engaged in the struggle for highly qualified personnel on the international labor market. The authors raise the acute problem of the increasing impact of migration processes on the sanitary and epidemiological situation in the world in the context of the COVID-19 spread. Hence, they emphasize the essential designing of a local model of the migration legal framework taking into account the protection of the national security of the Russian Federation from such threats. The authors consider the duality of the international migration policy, as well as the dual nature of the migration policy of the Russian Federation based on the principle of selective migration. In conclusion, the authors indicate the importance of studying the global benchmarks of migration processes for predicting the development of the migration situation in the Russian Federation and the passing of national migration legislation that adequately respond to the challenges and threats of the contemporary world.
Law. Journal of the Higher School of Economics. 2022;15(4):112-135
112-135
Discussion Club
On Concept of Procedural Law
Abstract
Paying attention to the traditional division in the domestic legal science of the system of law into such sections as private and public law, substantive and procedural, the latter was the subject of this study. Moreover, the analysis of the proposed concepts is analyzed both at the general theoretical and at the sectoral levels. Distinguishing two groups of norms of procedural law, it is argued that the first group consists of procedural norms, which, in terms of the scope of regulation, cover the needs of at least several material industries, not only their own industry of the same name. As a result, this group of norms is characterized by a high degree of internal organization, corresponding to the level of the branch of Russian law, in particular, a fairly clear division of these norms into relevant institutions. We are talking about civil procedural, criminal procedural and administrative procedural norms, which gives reason to consider these groups as independent branches of Russian law. The second group of procedural norms includes the norms operating in the sphere of material, state, financial, labor and a number of other industries, which “they” serve “the needs of only” their “material industry”. The purpose of the study was the formation of the author’s concept of procedural law. The hypothesis of this article is the statement of the fact according to which, for the most part, procedural law is unreasonably understood by legal scholars as a set of procedural rules governing the procedure for applying the relevant substantive law rules by the competent authorities of the state and their officials. The methodology of the work includes the following methods: general philosophical (dialectical-materialistic); general scientific (analysis and synthesis, induction and deduction, comparison, abstraction, etc.); special (philological, etc.); private scientific (formal legal, methods of interpretation, etc.). The result of the article was the following statement: given that the legal process is unthinkable without the activity of citizens participating in the process, that the procedural rules are both in the branches of procedural law and in the branches of substantive law, the following interpretation of procedural law is proposed: it is a set of procedural rules that are in branches of procedural and substantive law, firstly, regulating the procedure for the application of substantive law by the competent authorities of the state; secondly, determining the legal status of citizens, legal entities, and other participants in the relevant processes.
Law. Journal of the Higher School of Economics. 2022;15(4):136-154
136-154
Law in the Modern World
Executing International Legal Guarantees of Human Health Protection in Context of COVID-19 Pandemic
Abstract
The coronavirus pandemic has become the biggest challenge to humanity over the whole century, exposing a number of systemic issues in the field of human health, both at the national and international levels. The catastrophic burden on health care facilities, coupled with the rapid growth in the need to provide health technologies, has increased the incidence of restrictions and discrimination in access to health care and medicines, especially in the developing world. The need to maintain balance between interests of healthcare technology companies and needs of the individual, is clearly seen since the unification of international legal mechanisms of intellectual property rights protection, and is being discussed with renewed interest in the context of the rapid growth of vaccines cost and other medicines for the treatment of COVID-19. In the article the authors analyze the international legal foundations of the right to the highest attainable level of health, formulated in acts of a universal and regional nature, as well as acts adopted by specialized international organizations. Particular attention is focused on analysis of vulnerable populations health protection, in the context of the growing negative consequences of the pandemic spread. Authors highlight the vulnerability of health workers to infectious pandemics, which increases potential barriers to ensuring the right to health among the entire population. The paper establishes the relationship between ensuring the protection of human health and the implementation of other fundamental human rights affected by the spread of the virus, such as the right to food, the right to water and sanitation. In the context of a significant increase in the problem of restricting access to health technologies, the article justifies need for rational application of norms in the field of intellectual property rights protection to ensure execution of the right to the highest attainable standard of health. The authors analyzed the international legal mechanisms aimed at expanding access to vital healthcare technologies in emergency situations. The article draws attention to the various forms of illegal activity, which dramatically rises under the influence of medical products shortages and significantly limits exercising human rights.
Law. Journal of the Higher School of Economics. 2022;15(4):155-183
155-183
Ensuring Favorable Conditions for Development of Single Market in Telecommunications and of the Audiovisual Media Services Sphere in the European Union
Abstract
The article presents the results of an analysis of some aspects of changing the legal regulation of the European Union (EU) in order to implement and develop the goal outlined in the Strategy of the Digital Single Market Strategy for Europe 2015 of creating favorable conditions for the development of digital networks and services as one of the three areas of activity for the creation of a single digital market. The purpose of the study is to identify the subject, features and trends of legal regulation of the single market in telecommunications and the sphere of audiovisual media services in order to create favorable conditions for the development of digital networks and services within the framework of the creation of a single digital market of the EU, including in pursuance of the Strategy, and, consequently, to increase the efficiency of the functioning of the EU internal market as a whole. The text of the Strategy itself is analyzed, as well as a number of both advisory and regulatory legal acts, including programmatic ones. For example, the regulations and directives adopted in pursuance of the Strategy, as well as the Communication of the Commission “Shaping Europe’s Digital Future “in 2020, the Communication of the Commission “Digital Compass: the European way for the Digital Decade “in 2021, the Regulation “Digital Europe Programme (2021–2027)”. The internalmarket plays a leading role in responding to a whole series of challenges that the EU has recently been facing. Among them is the acceleration of the introduction of new technologies that have a strong impact on both telecommunications and the audiovisual sphere, which in this regard are characterized by extremely rapid changes. It is concluded that much of the Commission’s planned Strategy in the field of Telecommunications and Audiovisual Media services has been fulfilled, but still all the goals have not yet been achieved. EU institutions are able to take a whole range of interrelated, consistent and extremely necessary measures in a short time to improve the legal regulation of the internal market, creating a single digital market. The relevance of the research topic is added by the fact that the Eurasian Economic Union is currently discussing the conclusion of an agreement in the field of regulation of electronic commerce.
Law. Journal of the Higher School of Economics. 2022;15(4):184-209
184-209
International Loan Agreement with Public Subjects Participation: Jurisdictional Immunities and Peculiarities of Conflict-of-Laws Regulation
Abstract
The article is dedicated to the analysis of jurisdictional immunities of public subjects being parties to private cross-border legal relations as well as special conflict-of-laws regime of international loan agreement in which such subjects participate. The author states that the agreement in question is of sui generis nature due to peculiarity of its parties and make the following conclusions. First, it is argued that any loan agreement concluded between public subjects (borrowers) and foreign private persons (lenders) is to be considered acta jure gestionis irrespective of socio-economic goals pursued by borrowers. It means that primary consideration should be given to public subject’s concrete actions as a party to the agreement, i.e. whether the borrower exercises its sovereign powers or acts in private capacity in the course of agreement’s conclusion and performance. Second, the author contends that there is a special conflict-of-laws regime in regard to international loan agreement with participationof public subjects that is different from the one inherent in contracts with no such participation. In particular, this difference is manifested in the existence of public subjects’ conflict-oflaws immunity in contractual relations. Two main types of conflict-of-laws immunity doctrine (“hard” and “soft” versions) are introduced by the author. It is highlighted that no international loan agreement with participation of public subjects should be governed by borrower’s own law by default since conflict-of-laws immunity of public subjects is considered a “legal atavism” and puts public subjects in a privileged position as compared to private persons and, consequently, contravenes commonly acknowledged principles of private law— equality and party autonomy. Finally, broader discretion to choose applicable law is vested in parties to the agreement in question allowing them to structure their contractual relations in a manner providing balance of interests and precluding the possibility of either party’s misconduct. It is further suggested that lex mercatoria should be used as law applicable to international loan agreement with participation of public subjects because lex mercatoria is a structured, publicly accessible and universal tool for legal regulation of private cross-border relations.
Law. Journal of the Higher School of Economics. 2022;15(4):210-235
210-235
Review
Criminal Plot in the Russian Literature
Abstract
The review analyzes a monograph Criminal plot in the Russian literature (Moscow: Prospekt, 2021, 640 p.), written by Anatoly V. Naumov, a lawyer and outstanding researcher in the field of criminal law. In the reviewed book the scientist makes an attempt to explain the phenomenon of criminal through the disclosure of related criminal, criminological, philosophical and other basic problems, through the prism of a detailed study of a huge number of criminal plots contained in the works of the great Russian literature. In the context of such a study, the author refers to the works of more than 80 writers of Russian Empire, Soviet Union and of the contemporary Russia.
Law. Journal of the Higher School of Economics. 2022;15(4):236-242
236-242
243-250