Том 16, № 1 (2023)
- Жылы: 2023
- Мақалалар: 11
- URL: https://journals.rcsi.science/2072-8166/issue/view/21413
Бүкіл шығарылым
Legal Thought: History and Modernity
Theory and Practice of Legal Documents Interpretation by Courts with Using Dictionaries
Аннотация
The courts make interpretation of different documents, first of all, legal documents like statutes and contracts, and this interpretation becomes a matter of disputes in courtrooms. While the courts must describe the grounds of their decisions, a choice of certain interpretation needs to be argued. The court must demonstrate objectivity of the choice and its’ non-arbitrariness. While the courts often appeal to the ordinary meaning of words, dictionaries play the role of proves of this meaning. This is not the only way to prove the ordinary meaning of a word, thought the simplest, easiest, and therefore widely used. The references to the dictionaries in judgments of Russian and U.S. courts were compared. At first, references to dictionaries are traditional and numerous practices in the U.S., while there are only a few references in judgements of Russian courts. At second, the Russian courts use the general dictionaries, but make interpretations of special legal terms. The U.S. courts more often use dictionaries for interpretation of common words and if they interpret legal terms, they use legal dictionaries. In the both jurisdictions the idea that all legal texts made with ordinary language motivates the use of general dictionaries, thought the idea raise skepticism both from practical and theoretical points of view. Words in legal texts become special legal terms due to strict, precise and certain usage. This concerns even those words, which beyond legal documents are vague in their meaning. References to dictionaries do not meet the aim of objective interpretation: the choice of dictionary certain meaning of a word remains to be discretionary. The purposes of objective interpretation of words in legal documents could be achieved by analysis of legal corpora, linguistic expertise or through special legal dictionaries. The latter appeared to be the most preferred way.
Law. Journal of the Higher School of Economics. 2023;16(1):4-26
4-26
Russian Law: Condition, Perspectives, Commentaries
Properties of the Constitutional Principle of Good Faith of Subjects of Legal Relations
Аннотация
The article considers property of axiomaticity, property of presumptiveness and property of dogmatic fictitiousness of the constitutional principle of good faith of subjects of legal relations. Structural systemic analysis, comparative legal analysis, method of formal logic and other methods have made it possible to identify and characterize these properties. Using combination of these methods, this researcher was able to address not only the issues of constitutional law of current importance, but also issues pertaining to law theory, as well as other branches of law. The purpose of the research is to test the hypothesis that, in a global sense, good faith is the foundation upon which the entirelegal system of a state is built. The constitutional principle of good faith of subjects of legal relations formulates the basic rule which is that good faith is a prerequisite for the activity of subjects of legal relations. In this regard, the principle is axiomatic and determines the direction of the further development of the legal system within the framework of the formulated rule. Also, the constitutional principle of good faith of subjects of legal relations, obliging the law practitioners to proceed on the assumption of good faith of subjects of legal relations that duly observe the Constitution of the Russian Federation and the legislation, assumes a property of presumptiveness and thus ensures the stability of the states legal system. Presumption of good faith of the subjects of legal relations, while providing for the possibility of rebutting such an assumption, is an instrument for monitoring compliance with the criteria of good faith formulated by normative legal acts by the subjects of a particular branch of legal relations. In turn, the principle of good faith of subjects of legal relations due to the high degree of legal generality and the absence of clear boundaries of its legal meanings has the property of dogmatic fictitiousness, which allows to fully disclose its provisions, thus developing the legal system and ensuring its effective functioning. Thus, these properties allow the principle of good faith of subjects of legal relations to fully realize its potential and to carry out further full development, as well as the normative consolidation of aspects of good faith in various branches of law.
Law. Journal of the Higher School of Economics. 2023;16(1):27-45
27-45
Budget Subsidies: Conflict between Public and Private
Аннотация
The ambiguity of interpretation of the norms of the Budget Code of the Russian Federation regarding the establishment of the amount of the subsidy to be refunded in case of violation by legal entities of the procedure and conditions for its provision has led to a change in subordinate law-making and judicial enforcement: the vector has shifted from the requirement to refund the entire amount of the subsidy received to the requirement to refund the subsidy in the part corresponding to the identified violation. Such a transformation of law-making and law enforcement has led to a violation of public interest in the financial sphere, which consist in the fact that the funds of the budgets of public legal entities are spent targeted, for the intended purpose, and, accordingly, that the subsidy as a form of state (municipal) support is provided to those persons who meet the requirements established in regulatory legal acts. The subject of the study are legal relations on the return of subsidies by legal entities that violated the procedure and conditions for granting subsidies, as well as legal conflicts and conflicts arising in this regard. The purpose of the study is: to determine whether the balance of private and public interests is observed by the current legal regulation of relations on the return of subsidies by legal entities. In the process of developing the problem, the following special research methods were used by authors: formal legal, legal technical and historical legal, as well as overall research methods of cognition: analysis, synthesis, induction, deduction. Based on the analysis of judicial practice of arbitration courts and regulatory legal acts regulating the procedure and conditions for the submission of subsidies, a conclusion is made about the violation of public interests by the current regulation of the return of subsidies to the budget, allowing partial refund of subsidies, and proposals are formulated to amend the Budget Code of the Russian Federation and subordinate regulatory legal acts in order to achieve legal certainty and unambiguity of legislative regulations, the formation of a unified judicial practice. An integral justification for this conclusion is a detailed study of the most significant court decisions confirming the controversial, ambiguous, “vicious” regulation of the procedure for returning subsidies to the budget by legal entities.
Law. Journal of the Higher School of Economics. 2023;16(1):46-69
46-69
Acts of Constitutional Justice as Sources of Russian Civil Procedural Law
Аннотация
The article focuses upon the significance of acts of the Constitutional Court of the Russian Federation for national civil procedure law and identifies their place in the legal system. The author leaves the field of legal positivism and uses both the teleological way of law interpretation and the axiological method to the understanding of law. The author proceeds with analysis of the legislation regulating the activities of the Constitutional Court mentioned and its decisions and compares the competence, the content and the form of activity of this institution with those of legislative bodies. The article brings out the importance of constitutional justice acts for national civil proceedings and the place of these acts in the system of sources (of forms) of Russian civil procedure law. Particular attention is given to the fact that acts of the Constitutional Court have some features which are common to a normative legal act, as well as that it is impossible to classify its acts as judicial precedents. The author comes to the conclusion that the source (the form) of civil procedure law is the entire act of the Constitutional Court of the Russian Federation (both in its resolution and motivation parts). Moreover, this act is inseparable from the text of a law being subject to the assessment of its constitutionality, but not from the text of the Russian Constitution. The examples are cited in the article prove that the Constitutional Court of the Russian Federation fills gaps in legal regulation and introduces new civil procedure norms. Its acts effectively play part of a source (a form) of civil procedure law in the following cases: when they produce definitive conclusions ondetermining a civil procedure norm as inconsistent with the Constitution of the Russian Federation; at the same time, in order to fill the emerging gap, it is common to introduce a temporary norm in addition to the negative one, which is valid till the adoption of the correspondent normative legal act; when, while leaving a civil procedure norm formally unchanged, its constitutional legal meaning is revealed and, in most cases, it differs considerably from the meaning given to this norm by the existing law enforcement practice, hence, in fact it creates a new generally binding rule of behavior. The author draws attention to the necessity to enshrine explicitly this status of constitutional justice acts.
Law. Journal of the Higher School of Economics. 2023;16(1):70-93
70-93
Moratorium on Bankruptcy in 2022: Consequences, Contradictions and Solutions
Аннотация
The bankruptcy moratorium was first applied in Russia during the pandemic in 2020. Simultaneously with the introduction of the moratorium, the Government of the Russian Federation has applied additional measures to stimulate the support and development of enterprises of strategically important industries for the economy, the measures have proved its effectiveness. Due to the economic crisis caused by sanctions against Russia, the Russian Government re-imposed a moratorium on bankruptcy in 2022. The article analyzes the mechanism of application of the institution of a moratorium on bankruptcy in Russia and foreign countries, the features of its application. The consequences of the introduction of a moratorium outside the framework of bankruptcy procedures are indicated and analyzed, namely: within the framework of enforcement proceedings, with respect to the payment of dividends and profit distribution. The article presents judicial practice, positions and acts of the authorities regarding the subject composition, which is subject to the moratorium on bankruptcy. The author examines the points of view of theorists and practitioners about whose interests should be respected as a priority in bankruptcy procedures creditors or debtors; the possible negative consequences for bona fide creditors caused by the moratorium on bankruptcy are analyzed. The paper reveals the opinion about dishonesty and possible abuse of the right by the participants of civil legal relations in the conditions of the moratorium. The statistics presented in the article regarding the initiated enforcement proceedings in the period from March to April 2022 affect the aspect of the stability of civil turnover, clearly demonstrates the consequences of the application of the moratorium. The author presents ways to resolvecontroversial issues with an indication of the positions of persons actively seeking to resolve the gaps that have arisen in practice after the introduction of a total moratorium on bankruptcy in 2022; the question of the possibility (or actual impossibility) of individuals to abandon the imposed moratorium is also raised. The article analyzes the importance of the institution of bankruptcy in a crisis and the presence of public interest in the introduction of a moratorium; the possibility of introducing a repeated moratorium on bankruptcy under sanctions is assessed too.
Law. Journal of the Higher School of Economics. 2023;16(1):94-116
94-116
Fulfillment of Debtor’s Obligations by a Third Party in Bankruptcy Procedure: Advantages and Issues of Implementation
Аннотация
In the current geopolitical conditions the task of protecting the rights of domestic entrepreneurs and citizens in a difficult financial situation, the preservation of their business and property comes to the fore. The article discusses one of the means of such protection, the implementation of which makes it possible to terminate insolvency proceedings, prevent the sale of the debtors property at auction, and save costs for conducting bankruptcy procedures. The purpose of the study is to increase the effectiveness of the mechanism for the fulfillment of creditors claims by a third party and eliminate the obstacles to its implementation that exist in practice. Research methods: dialectical, formal-logical, systematic, concrete-sociological, formal-legal. The author shows the advantages of fulfilling creditors claims by a third party for the debtor, its controlling persons and registered creditors. The main problems hindering the proper implementation of this mechanism, including those caused by illegal actions and inaction of arbitration managers, have been identified. Particular attention is paid to the widespread problem of the debtors property being put up for auction by the arbitrationmanager, despite the fact that a third party has already declared its intention to fulfill all creditors claims or has fulfilled them. The analysis of the reasons for preventing the arbitration manager from fulfilling the creditors claims by a third party is carried out. The practice of using interim measures as a means of protecting the debtors property from sale during the stages of such execution is considered. In order to solve the identified legal implementation problems, proposals have been made to adjust the procedure and timing of certain stages of the procedure for fulfilling creditors claims by a third party, the composition of duties and the remuneration system of arbitration managers. It is concluded that it is necessary to establish a legislative prohibition for the arbitration administrator to alienate the debtors property from the date of satisfaction by the arbitration court of the statement of intent to fulfill the debtors obligations. It is proposed to introduce the duty of the manager to suspend the bidding, as well as the conclusion of a contract for the sale of objects of the bankruptcy estate in the event of a third party depositing funds to the court deposit in order to satisfy creditors claims. Other proposals are given to solve problems arising in connection with the fulfillment of requirements in accordance with Articles 113, 125 of the Bankruptcy Law.
Law. Journal of the Higher School of Economics. 2023;16(1):117-144
117-144
Legaltech in Digital Economy and Legal Regulating Economic Activity of Citizens
Аннотация
In the paper on the basis of legislation and doctrine the categories of digital economy, legaltech, economic activity of citizens are studied. The conclusion that the digital economy is a system of elements, among which digital technology is the key. Digital technologies are named according to their application in the economy, for example, legaltech (legal/legal technology), fintech (financial technology), etc. It is common to understand legaltech as a narrow toolkit for lawyers. The author argues for an expansive interpretation of legaltech as a multidimensional phenomenon in the form of a palette of digital services in various areas for a wide range of subjects of economic activity. The trends and risks associated with the introduction and use of legaltech are identified. The trends include the replacement of legal professionals by robots. At the same time, new niches based on information technology are emerging. The potential for the development of machine-readable law is evident, provided that the legal conceptual apparatus is adapted in advance. There is a need to create norms of platform law for the purpose of legal regulation of economic activity. Among the risks in the use of legaltech toolsshould be noted the large-scale use of Big Data, provoking the invasion of the private sphere of citizens. The concept of legaltech as a modern digital tool of legal regulation of economic activity, including economic activity of citizens, mediated by the relationship between entities and state (municipal) bodies is formulated. In this aspect, based on the classical understanding of legal means in the mechanism of legal regulation, from the perspective of the instrumental-legal approach legaltech in relation to the subjects of economic activity acts as: a resource for improving legal and information literacy; a factor of information and legal impact on the choice of the legal regime of economic activity; an incentive for the performance of contractual obligations, tax obligations and in general lawful behavior; a means of state control over the activities of subjects of economic activity.
Law. Journal of the Higher School of Economics. 2023;16(1):145-171
145-171
Establishing Servitude in Order to Place Infrastructure Facility of Federal or Regional Significance
Аннотация
The article is based on the results of the comprehensive research on the law enforcement monitoring involving specialists in various fields of knowledge, namely lawyers and economists. The author considers the problems of defining the concepts of «infrastructure facility of federal significance», «infrastructure facility of regional significance», “servitude”; some aspects of the state cadastral registration and state registration of rights in relation to infrastructure facilities of federal or regional significance; the grounds for placing infrastructure facilities of federal or regional significance on public and private land lots, public lands; the recourse mechanisms of the interests of right holders of land lot on which infrastructure facilities of federal or regional significance are located. Mostly, the article contains a legal view of the issues mentioned. However, since the article is based on the results of interdisciplinary law enforcement monitoring, it also presents some economic aspects. On the basis of the research results, the author, in particular, concludes that the legal definitions of the concepts «infrastructure facility of federal significance» and «infrastructure facility of regional significance» can obtain relevant content in relation to an economic analysis of the phenomena. The special characteristics of infrastructure facilities of federal or regional significance inevitably determine the specifics of the registration of rights in relation to such objects and land lots on which they are located. However, not all the identified features can be assessed positively. For example, in the author's opinion, regardless of whether an infrastructure facility is located on / above / under someone else's land lot, the right to place the object should be issued. As to the appropriate title to the placement of infrastructure faculties of federal or regional significance on someone else's land lot, if earlier a land lease was most in demand, today it is a public servitude established according to the rules of Ch. 7 of the Land Code of the Russian Federation. Meanwhile, the use of the concept of servitude for the designated purposes still causes many theoretical and practical issues, as it is evidenced by enforcement practices.
Law. Journal of the Higher School of Economics. 2023;16(1):172-200
172-200
Law in the Modern World
Territorializing the Arctic: Problem of Ice in International Law
Аннотация
Following the 2021 Suez Canal obstruction, humanity is now in search of safer and better functioning maritime trade routes, and the icy Arctic turns out to be one of the key candidates. The article contributes to the current debate concerning the status of ice in International Law, the legal status of which remains unclear, stuck in a limbo between the law of the terrain and the law of the sea. The methodology includes reconfiguring the meaning of ‘territory’ under International Law through conducting an evolutionary interpretation to provide grounds for the existence of a ratione materiae type of territory, supported by related domestic and international legal instruments of Alpine and Arctic States. The article outlines useful elements from similar experiments on the measurement of ice features employed in the process of the Alps border demarcation and administration. In conclusion, a sketch of a ‘functional’ Arctic is drawn to suit a world aiming at a sustainable human-nature relationship. The paper aims to introduce ‘ice’ as a legally valid criterion under the law of territory that can be applied in sovereignty disputes on a regular rather than sui generis basis. It demonstrates the fallacy of the static conception of territory in the modern day, particularly when applied in a dynamic environment such as the Arctic, while also stressing the importance of multidisciplinary learning and its critical role in advancing legal theory in domains considered to be the most normatively rigid, such as territorial sovereignty.
Law. Journal of the Higher School of Economics. 2023;16(1):201-225
201-225
Comparative Analysis of Arctic International Legal Policies of Canada and the United States
Аннотация
International legal positions of States on current issues of international agenda can be regarded as an outcome of international legal policies of these States at the moment. Existing divergencies are not accounted only for a present issues, since such positions are indicative of the character of their consistent international legal policies. Based on this assumption, the research paper reviews different positions of the United States and Canada on some Arctic issues from the perspective of a fundamental difference between the arctic international legal policies of the two States. Since the establishment of Canadas governance over Northwest territories Canada considered their exploration strategically important, whereas United States took their northern possessions for normatively granted. The active arctic policy of Canada resulted in the sector theory, which got subsequently enshrined in law and met international acquiescence in 1925. All the while till 1960-s the United States took up positions on arctic matters in response to Canadas steps. Once the United States arrived at their concrete economic interests in the region, the American international legal policy opted for challenging Canadas positions, which follow from the international legal policy heretofore undoubted. With the use of the comparative method, historical, legalistic and system approaches the research paper provides analysis of the legal solutions of the States for promotingtheir positions on three exemplary issues, such as maritime boundary delimitation in the Beaufort Sea, legal status of the Northwest Passage and applicability of the UN Convention of the Law of the Sea in the Arctic Ocean. The article explains how Canada manages to lead consistent international legal policy; demonstrates what mistakes a State might make without firm course of the international legal policy being guided by short-term interests. All considered the research paper concludes on the significance of States commitment to its assumed positions for solving new questions.
Law. Journal of the Higher School of Economics. 2023;16(1):226-250
226-250
Review
The Institutionalization of Military Law as a Branch of Law in Post-non Classical Scientific Rationality (review of the monograph «Military Law»)
Аннотация
A review of the monograph Military Law in three volumes, and a brief overview of already published reviews and reviews of it in academic publications are presented here. Military law is a unique area of research and a specific phenomenon in the structure of social and humanitarian knowledge. The dynamic variability of society, crises and leaps in social stability clearly reveal the undoubted research interest in such branches of law. Three-volume of monograph under review are written by legal scholars and practitioners with extensive experience in military legal research and the application of military legal norms, including in the context of internal and international armed conflicts. So far in domestic legal science there have not been such extensive theoretical studies that would be devoted to military law. The appearance of commented monograph fills that gap. The book under consideration was written with an academic scope and the theoretical breadth of the issues resolved in it. The authors formulated, substantiated and conceptualized an approach to military law as a separate branch of law. The results of the authors collective research, which together can be assessed as a fundamental achievement and a platform for understanding military law as a military and legal science at the present stage of social and humanitarian knowledge. Since the monograph under consideration, in its subject matter, content and structure, is made at the junction of several areas of knowledge, the heuristic value is that it opens up a wide field for their further systematization, the implementation of multidirectional theoretical generalizations of military legal information and empirical studies of the attitude to military legislation of various social subjects and the military personnel themselves.
Law. Journal of the Higher School of Economics. 2023;16(1):251-261
251-261