Contents # 5/2021

Rashad A. Kurbanov¹, Kirill I. Naletov^{2
1, 2}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
¹mos-ssp@mail.ru
²kirillnaletov@gmail.com, https://orcid.org/0000-0002-7994-7322

Abstract. This article is based on a comparative analysis of the recent changes concerning the legal status of foreign agents in Russian law and similar norms of the United States Foreign Agents Registration Act 1938 (FARA) and Australiaʼs Act No. 63 — Foreign Influence Transparency Schemes ACT 2018 (FITSA). The provisions of these foreign regulations are to the fullest extent comparable with the norms stated in Russian legislation. The former regulations restrict the rights of citizens to a much greater extent than Russian one. The FARA and FITSA regulations in fact establish a non-exhaustive list of foreign agents, which clearly does not correspond to the principle of legal certainty. The legal regime of foreign agents in Russia is under development and due to the fact that the similar regulatory legal act of the United States described in the article is definitely one of the landmarks for its development, certain shortcomings of legal regulation — which is shown in this article — may be avoided. The authors focus their attention on 5 key elements of the legal regime applicable to the activities of foreign agents: 1) the legal status of the foreign agent; 2) the foreign entity which is a beneficiary of the foreign agentʼs activities (in the terminology of FARA and FITSA — “foreign principal”); 3) types of activities subject to the relevant provisions; 4) the scope of obligations of a foreign agent arising in connection with its status; 5) the grounds and form of legal liability of a person who is a foreign agent.

Keywords: foreign agents, Russia, USA, Australia, non-profit organizations, individuals, legal liability, affiliation, foreign agent control, foreign state

For citation. Kurbanov R. A., Naletov K. I. The Status of Foreign Agents in Russia, the USA and Australia: A Comparative Legal Study. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 5—15. (In Russ.) DOI: 10.12737/jflcl.2021.049

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Bakhitzhan Kh. Toleubekova¹, Teimuraz B. Khvedelidze^{2
1, 2}Institute of History and Law, Abai Kazakh National Pedagogical University, Almaty, Kazakhstan
¹madina_khv@mail.ru, https://orcid.org/0000-0002-0074-3301
²khvedelidze_tima@mail.ru, https://orcid.org/0000-0003-2888-6782

Abstract. The paper examines the function of prosecutorial supervision, defined in national Basic Law prior to the constitutional reform of March 10, 2017 in the Republic of Kazakhstan, as well as in the sectoral legislation as “supervision of the exact and uniform application of laws, decrees of the President of the Republic of Kazakhstan and other normative acts in the territory of the Republic”. As a result of the reform, this function was excluded from Article 83 of the RK Constitution, which regulates the organization and activities of the Prosecutorʼs Office. The problem is that without ensuring the accuracy and uniformity in the understanding, interpretation and application of rules of law by subjects of legal relations, it is impossible to achieve full compliance with the rule of law.
Aims are: to conduct a comparative analysis of the CIS member-statesʼ legislations; to formulate proposals for the improvement of the Kazakh legislation. Objective are: the substantiation of the fact that the new approach of the Kazakhstan legislator to prosecutorial oversight of compliance with the rule of law — which excludes the institute of accuracy and uniformity in the application of law — is assessed as a significant departure from the principle of succession in the context of a selective approach to individual effective legal institutions in the system of prosecutorial oversight, and as a factor that reduces its effectiveness.
The research is based on: dialectical, comparativistic, formal-logical, analytical, historical-legal methods.
The results: an argument in favor of the need to provide in the sectoral legislation on the prosecutorʼs office the institute of accuracy and uniformity in the application of laws as a species concept to the function of supervision over the observance of legality.
Brief conclusions: the new approach of the Kazakh legislator to the types of prosecutorial oversight, which excludes accuracy and uniformity in the application of law, reduces the effectiveness of legality oversight.

Keywords: prosecutorial supervision over the observance of legality, function of supervision over the uniform application of legal norms, constitutional reform, new national doctrine of prosecutorial supervision

For citation. Toleubekova B. Kh., Khvedelidze T. B. The Prosecutorʼs Office Function and Differentiation under the Legislation of the Republic of Kazakhstan. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 16—22. (In Russ.) DOI: 10.12737/jflcl.2021.050

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Sergey E. Vyltsan
Lomonosov Moscow State University, Moscow, Russia, servyltsan@mail.ru

Abstract. Iran is one of the few nations where religious (Islamic) norms serve as an essential element in the construction of the State machinery and legal system. At the same time, Iran establishes the principle of separation of powers as legislative, executive and judicial branches. This article examines certain legal aspects related to the Iranian parliament — the Islamic Consultative Assembly Majlis — in order to identify legal features of its formation, as well as activities related to the religious nature of Iranʼs legal framework.
The article discusses in detail the legislative consolidation of the requirement for candidates for parliamentary deputies to “actively” practice the official religion (religious qualification), the process of holding elections of deputies, and the procedure for forming the structure of the Islamic Consultative Assembly Majlis. The article analyses the evolution of the legal status of the commission established by the Article 90 of the Constitution — a body in the structure of the Majlis, which is able to effectively influence the decisions of a wide range of Iranian officials through its significant supervisory powers. Particular attention is paid to the legislative process, in particular the aspects that distinguish it from similar processes in other countries. These are so-called “experimental laws” and draft laws of varying degrees of urgency. The author traces the emergence of these phenomena in the Iranian legal system and attempts to assess their significance for the modern legislative process. The article also contains an analysis of the procedure for adopting special — as it is in Iranian parliamentariansʼ opinion — legal acts, drawn up in the form of laws: international treaties and agreements, the annual budget of Iran, the Internal Regulations of the Majlis, as well as decisions on the appointment of a national referendum.

Keywords: Islamic Republic of Iran, state mechanism, legal system, parliament, legislative process

For citation. Vyltsan S. E. Legal Basis of the Formation and Functioning of Iranʼs Islamic Consultative Assembly Majlis. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 23—36. (In Russ.) DOI: 10.12737/jflcl.2021.051

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Anastasia A. Pestrikova
Togliatti State University, Togliatti, Russia, anastasia801@yandex.ru

Abstract. The article is devoted to the analysis of existing legal norms regulating human gene editing. The main directions of development of legal thought (based on comparative analysis), lifting of the international moratorium on clinical trials of human gene editing are given. The main legal and ethical problems of legal regulation of these relations and the positions of scientists, jurists, and researchers are considered, taking into account the current state of science in the field of genetic engineering and biotechnology. The article analyses international acts and the position of national ethics councils of foreign countries on the removal of restrictions on clinical trials in the field of human gene editing. It also considers the main principles presented in foreign legal systems and literature in the field of genetic engineering.
The purpose of the study is thorough analysis of the current state of legislation and ethical standards in the field of editing the human gene and development of proposals for the formation of legal principles that may become common for the systematization and improvement of national legislation in the field of biotechnology and genetic engineering.
Methods of comparative legal analysis, generalization, formal logic, and description are used.
Conclusions are drawn about the need to develop legal principles and form legal norms and standards for conducting clinical trials of human gene editing, taking into account the rights of each person and the interests of humanity as a whole. It is necessary not to assess the importance and necessity of the moratorium, but to pay close attention to rethinking moral and legal institutions and principles in order to prepare the basis for the implementation of this practice in the ordinary life of society.

Keywords: genetic engineering, biotechnologies, human gene editing, ethics, moratorium on human gene editing, clinical trials, biomedicine

Acknowledgments. The reported study was funded by RFBR, project number 18-29-14015 mk.

For citation. Pestrikova A. A. Analysis of Legal and Ethical Standards in the Field of Human Gene Editing. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 37—51. (In Russ.) DOI: 10.12737/jflcl.2021.052

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Olga I. Semykina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, semykola@yandex.ru, https://orcid.org/0000-0002-2557-8648

Abstract. The article presents a comparative legal analysis which covers approaches applied by the member-states of the Commonwealth of Independent States (CIS member-states) to the criminalization of torture. The author proposes to consider this issue based on four blocks of topical issues: 1) through the prism of the prohibition of torture as an “absolute right” of a person (jus cogens); 2) by analyzing the inviolable constitutional human rights; 3) by referring to the regulation of the principle of humanism in criminal laws; 4) the thesis about the transverse nature of the institution of prohibition, prevention, criminal prosecution and judicial investigation of torture.
Summarizing the material presented in the article, the author reveals directions of prevention and investigation of torture in the criminal and penal legislation of various CIS member-states that are interesting for domestic science and practice. In particular, they include models of suppression of abuse in criminal proceedings (in the legislation of the Republic of Kazakhstan and the Kyrgyz Republic) and protection of victims of torture (in the jurisdiction of the Republic of Moldova), approaches to the introduction of a national preventive mechanism within the framework (on the example of the Republic of Azerbaijan, the Republic of Armenia, the Republic of Kazakhstan and the Kyrgyz Republic).

Keywords: jus cogens, prohibition of torture, human dignity, personal integrity, principle of humanism, principle of nonrefoulement, victim of torture, abuse in criminal proceedings, national preventive mechanism

For citation. Semykina O. I. The Principle of Humanism as a Means of Ensuring the Prohibition of Torture. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 32—65. (In Russ.) DOI: 10.12737/jflcl.2021.053

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Olga M. Sakovich¹, Svetlana V. Solovieva
¹Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, foreign3@izak.ru

Abstract. The authors studied the legal regulation of entrepreneurial activity of non-profit legal entities in states of various legal families, namely in the USA, the Czech Republic and Slovakia. The choice of these legal orders is due to the fact that they belong to different legal families. Moreover, the legislation of the Czech Republic and Slovakia embodies all the latest achievements of European legal thought. The study of the legal experience these counries in regulating the entrepreneurial activities of non-profit legal entities is of scientific interest, since it makes it possible to identify commonalities and differences in the approaches of legislators of the two states connected by a common history and sources of legal regulation. Along with the study of national legal systems and types of non-profit legal entities, attention is paid to the concepts of commerce and public utility and their relationship in the activities of non-profit organizations. At the same time, special attention is paid to approaches to the legal regulation of the economy and social entrepreneurship in the two states, taking into account pan-European trends. The article analyzes the emergence of new forms of legal entities in the national legislation of the two countries — social cooperatives and social enterprises. In the United States, along with federal legislation, the legislation of fifty states applies. The experience of the Uniform Law Commission and state legislators on the unification of legislation on non-profit organizations and their business activities is analyzed.

Keywords: social economy, social entrepreneurship, social cooperative, social enterprise, non-profit legal entities, non-profit association, non-profit corporation, entrepreneurial activity, income-generating activity

For citation. Sakovich O. M., Solovieva S. V. Entrepreneurial Activities of Non-Profit Legal Entities in Foreign Countries. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 66—77. (In Russ.) DOI: 10.12737/jflcl.2021.054

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Alexander A. Kuznetsov
National Research University “Higher School of Economics”, Moscow, Russia, AAKuznetsovlaw@yandex.ru

Abstract. Reorganization is traditionally associated with the protection of creditorsʼ rights. The main difficulty in this case is to ensure comprehensive protection of creditors and not to lose the main thing for which reorganization is needed — in fact, to make it possible to adapt enterprises to changing economic conditions. If there are too burdensome rules, entrepreneurs will not be able or will not want to take advantage of such a legal regime. In other words, any legal order is forced to seek a balance between the interests of reorganized companies and creditors.
The Russian doctrine is mostly divorced from the European tradition and focuses on particular issues of the Russian rulesʼ application, remaining without clear conceptual guidelines for the development of these very rules. The special rights of the creditor in the process of reorganization form the basis for the protection of his/her legitimate interests. The shortcomings of domestic rules give rise to quite practical problems of reorganizations.
Conclusion: the Russian model should be adjusted by establishing the right of securing obligations, and the remaining alternatives can be applied only if the debtor and the creditor agree at the same time, and also, since the Russian model, being like the French one, is completely based on the judicial procedure for considering creditorsʼ objections, it is necessary to abandon the closed list of criteria for sufficiency of security, giving the court the opportunity to assess if the creditor objects to the proposed security. The article also discusses in detail the conditions for securing obligations to creditors.

Keywords: company law, reorganization of companies, protection of creditors

For citation. Kuznetsov A. A. The Rights of Creditors Arising from the Debtorʼs Reorganisation. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 78—93. (In Russ.) DOI: 10.12737/jflcl.2021.055

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Liudmila V. Tsarova
Belarusian State University, Minsk, Belarus, Tsareva@bsu.by

Abstract. The article is devoted to the study of changes in the investment legislation of the United States, Canada, EU countries and EAEU countries as regards the legal measures to restrict foreign direct investment (hereinafter — FDI).
The purpose of the study is to identify the prerequisites that prompted the recipient states to strengthen FDI control, and general patterns of measures. Comparative legal analysis of the current state of special legislation and changes adopted over the past three years served as a basis for generalization and conclusions.
The scope of FDI admission is dependent on political and economic changes, which entails the orientation of FDI control mechanisms to the needs and specifics of a particular country. The measures taken against the background of a global decline in foreign investment flows to strengthen control over their admission are predetermined, first of all, by the desire to keep strategically important industries and facilities under control and are justified by the protection of national security or public order.
Special measures to control PPI are expressed in the form of a regulatory ban on investing in certain types of activities; preliminary administrative control of transactions that meet certain criteria (according to the results of which FDI can be allowed, prohibited or subject to conditions); selective verification of FDI investment transactions. A meaningful analysis of the national legal measures taken over the past three years shows that the changes include the introduction of new selection mechanisms; adding sectors or activities subject to control (production of medical equipment and drugs); lowering the thresholds at which control is carried out; raising control standards; expanding the obligation to notify transactions and disclose information; detailing procedures and deadlines for verification. From the point of view of completeness and transparency, the legal regulation of FDI control should meet the requirement of legal certainty, striving for maximum transparency of the procedure and clarity of the grounds, criteria and possible legal consequences of verification.

Keywords: foreign direct investment, admission of foreign investments, control of transactions with participation of foreign investors, investment legislation

For citation. Tsarova L. V. Control of Foreign Direct Investment as a Modern Trend of Investment Legislation. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 94—103. (In Russ.) DOI: 10.12737/jflcl.2021.056

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Vladislav R. Avkhadeev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, vladislavavkhadeev@yandex.ru, https://orcid.org/0000-0003-4548-3467

Abstract. The relevance of the scientific study of the main legislative acts of the Arctic states regulating the fishing of marine living resources lies in the fact that fishing in this region directly affects the Arctic environment, as well as the food supply of the population of this region with products of the fishing of marine living resources. The main objective of the study of the Arctic states legislation is to clarify the specifics of the legal regulation of each Arctic state in order to further develop proposals for optimizing the legislation of the Russian Federation in terms of eliminating gaps in legal regulation.
The author analyzes the provisions of key regulatory and other legal acts regulating the fishing of Arctic marine living resources adopted in Canada, Denmark (including Greenland legislation), Finland, Iceland, Norway, the Russian Federation, Sweden and the United States of America.
In order to conduct an effective study of the task, the method of historical analysis was applied to study the formation and further development of legal regulation on fishing of marine living resources. The method of system analysis was also used, which helped to present for each of the Arctic states an integral system of sources regulating the fishing of marine living resources.
There is currently no act in the Russian Federation devoted entirely to the fishing of marine mammals. It seems appropriate to use the experience of legislative regulation of the issues of marine mammal production in the USA and Canada for its implementation in the legislative practice of the Russian Federation.

Keywords: Arctic, arctic states, marine living resources, marine mammals, fish resources

For citation. Avkhadeev V. R. Fishing of Marine Living Resources in the Arctic States: Legal Problems. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 104—116. (In Russ.) DOI: 10.12737/jflcl.2021.057

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Anna A. Kashirkina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, venkom@izak.ru, https://orcid.org/0000-0002-4269-8262

Abstract. The review is aimed at covering the 127th plenary session of the European Commission for Democracy through Law (Venice Commission) held on July 2-3, 2021 in the so-called hybrid format. The format of the meeting assumed both the personal presence of a number of participants and online participation.
Within the framework of the considered VC session, its members and experts discussed and adopted opinions on the legislation of Armenia, Georgia, Ukraine, Bosnia and Herzegovina, the Russian Federation, Hungary, Turkey, Romania, Malta, Montenegro.
The topics of inquiries for preparing the VC opinions were related to the implementation of constitutional reforms, electoral legislation, criminal legislation, reforming the prosecutor’s office, protecting human rights, preventing conflicts of interest, the functioning of non-governmental organizations and other issues.
In general, the session discussed the most important and very sensitive issues for the legislation and law enforcement practice of states, including an analysis of amendments to the Hungarian Constitution, modernization of the Armenian electoral legislation, reform of the courts in Georgia, issues of compatibility with international human rights standards of Turkish legislation, legislation on foreign agents of the Russian Federation.
Based on the results of the opinions adopted at the 127th plenary session, the Venice Commission made noteworthy conclusions, as well as formulated proposals and recommendations. At the same time, with regard to the Russian Federation, a number of VC opinions can be considered highly controversial.

Keywords: Venice Commission, plenary session, legislation, constitution, conclusion, human rights, non-governmental organizations, the prosecutor’s office, judicial system, electoral legislation

For citation. Kashirkina A. A. Review of the 127th Plenary Session of the European Commission for Democracy through Law (Venice Commission) (2—3 July 2021). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 117—124. (In Russ.) DOI: 10.12737/jflcl.2021.058

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Artem M. Tsirin, Ekaterina V. Cherepanova, Vladimir V. Matveev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, anticor@izak.ru

For citation. Tsirin A. M., Cherepanova E. V., Matveev V. V. C onstitutional W aymarks in Combating Corruption (Review of the Tenth Eurasian Anti-Corruption Forum). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 125—143. (In Russ.) DOI: 10.12737/jflcl.2021.059

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Vasilii A. Tokarev
National Research University “Higher School of Economics”, Moscow, Russia, basiletok@gmail.com, https://orcid.org/0000-0001-5281-5517

For citation. Tokarev V. A. Review of Book “Comparative Jurisprudence” by S. Goltzberg (Paris, 2018. 128 p.). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 5, pp. 144—149. (In Russ.) DOI: 10.12737/jflcl.2021.060

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