Contents # 5/2018

■ State and Law in Modern World: Problems of Theory and History

ROBOT AND HUMAN: A NEW PARTNERSHIP?  Pdf 16

Yu. A. TIKHOMIROV, N. B. KRYSENKOVA, S. B. NANBA, Zh. A. MARGUSHEVA

Yu. A. TIKHOMIROV, deputy head of the public law research centre of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal science, professor, honored scientist of the Russian Federation, corresponding member of the International Academy of Comparative Law
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: office2@izak.ru

N. B. KRYSENKOVA, senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign2@izak.ru

S. B. NANBA, senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal science
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: snanba83@gmail.com

Zh. A. MARGUSHEVA, junior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: cppi@izak.ru

According to forecasts by 2025 robots will leave 7% of Americans unemployed, by 2026 - 40% of Canadians, and by 2035 they will take half of jobs in Japan. A natural question arises: how can a person retain his/her importance and be competitive in the world of digital reality? Informatization and robotics of society and the state are becoming increasingly widespread, which carries not only the potential for development, but also hidden risks and threats. The state and society face the task of complex transformations in all spheres of life. To solve it it is necessary to find the optimal combination and effective use of scientific, technical, intellectual and industrial potential. There is no doubt that there is a need for legal regulation of various issues of robotics, including the definition of the legal nature of the robot, the limits of liability for damage, the development of measures of social protection of citizens from unemployment resulting from the spread of robotics. The primary task is to develop a terminological apparatus: the definition of the relationship of the concepts of digitalization, informatization, robotics, their legal content. The authors propose the allocation of combined responsibility for the robot’s actions and the damage caused by it. The widespread use of robots in the industrial and social spheres, as well as the development of technologies related to artificial intelligence, have a significant impact on the behavioral aspects of law. In addition, the article analyzes the existing approaches to the legal regulation of robotics in foreign countries and the possibility of using best practices in this area in our country.

Keywords: robot, robotics, informatization, individual, engineering, sector of industry, social, behavior, artificial intellect, legal status, standard, strategy.

DOI: 10.12737/art.2018.5.1

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DIGITALIZATION OF THE ADMINISTRATION OF JUSTICE: ACHIEVEMENTS, PROSPECTS, PROBLEMS (ON THE EXAMPLE OF THE AZERBAIJAN REPUBLIC)  Pdf 16

A. M. JAFAROV

deputy Minister of Justice of the Azerbaijan Republic, member of the Judicial-Legal Council of the Azerbaijan Republic, doctor of legal sciences, professor
540, Z. Khalilov st., Baku, Azerbaijan, AZ1073
E-mail: info@jlc.gov.az

The rapid development of IT-technologies in the XXI century has inevitably led to their implementation in all spheres of life, including in the field of justice. At present, the judicial system is being digitalized in almost all countries of the world. E-justice has already become a reality. In the article the author conducts a comparative analysis of the process of digitalization of a number of countries, assesses the level of implementation of IT-technologies in the justice system. On the example of the Republic of Azerbaijan, where one of the most advanced systems of electronic justice has been introduced, the author shows the importance and necessity of these reforms. The reform of this sphere is primarily aimed at ensuring and promoting one of the basic human rights - the right to judicial protection and the right to a trial within a reasonable time, enshrined in article 14 of the International Covenant on Civil and Political Rights. The digitalization of the justice system plays an important role in strengthening the principle of the independence of the judicial system, which is an integral principle of the rule of law. In this context, the experience of Azerbaijan is undoubtedly of interest from the point of view of improving e-justice in other countries.

Keywords: judicial system, digitalization, e-justice, Azerbaijan Republic, human rights, independence, legal state, IT-technologies.

DOI: 10.12737/art.2018.5.2

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ARTIFICIAL INTELLIGENCE AND DIGITAL TECHNOLOGIES IN THE LEGAL ACTIVITY IN THE CONDITIONS OF DIGITAL REALITY (CASE-STUDY OF FINLAND)  Pdf 16

V. A. JILKINE

doctor of legal sciences, law office Kari Korhonen
Italahdenkatu, Helsinki, Finland, 00210
E-mail: info@lawcenter.fi

The article considers the role of Finnish lawyers and legal scholars within the framework of digital environment, viewed in terms of digitalization of legal regulation of new institutes of law. Breakthroughs in the field of information technology and telecommunications led in 1995 to a new digital revolution in Finland. The digital revolution caused the need of compliance with the global integration processes and led to digitalization of the legislation in accordance with principles of the international law. The article reviews the role of human potential and artificial intelligence, the use of digital technologies by the state in the citizens’ interests. The artificial intelligence is developing actively therefore the digital economy not only has great advantages for the development of the country, but also incurs certain risks of job cuts. The new “Smart Cities” concepts of information and communication technologies require the improvement of legal regulation in the IT sphere, including within the framework of a single digital market of the EU in the digital space of the Eurasian Economic Union. The legislation in Finland faced the challenges of the digital reality. The conceptual development of new areas of legal regulation is pending, along with the establishment of general legislation covering the international legal mechanisms of the civil-law regime governing crypto-currencies in Finland. The being-discussed problems of the digital revolution in Finland are especially relevant for Russia as well. The experience gained by Finland in the Blockchain digital technology is a due subject for study and realization within the Russian framework, to be pursued by the national authorities.

Keywords: artificial intelligence, blockchain, cryptocurrency, digitalization, digital revolution, digital technologies, human potential, virtual space.

DOI: 10.12737/art.2018.5.3

 

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ON THE UNIFORMITY OF JUDICIAL PRACTICE IN KAZAKHSTAN ON CERTAIN CASES ARISING FROM PUBLIC LEGAL RELATIONS  Pdf 16

E. B. ABLAYEVA

associate professor at the Department of legal disciplines of the University «Astana», doctoral candidate at the Russian Academy of National Economy and Public Administration under the President of the Russian Federation, candidate of legal sciences
13, Abay ave., Astana, Kazakhstan, 010000
E-mail: Ablaeva_1981@mail.ru

The article is devoted to the study of the legal nature of certain decisions, actions (inaction) of government bodies and local self-government, officials and civil servants, which in accordance with the legislation of the Republic of Kazakhstan are considered and resolved by courts in special proceedings. It is a question of contestation of non-normative legal acts, vested in the form of decisions taken by the listed entities in relation to citizens and their associations. In the context of institutional reforms undertaken by the Republic of Kazakhstan to ensure the rule of law, the activation of the role of the court in the system of checks and balances becomes more important, by expanding the control functions exercised by the courts in the sphere of public administration and local self-government. Qualified and timely consideration and resolution by courts of cases arising from public legal relations is necessary not only to ensure an effective mechanism for the protection of public rights and legally protected interests of individuals and legal entities in courts, but also to establish legality in the activities of government and local government. The author draws attention to the problem of the lack of uniformity in the correct understanding, interpretation and application by courts of the norms of substantive and procedural law when they consider applications of individuals and legal entities about challenging decisions, actions (inaction) of managing subjects. At the same time, it was established that the explanations of the Supreme Court on certain issues related to the examination and resolution of cases arising from public legal relations consist in contradiction with certain norms of the legislation of the Republic of Kazakhstan, in particular, determining the procedure for the implementation of civil proceedings and criminal proceedings. In the author’s opinion, the problem is not only related to the form of control activity of the state implemented in the sphere of judicial power, but, first of all, to the personality and qualifications of the judges.

Keywords: special lawsuit proceedings, judicial review, public disputes, explanations of higher courts, regulatory decisions, uniformity of judicial practice.

DOI: 10.12737/art.2018.5.4

 

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■ Constitutional Law, Constitutional Litigation, Municipal Law in Comparative Legal Perspective

SIGNS OF THE SECULAR STATE AND THE PECULIARITIES OF THEIR REALIZATION IN MODERN RUSSIA  Pdf 16

A. A. ISAYEVA

associate professor at the Department of constitutional and municipal law of the Law Institute of the National Research Tomsk State University
8, Moskovsky trakt, Tomsk, Russia, 634050
E-mail: tess@mail2000.ru

In the modern world a secular policy is being implemented everywhere, which is characterized by a number of features. Based on the analysis of their implementation in different countries the author identifies the types of secular States and determines which of them belong to Russia. It is emphasized that the cooperative model of state-church relations has been developed in our country. It is concluded that in Russia the state is moving towards the inclusion of religion in the public space and expanding the spheres of interaction with individual religious associations (education, science, armed forces, etc.). Although equidistant from religious structures is legally declared, but in practice the opposite policy of building state-church relations and the establishment of a privileged position of individual religious organizations is pursued. Based on the analysis of legislation and law enforcement practice the author identifies the main types of preferences granted to those religions that make up an integral part of the historical heritage of the peoples of Russia. Among them are ideological, material and organizational preferences related to the creation and registration of religious structures. The article considers the application of anti-extremist legislation and the problem of persecution in Russia of a number of religious associations under the slogan of combating extremism. The author proposes a number of changes in the sphere of freedom of conscience, as well as the status of religious associations that need to be implemented in Russia today. In order to better implement the constitutional principle of the secular state, it is proposed to revise the legal classification of collective forms of worship in our country. It is advisable to create equal opportunities for the activities of religious associations of any religion and to exclude a differentiated approach to the believers of individual, especially religions new for Russia.

Keywords: secular state, fundamentals of the constitutional system, legal restrictions, constitutional rights, religious associations.

DOI: 10.12737/art.2018.5.5

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THE FUNDAMENTAL PRINCIPLES OF THE CONSTITUTIONAL-LEGAL STATUS OF THE REGIONS OF THE CARIBBEAN (ATLANTIC) COAST OF NICARAGUA  Pdf 16

I. V. IRKHIN

associate professor at the Kuban State University, doctoral candidate at the South Federal University, candidate of legal sciences
149, Stavropolskaya st., Krasnodar, Russia, 350040
E-mail: dissertacia@yandex.ru

In this papers author points to the formation of a heterogeneous model of territorial autonomy based on the Caribbean coast regions. Its main characteristic features are the recognition of the national and cultural diversity of the population and the institutionalization of the regional governance regime without regard to belonging to aboriginal, ethnic communities or half-breeds. The scheme of delineation of jurisdictions between the regions of the Caribbean coast and the Government of Nicaragua is analyzed. As a result the joint jurisdiction with the state and the exclusive jurisdiction of the regions were singled out. At the same time it is noted that a significant part of the powers of public authorities of the regions are implemented jointly with the state. This approach predetermines subordination and dependence of regions on decisions of central authorities. The author pays attention to the problems of delineation and recognition of the rights of aboriginal and ethnic communities to ancestral lands. In conclusion, is pointed out that the autonomy of the Caribbean coast regions is very limited, which is predetermined by the lack of political will of the Government of Nicaragua, inappropriate regulatory and legal regulation, and financial and economic dependence on the center. In the context of large-scale protest actions for the democratization of the regime and the search for ways out of the political crisis taking place in the current period (April - June 2018) in Nicaragua, and considering the defects in the constitutional and legal regime of territorial autonomy in the Caribbean coast regions activation of separatist tendencies is possible.

Keywords: constitution, autonomy, indigenous and ethnic communities, council, coordinator, competence, protests, separatism.

DOI: 10.12737/art.2018.5.6

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MODERN LEGAL MODELS OF CONSCRIPTION  Pdf 16

K. I. SLESARSKIY

postgraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: slesarski93@gmail.com

The article is devoted to the analysis of conscription’s legal models in modern states. The author formulates several criteria to identify general and special features of regulating conscription by national legal systems. The author uses the comparative legal method to research the norms of constitutions and national conscription laws of a wide range of countries in different regions. Different approaches to enshrine the constitutional basis of conscription, the order of military draft and persons liable for military service are highlighted in the article. The author takes into account the exemptions and deferrals from military service as a peculiarity of national legal regulation of conscription. Attention is paid to the influence of the principle of legal equality, including gender equality, on the legal regulation of conscription. The issue of legal traditions in the legal regulation of conscription is concerned. The author determines the legal tradition and state military-political strategies as factors of influence on the choice of a particular model of conscription. The conclusion is made that a discrepancy between the legal model and its actual implementation is possible without effective legal and organizational mechanisms. On the basis of the conducted research the author proposes a classification of modern legal models of conscription. These models have adaptive nature, which discover itself in peculiarities of national legal regulation of conscription. The author concludes about the opportunity of spreading a gender-neutral approach to the regulation of conscription and changing the approach to the peacetime draft in the Russian Federation.

Keywords: conscription, legal model of military draft, conscription law, defense of the country, military draft.

DOI: 10.12737/art.2018.5.7

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■ Administrative Law, Financial Law, Information Law

PROBLEMS AND WAYS FOR IMPROVING THE PRESTIGE AND EFFICIENCY OF THE PROFESSIONAL STATE SERVICE SYSTEM IN UZBEKISTAN  Pdf 16

G. R. MALIKOVA

associate professor at the Academy of State Governance under the President of the Republic of Uzbekistan, doctor of legal sciences
45, Islam Karimov ave., Tashkent, Uzbekistan, 100003
E-mail: pmmalikova@gmail.com

This publication was prepared in the light of discussion of draft Law “On the Public Service”, in the development of which the author directly participated. For the entire period of independence of the Republic of Uzbekistan draft Law “On Public Service” had been developed three times, but its adoption due to various circumstances was not crowned with success. After the publication of the Decree of the President of the Republic of Uzbekistan Sh. Mirziyoyev on approval of “The Strategy of Actions 2017-2021”, as well as the Concept of Administrative Reform, the development and adoption of draft Law which is regulating the activities of the civil service again became one of the priority and urgent tasks. The future of Uzbekistan depends on the adoption of this law today: its staffing component, the development of basic and global competencies, the classification of posts of civil servants, worthy wages, passing exams, evaluating the effectiveness of each civil servant, issues of passing civil servants on the career ladder, fighting corruption in sphere of public service, ethics issues, etc. The absence of a single normative legal act on civil service has contributed to the accumulation of systemic problems, such, in particular, the “education-science-practice” triad, not developed at the proper level. The author also examines the tasks in the sphere of training and retraining of the civil service staffs on the example of the Academy of Public Administration under the President of the Republic of Uzbekistan. The study of tasks in the field of civil service is based on historical legal, comparative legal methods, as well as analysis, synthesis and synergetics. The author shares his suggestions and recommendations based on her own experience.

Keywords: state governance, public official, nepotism, localism, training, re-training.

DOI: 10.12737/art.2018.5.8

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TAX REGULATION WITH A FOREIGN ELEMENT IN THE REPUBLIC OF MOLDOVA  Pdf 16

L. NANI

postgraduate student at the Department of administrative and financial law of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation
76, Vernadsky ave., Moscow, Russia, 119454
E-mail: l.nani.mustajbasic@gmail.com

The development of international economic relations dictates the necessity of studying statutory regulations of tax matters in foreign jurisdictions (including the Republic of Moldova) and the application of such provisions in practice. Tax regulation with a foreign element in the Republic of Moldova is carried out on two levels: national and international. The provisions of the Tax Code, Customs Code and relevant secondary regulations constitute the national level of tax regulation. The present article addresses general provisions of treaties (notably, the correlation between national and international rules), avoidance of double taxation, anti-avoidance rules and relevant tax incentives (VAT, excises and custom duties). The operation of Moldavian tax rules on the territory of Transnistria has been limited de facto. Tax regulation in the Republic of Moldova is also carried out on the international level within the framework of multilateral and bilateral agreements which fall into two groups. The first group concerns treaties of the Republic of Moldova on trade, investment and other issues. The World Trade Organization agreements and the Agreement of association between the European union, Euroatom and their members and the Republic of Moldova are examples of such treaties. The second group envisages avoidance of double taxation agreements, treaties on principles of levying indirect taxes and agreements on mutual assistance on administrative matters and exchange of financial information.

Keywords: Republic of Moldova, Transnistrian Moldavian Republic, taxes, avoidance of double taxation, anti-avoidance rules, tax incentives, World Trade Organization, European Union, tax treaties, mutual administrative assistance, exchange of financial information.

DOI: 10.12737/art.2018.5.9

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ON ISSUES OF ICO AND CRYPTOCURRENCY REGULATION IN FOREIGN COUNTRIES: ESTONIAN EXPERIENCE  Pdf 16

N. A. EFIMOVA

senior lecturer at the Department of legal regulation of economic activity of the Financial University under the Government of the Russian Federation
49, Leningradsky ave., Moscow, Russia, 125993
E-mail: efimovanina@yandex.ru

In the conditions of the developing digital economy the regulation issues of latest financial technologies use acquire special importance. Blockchain technologies create conditions for new challenges to traditional approaches in the sphere of financial services delivery. The emergence of crypto-currencies, new forms of investment attraction (ICO, initial coin offering) in the absence of prudential regulation entails risks for both private and public interests (highly volatile exchange rate of the cryptocurrency; involvement of investors in illegal activities; lack of legal mechanisms to protect investors; threat to global financial stability and etc.). In this regard, it seems interesting to consider established positions on regulation of the FinTech use among European states, which have experience in this field. The article explores the regulation issues of the latest financial technologies use, including ICO, in the European Union and in Estonia. The positions of financial regulators and the requirements of the European Union and Estonia for the ICO are examined in details. A conclusion states appropriateness of the emerging approaches to the regulation of new phenomena including those at the international level. On the basis of the study, recommendations are made on the implementation of Estonia’s experience in regulating ICO and crypto-currency in the Russian legal system (it is important to observe the principle of technological neutrality in the formation of the legal framework for the ICO and cryptocurrency regulation; it is reasonable to consider Bitcoin trading as a business subject to mandatory licensing and etc.).

Keywords: digital economy, newest financial technologies, blockchain, initial coin offering (ICO), cryptocurrency, European Union, Estonia.

DOI: 10.12737/art.2018.5.10

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FINANCIAL STRENGTH OF CREDIT ORGANIZATIONS: INTERNATIONAL REQUIREMENTS AND FOREIGN EXPERIENCE  Pdf 16

E. A. BORISENKO

applicant at the Department of financial, tax and budgetary legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: fin@izak.ru

The article is devoted to the analysis of international requirements on a legal groundwork for credit institutions’ financial strength and the identification its specific features within their implementation in the national legislation of foreign countries. The Basel Committee on Banking Supervision of the Bank for International Settlements (further - the Basel Committee) plays a key role in the development of universal international standards aimed at ensuring financial strength and security of credit institutions. The Basel Committee’s works cover the following main areas: improving quality and quantity of capital (capital); formation of liquidity and stable financing standards (liquidity standards); risks management; full and transparent disclosure of information of credit institutions (disclosure of information). Within the framework of this article, the international requirements for ensuring credit institutions financial strength are systematized, their interrelations are determined. Also features of implementation of these requirements in foreign states’ legal systems are revealed. Different approaches of foreign states to the international requirements implementation allow distinguishing groups of states according to the degree (completeness) of inclusion and application of relevant international standards. There is a different «depth» and speed of perception by national legal systems of international requirements. It is concluded that, guided by the principle of sovereignty, governments and central banks of different countries have the right to choose independently the direction of their banking systems development and either introduce additional national requirements to the internationally established standards, or postpone the transition to the Basel Committee standards on Banking Supervision. States also, while accepting these standards, adapt their features to the national economy and national banking system. In conclusion, the main directions for further development of international regulation in the sphere of credit institutions strength, as well as national regulation in foreign countries in this area are presented. Additional factors that influence this regulation are identified.

Keywords: Central Bank, credit institutions, financial strength, Basel Committee on Banking Supervision, banking system, legal support, foreign experience, international requirements, risks, reserves, information.

DOI: 10.12737/art.2018.5.11

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■ Civil Law, Entrepreneurial Law, Family Law, Private International Law

COMPARATIVE ANALYSIS OF THE LEGISLATION ON THE BANKRUPTCY OF THE INDIVIDUALS IN RUSSIA AND THE USA  Pdf 16

O. B. SIZEMOVA, A. V. PCHELKIN, A. M. MAMAKOV

O. B. SIZEMOVA, professor at the Department of civil law and civil procedure of the National Research University “Higher School of Economics”, doctor of legal sciences, associate professor
25/12, Bolshaya Pecherskaya st., Nizhny Novgorod, Russia, 603155
E-mail: osizemova@hse.ru

A. V. PCHELKIN, associate professor at the Department of civil law and civil procedure of the National Research University “Higher School of Economics”, candidate of legal sciences, associate professor
25/12, Bolshaya Pecherskaya st., Nizhny Novgorod, Russia, 603155
E-mail: apchelkin@hse.ru

A. M. MAMAKOV, undergraduate student at the Law Faculty of the National Research University “Higher School of Economics”
25/12, Bolshaya Pecherskaya st., Nizhny Novgorod, Russia, 603155
E-mail: tezuki@yandex.ru

The article gives a comparative analysis of some aspects of the current legislation on bankruptcy of individuals and the practice of its application in Russia and the United States. As a result of this research an approach has been developed, according to which insolvent individuals (bankrupts) must be differentiated on the basis of the reasons for their insolvency. In particular, in case of financial services consumers’ bankruptcy it is necessary to take into account not only the fact of a debt to a financial institution (bank, microfinance organization, etc.), but also the circumstances of its origin, for the purpose of revealing dishonest creditors. Based on the concept of a differentiated approach to insolvent citizens, the authors have made some suggestions on the implementation and adaptation of certain material and procedural rules of US law, when improving the current Russian legislation regulating the bankruptcy of individuals. The proposals of the authors, in particular, are aimed at improving: procedures for selecting a candidate for the position of a financial manager and establishing his/her powers with a purpose of increasing transparency, and eliminating possible abuses of both creditors and debtors; procedures for collecting, drafting and filing documents to the court, clarifying the participants of this procedure, the grounds for attracting and the measures of responsibility of these persons. In addition, the authors proposed a mechanism for adapting to the Russian realities the so-called conversion institution used in the United States, which involves all features of the debtor’s property position when establishing a debt restructuring procedure or bankruptcy procedure.

Keywords: insolvency (bankruptcy), natural person, debt restructuring, financial manager, conduct supervision, financial service.

DOI: 10.12737/art.2018.5.12

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LEGAL BASES OF SOCIAL ENTREPRENEURSHIP IN CZECH REPUBLIC, SLOVAKIA AND POLAND  Pdf 16

O. M. SAKOVICH

leading research fellow of the Department of civil legislation of foreign countries of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: Foreign3-5@izak.ru

This article analyzes regulation of social entrepreneurship in the Czech Republic, Slovakia and Poland. Noting the importance of this institution in solving common social problems, the author highlights the stages of social entrepreneurship development in these countries. At the same time, attention is drawn to the conceptual apparatus used in the literature and legislation. Considering the sources of social entrepreneurship regulation the author notes general points and differences in the approaches of foreign legislators to organize implementation forms of this activity. The institute of social enterprises and its modern regulation in the national regulation are considered. The conditions for obtaining the status of a social enterprise as a basis for possible benefits and preferences are touched upon. The organizational and legal forms used by physical persons and legal entities for implementation of socially oriented activity are specified. On example of the Czech Republic and Poland the article analyzes the use of special organizational and legal form - “social cooperation”. The concept and status of social enterprises are discussed in more detail in new Czech law on trade corporations. The relevance of social cooperatives in practice is estimated. The article also discusses the sources of financing of social entrepreneurship, ways to control their use, as well as other existing and possible benefits for social entrepreneurs. Referring to the opinions of foreign jurists, the author notes the shortcomings of the existing legal regulation and analyzes the proposed ways to improve it. In particular, the drafts of special laws on social entrepreneurship, already prepared in the Czech Republic and Slovakia, are considered, and the general points and differences in the regulation of similar institutions are assessed.

Keywords: third sector, social entrepreneurship, regulation, social enterprise, social cooperative, non-profit organization, socially oriented activity, sources of financing, tax benefits.

DOI: 10.12737/art.2018.5.13

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THE PRINCIPLES OF JUSTICE DELIVERY IN CIVIL CASES INVOLVING FOREIGNERS (PART II)  Pdf 16

A. I. SHCHUKIN

leading research fellow of the Department of private international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: pil@izak.ru

The issues relating to the principles of the justice management in civil law cases involving foreign participants (individuals and legal entities) are of great importance, since the putting into practice the legal requirements is impossible without the full and consistent implementation of the principles included in it. The composition and content of these principles are being constantly evolving; they do not represent any immutable provisions. The article notes that the legal content of the immunity principle of a foreign state in civil proceedings has evolved from the theory of absolute immunity to the concept of its functional (limited) purpose. The current practice of regulating the legal status of international intergovernmental organizations in civil law cases mainly also adheres to the principle of granting them immunities that are necessary a performance of their functions. The author comes to the conclusion that under the conditions when laws of one state influence rights and interests of individuals and legal entities of another state, international judicial cooperation and coordination principle, based on prudence, mutual politeness, mutual respect of states’ judicial power, acquires special significance. By virtue of this principle, the courts of different states, guided by their legislation, respecting and abiding by the generally recognized principles and norms of international law, provide each other with all-round legal assistance by performing procedural and other actions, including those on the basis of courtesy and reciprocity, and create favorable conditions to protect the rights and interests of stakeholders for the fair and efficient justice management. The idea to recognize and apply foreign private law, according to the author of the article, does not shift the basic premise that legislation on civil legal proceedings with the participation of foreign persons has no extraterritorial effect. As a general rule, the entire formal part of the court process is determined by laws of the competent court, proceeding derived from the principle of lex fori.

Keywords: international civil process, foreign individual and legal entities, civil legal proceedings with the participation of foreign persons (participants), principles of law.

DOI: 10.12737/art.2018.5.14

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■ Comparative Researches of Criminal Law, Criminology and Criminal Executive Law

CRIMINAL LIABILITY FOR COMPUTER CRIMES UNDER THE LAWS OF THE CHINESE PEOPLE’S REPUBLIC: COMPARATIVE-LEGAL ANALYSIS  Pdf 16

E. A. RUSSKEVICH

associate professor at the Department of criminal law of the Kikot Moscow University of the Ministry of Internal Affairs of the Russian Federation, candidate of legal sciences
12, Akademik Volgin st., Moscow, Russia, 117437
E-mail: russkevich@mail.ru

The expansion of economic ties between Russia and China, as well as the maintenance of strong partnership relations in the international arena, are of considerable interest to a comparative study of the two countries’ legislations. At the same time, the significant theoretical and applied potential has knowledge of the Chinese experience in legislative definition of computer crimes. In the Criminal Code of China, as in Russia, the first rules on liability for crimes in the field of computer information appeared in 1997. At the same time over the past years, the “Chinese model” of countering cybercrime has been repeatedly improved and is now considered as one of the most balanced and effective. The purpose of the work is to conduct a study of criminal liability for crimes in the field of computer information in the People’s Republic of China and developing on this basis some proposals for improving Chapter 28 of the Criminal Code. The implementation of this goal is achieved by assessing the state of criminal law in China regarding regulation of liability for computer information infringement, as well as means of its automated processing, storage and transmission. The study is mainly based on the application of a comparative-legal method. At the same time, general scientific and special methods (analysis, synthesis, induction, formal-legal, abstract-logical, etc.) are also used. Conclusions: 1) possessing a common reference point with Russia (1997) in building a criminal legal mechanism to counteract crimes committed by means of information and communication technologies, China has implemented a more complex model of their criminalization; 2) the Chinese model of the criminal legal counteraction to cybercrime are developed in three stages: the first stage is a critical information infrastructure protection (1997), the second stage is the protection of individuals’ information resources (2009) and the third stage is establishing responsibility for providers and virtual collaborators (2015); 3) with reference to the domestic problems of criminal legal counteraction of cybercrime, the provisions of China’s criminal law on the liability of providers and persons using Internet resources for dissemination of criminal information and rendering non-personalized assistance for committing crimes, which have the greatest theoretical and applied significance.

Keywords: criminal law, computer crimes, information and communication technologies, criminal law of China.

DOI: 10.12737/art.2018.5.15

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KAZAKHSTAN’S FIRST LAW ON FORENSIC INQUIRY: A CHRONICLE OF CHANGE  Pdf 16

L. F. PARAMONOVA

chief expert of the Pavlodar Regional Institute of Forensic Examinations of the Forensic Science Center of the Ministry of Justice of the Republic of Kazakhstan, candidate of legal sciences
53, Lermontov st., Pavlodar, Kazakhstan, 140000
E-mail: fllid66@mail.ru

This article examines the structure and content of the Kazakhstan’s first law on forensic inquiry, which was adopted in 1997 and in force until 2010. There is a large number of newly introduced concepts, such as forensic activities, special scientific knowledge, forensic inquiry bodies, qualification of forensic experts, licensing of forensic activities, certification of forensic experts, the State register of forensic experts of the Republic of Kazakhstan. It is indicated on the legislative consolidation of the concept and content of forensic activities, the principles of forensic examination. The requirements imposed by the law to persons who may be entrusted with the production of forensic inquiry are analyzed. The possibilities of international cooperation in the field of forensic inquiry, for the first time fixed at the legislative level, are highlighted. The chronology of amendments and additions to the provisions of the law is considered. The amendments to the articles regulating the scientific, methodological and educational support of forensic activities, as well as the financing of forensic inquiry bodies are particularly noted. A comparative legal analysis of the norms and their subsequent editions is carried out. In the context of the topic concerned a considerable scientific and practical interest is the question of the reasons for the changes and the results obtained. Among the methods used in the preparation of the article: dialectical, formal-logical, system-structural, historical, formal-legal, comparative-legal methods. According to the results of the study, the author assesses the changes and additions to the Kazakhstan’s first law on forensic inquiry, indicates the rules that require further improvement, identified gaps. The analysis of the Kazakh legislation may be of interest to colleagues from the CIS in the development of draft regulatory legal acts regulating forensic activities.

Keywords: law on forensic examination, special scientific knowledge, qualification certificate, certification of forensic experts, financing of forensic examination.

DOI: 10.12737/art.2018.5.16

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CRIMINAL LIABILITY OF PRIVATE MILITARY AND SECURITY COMPANIES’ EMPLOYEES ACCORDING TO USA UNIFORM CODE OF MILITARY JUSTICE  Pdf 16

E. E. KOROLKOVA

postgraduate student at the Department of international law of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation
76, Vernadsky ave., Moscow, Russia, 119454
E-mail: korolkovaintlaw@gmail.com

Not that long ago, US President D. Trump announced his intention to replace the contingent of US troops in Afghanistan with employees of private military and security companies (PMSCs), which will be responsible to the President. However, his statement caused a wide public response due to the past negative experience of attracting PMSCs for military needs. In addition, experts are concerned that individuals will not be able to provide anti-terrorist security and put people’s lives at risk. In 2007 PMSCs “Blackwater”, guarded the US diplomatic corps in Baghdad and killed 17 and wounded 18 civilians by opening fire on them randomly. After this incident, the US Congress raised the issue of criminal liability of PMSCs employees for crimes committed during the armed conflict. Despite numerous victim’s cases in the U.S. Federal courts, they avoided liability for wrongful acts. The presence of gaps in the regulation of PMSCs activity and the lack of control by the military had a negative impact on the authority of the US armed forces. In this regard, the US Congress adopted amendments to the Uniform Code of Military Justice, expanding its jurisdiction over PMSCs employees. This decision has caused a wave of criticism, as in the US PMSCs employees are considered as civilians, and the extension of the jurisdiction of military courts significantly affects their constitutional rights. The article analyzes the judicial practice in cases on private companies providing services to US Federal agencies in areas of armed conflict.

Keywords: private military and security companies, Uniform Code of Military Justice, armed conflict.

DOI: 10.12737/art.2018.5.17

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■ Land, Natural Resources, Ecological, Agrarian Law of Russia and Foreign Countries

ISSUES OF FURTHER IMPROVEMENT OF MANAGEMENT IN THE SPHERE OF NATURE MANAGEMENT AND ENVIRONMENTAL PROTECTION (USING THE EXAMPLE OF UZBEKISTAN)  Pdf 16

N. K. SKRIPNIKOV

associate professor at the Tashkent State Law University, candidate of legal sciences
35, Sayilgokh st., Tashkent, Uzbekistan, 100047
E-mail: skrnikolay@mail.ru

The author started his study by presenting own definition of the concept of management in the field of nature management and environmental protection as a process of targeted impact through a system of normative legal acts which are ensuring the effective use of natural resources and environmental protection. Result of the effective use of natural resources and environmental protection is its rational use, protection, reproduction and (or) recovery. Then the author proceeds to the analysis of management research based on the consideration of issues depending on the objects of nature. It means that by revealing the features of land use management, subsoil use, water use, biodiversity, including flora, including forests, as well as wildlife and other natural objects and their protection, in the author’s opinion, it is possible to provide a comprehensive study in all designated areas or almost all. Revealing the features of land use and land protection management, the author proposes to use a differentiated approach depending on the specifics of each of the eight categories of land, based on the legal acts adopted in recent years in the Republic of Uzbekistan. Using the fundamental legislative acts and normative legal acts adopted in the process of economic and legal reform over the past two years, the features of improving the system management of subsoil use, water use, use of flora and fauna and their protection are revealed. Further, in connection with the systemic reforms, the author focuses on the resolution of the President of the Republic of Uzbekistan on priority measures to ensure the socio-economic development of the regions of August 8, 2017. For the first time in Uzbekistan, on the basis of this resolution, a completely new system of management of socio-economic development, including environmental management and protection throughout the country has been introduced. In conclusion, on the basis of the analysis, the main components are presented, on which, according to the author, the effectiveness of environmental management and environmental protection in Uzbekistan will depend.

Keywords: system management, legislation, economic and legal reform, efficiency, improvement, environmental management, legal protection of the environment.

DOI: 10.12737/art.2018.5.18

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ECOLOGICAL CIVILIZATION AND ITS CREATION BY LAW IN CHINA  Pdf 16

Xin MA

postgraduate student at the Institute of State and Law of the Russian Academy of Sciences
10, Znamenka st., Moscow, Russia, 119019
E-mail: 387881735@qq.com

The centuries-old uncontrolled dissipation of natural resources has led to a global environmental crisis, humanity faces the task of overcoming it. China, as a member of the world community, is overcoming the ecological crisis by building an ecological civilization. The purpose of this study is to justify the necessity and possibility of building ecological civilization in modern States. To achieve these goals, the following tasks are set: the definition of the concept of “ecological civilization”, its features, the study of views on ecological civilization reflected in Chinese Confucianism, Taoism and Marxism. At the end of the article the way of construction of ecological civilization is offered and experience of China in this area is stated. The methodological basis of the research is the use of both general scientific methods of cognition (system analysis, generalization, comparison, synthesis, historical) and methods specific to legal research - conceptual-legal, state-legal modeling. The conclusion is the necessary legislative consolidation of the construction of ecological civilization to determine its legal status, increase environmental awareness of the population, changes in lifestyle and mode of production and environmental legislation.

Keywords: ecological civilization, way out of the global ecological crisis, views on the ecological civilization of Confucianism, Taoism and Marxism, experience of China.

DOI: 10.12737/art.2018.5.19

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■ Materials of the Venice Comission of the Council of Europe

JUDICIAL REFORMS IN SERBIA AND MONTENEGRO: ANALYTICAL REVIEW OF THE OPINIONS ADOPTED BY THE VENICE COMMISSION AT THE 115th PLENARY SESSION  Pdf 16

E. A. FOKIN, V. S. CHERENKOVA

E. A. FOKIN, research fellow of the Center for legal problems of integration and international cooperation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: evgeniy.hse@outlook.com

V. S. CHERENKOVA, junior research fellow of the Department of scientific support of activities of the Secretariat of the Delegation of the Russian Federation to the European Commission for Democracy through Law (Venice Commission) of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: venkom@izak.ru

The article continues a series of analytical reviews of the opinions of the Venice Commission on the issues of judicial power and justice. This review analyzes the opinions of the Commission on judicial reforms in Serbia and Montenegro. Although the authorities of both countries had been working closely with the Venice Commission, some amendments to the constitutional legislation raised comments. In both Serbia and Montenegro it was recognized that there was a need for clarification of the procedure for the formation of bodies of judicial communities, especially in terms of the appointment of non-judicial members of these bodies. The Venice Commission in the case of both countries recognized that the proposed amendments to some extent carry the risk of over-politicizing the approval of these members. The main comments on Serbia related to the need to clarify the conceptual framework used in the package of amendments. Many of the concepts, despite their fundamental importance to law enforcement (for example, “improper performance of the duties of a judge”), are extremely vague and abstract. These inaccuracies can lead, among other things, to abuses in the activities of the bodies of the judicial community. The Serbian judicial reform is also interesting for the fact that the Serbian legislator in the amendments attempted to consolidate a number of rather progressive and innovative provisions, including the upgrading of the status of the assistant judge and the assignment of his separate functions in the administration of justice. The conclusion of the article reiterates the General conclusion of the Venice Commission that the transformation of the judicial system in both Serbia and Montenegro deserves support and approval.

Keywords: judicial reforms, judicial system of Serbia, judicial system of Montenegro, bodies of judicial community, independence of judicial power.

DOI: 10.12737/art.2018.5.20

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■ Legal Events

LEGAL STANDARDS AND THEIR ROLE IN THE REGULATION OF SOCIAL RELATIONS (REVIEW OF THE ANNUAL CONFERENCE OF GRADUATE STUDENTS AND YOUNG SCIENTISTS OF THE INSTITUTE OF LEGISLATION AND COMPARATIVE LAW UNDER THE GOVERNMENT OF THE RUSSIAN FEDERATION)  Pdf 16

M. A. BOCHARNIKOVA

■ Reviews

DEVELOPMENT OF COMPARATIVE LAW (REVIEW OF THE MONOGRAPH “DEVELOPMENT OF THEORETICAL FOUNDATIONS OF COMPARATIVE LEGAL RESEARCH IN THE SECOND HALF OF THE XVIII – THE FIRST THIRD OF THE XIX CENTURY: COMPARATIVE CONCEPTUALIZATION” BY A. V. KRESIN. KIEV; ODESSA, 2018. 678 p.)  Pdf 16

A. I. KOVLER

doctor of legal sciences, honored lawyer of the Russian Federation

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