Contents # 1/2021

■ LEGAL EVENTS

X INTERNATIONAL CONGRESS OF COMPARATIVE LAW “CONSTITUTIONAL EVOLUTION IN RUSSIA AND IN THE MODERN WORLD: DIALECTICS OF THE UNIVERSAL AND NATIONAL”  Pdf 16

Greetings from Sergey Lavrov, Minister of Foreign Affairs of the Russian Federation

Constitutional Reform in Russia in Universal and National Dimensions  Pdf 16

Talia Y. Khabrieva

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, office@izak.ru, https://orcid.org/0000-0002-6190-6338

Abstract. In 2020, a constitutional reform took place in Russia. The legislation is still being brought into line with the updated Basic Law, but the main stages have already been passed. This gives reason and grounds for a comprehensive assessment of the Russian reform and the updated Constitution. This view also includes the standpoint of comparative jurisprudence, as well as the proportionality of the universal and national dimensions.
The conducted study makes it possible to identify and characterize the features of the Russian constitutional reform and to substantiate the conclusion about the originality of the constitutional process, taken place in the Russian Federation. The article (report) argues that the reform doesn't interrupt or violate constitutional stability. It is carried out in the logic to ensure it. It doesn't lead to dismantling the legal system, but, on the contrary, becomes a natural continuation of the legal evolution in Russia, confirms the continuity in its constitutional development and updates the constitutional regulation of political, social and economic processes in accordance with their positive dynamics. As a result, the reform changes the model of the Constitution and without the adoption of a new basic law. The constitutional transformations have formalized the model of the Basic Law, corresponding to the national mentality, reflecting the ideological foundations, socio-cultural values and political and legal ideals of Russia. The Russian updated Constitution demonstrates to the world its constitutional models and standards of socio-cultural, state and constitutional identity, capable to influence the development of the doctrine of the modern constitution and the practice of preparing new generation constitutions. The Russian Constitution, to a greater extent than before, demonstrates the features of a social and value based constitution and performs a “stabilizing function” in the context of the rapid and diverse development of society and the legal system. A specific feature of the carried out reform is that it is done through both typical and atypical legal means, procedures and technologies that are used to identify the need for constitutional regulation and generate lawmaking ideas, draft amendments to the Constitution, their public and expert assessment, and also give them legal force.

Keywords: state identity, state legal values, constitutional identity, constitutional legitimation of legislation, constitutional development, constitutional process, constitution, reform, socio-cultural identity, socio-cultural values, stabilizing function of constitution

For citation. Khabrieva T. Y. Constitutional Reform in Russia in Universal and National Dimensions. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 6—12. (In Russ.) DOI: 10.12737/jflcl.2021.001

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Creating a Democratic and Rule of Law Based Country  Pdf 16

Herdis Kjerulf Thorgeirsdottir

For citation. Thorgeirsdottir H. Creating a Democratic and Rule of Law Based Country. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 13—14. DOI: 10.12737/jflcl.2021.002

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Concilier la défense des identités nationales et le respect des engagements internationaux : libres propos sur un défi à relever  Pdf 16

Bertrand Mathieu

For citation. Mathieu B. Concilier la défense des identités nationales et le respect des engagements internationaux : libres propos sur un défi à relever. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 15—18. DOI: 10.12737/jflcl.2021.003

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The Balance Between Protecting National Identity and Meeting International Commitments: Speaking Freely about Challenges to Be Overcome  Pdf 16

Bertrand Mathieu

University of Paris 1 Pantheon-Sorbonne, Paris, France, prb.mathieu@orange.fr

Abstract. The author of the report, mainly based on a current relationship between the Council of Europe and its member states, addresses the crisis of European integration. The resistance of member states to the case law of the European Court of Human Rights, the expressis verbis rule of supremacy of constitutional law over the decisions of interstate bodies enshrined in the Russian Constitution, the conflict between national constitutional courts and the Court of Justice of the European Union demonstrate the relevance of the report. The author examines the causes of the crisis which lies in inadequate correlation of European and national identities in context of existing values. The author emphasizes two difficulties in finding a right balance of identities, that is, the existence of plural legal systems, which hierarchy is determined ambiguously, and searching of national values, which are reflected in the law only indirectly. In the author's opinion such difficulties are of political nature and should be resolved primarily by politicians and not by the judicial power. The inability of the political authorities to exercise their competences and to agree with each other, actually leads to “judicial federalism”. The report suggests the current crisis from a brand new perspective and puts forward preliminary proposals to reconcile the State's obligation to respect its obligations under international law with its national identity.

Keywords: European identity, national identity, legal values, international obligations, judicial federalism, principle of subsidiarity, European Court of Human Rights, Court of Justice of the European Union

For citation. Mathieu B. The Balance Between Protecting National Identity and Meeting International Commitments: Speaking Freely about Challenges to Be Overcome. Translated from French. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 19—23. (In Russ.) DOI: 10.12737/jflcl.2021.004

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Constitutional Reforms in Kazakhstan and Russia: A Comparative Analysis  Pdf 16

Igor I. Rogov

Nursultan Nazarbaev Foundation, Nur-Sultan, Kazakhstan, astana_fond@fpp.kz

Abstract. The essence and significance of the constitutional reforms carried out in Kazakhstan in 1998, 2007 and 2017 and in Russia in 2020 are considered in the historical context. The amendments to the constitutions of these countries are studied based on comparative analysis. The author comes to the conclusion that the similarity of the state and legal development of Kazakhstan and Russia lies in the fact that the Basic laws of these countries reflect both universal and national ideals, correspond to the needs of socio-economic, political, cultural, humanitarian and other spheres of social life and the state itself. In connection with this the main task of all state and public establishments and citizens is strict adherence to the spirit and wording of the Constitution and filling constitutional values with real content.

Keywords: Constitution of Kazakhstan, Constitution of Russia, constitutional reform, constitutionalism

For citation. Rogov I. I. Constitutional Reforms in Kazakhstan and Russia: A Comparative Analysis. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 24—29. (In Russ.) DOI: 10.12737/jflcl.2021.005

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Crisis of Constitutionalism and Crisis of Democracy in the Member States of the European Union and Possible Mechanisms for Solution  Pdf 16

Angela Di Gregorio

University of Milan, Milan, Italy

Abstract. Over the past decade, an increasingly heated debate has developed within the European Union on the issue of values, the rule of law and the quality of democracy. The article focuses on the violation of the rule of law in Poland and Hungary and on the political and judicial reactions of the European institutions. This will done by emphasizing that the European Union faces two interrelated problems: the need to act in order to limit, if not solve, a problem that undermines its credibility as a community of values, and the caution in interfering in the internal constitutional issues of the Member States.

Keywords: European values, rule of law, quality of democracy, European Union, Poland, Hungary

For citation. Di Gregorio A. Crisis of Constitutionalism and Crisis of Democracy in the Member States of the European Union and Possible Mechanisms for Solution. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 30—35. (In Russ.) DOI: 10.12737/jflcl.2021.006

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Constitutional Evolution in Russia and in the Modern World: Dialectics of the Universal and National (Review of the X International Congress of Comparative Law)  Pdf 16

Asiya M. Belyalova, Yulia E. Ibragimova, Anastasia A. Pushkina, Yulia P. Michurina

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, venkom@izak.ru

Abstract. The article overviews the X International Congress of Comparative Law “Constitutional Evolution in Russia and in the Modern World: Dialectics of the Universal and National” held on December 4—5, 2020 at the Institute of Legislation and Comparative Law under the Government of the Russian Federation with the participation of the European Commission for Democracy through Law (Venice Commission of the Council of Europe). In an interested and professional dialogue, scientists, practicing lawyers, judges, and representatives of the legislature discusses the constitutional transformations of recent years, which have taken place in many countries of the world, including the Russian Federation. Congress comprehensively discusses issues of global constitutional development, its main trends and prospects.

Keywords: International Congress of Comparative Law, constitutional reforms, Venice Commission, сonstitution

For citation. Belyalova A. M., Ibragimova Yu. E., Pushkina A. A., Michurina Yu. P. Constitutional Evolution in Russia and in the Modern World: Dialectics of the Universal and National (Review of the X International Congress of Comparative Law). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 36—48. (In Russ.) DOI: 10.12737/jflcl.2021.007

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■ ADMINISTRATIVE LAW. FINANCIAL LAW. INFORMATION LAW

Law as a Code and Precision Law from a Datification Perspective  Pdf 16

Yuri V. Truntsevsky

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, trunzev@yandex.ru, https://orcid.org/0000-0002-8425-2533

Abstract. “Dattification” is rapidly entering all spheres of everyday life and is driving the reform of the regulatory legal environment aimed at supporting future innovations of the Fourth Industrial Revolution, creating a regulatory landscape for the digital economy.
The purpose of the study is to develop approaches to solving issues related to modernization of legislation and legal regulation of relations arising in the context of the development of modern digital technologies.
The research is based on the analysis, generalization, comparative legal method, description, abstraction and modelling.
The author proposes principles that can be guided in the regulation of the digital economy of the post-postmodern period: adaptive regulation; regulatory sandboxes; results-based regulation; balanced risk-based regulation; joint regulation and self-regulation.
The fate of the current legislation in the field of the digital economy has three scenarios: it remains unchanged; turns into a machine-readable form; and supplements and changes under the challenges of the Fourth Industrial Revolution. Between written laws and the introduction of laws as a code, there might be flexible legislation. Formal rules (like encyclopaedias) remain the basis for expert systems, decision-making systems, business task automation, government digital platforms and automated systems. Law as a code is the concept, where regulations are provided in an authoritative form for humans and machines. All relationships related to providing digital service should be governed by a codified law. The concept of legal regulation of technologies can form a normative basis for innovative relations at the initial stages of development.
Artificial intelligence can provide a shift towards precision law, the transition from laws “for all cases” to a model of precise (precision) regulation with a multi-level stratification of legal entities and their digital profiles; and also transition of legal regulation to the individual level. The author assumes the emergence of precision industry, intra- and non-industry law, precision control and supervision. The need to build a dialogue with the public and industry on how to regulate technological innovation — including those on the basis of ethical standards — is substantiated, and the innovators themselves should be at the centre of this process.

Keywords: digitalization, economics, industrial revolution, machine-executable norms, technologies, innovations

For citation. Truntsevsky Yu. V. Law as a Code and Precision Law from a Datification Perspective. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 49—67. (In Russ.) DOI: 10.12737/jflcl.2021.008

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E-payments and E-money: Legal Bases and Some Conflicts in the Legal Understanding of the Terms  Pdf 16

Sara K. Idrysheva

KAZGUU Law School, M. Narikbayev KAZGUU University, Nur-Sultan, Kazakhstan, sidrysheva@mail.ru

Abstract. In the era of intensive development of digital technologies, the actual forms of implementation of the needs of civil turnover are payments and money transfers using information and communications technologies. The emergence in recent decades of one of the tools for electronic transactions — “electronic money” — has led to a certain part of society to misunderstand the legal nature of various methods of e-payments and e-transfers, their similarities and differences, etc.
The purpose of the work is to study the development of e-payments and e-transfers and their correlation with e-money. Since the differences in the essence of payments and transfers is not essential for the purposes of present work, the term “payments” will be used instead of the two methods of using money. A systematic analysis of the currently used methods of e-payments using bank cards and other forms of non-cash monetary transactions allowed us to substantiate the author's position on the presence of their significant differences from the features of “e-money”; on the ratio of electronic and traditional money.
By means of a formal-legal and comparative-legal analysis of doctrine, legal definitions of e-payment means and e-money in the legislation of Kazakhstan, as well as sources available to the author in Russia, Belarus, Armenia, Kyrgyzstan, Uzbekistan and Ukraine, the signs of e-money that distinguish them from other means of e-payments are revealed.
As a result of the analysis of the ratio of such objects of civil rights as “money” and “monetary means”, it is summarized that e-money should be attributed to non-cash monetary means in electronic form. The essential difference between “e-money” and other e-payments, according to the author, is that there is no need to open a bank account; the necessity of an “e-money” system and possibility to pay for any product, work, service, any counterparty, not just the person who has issued such “money”. Using the examples of various countries, the prospects for further development of state e-money systems are considered.

Keywords: non-cash money, e-payments and e-transfers, bank card, prepaid card, e-money, emission, information and communications technologies, e-wallet, operator, payment system, cryptocurrency

For citation. Idrysheva S. K. E-payments and E-money: Legal Bases and Some Conflicts in the Legal Understanding of the Terms. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 68—85. (In Russ.) DOI: 10.12737/jflcl.2021.009

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Legal Regulation of Access to Information of the Internet User after His Death: Comparative Legal Research  Pdf 16

Nikita A. Danilov, Vladislav V. Silkin

N. A. Danilov1, V. V. Silkin2
1Public Joint Stock Company “MegaFon”, Moscow, Russia, Nikita.Danilov@megafon.ru
2National Research University “Higher School of Economics”, Moscow, Russia, silkinvladislav@gmail.com

Abstract. The problem of defining a single mode of providing information from Internet services is relevant for the modern world, the use of services on the Internet has become ordinary. The rules for managing user information are often set by the platforms themselves, which provide fewer guarantees for protecting the user's interests after death. This problem is one of the aspects of research. In the social sciences it is called “digital death”.
The purpose of the study is to identify the features of the legal regulation of "digital death" in countries with a well-established legal culture that have proposed their own solution to this problem. A comparative legal analysis of regulation in the United States, France, Germany and Canada allows us to identify the main trends. In the legal regulation of digital death, two aspects are distinguished: personal, which emphasizes the inviolability of a person's data and proclaims the principle of autonomy of will in relation to the fate of data after the death of the user, and property, which considers relations about certain information from the point of view of civil law. The property aspect is disclosed in the contractual way; all relations are regulated by the user agreement. And non-contractual, assuming that some data may have property value and therefore should be considered as digital assets, including the results of intellectual activity on the Internet. The legal regulation of digital death in Russia is proposed to be formed not along the path of inheritance of contractual or property rights, but within the framework of information law with the provision of the right to access information of a person after death, without violating his right to privacy and the secrecy of correspondence.

Keywords: digital death, digital inheritance, the right to access the information of the deceased, inheritance of exclusive copyright, inheritance on the Internet, commercialization of personal data

For citation. Danilov N. A., Silkin V. V. Legal Regulation of Access to Information of the Internet User after His Death: Comparative Legal Research. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 86—101. (In Russ.) DOI: 10.12737/jflcl.2021.010

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■ INTERNATIONAL AND INTEGRATION LAW. EUROPEAN LAW

Methodology for the Study of Legal Regulation of Entrepreneurial Activity in the Eurasian Economic Union  Pdf 16

Anna E. Tarasova, Denis V. Kozlov, Alexey V. Shiyanov

Southern Federal University, Rostov-on-Don, Russia, aet@bk.ru

Abstract. The article is devoted to the problem of development of conceptual bases of legal regulation of entrepreneurial activity in the framework of the Eurasian Economic Union. The authors offer a methodology for solving this problem. The development of a single approach is caused by the characteristic of the EAEU law as a special regime of entrepreneurial activity, which requires a single concept and a general definition of the status of entrepreneurs as subjects of integrated markets. To develop the concept, it is necessary to analyze the legal regulation in the implementation of certain types of entrepreneurial activities within the EAEU, to determine the model of regulation, which will be chosen as the optimal and effective. The general orientation and national peculiarities of business regulation in the EAEU member states should be taken into account.
The significance and scientific novelty of the study is ensured by a large amount of systematized empirical materials, including international treaties concluded within the framework of the EAEU, decisions taken by its supreme bodies, as well as decisions of the EAEU Court and other materials of law enforcement practice, which should form the empirical basis of the methodology. It is important to systematize scientific approaches in the doctrine of international law on issues of legal regulation of entrepreneurial activity according international economic integration. The conclusions of the analysis and research are significant for the national science of international law, and also they are necessary for the development of practical recommendations for the authorities of the Russian Federation and domestic entrepreneurs regarding the adoption of legally significant decisions in the development of EAEU law.
The study uses formal legal, comparative legal, historical and legal methods of research.
The novelty of the research is determined by the proposed methodology for the conceptual foundations of legal regulation of entrepreneurial activity in the EAEU and methodology of the study of legal regulation of business activity in the EAEU for the respective models of legal regulation with the approaches of harmonization, unification and supranational regulation.

Keywords: Eurasian Economic Union, international integration law, international treaty, business entity, Eurasian Economic Commission, Court of the Eurasian Economic Union, methodology, legal regulation model

For citation. Tarasova A. E., Kozlov D. V., Shiyanov A. V. Methodology for the Study of Legal Regulation of Entrepreneurial Activity in the Eurasian Economic Union. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 102—125. (In Russ.) DOI: 10.12737/jflcl.2021.011

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The Case “Molla Sali v. Greece”: The Commentary on the Judgment of the ECtHR Grand Chamber  Pdf 16

Dmitry I. Dedov, Khanlar I. Hajiyev

D. I. Dedov1, Kh. I. Hajiyev2
1
European 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

Abstract. The European Court of Human Rights has repeatedly stressed that democracy is a fundamental part of the European public order and that the effective functioning of democratic institutions is guaranteed by the supremacy of the principles of secularism and equality, which naturally imply the exclusion of any discrimination. The authors of the article continue the analysis of the case "Molla Sali v. Greece", which they started in an article published in No. 6 of the Journal of Foreign Legislation and Comparative Law in 2020. In the case under review, a Muslim man bequeathed his whole estate to his wife of the same faith under a will draw up in accordance with Greek civil law. However, the husband's sisters challenged the validity of the will claiming three-quarters of the inheritance under Sharia law. The Greek Court of Cassation overturned the judgments in favor of the widow where the courts had applied the national law, ruling that this matter had to be settled in accordance with the rules of Sharia law. The Greek Court of Cassation considered that a different decision would violate the Treaty of Lausanne, which provided for the right of a Muslim minority to resolve such disputes under Sharia law. In the case under review, the European Court examined for the first time the compatibility of the separate legal status of religious communities with the provisions of European Convention on Human Rights. The rationale of the decision may be found within the framework of the fundamental principles of the Court's case-law regarding the limits of autonomy of religious communities and the recognition of minority rights. Relying on the main arguments that constitute the very essence of its case-law on religious and minority issues, the European Court held that the separate legal status of a minority may not justify deviations from the application of the constitutional law to the extent that such deviations violate the rights of all citizens enshrined in the Constitution and the Convention.

Keywords: inheritance law, freedom of disposition by will, religious community, minority rights

For citation. Dedov D. I., Hajiyev Kh. I. The Case “Molla Sali v. Greece”: The Commentary on the Judgment of the ECtHR Grand Chamber. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 126—136. (In Russ.) DOI: 10.12737/jflcl.2021.012

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■ MATERIALS OF THE VENICE COMMISSION OF THE COUNCIL OF EUROPE

Review of the 124th Plenary Session of the European Commission for Democracy through Law (Venice Commission)  Pdf 16

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 devoted to study of the results of the 124th plenary session of the European Commission for Democracy through Law (Venice Commission), held on 8—9 October 2020 in an online format. Despite the online format and the lack of opportunities for face-to-face exchange of views, the VC plenary session was very productive. As a result of its work, 16 documents were adopted on various issues on the agenda: from opinions on the legislation of the VC Member States to a comprehensive assessment of issues of constitutional law and the human rights protection. In particular, such states as Ukraine, Moldova, Georgia, Malta, Uzbekistan, Turkey, Iceland, and Montenegro were in the orbit of assessing the legislative reforms on which the opinions of the Venice Commission were prepared. Problematic issues of legislative regulation in Kosovo were also highlighted. Among the complex documents, the Venice Commission, within the framework of the 124th plenary session, prepared reports on electoral legislation and election management in Europe, on the resolution of electoral disputes, as well as a document entitled “Revised guidelines on the holding of referendums”. These documents complement the array of opinions of the Venice Commission on the application of multifunctional standards of the Council of Europe in the context of electoral law and electoral technologies in modern conditions, for which a number of approaches of the Venice Commission are being updated and modernized. Among the most significant and relevant documents in the context of the pandemic is the Interim Report on the Measures taken in the EU Member States as a result of the COVID-19 crisis, and their impact on democracy, the rule of law and fundamental rights.

Keywords: Venice Commission, legislative reform, electoral law, human rights protection

For citation. Kashirkina A. A. Review of the 124th Plenary Session of the European Commission for Democracy through Law (Venice Commission). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 1, pp. 137—145. (In Russ.) DOI: 10.12737/ jflcl.2021.013

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■ MONITORING OF THE FOREIGN COUNTRIES LEGISLATION  Pdf 16

■ NEW BOOKS  Pdf 16

Publications of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

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