Contents # 6/2018

■ To the 25th Anniversary of the Constitution of the Russian Federation

RUSSIAN CONSTITUTION IN THE MIRROR OF COMPARATIVE LAW  Pdf 16

Reference to Readers of T. Y. KHABRIEVA, the editor-in-chief of the Journal

ON THE SOCIAL AND LEGAL VALUES OF THE RUSSIAN CONSTITUTION, 1993 (THE COMPARATIVIST’S NOTES)  Pdf 16

V. E. CHIRKIN

chief research fellow of the Institute of State and Law of the Russian Academy of Sciences, doctor of legal sciences, professor, honored scientist of the Russian Federation, honored lawyer of the Russian Federation
10, Znamenka st., Moscow, Russia, 119019
E-mail: vechirkin@yandex.ru

The Russian Constitution of 1993 isn’t perfect, but it has social and legal value. In the process of drafting and adopting the 1993 Constitution some political forces and constitutionalists often considered it as a temporary, transitional Constitution. The political elite, after the October events of 1993, when concentrated in its hands real levers of state power, understood that the situation may be transformed in the way of fundamental law replacement, going back to totalitarian socialism. Therefore some provisions were included in the Constitution, which banned the changing of the principle rules concerning social and state system (chapters 1, 2 and 9). Up to a certain period such bans have a positive meaning, protecting social and legal value of the 1993 Constitution and the new foundations of public order. But now they may at some point hinder the progressive development of the society, new implementation of social justice ideas, social partnership, social responsibility, may undermine the oligarchy elements’ breaching (including major officials) and authoritarianism. In addition, the articles 5, 11, 77, 105 and some other contain positions, which are not fully adequate for the modern period of transition. “Target amendments” to the Constitution, capable to include some new provisions on the basis of experience gained, seem not being possible. This article discusses the specific provisions of the Constitution, which continue to maintain fundamental social and legal values and those, which should be corrected. Since the convening of the Constitutional Assembly (the only body authorised to correct inaccuracies in some chapters) is hardly possible due to the fact that there is no law on this, the author proposes some options: though they may not change the nature of the abovementioned issues in the Constitution, they may give them an appropriate interpretation, taking into account the circumstances of the the 1993 Constitution’s adoption and the international experience.

Keywords: value of Constitution, social value, legal value, constitutional reform.

DOI: 10.12737/art.2018.6.1

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OPINION OF THE VENICE COMMISSION ON THE CONSTITUTION OF THE RUSSIAN FEDERATION AS ADOPTED BY POPULAR VOTE ON 12 DECEMBER 1993 (in English and Russian)  Pdf 16

THE CONSTITUTION OF THE RUSSIAN FEDERATION IN THE ASSESSMENT OF THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW  Pdf 16

S. V. CHIRKIN, Ya. I. LEBEDEVA

S. V. CHIRKIN, head of the Department of scientific support of the Secretariat of 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, candidate of legal sciences, associate professor

Ya. I. LEBEDEVA, junior research fellow of the Department of scientific support of the Secretariat of 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

This article contains a comment to the Opinion of the Venice Commission on the Constitution of the Russian Federation as Adopted by Popular Vote on 12 December 1993.

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WESTERN LAWYERS’ OPINION ON THE DRAFT CONSTITUTION OF THE RUSSIAN FEDERATION  Pdf 16

N. V. VITRUK

doctor of legal sciences, professor

This article contains a comment to the Opinion of the Venice Commission on the Constitution of the Russian Federation as Adopted by Popular Vote on 12 December 1993.

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

CONSTITUTIONAL VALUES IN THE 21st CENTURY: TENDENCIES TO UNIVERSALISM OR STRENGTHENING NATIONAL INTERESTS?  Pdf 16

T. S. MASLOVSKAYA

associate professor at the Department of constitutional law of the Law faculty of the Belarusian State University, candidate of legal sciences, associate professor
8, Leningradskaya st., Minsk, Belarus, 220030
E-mail: maslovskayat@rambler.ru

The present article is an attempt to examine general and special features in the constitutional values consolidation. There are several approaches to the reflection in the constitutional texts of the universal human values. Noting the absence of a generally accepted list of common human values enshrined in international documents, a partial internationalization of constitutional values is stated. Attention is drawn to the legal consolidation of regional values. The author is examining the hierarchy of constitutional values in foreign countries. Based on the analysis of the CIS countries’, Eastern European and South American constitutions, the highest values are formally defined, which determine the constitutional priorities of the state and society, and other constitutional values. The author points out that every state builds and formalizes independently the range of national constitutional values to determine its constitutional identity. The meltdown of values in society (legalization of same-sex marriages, deprivation of patriotic feelings etc.) and in a state (peace, independence) accelerates the enhancement of the constitution’s value dimension. The author raises the question of reconciling values and national interests citing dome aspects as examples: 1) reconciling national and European values; 2) competition between “traditional” and “imported” values; 3) “interne” competition of values. The XXI Century values are allocated in the article: universalization of the constitutional values (universal human), expansion of the constitutional values catalogue. The author is making an outlook of further development of constitutional values: modification of values hierarchy, changing the focus from personal human benefit to the common well-being which reflects national interests’ increase.

Keywords: constitution, constitutional law revision, constitutional values, national interests, foreign states.

DOI: 10.12737/art.2018.6.2

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LEGAL MECHANISMS OF COOPERATION BETWEEN STATE AND NON-GOVERNMENTAL ORGANIZATIONS IN UZBEKISTAN: COMPARATIVE-LEGAL ANALYSIS (in English)  Pdf 16

Sh. YAKUBOV

deputy of the Legislative Chamber of the Oliy Majlis of the Republic of Uzbekistan, candidate of legal sciences, associate professor
100035, Узбекистан, г. Ташкент, просп. Бунёдкор
E-mail: inform@parliament.gov.uz

This article analyzes the issues of further improving the legal mechanisms of cooperation between state institutions and independent non-profit organizations in Uzbekistan. Specific proposals and recommendations on some problems in this area and ways of their solution are proposed.

Keywords: non-governmental non-profit organizations, civil society institutions, social partnership, public councils, implementation of the law.

DOI: 10.12737/art.2018.6.3

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A PRINCIPLE OF FREE ELECTIONS AS AN INTERNATIONAL ELECTORAL STANDARD  Pdf 16

S. N. SLOBODCHIKOVA

senior lecturer at the Department of state and legal disciplines of the Institute of State and Law of the Baikal State University
11, Lenin st., Irkutsk, Russia, 664003
E-mail: sveta150189@gmail.com

The article is devoted to legal interpretation of the free elections principle as an international electoral standard. First of all, the essential component of the “international electoral standard” concept is defined. Different approaches to understanding this term, existing in the scientific literature, are explored. On this basis, a conclusion is made about its content. A detailed analysis of the universal electoral standards sources developed by the UN and fixing the principle of free elections is conducted. The work includes acts that eliminate various discrimination forms. The activities of the Inter-Parliamentary Union in the issue of democratic principles’ universal standardization are covered. Regional election standards are comprehensively investigated. In particular, the variations of the of free elections principle consolidation in European, American, African, Arab acts and containing the criteria for building a state with legitimate authorities, are analyzed. The substantive consolidation of the principle under investigation in these acts is determined. The role of organizations such as the Venice Commission and the Organization for Security and Co-operation in Europe, the establishment and development of international electoral standards is indicated. The decisions of the European Court of Human Rights, the Inter-American Court of Human Rights are considered within the framework of the declared topic. Judicial practice stipulates a legal understanding of free elections in regional election acts. Based on the analysis, a conclusion is drawn on the importance of international standards in the field of elections for the modern world, the world of states with a democratic vector of development. In this regard, the author’s definition of the free elections principle as an international electoral standard is proposed.

Keywords: free elections, the principle of free elections, international electoral standard, universal electoral standard, regional electoral standard, democratic state, political rights.

DOI: 10.12737/art.2018.6.4

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■ Administrative Law, Financial Law, Information Law

DIGITAL TECHNOLOGIES AND THE APPLICATION OF ARTIFICIAL INTELLIGENCE IN FINLAND AND IN RUSSIA: COMPARATIVE LEGAL RESEARCH  Pdf 16

V. A. JILKINE

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

Digital information technologies have become a global trend of world development. The article provides the comparative legal study of digital technologies and artificial intelligence in Finland and Russia. The digital revolution caused the need to comply with the global integration processes and led to legislation digitalization, to meet the international law principles. This requires not only compliance with the requirements of the European users within the public and private sector, but also creation of a consolidated EU legislation in the sphere of financing and control over implementation of contracts by the Member-States, as well as protection of consumers’ and authors’ rights in the “Single Digital Market” of the European Union and cooperation in the field of artificial intelligence, blockchains, e-health and innovations. The conceptual development of new regulation areas is pending, along with the establishment of general legislation covering the international legal mechanisms of the civil-law regime governing crypto-currencies in Finland and Russia. The digital revolution caused the need to comply with the global integration processes and led to legislation digitalization, to meet the principles of the international law. The digital policy of the European Union influences also the Russian regulation in the field of digital programming, which supposes the development of legislation and legal norms of the Russian Federation that would meet the universally recognized global integration processes and the principles of international law. In order to adopt the scientific concept for digitalization of the integration law, it is necessary to provide synthesis of all scientific approaches with a view to develop a new-generation regulatory framework that would ensure digital transformation oriented towards the international standards, along with the search for flexible legal regulators in the sphere of virtual-space digitalization. The science and innovation infrastructure that has been developed in Russia, represented by various development institutions and hi-tech parks, including Skolkovo Innovation Centre, needs to be effectively used for further development of the Russian digital economy. 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, blokchain, cryptocurrency, digital technology, digital law, virtual currency.

DOI: 10.12737/art.2018.6.5

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A LEGAL MONITORING IN CONDITIONS OF DIGITAL REALITY: EXPERIENCE OF THE REPUBLIC OF BELARUS  Pdf 16

N. A. POLYASHCHUK

chief specialist of the Scientific and Practical Centre for Problems of Reinforcing Law and Order of the Prosecutor General’s Office of the Republic of Belarus
76, Zakharov st., Minsk, Belarus, 220088
E-mail: ponataly1@yandex.ru

Іnformalization allows us to find new ways of solving applications in the legal sphere and serves as a good impetus for improving norm-creating (law-making) and law enforcement activities, increasing the effectiveness of legislation. One of the tools through which it is possible to assess the quality of legislation, the effectiveness of normative and law enforcement activities, is legal monitoring. The purpose of the study is to characterize the state and prospects for the development of information relations in the Republic of Belarus, to identify the problems of using information technologies in conducting legal monitoring and to determine the main directions for their solution. The objectives of the study are: analysis of the basic legal acts of the Republic of Belarus in the information field; a description of the current state and prospects for the legal monitoring institution development in the Republic of Belarus; identification of information sources as a basis for monitoring activities that can and should be conducted, ways of using information technologies in the implementation of legal monitoring; determination of the information technologies development’s basic directions, which introduction will contribute to the improvement of the legal monitoring mechanism in the Republic of Belarus. The methodological basis of the study is a method of socio-legal modeling, systematic, comparative-legal, formal-legal and other methods of scientific knowledge. As a result of the study, problems are identified concerning the place and role of legal monitoring in the digital reality, its development under the influence of information technology; the basic directions of information technologies development are determined, which implementation can contribute to the legal monitoring mechanism’s improvement. The article formulates proposals that can be used in the further development of the regulatory framework that provides the procedure for conducting legal monitoring; It is concluded that in preparing legal acts that determine the procedure for conducting legal monitoring in the Republic of Belarus, along with other provisions, it is necessary to pay close attention to its information support, taking into account the achievements in the field of IT technologies.

Keywords: informatization, information technologies, norm-setting process, law enforcement, legal monitoring.

DOI: 10.12737/art.2018.6.6

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■ International and Integration Law

UN SANCTIONS: THE INTERNATIONAL LEGAL CONCEPTUALIZATION OF COERCIVE MEASURES  Pdf 16

A. Ya. KAPUSTIN

deputy director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, president of the Russian Association of International Law, doctor of legal sciences, professor
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: Kapustin@izak.ru

The United Nations has the primary responsibility for the maintenance of international peace and security. To that end the UN Security Council has the right to take decisions to maintain or restore international peace and security and to eliminate threats to or breaches of the peace. The article focuses on the evolution of the conceptual justification for the use of non-military coercive measures (sanctions) by the UN Security Council. Distinguishing the status of the UN Security Council and international judicial bodies, the author comes to the conclusion that it is impossible to identify them in solving the tasks assigned to the Security Council in this sphere by the UN Charter. Allowing the use of the term “sanction” in this context, it is concluded that the meaning of the institution of coercive measures in international law is independent. Based on the fact that the history of the development of the practice of the use of sanctions by the UN Security Council can be divided into two periods (the era of the cold war and from 1994 up to the present moment), it is proposed to consider two conceptual models of sanctions: the concept of comprehensive sanctions at the first stage and the transition to the concept of targeted sanctions at the second stage. Institutional and legal features of these concepts are considered. While the concept of comprehensive sanctions was largely based on the provisions of the UN Charter, the concept of targeted sanctions is an attempt partially to go beyond these limits. Two new features of targeted sanctions are analyzed: individualization and formalization. According to the author, it is necessary to further develop the theoretical foundations of the concept of targeted sanctions.

Keywords: United Nations, non-military coercive measures (sanctions) of the UN Security Council, international judicial bodies, UN Security Council subsidiary bodies-committees, the concept of comprehensive sanctions, the concept of targeted sanctions, individualization and formalization of targeted sanctions.

DOI: 10.12737/art.2018.6.7

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THE AREA OF FREEDOM, SECURITY AND JUSTICE WITHIN THE EU LAW SYSTEM  Pdf 16

V. V. VOYNIKOV

associate professor at the Department of international and european law of the Kant Baltic Federal University
14, A. Nevskiy st., Kaliningrad, Russia, 236041
E-mail: voinicov@yandex.ru

The area of freedom, security and justice (AFSJ) is one of the key directions of EU policy. This day, within this policy an entire system of Union legal acts has been formed, which has a special place in EU law. The above mentioned legal acts regulate specific integration social relations, which are not homogeneous, but arise within the framework of one EU policy. This circumstance allows us to speak about the formation within the structure of EU law a separate system of legal norms in the AFSJ. The main idea of this work is to study the legal complex, consisted from the legal norms within the AFSJ, to study the features of this complex, as well as its place and role in EU law. This research is based on scientific works of Russian and foreign researchers in the field of European law, as well as on the analysis of EU legal acts. The methodological basis of the research is represented by traditional methods of scientific knowledge: analysis, synthesis, induction, deduction, a logical method, a comparative legal method, a method of legal interpretation. The conducted study allows to conclude that the system of legal norms in the area of AFSJ is not a branch of EU law, but is a legal complex that could be qualified as a AFSJ law subsystem. The AFSJ law subsystem is a special component in the structure of EU law, which has no analogue at the national level, but interacts with a whole group of branches of national law (migration law, police law, criminal law, criminal procedure law, civil procedural law, etc.).

Keywords: area of freedom, security and justice, European Union, European law, EU law branches, freedom of movement of persons, EU common judicial area, EU internal security area.

DOI: 10.12737/art.2018.6.8

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THE POSITION OF THE PRC REGARDING THE LEGAL REGIME OF MARINE LIVING RESOURCES IN THE CENTRAL PART OF THE ARCTIC OCEAN  Pdf 16

E. V. KIENKO

specialist of the Department of foreign constitutional, administrative, criminal legislation and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: miss.kienko@yandex.ru

The article deals with international legal stance of the People’s Republic of China on legal regime of conservation of marine living resources in the Central Arctic ocean (the biggest enclave) surrounded by 200 miles of Exclusive Economic Zones of five Arctic states - Russia, the USA, Canada, Denmark and Norway. With regard to assertively promoting of national interests of non-Arctic states by means of international law and consequently recently increased activity in the Arctic both under the Arctic Council and because of their treaty practice, the interest of Russia in revealing China’s legal posture is foreseen (China is the first largest population in the world, one of the states with the highest economic indicators and a fast-growing military power, the only permanent member of the UN Security Council which in the past had armed conflicts with the USSR (Russia). Today China in cooperation with the Arctic states is drawing up a new international treaty - the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean that can be definitely considered as its achievement. The legal analysis of China’s stance (revealed, above all, in the China’s Arctic Policy 2018) is of great importance because it is inconsistent with a historic status of the Arctic, particularly regarding special rights of Arctic states on marine living resources. The international legal stance of China could be regarded as a state’s vision of legal regime of such resources from perspective de lege ferenda.

Keywords: the Arctic, the Central Arctic Ocean, conservation of marine living resources, People’s Republic of China.

DOI: 10.12737/art.2018.6.9

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

THE INTERNATIONAL COMPANY AS A SPECIAL TYPE OF LEGAL ENTITIES IN RUSSIA  Pdf 16

V. A. KANASHEVSKY

professor at the Department of private international law of the Kutafin Moscow State Law University, doctor of legal sciences, professor
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123995
E-mail: seleron75@mail.ru

The author examines the legal status of an international company, which is basically a new type of legal entity in Russia. Despite the fact that the personal law of an international company is the Russian law, in respect of certain issues (rights to property, liability under previous obligations, certificates for shares issued outside of Russia), the legal capacity of international company continues to be regulated by foreign law. This double subordination of international company to different legal systems makes such company a special type of legal entity in Russia. Foreign laws in particular the laws of offshore jurisdictions, allow the local companies to migrate to other jurisdictions, if it is permitted by the law of the relevant foreign state. The Russian Law “On International Companies” of 2018 creates legal basis for making possible such migration of foreign companies to Russia. Russian law provides a number of tax benefits for international companies (zero or lower rates of income tax and tax for dividends, etc.), which brings them closer to offshore companies. Such tax benefits are designed in such a way as to make closer the tax status of international companies to status of foreign holding companies located in offshore and quasi-offshore jurisdictions. At the same time, an international company differs from classical offshore company, since Russian law requires that international company shall make certain investments in Russia, while offshore companies are prohibited from doing business in place of their registration. Keywords: personal law, international company, joint stock company, shares, limited liability company, participation interest, liability, special administrative districts, legal entity, re-domestication, adaptation, tax benefits, migration, trust, beneficiary owner, confidentiality, controlled foreign companies, offshore jurisdictions.

Keywords: personal law, international company, joint stock company, shares, limited liability company, participation interest, liability, special administrative districts, legal entity, re-domestication, adaptation, tax benefits, migration, trust, beneficiary owner, confidentiality, controlled foreign companies, offshore jurisdictions.

DOI: 10.12737/art.2018.6.10

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FANFIC: FROM UNDERSTANDING ITS ESSENCE TO THE POSSIBILITIES OF LEGAL CREATION AND USE UNDER BELARUSIAN LEGISLATION  Pdf 16

N. V. SHAKEL

associate professor at the Department of civil law of the Belarusian State University, candidate of legal sciences, associate professor
43, Kalvariyskaya st., Minsk, Belarus, 220073
E-mail: nshakel@tut.by

The article is devoted to the study of the essence and possibilities of the legitimate creation and use of fanfics. Though that the number of such works is currently difficult to calculate, especially considering the possibilities presented by the Internet, so far fanfics have not been the object of attention of the Belarusian legislator. This issue also remains largely unexplored in the legal literature. In this regard, the purpose of our study is to identify the prospects and limitations of the legitimate creation and use of fanfics and to identify directions of perfection of the relevant Belarusian legislation. The complexity of this goal required the solution of a number of tasks, including consideration of the history of the emergence of the term “fanfic” (“fanfiction”), analysis of the peculiarities of creating such objects in modern conditions, taking into account the existence of Internet, the study of fan fiction as derivative works (including the analysis of the right for adaptation in relation to the right to integrity). In addition, attention is paid to the legal aspects of the use of characters in fanfics, which in a number of jurisdictions are expressly designated as legally protected objects. General methods of cognition, as well as comparative legal and historical methods were used. According to the results of the study gaps are identified in the legal status of fan fiction in Belarus. The discovered uncertainty regarding the possibilities of defining the boundaries of lawful actions to create fan-fiction requires its solution. To this end, the author proposed directions for improving the copyright legislation of the Republic of Belarus.

Keywords: copyright, fanfiction, right to inviolability, derivative work, original work, right to character, liability, right to alteration.

DOI: 10.12737/art.2018.6.11

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THE INSTITUTE OF REPRESENTATION AS A “LEGAL TRANSPLANT” IN MODERN RUSSIAN LAW  Pdf 16

A. V. MOROZOV

legal consultant of the JSC KPMG, postgraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation
10, Presnenskaya emb., Moscow, Russia, 123112
E-mail: allexfrost@yandex.ru

According to the extension of the contractual relationship as the result of increasingly complex economic connections, the parties under agreement subject to Russian legal system often have to turn to the foreign legal constructions, in particular - to the constructions of English contract law. It’s particularly important for this process that each legal institution or rule of law while “moving” from one legal system to another meet not only the borrowing party needs due to their practical necessity, but also provide more effectively for legal system than before borrowing of such foreign constructions. Any borrowing must become a full-fledged element of the new legal system. Such phenomenon is called “diffusion in law” and adopted elements are called “legal transplants”. The author points out that this process requires a lot of effort from the legislator and not always the result meets expectations. The above-mentioned process is observed in this article on the example of “warranties and representations” construction adopted by Russian civil law from English contract law. The author notes that unlike the Russian analogue, “representations” in English law are not identical to “warranties” despite the presence of common goals. This usually appears on the example of consequences of such construction violations (cancellation of the agreement, compensation for damage). Methodological framework of the research is based on common principals of scientific cognition (objectivity, consistency, development, determinism etc.), as well as private scientific methods as formal-legal, systemic, historical, dialectical. A special role is assigned to the comparative legal method that makes available to analyze both domestic foreign state legislation. Making the conclusion the author sums up that the institute of representation existing at the present time in Russian legal system is incomplete and rather contradictory. “Transposition” of representations and warranties from English law without understanding the position and purpose of the said constructions within the legal system has led to a confusion of different nature and purposes of original constructions with ones of Russian «representations on circumstances». In this regard, the practical application of these contractual elements within the domestic law is impossible without conflict situations.

Keywords: warranties, representations, diffusion, legal transplant, contrhactual relationschip, English law.

DOI: 10.12737/art.2018.6.12

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RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS ON BANK RESOLUTION IN THE EUROPEAN UNION  Pdf 16

O. V. ANTIPKINA

junior lawyer of the Company “iTech Capital”, postgraduate student at the Department of public and private international law of the Faculty of law of the National Research University “The Higher School of Economics”
16/5, Tverskoy blvd, Moscow, Russia, 125009
E-mail: oantipkina@hse.ru

The financial crisis of 2008 became a trigger for financial reforms conducted in the European Union in order to prevent bankruptcies of systemically important transnational banks and preserve financial stability in a single market. The bank resolution mechanism is based on the Directive on bank recovery and resolution, which was adopted to ensure harmonized conditions necessary to prevent the bankruptcy of transnational banks in the EU. However, in spite of the implementation of the Directive in the national legislation of the Member States, the judgments of courts and decisions of administrative bodies for the resolution of banks taken in one country are not always recognized and implemented in other countries. This article deals with reasons, why establishment of single bank recovery and resolution mechanism is a difficult task after adoption of an appropriate supranational legal act. The study is based on an analysis of the existing national legal practice on the recognition of judgments concerning application of the Directive’s measures for bank resolution. Two cases are considered in detail: “Goldman Sachs International v. Novo Banco” case, which was resolved by English courts, and “Bayerische Landesbank v. Heta Asset Resolution AG” considered by a German court. Given that the study is based on the analysis of legal practice in different countries, the main research methodology embraces legal comparative, analytical and empirical methods. As a result of the study, several conclusions were proposed. Firstly, the adoption in the EU of a supranational legal act as such is not a solution to existing problems, which appeared at the national level. Secondly, the literal interpretation of the Directive entails the risk of failure to achieve the objectives laid down in the basis of legal regulation. Thirdly, national courts of the Member States, while rendering judgments, act in the interests of their citizens, and not in the common European interests. In conclusion, a possible solution to the problem is proposed.

Keywords: private international law, European Union, bank recovery, bank resolution, directive.

DOI: 10.12737/art.2018.6.13

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

COMPUTER INFORMATION AS AN TARGET FOR ILLEGAL ACCESS: COMPARATIVE ANALYSIS OF THE USA AND RUSSIAN LEGISLATION  Pdf 16

R. I. DREMLYUGA

associate professor at the School of Law of the Far Eastern Federal University, candidate of legal sciences
8, Sukhanov st., Vladivostok, Russia, 690091
E-mail: dreamluck@yandex.ru

The proposed article deals with the current norms of the federal criminal law of the United States of America and state-level legislation that criminalize crimes in the field of unauthorized access to computer information. The emphasis in the article is on the subject of criminal assault: computer information. The author analyzes the categories of computer information for which criminal responsibility is established in the United States. In addition to reviewing specific criminal law norms, the article presents materials of judicial practice of both the US and the Russian Federation on the topic of the research. The author of this study concludes that the law and court practice in the United States of America often takes into account the properties and characteristics of the illegally accessed information itself. The properties of information for the American legislator and law enforcer reflect the social danger of computer crimes. In Russian practice, the qualification of illegal access to information, in the first place, is affected by the negative consequences of the act or characteristics of the offender. This practice corresponds to the paradigm of the traditional (pre-digital) economy, where information is only a means of implementing public relations or relations with government. In accordance with the declared nation-wide transition to a digital economy, where information is the main value and product of economic activity, the Russian legislator and law enforcement officer have to reconsider existing approaches. The properties and characteristics of information that is object to criminal unlawful access should become qualifying factors for such kind of crimes.

Keywords: computer information, computer crimes, the criminal law of the United States, crimes in the sphere of computer information.

DOI: 10.12737/art.2018.6.14

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THE COMPARATIVE REVIEW OF FOREIGN LEGAL MODELS OF CRIMINALIZATION OF THE DEVIATING SEXUAL BEHAVIOR  Pdf 16

M. V. ARZAMASTSEV

associate professor at the Department of constitutional and administrative law of the Law Faculty of the National Research University “Higher School of Economics” — St. Petersburg, candidate of legal sciences
17, Promyshlennaya st., St. Petersburg, Russia, 198099
E-mail maxim077@mail.ru

The models of criminalization of sexual abuse in different countries are analyzed in present article. It is shown that sexual suppression, coercion, harassment and other forms of negative impact on the sexual behavior of a person are widespread in public relations. The existing system of criminal law prohibitions in different countries does not cover all types of sexual abuse in interpersonal relations, which can be explained by historical traditions, as well as the prevailing standards of sexual behavior in a particular society. Most countries are characterized by active reform of the criminal law on sexual offences. For the purpose of comparative legal research, criminal legislation relating to different types of legal systems has been selected with the widest possible geographical coverage. The analysis showed that legislative decisions on the criminalization of sexual violence, which violates the requirements of international acts, do not have a large national specificity. The criminalization of individual sexual abuse is carried out according to different models, which can be classified according to the scope of prohibited forms of sexual behavior. The systematization of such models is offered, the most interesting and indicative examples of separate legislative decisions are shown. According to the results of the study, it is concluded that the Criminal code of Russia uses a broad approach with the application of prohibitions of a General nature and the minimization of the use of special rules. To ensure the legal certainty of the Russian criminal law, the variants of concretization of the used terminology are proposed. In particular, the best way to further improve the Russian criminal law is seen in the distinction between non-contact and contact actions of a sexual nature with the allocation of a separate norm of acts related to sexual penetration (including sexual intercourse).

Keywords: criminalization, sexual crimes, rape, depraved acts, sexual acts, sexual abuse.

DOI: 10.12737/art.2018.6.15

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BASES OF THE SpANISH PENAL LEGISLATION  Pdf 16

A. N. SIRYAKOV

associate professor at the Department of criminal-executive law of the Academy of the Federal Penitentiary Service of Russia, candidate of legal sciences
1, Sennaya st., Ryazan, Russia, 390000
E-mail: 643350@mail.ru

The article is devoted to the most important document in the field of the Spanish penitentiary system - the Organic Law of September 26, 1979 “Fundamentals of Correctional Institutions”. The purpose of the article is to analyze the key provisions of the organization of execution of criminal penalties in the form of imprisonment. The system of correctional institutions is defined: places of pre-trial detention; ordinary, open and closed institutions executing criminal penalties; special institutions. The purpose of correctional institutions is formulated: re-education; social reintegration of prisoners; preparation for their release; assistance to them; detention; supervision of detainees. The organizational, personnel, material bases of activity of correctional institutions are established. The rights, duties and responsibility of subjects of criminal-Executive process are allocated: the persons held in correctional institutions; employees; judges on supervision of correctional institutions. The main activities of the penal correction system, such as detention and supervision of detainees, execution of deprivation of liberty, organization of work, training and education, correctional process, medical care, religious assistance and assistance in release, are outlined. The study of the experience of legal regulation and execution of criminal sanctions in Spain, a member of the European Union, creates opportunities to get acquainted with its criminal enforcement legislation, compare and make proposals to improve the current Russian legislation. Research methods (statistical, comparative-legal, systematization) allowed drawing a conclusion about the system-forming nature of the Organic law under consideration. Its rules are continued and developed in Royal decrees, laws, orders, instructions and circulars on the enforcement of criminal sanctions.

Keywords: penal laws, foreign experience in Spain, the Organic law, the correctional system, the prison regime, rehabilitation of offenders, assistance in the liberation.

DOI: 10.12737/art.2018.6.16

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THE PROBLEM OF DETERMINING GUILT IN THE GERMAN CRIMINAL LAW (BY THE EXAMPLE of CORRUPTION-RELATED CRIMES)  Pdf 16

G. S. YAKOBI

research fellow of the University of Passau
Passau, Germany, 94032
E-mail: german5011992@gmail.com

The article deals with the guilt of a person committing corruption-related crimes from the perspective of German criminal law in the context of the possible application of particular provisions of German criminal law to Russian criminal law. Besides special provisions in the corruption-related crimes, the author introduces in the text general terms on the guilt of person in Russian und German criminal law. While analyzing the problems inherent in the system of German law and court practice in the FRG, the author talks about the possibility of criminal prosecution of an innocent person in the context of Russian criminal law. The analysis of the threefold model of criminal liability in German criminal and case law was described as a basis for a prosecution. In addition the author evaluates the models of liability to prosecution in different systems of law, especially in France etc. As a proof of his position the author makes reference to the crime, which is provided in § 323a the German Criminal Code (“full intoxication”) for criminal prosecution of person who was not able to understand actual nature of one’s actions and control them while committing a crime. The author examined developmental trends of Russian criminal law in accordance with court system and doctrinal sources. One trend is the transition of the national criminal law system from formal-psychological concept to an evaluative theory that plays a role in determining one’s guilt of committing a crime.

Keywords: criminal law, comparative law, fault and guilt of person, corruption-related crimes, German criminal law.

DOI: 10.12737/art.2018.6.17

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■ Countering Corruption

EXPERIENCE OF THE BEST PRACTICES OF PUBLIC SERVICE OF CHINA AND RUSSIA  Pdf 16

V. V. SEVALNEV, A. M. TSIRIN

V. V. SEVALNEV, leading research fellow of the Department of methodology of combating corruption 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: sevalnev77@gmail.com

A. M. TSIRIN, acting head of the Department of methodology of combating corruption of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, responsible secretary of the Interdisciplinary Council for coordination of scientific, educational and methodical ensuring of countering corruption, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

As administrative reforms move forward in the People’s Republic of China and the Russian Federation, attention to the importance of reforming the modern public service is steadily increasing. The article introduces with the best practices of public service of public service in the People’s Republic of China and the Russian Federation. The article analyzes the factors that contribute to the practice of interaction of public authorities of China and Russia on the development of public service and personnel. The subject of the study is formed with legal support of the changing nature of work with the personnel and reserve of the civil service of both countries, the ways of improving the mechanism of professional development of civil servants and the emerging problems of legal and organizational mechanisms of prevention and settlement of conflicting interests in the civil service. The authors analyze the issues of responsibility of civil servants in China and Russia, share their experience of legal regulation of personnel technologies and training, as well as determine the trends and priorities of professional training of civil servants in the conditions of development of the digital economy and the widespread use of new modern technologies. As a result of the analysis, the authors conclude that the People’s Republic of China and the Russian Federation use in order to counter corruption offenses a wider arsenal of measures of legal liability than in European countries. In China, the system of “double rails” is also used - an approach in which the responsibility of persons suspected of crimes of corruption comes first through the party line, and then through the law enforcement agencies. In turn, in the Russian Federation, disciplinary measures were introduced in terms of introducing a new type of punishment - dismissal for loss of trust, which can be applied in cases of non-compliance with anti-corruption restrictions and prohibitions. The use of various strategies allows our states to balance various types of responsibility in the implementation of anti-corruption policies, using the possibilities of multidimensionality of national legal systems.

Keywords: public service, corruption, international law, domestic law, implementation.

DOI: 10.12737/art.2018.6.18

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■ Legal Events

STATE REGULATION OF THE DIGITAL ECONOMY: NEW CHALLENGES OF THE ERA  Pdf 16

L. K. TERESHCHENKO, O. E. STARODUBOVA

L. K. TERESHCHENKO, deputy head of the Department of administrative legislation and procedure of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences

O. E. STARODUBOVA, junior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

This article provides an overview of the Seminar "State Regulation of the Digital Economy: New Challenges of the Era" (Moscow, 28 February 2018).

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LAW AS AN INSTRUMENT OF SOCIAL JUSTICE (RESULTS OF THE RUSSIAN-IRANIAN CONFERENCE)  Pdf 16

D. A. PECHEGIN, M. G. MEKHTIEV

D. A. PECHEGIN, senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences

M. G. MEKHTIEV, junior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

This article provides an overview of the Russian-Iranian Conference "Law as an Instrument of Social Justice" (Iran, 10 October 2018).

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■ Reviews

“ALTERNATIVE JUSTICE” IN THE CONTEXT OF LEGAL PLURALISM (BOOK REVIEW: KOSTOGRYZOV P. I. COMMUNITY JUSTICE IN LATIN AMERICA. MOSCOW, 2018. 248 P.)  Pdf 16

A. I. KOVLER

doctor of legal sciences, honored lawyer of the Russian Federation

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