卷 17, 编号 4 (2024)
Legal Thought: History and Modernity
Temporary Legislation as an Instrument of Accelerated Development of Society
摘要
Forced social dynamics and strategic orientation towards accelerated technological and socio-economic development, as well as a new normative model of the temporary organization of social relations, reflected in legislation with a deliberately limited period of validity, legislation on experimental legal regimes, legislation on mandatory requirements, objectively actualize the appeal to issues temporal aspects in law, its potential from the point of view of “management” of time, as a policy tool for the accelerated development of society. The perception of time as a critically important and at the same time underestimated and little-studied instrument of legal regulation transfers this issue from the category of self-evident or legal-technical to essential. The demand for its study and solution, combined with the scientific background formed as a result of understanding anti-pandemic, anti-sanction, anti-crisis regulation, opens up the possibility of reassessing the time factor in the general mechanism of legal regulation. The article pays special attention to such a relatively new phenomenon for modern legal orders as temporary legislation, and its attributive characteristics, including in a comparative legal context. In connection with the need to adapt legal systems to the atypical mobility of social life, further prospects and limits for the use of rules are assessed, which, in their focus and content, do not require normative fixation for an indefinite period by default, but, on the contrary, require periodic and systematic revision and correction. The adaptability of temporary legal regimes to rapidly changing social or technological conditions and extraordinary scenarios of social development makes it possible to predict a wider use of the potential of temporary regulations in innovative, high-tech areas in order to implement scenarios for accelerated development of society. The author's normatively formalized proposals for identifying temporary normative regulations are reflected in the latest edition of the initiative draft federal law on normative acts developed by the Institute of Legislation and Comparative Law under the Government of the Russian Federation.
Law. Journal of the Higher School of Economics. 2024;17(4):4-27
4-27
Is Environmental Compliance a Private or Public Law Institution?
摘要
The article is devoted to the issue of institutional affiliation of environmental compliance in Russian law. Environmental compliance is an actively developing practice of companies, but has not yet been regulated by law. According to the author, environmental compliance can become one of the key tools for solving environmental problems in Russia, as it involves the introduction of systems for the prevention of environmental violations at the level of individual natural resource users. That is why the question of studying its characteristics as a phenomenon of reality, as well as the study of its legal regime, which will allow us to develop an optimal model of legal regulation in the future, is of particular relevance. It is analyzed the private legal components of environmental compliance, examines the features and elements of the environmental compliance system, including from the perspective of the practice of Russian companies. In addition, the reasons for the spread of environmental compliance in the practice of companies were investigated, among which the rapid changes in environmental legislation, increased administrative influence and other. The author also discusses the public legal framework of environmental compliance in relation to the institution of state environmental control. As an example of the publication of private law in the context of the institution of environmental compliance, an experiment on consulting investment projects regarding compliance with environmental legislation was analyzed. As an example of the privatization of public law, the introduction of elements of risk prevention in state control is discussed. Given the limited consolidation of environmental compliance instruments, the sphere of environmental control largely remains in the traditional public legal framework and is less susceptible to privatization, while there is a trend to publish existing private law institutions. It is concluded environmental compliance is a complex legal institution that is not limited to environmental, corporate legal regulation, state control over compliance with mandatory requirements or other legal regulation and combines both private and public law norms.
Law. Journal of the Higher School of Economics. 2024;17(4):28-52
28-52
Russian Law: Condition, Perspectives, Commentaries
On the Qualifications of the Corporate Directors
摘要
The system of requirements to members of bodies of a legal entity includes elements, actively discussed in science recently. Social quotas in boards' research are relevant. In Russian legislation and judicial practice, the issue of possibility of qualifications for members of bodies of a legal entity is still not resolved. Subject of research is elements of the system of requirements to members of bodies of a legal entity, most controversial in science and legal practice — qualifications (experience, education, and business qualities) and quotas in boards, due to which requirements are established to some of the seats. Using general research (analysis, synthesis) and special legal means (historical legal, comparative legal, dogmatic, sociological) methods, the author puts forward the following hypothesis: Because by legal nature the relations between director and legal entity is civil, latter is free to determine, what business qualities should be possessed by members of bodies (as well as counterparties and representatives). At the same time, state intervention is possible — through quotas in boards in various ways (quotas for members of social groups; codetermination; including the government representatives by virtue of “golden share”, quotas for minority shareholders and insertion of independent directors. In the article the relationship between the need for qualified management and the corporate democracy is proposed. Various reasons for introducing quotas are being assessed (in world context and in context of Russian corporate governance). Application of corporate governance best practices is proposed (introduction of an “ideal election procedure”, “nudging” through description of best practices, inclusion of persons, who are not members of board, in the board committees, or creation of separate advisory bodies). Parameters are put forward with which possible to check reasonableness for introducing a quota and its impact on stakeholders.
Law. Journal of the Higher School of Economics. 2024;17(4):53-79
53-79
Protecting Subjective Rights and Legal Interests of a Corporation by Heirs of its Participant
摘要
The article is devoted to the features of the protection of the rights and interests of the corporation by the persons to whom participating interests and shares are transferred in the order of universal succession upon the inheritance. The purpose of the paper is to study the ability of the heir to take actions to maintain the rights and interests of the corporation. The author applied both general scholar methods (systemic, formal logical methods: induction and deduction, synthesis and analysis) and special legal methods (formal legal, legal modelling method, comparative legal method). It was justified the right to manage is a “non-personal” non-property right of a participant may be transferred by the procedure of universal succession during the inheritance, hence, the norm of Article 1112 of the Civil Code establishing prohibition on inheritance of personal non-property rights does not apply. It has been identified the heir becomes a participant in the corporation from the moment of acceptance of the inheritance, however, taking into account the universal nature of succession in case of the inheritance, that implies the immediate replacement of the testator by his heir in a corporate legal relation. It is concluded it is incorrect to distinguish between the moment the heir acquires the right to a share in the authorized capital and the right to manage the corporation. Based on the results of a study of law enforcement practice, as well as the provisions of Russian law, it is noted in relation to the inheritance of the right to manage a corporation, it is necessary to distinguish between the moment from which such a right passes to the heir of a participant (at the time of opening of the inheritance), and the moment from according that the heir has the right to exercise certain powers property and nonproperty nature included in the content of the right to manage a corporation (with the opening of the inheritance, but if the exercise of powers requires the consent of the remaining participants — from the moment the heir receives such consent). Until the consent of the remaining participants to exercise the powers that belonged to the testator is obtained, a fiction of participating arises, which disappears with such consent and the emergence of a corporate legal relationship between the corporation and the heir, or, in case of refusal to provide consent, after the exercise of the right to pay the actual value of the share in the charter capital. The study showed until the circle of heirs is determined, as well as the composition of the inherited property, a trustee acts on behalf and in the interests of the corporation and the heirs.
Law. Journal of the Higher School of Economics. 2024;17(4):80-109
80-109
The Corporate Transactions with Director's Exceeding Authorities and the Doctrine ultra vires
摘要
The article suggests an alternative view on understanding and application of the provisions of Russian law regarding nullification of the corporate transactions committed in conflict with representational powers of directors. The purpose of the research is to consider ways to improve legislation and judicial practice on this issue, drawing on foreign doctrine and key judicial cases; to harmonize relevant legal solutions with the Russian legal system. The first part of the article notes that the current wording of Article 174 of the Civil Code of the Russian Federation creates difficulties for challenging of transactions committed in violation of powers or interests of a legal entity, so far as in practice it is often extremely difficult to prove bad faith and negligence of the counterparty, presence of collusion or causing apparent damage to the company. The situation is aggravated by judicial practice and explanations of the Supreme Court of the Russian Federation. In the second part of the article the author shows that common law jurisdictions have developed the doctrine applied with consideration of the objective good faith of the director. Selected Anglo-American cases demonstrate that director's exceeding of the authorities is a special case of breach of fiduciary duty of loyalty. In foreign law, transaction performed by a director in evident breach of this duty may be invalidated. So it is important to understand that foreign doctrine and practice approach the challenge of corporate transactions more functionally and with recognition of the formal structure of fiduciary responsibility. Russian law, on the contrary, distances from clarification of the issue of director's bad faith, attaching more importance to the negligence of the counterparty and rather formal criteria of causing damage to a legal entity. Based on the results of the study, the author concludes that this approach is not sufficiently correspond to the idea of protecting interests of the corporation and its participants and the concept of fiduciary duties, as well as in necessary to borrow some solutions from foreign experience.
Law. Journal of the Higher School of Economics. 2024;17(4):110-135
110-135
Birth and its Civil Consequences
摘要
The development of medical technology has made the process of human life development more accessible for observation and has raised several legal problems, including questions about the legal nature of the embryo. The subject of the study is the question of the moment of the beginning of human legal personality. The aim of the article is to find out whether the classical rule that the legal personality of a person arises from the moment of birth needs to be revised taking into account new medical and legal achievements. The research methods are comparative-legal method and techniques of analytical jurisprudence. Conclusions are suggested for discussion. The embryo and foetus cannot be classified as either subjects or things; the author proposes the conclusion that the embryo is an object of civil rights of a special kind, closely related to personal intangible goods. None of the attempts to find any other moment of the emergence of legal personality than birth is free from conventionality. The doctrine of the stages of development of legal personality seems promising. The legal nature of the zygote is not equal to the legal nature of the foetus in its eighth month of development. As the human organism develops, the protection afforded to it by the law increases. However, even at an early stage of its development, future human life must be respected and protected by the law. Therefore, the embryo invitro cannot be recognized as a thing, it is a special object of law. At the same time, germ cells contain only a part of genetic information, so it seems possible to apply to them the norms of civil law on things. Claims “wrongful birth” and “wrongful life” are considered, it is emphasized that the possibility of such claims should not lead to a denial of the value of life; the preservation of life cannot be considered as a special case of harm.
Law. Journal of the Higher School of Economics. 2024;17(4):136-160
136-160
Financial Stimulation of Apprenticeship in Russia: Comparative Legal Research
摘要
The article raises the problem of development of apprenticeship in Russia. This institute is equally beneficial for employers, apprentices and the state. It has been found out that the main obstacle to its development is in financial costs that employers bear when they organize internship for students and professional training of employees in educational organizations. The authors study the ways to minimize the aforementioned costs on the example of the foreign countries' experience where apprenticeship has existed for a long time and positively influenced the economy of companies and the states themselves. Correspondingly, the subject of the article is social relations arise in the light of state financial support of apprenticeship. The methodology of the research is represented by normative micro-comparison, in particular external comparison, since apprenticeship as a legal institute is common for different legal systems and for various branches of law: labor law and financial law. The authors implement functional comparison as well to find an effective model of legal regulation. The effectiveness is measured through the social and economic results achieved by the states. The comparative historical method, in particular diachronic analysis of legal regulation, has helped the authors to see the transfer among various models of financial support of apprenticeship in different states retrospectively. In the course of the research the authors identify mechanisms of direct and indirect financing of apprenticeship, the existence of peculiar taxes, tax benefits, funds, special apprenticeship programs. Following the goals defined by the President of Russia after XXVI International Economic Forum in Saint Petersburg the authors analyze the current state of the Russian legislation concerning apprenticeship issues and make a conclusion about the directions for its improvement on the basis of the foreign experience. The authors propose to expand the list of tax benefits by introducing a tax credit that would support employers, in particular small and medium-sized enterprises, which involve in apprenticeship programs.
Law. Journal of the Higher School of Economics. 2024;17(4):161-184
161-184
Systemic Problems of Criminal Legal Protection of Virtual Objects
摘要
The article is devoted to the study of the peculiarities of the legal regulation of virtual objects and the problems of protecting public relations associated with their use. In the context of digitalization virtual objects have acquired economic value, and the demand for them is growing every year. However, their legal status remains generally uncertain or not fully defined. The research focuses on the issues of protecting non-fungible tokens, digital currency and in-game virtual objects. The author states that a unified approach to their civil regulation has not been developed. The status of non-fungible tokens remains controversial, and in-game objects are usually equated to intellectual property, while disputes between users and copyright holders that do not extend beyond the game process are not subject to judicial protection. The most regulated is the status of digital currency, however, in this area there are still many shortcomings that require the attention of the legislator. Problems of criminal defense and qualification are closely related to civil law. The rules on crimes in the field of computer information are not able to ensure proper differentiation of liability depending on the consequences of an economic nature. Given the uncertainty of the regime of non-fungible tokens and the application of the “magic circle” concept in relation to game objects, it becomes difficult to attribute them to the subject of theft or extortion. The question remains open about the distribution of signs of “seizure” and “circulation” of property in relation to digital currency. Foreign legislation (China, the Netherlands, Great Britain) speaks of the possibility of applying theft rules in the event of attacks on virtual objects. The author comes to the conclusion that this approach, if extended to domestic legislation, has a number of disadvantages: the casuistic nature of the decision; violation of established law enforcement practice; ignoring license agreements of copyright holders. In this regard, it is advisable to carry out a comprehensive and systematic optimization of civil and criminal legislation, the result of which should be a special regime for the protection of virtual objects.
Law. Journal of the Higher School of Economics. 2024;17(4):185-209
185-209
Typology of Counterfeit Money Methods
摘要
According to the report of the Central Bank of the Russian Federation in 2023, the number of cases of counterfeiting recorded in the banking system reached a historical minimum (since 2011) and amounted to 12,425 counterfeit banknotes. At the same time, such data seem to reflect only a minimal level of criminalization of counterfeiting, the scale of which is actually more impressive, since experts estimate that up to 75 percent of the facts of the use of such marks, for objective reasons, qualify as fraud, and, therefore, are not properly taken into account in legal statistics. At the same time, it is important to take into account that the ambiguity of the construction of Article 186 of the Criminal Code of the Russian Federation causes difficulties in law enforcement. The subject of this study is the interpretation of the distinctive features of counterfeiting, given to them by judicial practice. Methods like Hegelian dialectics, legal hermeneutics (legal exegesis), typology, as well as special legal methods of interpreting law are used. The restrictive nature of the judicial interpretation of the normatively fixed methods of counterfeiting (manufacture, storage, transportation for marketing and marketing), due, inter alia, to their lack of clarity, has been established, and the problems of such interpretation have been disclosed. Based on the study of sentences handed down in criminal cases of counterfeiting in the Russian Federation for 2019-2023 and the doctrine, an up-to-date typology of ways to commit this crime based on the objective side is presented, the vector and priorities of subsequent research and likely legislative changes in the area under consideration are determined. At the same time, the study of the peculiarities of the interpretation of the distinctive features of counterfeiting, given to them by judicial practice, demonstrates that the main ways of committing an act are various, but few forms of manufacture, storage, transportation and sale, which, as it seems, is generally associated with the peculiarities of detecting and suppressing crimes of this orientation in general. Moreover, the indicators of the typology of the ways of committing the act mentioned are presented at graphs 1 and 2, allowed us to draw a number of additional conclusions.
Law. Journal of the Higher School of Economics. 2024;17(4):210-234
210-234
Legal Approaches to Assessing Efficiency of Judiciary
摘要
The article deals with issues related to the evaluation of the effectiveness of the judiciary and the administration of justice in the Russian Federation. The purpose of the study is to update approaches and identify criteria for evaluating the effectiveness of the judiciary, classify them by levels of organization of the judicial system and types of legal proceedings, search for key tasks and directions to improve the effectiveness of the administration of justice in the Russian Federation. It is noted that the judiciary occupies a special place in the constitutional system of public institutions. Despite this circumstance, the judiciary as part of the unified system of public authority in Russia and justice as a special type of state activity cannot be outside the evaluation system, which, first of all, is dictated by the public demand for legitimate, socially oriented, accessible and open justice. On the basis of system-structural, formal-legal, formal-logical and other methods of cognition, it is proposed to use various approaches to assessing the effectiveness of such categories as: “judicial authority”, “judicial activity”, “justice”. The author comes to the conclusion that from the point of view of the constitutional and legal doctrine, the evaluation of the effectiveness of the judiciary is not equivalent to the evaluation of the effectiveness of justice. The latter is considered as the degree of achievement of the tasks of implementing lawful, accessible, open one and socially oriented justice in all types of legal proceedings, for the purpose of state protection of human and civil rights and freedoms, the interests of society and the state. The effectiveness of justice in a narrow sense is expressed in statistical indicators of the work of judicial bodies. However, in a broad sense, the effectiveness of justice is associated with the overall contribution that the entire judicial system makes to achieve constitutional goals and national tasks. Special attention is paid to the effectiveness of constitutional justice as a key factor in the effective functioning of the judicial system. Recommendations are made aimed at improving the practice of executing decisions of the Constitutional Court, increasing the effectiveness of electronic justice, information openness of the judiciary.
Law. Journal of the Higher School of Economics. 2024;17(4):235-253
235-253
Law in the Modern World
Digital Ruble as a National Digital Currency: Issues and Prospects of Development in Context of World Experience
摘要
The article examines aspects of using digital ruble as a national digital currency. The author notes the current trend in many countries to introduce digital currencies of Central banks, which began in some countries in 2020. The digital ruble, issued and controlled by the Central Bank of Russia, will facilitate access to digital tools for the population and business, increase the efficiency and attractiveness of cross-border payments to friendly countries. The global experience of introducing digital currencies of central banks into legal and financial systems has shown that they have already been implemented or are in the final stages of implementation in China, Singapore, the Republic of Korea and a number of other countries. An analysis of the regulatory framework for digital currencies of the central banks of these countries has demonstrated the existence of a holistic legislative regulation of the legal status of new digital assets. At the same time, the study revealed the aspects of legal regulating digital ruble in Russia, associated with the lack of comprehensive legislative consolidation of the institution and the basic principles of functioning of the digital ruble. Currently, the regulation of this financial unit is mainly in the sphere of acts of the Central Bank of the Russian Federation. In addition, there is a low quality of the related legal framework that allows for conflicts, in particular, the simultaneous authorization and prohibition of the use of digital currencies as a means of payment and counter-provision in Russia. In this regard, based on the generalization of the experience of foreign countries, directions for improving the current legislation are given expressed in the Law On the Digital Ruble of the Russian Federation, amendments to the Law On Digital Financial Assets, as well as adjustments to the approaches to the introduction of the digital ruble in the financial system of the Russian Federation. It will be able to maintain the functioning the digital ruble and reduce risks for financial market participants.
Law. Journal of the Higher School of Economics. 2024;17(4):254-277
254-277
Artificial Intelligence and Law
摘要
On October 18, 2024, the XIII International Scientific and Practical Conference “Law in the Digital Age” was held at the Faculty of Law of the Higher School of Economics. This year it was devoted to the topic of artificial intelligence (AI) and law. It was considered from the standpoint of both private and public law. The conference covered the issues of the civil law regime of artificial intelligence technologies and objects created with its use, artificial intelligence and intellectual property law, as well as the topic of generative content and protection of the interests of copyright holders. The topic of regulation and self-regulation of artificial intelligence, including artificial intelligence in LegalTech, is highlighted. Introduction of Artificial Intelligence Technologies in Labor Relations: Successes, Failures, Prospects Criminal Law Protection of Digital Economy and Finance Entities Using Elements of Artificial Intelligence. Thus, the conference attempted a comprehensive cross-sectoral discussion of the role of law in the development of AI technologies. This approach made it possible to show the relationship between the methods of legal regulation in this area, their interaction to create conditions for the development of AI technologies. The conference raised both practical and theoretical issues of the development of law in the new conditions, as well as the problems of the development of legal education.
Law. Journal of the Higher School of Economics. 2024;17(4):278-306
278-306