Contents # 6/2021

Aleksandra A. Dorskaya¹, Dmitry A. Pashentsev^{2
1, 2}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
¹North Western branch, Russian State University of Justice, Saint Petersburg, Russia, adorskaya@yandex.ru
²theory8@izak.ru, https://orcid.org/0000-0002-6789-9175

Abstract. The article is devoted to a comparative analysis of the official remembrance policy of modern states.
The study aims to identify the general and unique aspects of foreign states’ legislation and judicial practice, reflecting the attitude to specific historical events and the historical process in general.
Using the chronological method, the authors establish the sequence of adoption of regulatory legal acts in different states, which determine the main directions of the official remembrance policy. The descriptive method allows describing the reasons for mainstreaming history at the current stage and the legal forms of reflection of this process. The formal legal method is applied when analyzing the content of regulatory legal acts of different countries. The comparative legal method is used to identify common features and peculiarities concerning the content and forms of consolidation of the official remembrance policy in various states. The conclusion about the appropriate model of the legal implementation of the official remembrance policy is made based on legal modeling.
As a result of studying the main directions of the official remembrance policy in different foreign countries, it is concluded that states legally recognize specific historical events in three cases: if the event belongs to those of a “state-forming” nature, it shapes a state ideology; if at the present stage the society — while “experiencing” this event or phenomenon — requires the state to consolidate the official position legally; if a significant historical event for the state and general public receives completely different interpretation at the international level or by another country. In the official remembrance policy of modern states, the primary attention is given to the issues of preserving the memory of world wars, prohibiting the revision of the results of World War II, overcoming the remnants of colonialism, racism and perceiving civil war as a tragedy.

Keywords: official remembrance policy, historical events, memorial laws, World War, colonial policy, the fight against racism, international integration organizations, Civil War

For citation. Dorskaya A. A., Pashentsev D. A. The Official Remembrance Policy: A Comparative Analysis of the Legislation and Judicial Practice of Modern States. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 5—15. (In Russ.) DOI: 10.12737/jflcl.2021.061

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Dimitri Olejnik
East Institute, University of Wismar, Wismar, Germany, dimitri.olejnik@ostinstitut.de, https://orcid.org/0000-0001-9694-9840

Abstract. The article considers the legal regulation, content and algorithm for reviewing legality of an administrative act, taking into account that the illegality of an administrative act is one of the reasons for challenging an administrative act in court according to the law of the Federal Republic of Germany. The author, based on German legal literature and judicial practice, in particular reveals the principle of legality of public administration and describes the requirements of legality of an administrative act, stemming from this principle. The principle of legality in public administration contains two components: the principle of (1) priority of law, according to which public administration authorities must act in accordance with the law, and the principle of (2) proviso of law, according to which public administration authorities may only act if they have been authorised to do so by law. It follows that an administrative act is legal if it is based on a legal provision — authorizing administration to act this way — legal requirements regarding competence; procedure and form (formal legality) have been complied with, and the public administration body has duly considered legal preconditions for its application; as well as limitations as to the choice of legal consequences (material legality). As a legal consequence, the law may provide for a binding (bound) decision or give the public administration the freedom to choose between different courses of action (discretion). The discretion must be exercised in accordance with the purpose of the power granted and within the limits set by law, as well as those derived from the constitutional principles of proportionality, equal treatment and fundamental rights.

Keywords: administrative act, legality, reasons for challenging an administrative act in court, illegality of administrative act, legal provision, theory of essentiality, formal legality, material legality, administrative discretion, proportionality, principle of equal treatment

For citation. Olejnik D. Illegality of the Administrative Act as a Prerequisite for the Merits of the Administrative Action in German Law. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 16—28. (In Russ.) DOI: 10.12737/jflcl.2021.062

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Vera E. Batyukova¹, Nurdaulet A. Asylbayev^{2
1, 2}Financial University under the Government of the Russian Federation, Moscow, Russia
¹batuykova@yandex.ru
²Nurda98_kz@mail.ru

Abstract. The publication presents the dynamics of the systemic connection between law enforcement agencies and the financial sector of the economy in the context of identifying topical features and global problems of combating money laundering. It is argued that minimizing barriers to financial services is closely related to the introduction of new digital technologies. But at the same time, along with the development of the financial system, legalization or laundering methods proceeded from crime and financing terrorist activities improve. Therefore, the work substantiates the need for to form a legal framework for a system of interconnection between various sectors of government and control over cash flow.
The article aims to identify problems and the level of interaction between law enforcement agencies and financial services, using the example of Kyrgyzstan, by analyzing quantitative statistical indicators of the provision and exchange of information messages and directly the number of criminal cases in the process of combating money laundering. Also, the article states that financial intelligence carries out financial monitoring in order to solve the problem of combating money laundering by identifying suspicious transactions and providing relevant information to the authorized law enforcement agency.

Keywords: financial investigation, crime, money laundering, legalization, financial intelligence, law enforcement

For citation. Batyukova V. E., Asylbayev N. A. Features of the Interaction of Financial Monitoring Bodies with Law Enforcement Agencies in Relation to Money Laundering on the Example of the Kyrgyz Republic. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 29—37. (In Russ.) DOI: 10.12737/jflcl.2021.063

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Evgeny A. Russkevich¹, Vu Thi Huyen², Nguyen Tien Dat^{3
1, 2, 3}Moscow University of the Ministry of Internal Affairs of the Russian Federation named after V. Y. Kikot, Moscow, Russia
¹russkevich@mail.ru, https://orcid.org/0000-0003-4587-8258
²huyen.vu2029@gmail.com
³datdaudatdst@gmail.com

Abstract. The expansion of economic ties between Russia and Vietnam — as well as the maintenance of strong partnerships in the international arena — give rise to considerable interest in a comparative study of both countries’ laws. Over the past years, the Vietnamese criminal legislation concerning countering cybercrime repeatedly improves and currently demonstrates a special, in a sense, unique, approach to establishing and differentiating responsibility for crimes in the field of computer information.
The work aims to conduct a study of criminal responsibility for crimes in the field of computer information in the Socialist Republic of Vietnam. The implementation of this goal is achieved by assessing the state of the criminal legislation of Vietnam in terms of regulating liability for encroachments on computer information, as well as the means of its automated processing, storage and transmission.
Methods: the research is mainly based on the comparative legal method. At the same time, general scientific and special methods are also used (analysis, synthesis, induction, formal legal, abstract logical, etc.).
Conclusions: 1) having practically a single starting point with Russia in building a criminal-legal mechanism for countering crimes committed using information and communication technologies, Vietnam has implemented a more complex model both in criminalization and in terms of differentiation of responsibility; 2) the Vietnamese model of criminal-legal counteraction to cybercrime is developed in three stages: the 1st stage is characterized by the absence of special rules on computer crimes and the use of general provisions of the criminal legislation to qualify computer incidents (up to 1999); the 2nd stage is associated with the establishment of responsibility for the main crimes against information technology (until 2009) and the 3rd stage is characterized by a consistent expansion of information protection resources (reforms of the Criminal Code of the SRF 2009, 2015 and 2017); 3) in relation to the domestic problems of criminal-legal counteraction to cybercrime, the provisions of the criminal legislation of Vietnam have the greatest theoretical and applied significance in terms of differentiating responsibility for crimes in the field of computer information.

Keywords: criminal law, computer crimes, information and communication technologies, the criminal law of the Socialist Republic of Vietnam

For citation. Russkevich E. A., Vu Thi Huyen, Nguyen Tien Dat. Criminal Liability for Crimes in the Sphere of Computer Information Under the Legislation of the Socialist Republic of Vietnam. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 38—47. (In Russ.) DOI: 10.12737/jflcl.2021.064

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Rimma N. Klyuchko
Yanka Kupala State University of Grodno, Grodno, Belarus, klrn.grodno@tut.by, https://orcid.org/0000-0002-1838-5995

Abstract. The content of the “information security” concept as an object of criminal law protection testifies to its complexity and multilevelness. It testifies integration of several relatively independent objects of criminal law protection of the rights and legitimate interests of subjects of information relations in it: information-technical and information-psychological security. The analysis of information- psychological security of subjects of information relations as a complex object of criminal law protection was not previously the subject of scientific criminal law research.
Social realities require the definition of the boundaries of the safe communication interaction of actors in the information sphere, the subject and the mechanism of its legal support, including the use of criminal law means. The article analyzes the individual normative and doctrinal approaches to the segregation and definition of information-psychological security as an object of legal protection based on the analysis of scientific views of representatives of various social sciences on the problem of ensuring the security of the information and psychological components of the information sphere. The coordinated interaction of representatives of the social sciences in the implementation of a deep scientific analysis of the new phenomenon of the information society — “information-psychological security” — allows to develop a unified concept of its provision through the use of a system of organizational, technical, legal means; ensure the overcoming of legal (both narrow — criminal law, and broad — intersectoral legal) and intersectoral (within various branches of social sciences) contradictions, eliminate gaps and conflicts of legal regulation.
The conducted research allows us to conclude that information-psychological security is recognized as an independent intergeneric object of criminal law protection, including the levels of personal, corporate, public, national and international information security. Recognition of information security as an object of legal protection (integratively uniting the personal, public, state and international levels) as a single integral system should become the basis for ensuring the consistency of criminal legislation, since it indicates that there is no need to combine the norms that ensure the protection of information-psychological security into a single section with the norms ensuring the protection of information and technical (computer) security, and also testifies to the impossibility of their conglomeration in a single chapter of the Criminal Code.

Keywords: information security, information-psychological security, destructive information and psychological impact, object of criminal law protection, crimes in the information sphere

For citation. Klyuchko R. N. Information-Psychological Security as an Intergeneric Object of Criminal Law Protection. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 48—64. (In Russ.) DOI: 10.12737/jflcl.2021.065

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Evgeniy V. Kolenko¹, Gulchekhra R. Malikova^{2
1, 2}Academy under the General Prosecutor’s Office of the Republic of Uzbekistan, Tashkent, Uzbekistan
¹e.kolenko@proacademy.uz
²g.malikova@proacademy.uz, https://orcid.org/0000-0002-3994-8953

Abstract. This article is devoted to the study of corruption in Uzbekistan. The authors focus on the historical aspects of the development of the phenomenon of corruption, which allowed us to reveal not only the genesis of the issue, but also to identify the circumstances that affect its immediate state in modern Uzbekistan.
On the basis of the historical method, the diversity of forms and manifestations of corruption is traced. This method allows us to generalize the collected empirical material. Since the authors collected materials on the study of the history of corruption from documentary sources that had survived to this day, the logical method was also used, complementing the historical approach.
Through this publication, the authors draw the reader’s attention to the fact that historical retrospect helps to prevent mistakes and build a well-thought-out anti-corruption strategy in the future.

Keywords: embezzlement, bribery, mzda, rais, kaziy (judge), history of corruption, conflict of interests, discretionary powers, obscurantism, fiqh, denunciation

For citation. Kolenko E. V., Malikova G.R. Where It Is Thin, There It Breaks or a Retrospective Analysis of the History of Corruption. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 65—77. (In Russ.) DOI: 10.12737/jflcl.2021.066

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Pavel V. Troshchinskiy
Institute of Far Eastern Studies, Russian Academy of Sciences, Moscow, Russia, troshc@mail.ru, https://orcid.org/0000-0002-8837-1097

Abstract. The article is devoted to the study of the role of the supervisory (control) commissions in the anti-corruption campaign in PRC. On March 11, 2018, the National People’s Congress of the PRC adopted an amendment to the PRC Constitution created a new State Control Commission (National Supervision Commission) in the system of the highest authorities and administrations of the PRC. The National Supervision Commission’s main task is fighting corruption in modern China. In March 2018, the Supervision Law (Law of Control) of the PRC was adopted. In accordance with this law, supervisory (control) commissions have many law-enforcement functions. They may bring criminal proceedings, conduct an investigation, interrogate the supervisory objects. Supervisory organs shall conduct supervision of the following public officials and relevant personnel: not only members of the Chinese Communist Party and other democratic parties, but also personnel engaged in management in public entities in education, scientific research, culture, health care, and sports and etc.
The purpose and objectives of the study is to analyze the experience of the People’s Republic of China on the institutionalization of the anti-corruption mechanism, to study the features of the legal status of new control organs.
The study uses formal legal, comparative legal, historical and legal methods of research.
Results and summary — a new constitutional organ is created as a result of constitutional amendments and the adoption of a control law; National Supervision Commission is leading an anti-corruption campaign in PRC. Central Commission for Discipline Inspection of the Communist Party of China and its local organs have lost anti-corruption powers; they only are control for party discipline. Perhaps, in the future the examination authority will undergo institutionalization; in ancient China, the examination system was also independent.

Keywords: China, corruption, supervisory commission, comparative law, legal regulation, Chinese law, legal system, institutionalization, control law

For citation. Troshchinskiy P. V. Constitutional Legal Bases of Institutionalization of Anti-Corruption in the PRC. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 78—90. (In Russ.) DOI: 10.12737/jflcl.2021.067

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Dmitry V. Afanasev
State Duma Committee on Information Policy, Information Technologies and Communications, Moscow, Russia, dm.law@mail.ru

Abstract. Many principles and basic concepts of modern patent law were laid down in the XV and XVII centuries with the adoption of the first patent laws and the issuance of the first patents. Thus, in the first Law of Venice on Patents of 1474, insufficiently studied in Russian science, the foundations of such phenomena as the inventive level, exemptions from the patent in the public interest, granting equal rights to foreigners with their citizens in respect of patenting, etc. were laid. The author refutes the thesis that patent law appeared only at the end of the XVIII century, i. e. later than copyright. The influence that the mentioned Venice Law and the Statute of England on Monopolies of 1623 had on modern patent law is described in detail. Contrary to popular opinion, this Statute had a significant impact on the patent legislation not only of Great Britain, but also of many other countries. This Statute has also become part of the modern legal system of Australia and New Zealand and is used in judicial practice today. The article also highlights the laws of the XVII century adopted in the United States in relation to patents, and tells about the origin of many modern concepts and principles of patent law in the XIX century, in particular about the emergence of such fundamental concepts for patent law as the formula of invention, pre-use, statutory damages, compulsory licenses, etc.

Keywords: patent law, inventions, inventive step, inventor, method patent, industrial design

For citation. Afanasev D. V. The Main Provisions of Modern Patent Law: Prerequisites for the Formation and Development. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 91—104. (In Russ.) DOI: 10.12737/jflcl.2021.068

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Olga V. Fonotova¹, Yana V. Tikhonenkova^{2
1, 2}National Research University “Higher School of Economics”, Moscow, Russia
¹ofonotova@hse.ru, https://orcid.org/0000-0003-2255-9684
²Университет Неймегена, Неймеген, Нидерланды, yana.tikhonenkova@gmail.com

Abstract. The cross-border reorganization of corporations is a little-studied legal phenomenon in the domestic doctrine. At the same time, the procedures of merger, splitting up and transformation of corporations affecting several jurisdictions are regulated in detail in the latest European corporate law and are applied in practice. The study of this experience is useful for Russia, which is an active participant in international integration associations.
The aim of the study is to analyze the legal specifics of stakeholder protection at different stages of cross-border reorganization of corporations within the EU. For this purpose, the following tasks are sequentially solved: the first part of the paper reveals the essence of cross-border reorganization and its main forms, the second part considers procedural aspects of cross-border reorganization in the EU, the third part of the article is devoted to the mechanisms of rights’ protection of key stakeholders: participants of the corporation, its creditors, and employees.
The study is based on general scientific methods: analysis, synthesis, generalization and comparison. The comparative legal method and approaches of socio-economic analysis of law are also used.
Directive 2019/2121, the key directive for cross-border reorganization, which amended Directive 2017/1132 on cross-border transformations, mergers and separations, entered into force on January 1, 2020. The three forms of cross-border reorganization provided for in the new Directive have received detailed regulation, but only in relation to European legal entities in the form of a limited liability company. The reorganization of other organizational and legal forms of corporations remains illegalized. The great value of EU legislation in the field of cross-border corporate mobility lies in fixing a minimum standard for protecting the rights of stakeholders: the rights of participants, creditors and employees in cross-border reorganization should be consistent with their similar rights in domestic reorganization. The common legal foundation laid can be further developed and supplemented in the national legislation of the EU member States.

Keywords: cross-border reorganization, cross-border mobility, cross-border merger, cross-border splitting up, cross-border conversion, European corporate law, Directive (EU) 2019/2121

For citation. Fonotova O. V., Tikhonenkova Ya. V. Cross-Border Corporate Reorganisation in the European Union and Stakeholder Protection. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 105—119. (In Russ.) DOI: 10.12737/jflcl.2021.069

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Yury S. Kozachuk
y_kozachuk@mail.ru

Abstract. Recently, in the common economic space of the Eurasian Economic Union (EAEU), there has been a tendency to conduct international settlements on trade, investment and banking transactions in the national currencies of the EAEU member states. At the same time, the promissory note as an instrument of international settlements in the national currency is not yet widely used in the EAEU common financial market.
The purpose of the article is to study the current problems of international promissory note settlements in the national currency within the EAEU and to find ways to improve legislation in this area. Objectives of the article: study of civil and bill legislation of the EAEU member states, international legal norms, analysis of judicial practice and doctrinal sources on these issues.
Research methods: dialectical, system-structural and comparative-legal, interpretation of law, etc.
The author examines the legal status of the promissory note, examines the features of international promissory note settlements in the national currency within the EAEU, analyzes the promissory note legislation of the EAEU member states in terms of replacing the foreign currency of debt with the national currency of payment, choosing the exchange rate, the procedure for paying the amount of the promissory note in the currency specified in it. Recommendations are presented on solving problems in this area by harmonizing the bill legislation of the EAEU member states and introducing a single form of bill forms. To improve the mechanism of international promissory note settlements in the national currency within the framework of the EAEU, it is proposed to create a special electronic accounting system — the Eurasian Interstate Register of Bills of Exchange and Promissory Notes. The author substantiates the need to develop a Eurasian Convention on International Transferable and International Promissory Notes, which will regulate documentary transactions with these bills and transactions with electronic transferable records, which are functional equivalents of promissory notes.

Keywords: promissory notes, bills of exchange, settlements in national currencies in the framework of the EAEU, private international law

For citation. Kozachuk Yu. S. Promissory Note as an Instrument of International Settlements in National Currency within the Eurasian Economic Union. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 120—132. (In Russ.) DOI: 10.12737/jflcl.2021.070

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Dmitry I. Dedov¹, Khanlar I. Gadjiev^2
1European Court of Human Rights, Strasbourg, France, Dmitry.Dedov@echr.coe.int
²Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, khanlar9999@gmail.com, https://orcid.org/0000-0001-6002-6075

Abstract. The Grand Chamber of the European Court of Human Rights issued a much-anticipated judgments in the cases of Big Brother Watch and Others v. the United Kingdom and Centrum För Rättvisa v. Sweden. These cases are certainly of vital importance for the Council of Europe member states increasingly relying on mass surveillance regimes because it justifies the expectations in their utility as a means of fighting serious cross-border crime and terrorism. The judgments under consideration is essentially the first on the issue of mass electronic surveillance and raises questions about the extent to which such surveillance is permissible and under what conditions. A particular problem is that surveillance has traditionally been considered from the point of view of individual surveillance, when a person may be subject to control if there are reasonable grounds for suspicion. The very nature of mass data collection and intelligence gathering means that such suspicions are unnecessary. In fact, the Court established the procedure for mass surveillance, and its conclusions correspond to the general practice of expanding surveillance and data interception in many European States. It simultaneously raises many questions about the protection of human rights and freedoms that require further research.

Keywords: information technologies, mass surveillance, interception, security, reasonable suspicion, interference with private life

For citation. Dedov D. I., Gadjiev Kh. I. Commentary on the Judgments of the ECtHR Grand Chamber in the Cases “Big Brother Watch and Others v. the United Kingdom” and “Centrum För Rättvisa v. Sweden”. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 133—146. (In Russ.) DOI: 10.12737/jflcl.2021.071

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Elena E. Orlova
Law Institute, Tambov State Technical University, Tambov, Russia, elenaorlowa@yandex.ru

Abstract. The article is devoted to the study of the convergence problems of the national law of the participating states of integration associations of different status and goals. The influence of globalization on the process of convergence of national legal systems is analyzed. A comparative study of scientific approaches to the study of the convergence of law and its forms is carried out. As a result, an idea of the convergence of law and its forms is formed based on the analysis of current international and national legislation, the definition of the content and role of the harmonization of legal regulation in the process of global and regional integration. Based on the analysis and scientific commentary of Article 20 of the CIS Charter, existing agreements and documents of the CIS and the EAEU, definitions of three forms of convergence of law are given: synchronization, harmonization and unification. As a result of a comparative commentary on the provisions of the Treaty on the Eurasian Economic Union and the Concept of the gradual formation of a common labor market of the CIS member states, the logic of the correlation of forms of convergence of law, their relationship with forms of political integration is described. It is noted that the concepts of “harmonization of legal regulation” and “harmonization of legislation” have different contents. Harmonization of legal regulation is defined as a way (form) of convergence of law, ensuring the formation of common foundations (directions) of legal policy in order to integrate the national legal systems of cooperating states in certain areas of public life. There are different models of vertical and horizontal integration of law. Each model of integration proceeds from a certain priority of forms of convergence of law. For horizontal integration, the priority forms are synchronization and harmonization of legal regulation. For vertical integration, when the legal foundations of the integration association are defined, the priority forms are the harmonization of legislation and unification of legal regulation: the acceding countries implement the norms of the integration association into their own legal system.

Keywords: integration, convergence of law, harmonization of legal regulation, globalization, synchronization of legal regulation, unification, effectiveness of legal regulation, forms of convergence of law, harmonization of legislation, legal convergence, synchronization of law

For citation. Orlova E. E. The Role of Harmonization of Legal Regulation in the Process of Global and Regional Integration. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 6, pp. 147—157. (In Russ.) DOI: 10.12737/jflcl.2021.072

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