Contents # 2/2021

Elena E. Nikitina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, const@izak.ru, https://orcid.org/0000-0002-6876-6905

Abstract. The article is devoted to the analysis of foreign literature, which deals with the theory of civil society. This article aims to analyze the possibilities of using the concept of civil society in legal science.
Empirical researches show that Russia is congruent with general trends that occur in most foreign countries: importance of a mature civil society for the development of the state are increasing; the forms of interaction with public authorities are changing; new organizations with a mixed legal nature appear in its structure; and other similar to the most of the countries phenomena occur. Therefore, the analysis of legal aspects of the theory of civil society, based on the foreign literature, seems to be relevant for the Russian constitutional law. The article examines the relationship between law and civil society in the classical works of such scholars as J. Keane, M. Edwards, J. Alexander C. R. D. Putnam, V. Pérez-Díaz, L. M. Salamon, H. K. Anheier, S. Toepler, K. Grønbjerg. The article focuses on the analysis of various approaches to understanding civil society, the genesis and historical development of the idea of civil society, and furthermore it draws attention to the foreign researches concerning the relationship of civil society theory with democratization. However, the main subject of the article is to study the interaction of civil society and law. Within the scope of subject-matter, the article considers issues connected to the relationship between the state and civil society, the definition and regulation of civil society organizations, the development of their mixed forms, the issues of self-regulation and the specifics of state regulation. The author analyses the current trends in the regulation of civil society organizations.
Based on the comparative legal method, the author concludes that there are no fundamental contradictions in respect of the concept of civil society formulated in foreign literature and in Russian doctrine of constitutional law.

Keywords: civil society, civil society organizations, “hybrid” organizations, self-regulation, regulation of civil society organizations

For citation. Nikitina E. E. Civil Society in the Legal Paradigm: Current Trends in Theory and Practice. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 5—24. (In Russ.) DOI: 10.12737/jflcl.2021.014

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Gulchekhra R. Malikova
Academy under the General Prosecutor’s Office of the Republic of Uzbekistan, Tashkent, Uzbekistan, pmmalikova@gmail. com, https://orcid.org/0000-0002-3994-8953

Abstract. In this publication, the author examines the institute of the Prosecutor’s Office of the Turkestan Territory during the period of abolition, restoration, as well as in the interval of the phase that existed between them.
The purpose of the article is to analyze the insufficiently studied cycle from the biography of the domestic prosecutor’s office. To achieve this goal, the author restores the exact chronology of events and analyses the archival materials of the period 1917— 1924, which are stored in the National Archives of the Republic of Uzbekistan.
The historical method helps the author to consider the role of the prosecutor’s office in the social environment when the government’s forms was changed. Using a chronological method, it becomes possible to classify the topic into a number of problems, where each of them has its own direct impact on the restoration of the national institution of the prosecutor’s office.

Keywords: prosecutor’s supervision, prosecutor’s office, collegium of advocates, revolutionary tribunals, militarization into lawyers

Acknowledgments. The author expresses his sincere gratitude to the employees of the National archive of the Republic of Uzbekistan, as well as to Yusufali Eshov for assistance for writing the article.

For citation. Malikova G. R. Genesis of the Prosecutor’s Office of the Republic of Uzbekistan: Severe Years of Revolutionary Law (1917—1924). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 25—40. (In Russ.) DOI: 10.12737/jflcl.2021.015

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Natalia A. Golovanova¹, Sergey P. Kubantsev^{2
1, 2}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
¹golovanovanata@yandex.ru, https://orcid.org/0000-0002-6991-3604
²spkubantsev@mail.ru, https://orcid.org/0000-0002-8912-918X

Abstract. The present work is devoted to the institution of conditional early release from punishment, which has been formalized firstly in the legislation of states belonging to the common law family (England and Wales, Australia, Ireland, Canada and the United States) in the second half of the 19^th — early 20^th Centuries. Ideas about the need to introduce conditional early release emerged almost simultaneously in two European states belonging to different legal systems — France and the United Kingdom.
The authors use historical and comparative legal method to demonstrate the evolution of this institution using factual material. In their opinion, the legislation of the studied the common law system states, despite the common initial source of legal regulation, go in different directions. The first direction is related to the system of early release from punishment, criteria for assessing the risk of an offender in the future and programs for reintegration and resocialization of former convicts. The second one is related to bodies with decision-making powers, in particular parole boards. The article attempts to trace not only the history of the emergence and formation of the parole institution, but also to show the positive and negative experience derived from the current development stage. The authors note the positive experience of Canada, which demonstrates a high percentage of persons released on parole, making extensive use of the “gradual return” (in two stages) of convicts into society. The article states the crisis faced by the modern system of parole in England and Wales, caused by a sharp reduction in the powers of the Parole Board and the introduction of automatic release of some convicts. This limitation of powers, as well as the lack of the right to appeal the decisions of the Council, starts to cause mistrust in the society and an extremely negative reaction, especially when it comes to the early release of dangerous sex criminals or persons who committed terrorist crimes.

Keywords: criminal policy, supervised release, ticket of leave, conditional release, rehabilitation, resocialization, Parole Board

For citation. Golovanova N. A., Kubantsev S. P. Evolvement of the Institute of Conditional Early Release from Punishment (Comparative Legal Study). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 41—55. (In Russ.) DOI: 10.12737/jflcl.2021.016

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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 studies the evolution of how China codifies civil legislation. The Civil Code of the PRC, adopted on May 28th 2020, is the first codified act of lawmaking in the civil law sphere in the history of New China. Before the “cultural revolution”, the legislators refused to adopt the act for various reasons. After the start of the Policy of Reform and Opening-Up, the authorities decided not to rush its adoption. They, instead, preferred — in parallel with work on its content — to issue, as necessary, separate local civil legal acts to regulate constantly changing legal relations. In October 2014, the ruling party set the task to codify civil legislation. After that, the PRC included the adoption of the Civil Code in the lawmaking plan for the next 5 years. The Civil Code of the PRC, finalized at the end of May 2020, now is a large normative legal act possessing a codified nature, consisting of 7 sections, 84 chapters and 1260 articles.
The research analyzes Chinese experience in the field of codification of civil legislation, to study the reasons for abandoning it earlier and the grounds that led to the adoption of the Civil Code.
The author conducts his research by the following methods: analysis, synthesis, comparison, etc.
The author has made a following final conclusion: the reasons that led to the refusal of the codification of civil legislation over 70 years in the PRC seem to be reasonable and justified. The absence of the Civil Code during the period of “Reforms and Opening Up” has a favorable impact on the social and economic development in China. At the present, due to the refusal from “manual control” of economic processes, the state needs a unified codified act in the civil law sphere. Its adoption can back the increasing efficiency of the mechanism related to legal regulation of public relations in general.

Keywords: China, Civil Code, Chinese law, civil law, codification, legislation, lawmaking, legal system, comparative jurisprudence

For citation. Troshchinskiy P. V. Codification of Chinese Civil Law. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 56—68. (In Russ.) DOI: 10.12737/jflcl.2021.017

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Anastasia S. Loginova^{1, 3}, Irina V. Mikheeva^{1, 4}, Mariia L. Gorbunova^2
1National Research University “Higher School of Economics”, Nizhny Novgorod, Russia
²Lobachevsky State University of Nizhny Novgorod, Nizhny Novgorod, Russia, gorbunova@iee.unn.ru, https://orcid.org/0000-0003-2733-568X
³aloginova@hse.ru, https://orcid.org/0000-0003-4135-3286
⁴irinarap@mail.ru, https://orcid.org/0000-0001-9323-6511

Abstract. Currently, there are some difficulties in implementing the mechanism for resolving trade disputes established by the WTO rules. These are: the open question of the the Appellate Body functioning and the search for its alternative forms, failure to comply with the stipulated procedural deadlines; the need to prove a significant trade interest in the absence of a mechanism for evaluating it, which may lead to unjustified refusals to participate in the consideration of a trade dispute as a third party, etc. These problems determine the need not only to acquire practical skills in applying the rules and regulations of the WTO, but also for the theoretical understanding of the mechanism for implementing its trade interests protection. For Russia, it is important to participate not only as a plaintiff and defendant but as a third party of a trade dispute to gain experience and to form a staff capable to represent the state in the negotiation process and at the stage of consideration of cases in DSB.
Using comparative legal and formal-legal methods, there is attempt to analyze the experience of possible effektive use of the dispute resolution mechanism, guided by the rules and regulations established by the WTO. Attention is drawn to the fact that Russia pays the most attention to disputes concerning the European Union, China and the United States of America. The autors categorize disputes in which Russia participates as a third party. There is speculation about the need to reform the mechanism for resolving trade disputes in the WTO due to the expansion of third-party rights (e.g., to allow a third party to obtain upon request information and documents, to secure entitlement to a presence at major meetings treteiskii group (not just the first), perhaps without the right to comment on the interim report of the arbitration panel) making appropriate amendments to article 10 of the Agreement. It can also be recommended to include a third party in the trade dispute and at the stage of appeal procedures for understanding whether there is a significant trade interest in the country.

Keywords: World Trade Organization, Dispute Resolution Body, trade disputes, Russia, third party

For citation. Loginova A. S., Mikheeva I. V., Gorbunova M. L. Trade Disputes in the WTO System: Russia as a Third Party. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 69—88. DOI: 10.12737/jflcl.2021.018

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Konstantin L. Chayka
Court of the Eurasian Economic Union, Minsk, Belarus, chayka@courteurasian.org, https://orcid.org/0000-0003-0691-5482

Abstract. The activities of supranational judicial bodies, which appear to be between the universal international courts and the judicial bodies of the member states, lead to their overlapping practice, and sometimes to competition in the type of approaches and the desire to maintain the protection of one or another area of public relations. Domestic bodies of constitutional justice try to prevent a situation in which the norms of law of an integration association are capable of entailing a violation of the rights and fundamental freedoms protected by constitutions, while a supranational court is interested in establishing the rule of law.
The aim of this article is to research certain aspects of the relationship between the Court of Justice of the EU and the constitutional courts of the Member States and to monitor the evolution of the latter’s approaches to the penetration of supranational law into the legal systems of the member states, as well as to examine the use of the results of the control of the integration court in resolving disputes within the framework of the national process.
Considering that the competition between the legal approaches of the EAEU Court and the constitutional justice bodies of the member states is only a matter of time, it seems that an appeal to the practice of European constitutional courts and the EU Court in their historical retrospective can serve as a methodological basis for resolving this issue. The use of the comparative method in the aspect of comparing the provisions of the constitutions of the EU member states and the EAEU member states enables the formulation of approaches that can explain the reasons why the perception of the supranational court practice is more successful in some countries than in others.
According to the results in this research, it is concluded that the prevention of conflicts between the court of an integration association and the constitutional courts of its member states is facilitated by an inter-judicial dialogue based on common values, which results are achieved in the form of legal structures aimed at ensuring a balance between the rights and fundamental freedoms protected by national constitutions and arising from supranational law.

Keywords: integrational justice, constitutional justice, judicial dialogue, human rights, sovereignty

For citation. Chayka K. L. Integration Courts and Constitutional Courts of their Member States: From Denial to Acceptance. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 89—103. (In Russ.) DOI: 10.12737/jflcl.2021.019

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Semen V. Yankevich^{1, 2}, Evgenii V. Puchkov^{1, 3
1}Institute of Education, National Research University “Higher School of Economics”, Moscow, Russia
²Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, syankevich@hse.ru, https://orcid.org/0000-0002-3067-591X
³epuchkov@hse.ru, https://orcid.org/0000-0002-1355-4032

Abstract. Alternative forms of education are becoming more and more popular around the world. One of the leading forms of alternative education is family education (or homeschooling) — which presumes that the education is being delivered in a place other than formal school. At the same time, homeschooling as an institution causes great controversy around the world due to the implicit rejection of parents who choose homeschooling instead of formal school education. Thus, they declare that the state education system(s) cannot ensure realization of the educational needs of the family for one reason or another. Against this background, the number of countries prohibiting homeschooling is quite small, and the freedom to choose the form of education is enshrined in legislation of most countries. There is a sharp contradiction between the state educational policy — which in most cases implies universal school education — and supporters of homeschooling and other alternative forms of education, which refuse the state involvement for their children to get education based on the state system. Studying national practices of regulating homeschooling allows one to study how different countries react to this contradiction in their own political and legal context.
This study is devoted to a comparative analysis of the laws of Australia, Austria, Great Britain, Israel, Russia and the USA — which regulate homeschooling —, while additionally covering analytical materials of international organizations and other sources containing expert assessments of the level of development of homeschooling in these countries in order to identify the best and worst practices in regulating homeschooling and the ways in which these countries respond to the contradictions that homeschooling causes to their educational system(s), as well as understanding where to place Russia in the international context of legal regulation of homeschooling.

Keywords: home education, homeschooling, midterm assessment, interim assessment, textbooks, Australia, Austria, Great Britain, Israel, Russia, USA

For citation. Yankevich S. V., Puchkov E. V. Homeschooling in Russia and Foreign Countries: Approaches to Legal Regulation. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 104—117. (In Russ.) DOI: 10.12737/jflcl.2021.020

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Dmitry V. Yulov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, yulov.d@yandex.ru

Abstract. Guarantees of the foreign investors’ rights contained in national legislation and international law are interrelated. Based on this, we can talk about a system of mechanisms for implementing these legal guarantees. National mechanisms for the implementation of guarantees of the foreign investors’ rights and legitimate interests include the norms of the legislation of various states in this sphere. International mechanisms for the implementation of guarantees of the foreign investors’ rights and legitimate interests are the relevant provisions of multilateral and bilateral agreements. Together, these rules and regulations form a system of legal means that constitute national and international mechanisms for the implementation of guarantees of the foreign investors’ rights and legitimate interests aimed at protecting foreign investments.
Guarantees of the foreign investors’ rights and legitimate interests can be implemented through the relevant international and national legal procedures of the relevant authorities. Based on the provisions of international multilateral treaties, bilateral agreements on the promotion and mutual protection of investment, as well as the national legislation of states that accept foreign investment, it is possible to identify appropriate procedures and bodies that contribute to the implementation of mentioned guarantees. Along with the International Center for Settlement of Investment Disputes, international commercial arbitrations, national judicial authorities, the World Trade Organization and the European Court of Human Rights, international organizations that insure foreign investments against non-commercial (political) risks play an important role in the implementation of guarantees of the foreign investors’ rights and legitimate interests arising from private law relations with recipient countries. Foreign investors may not exercise their rights and legitimate interests within the framework of any of the international bodies that make up the system of bodies for the implementation of legal guarantees for foreign investors, but only with the help of certain bodies of this system due to the fact that states are parties to any separate international investment treaties.

Keywords: legal guarantees, legal mechanisms, foreign investors, system of bodies, implementation of guarantees of rights, legitimate interests, constitution, international bodies, international treaties

For citation. Yulov D. V. A System of Mechanisms for Ensuring the Implementation of Guarantees of the Foreign Investors’ Rights and Legitimate Interests. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 118—129. (In Russ.) DOI: 10.12737/jflcl.2021.021

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Lu Sentong
Lomonosov Moscow State University, Moscow, Russia, lusentong@mail.ru

Abstract. The article is devoted to the study of issues related to the role of the Constitution of the PRC in the process of forming and maintaining the constitutional identity of the state. The author notes that though the idea of constitutional identity is not a new concept for scientific discourse; recently there has been a rapid increase in interest in this phenomenon, which was caused by the development and dynamics of constitutional values under the influence of globalization processes and the impact of international regulators on the national constitutional legal orders. The author conducts a chronological and conceptual analysis of the relevant papers of Russian and foreign scholars, paying attention to the recent constitutional reform in the Russian Federation, which was initiated by the amendments to the Constitution in 2020. The author states that the constitutional design of the modern Chinese state is characterized by its originality and individuality and stands out from most models of the constitutional structure adopted in the modern world. The constitutional model is based on a system of people’s representation, in which the National Assembly of the People’s Representatives occupies a central place. Analyzing the practice of the PRC, the author identifies the main categories of constitutional relations, which aimed at regulating legal relations for the implementation of civil freedom (relations between a person and the state), as well as legal relations for the mechanism of the government and the organization of state power.
Based on the results of the study, and also taking into account the fact that there is no the special state organ engaged in constitutional judicial review in the legal system of the PRC, the author concludes further movement towards the strengthening the constitutional identity is indissolubly related to the establishment of the system of constitutional review in the PRC. The most realistic way to modernize this system is to create a special constitutional commission, which will be elected by the National People’s Congress and act as its working body and its standing committee.

Keywords: constitutional identity, constitutional review, human rights, legal regulation, National People’s Congress, constitution, China, legislative supervision

For citation. Lu Sentong. The Role of the Constitution of the People’s Republic of China in the Formation and Preservation of the State Constitutional Identity. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 130—142. (In Russ.) DOI: 10.12737/jflcl.2021.022

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Nikita S. Vorobuev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, vorobev.ns@ mail.ru, https://orcid.org/0000-0002-8785-920X

Abstract. The article is devoted to a comparative legal analysis of the “intellectual property” concept in national and international law. The relevance of this work is due to different approaches to the definition of the “intellectual property” concept in domestic and foreign science and practice. This tendency leads to a complication of the conceptual mechanism due to the interdependence of various branches of law, as well as the active development of economic relations in this area and the accompanying formation of the relevant new legal norms. With the development of digital technologies, the need to protect such alleged intellectual property objects as smart complexes, big data arrays, gameplays, artificial intelligence creations, domain names, and others, on the one hand, and on the other — the legal possibility of attributing such objects directly to intellectual property becomes an acute issue.
In this regard, the article sets the task of identifying the problems that arise when the content of the “intellectual property” concepts does not coincide and restrain the development of national and international legal regulation. In this regard, the norms-definitions of Russian legislation, international law, judicial practice in their interconnection have been investigated, the main vectors of legal transformation related to the «intellectual property» concept have been analyzed, which can become the basis for the modernization of national intellectual property legislation. Particular attention is paid to the role of national legislation in improving international legal regulation.
The conclusion is made about the need to develop common characteristics when defining the content of the concept under consideration, as well as to strengthen cooperation between states, aimed at bringing their legal systems closer.

Keywords: intellectual property law, World Intellectual Property Organization, TRIPS, copyright, intellectual rights, European Court of Human Rights, evaluative interpretation

For citation. Vorobuev N. S. Intellectual Property Law in a Comparative Aspect: To the Question of Clarifying the Concept. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 143—149. (In Russ.) DOI: 10.12737/jflcl.2021.023

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Maria S. Frantskevich
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, fran-masha@ yandex.ru

Abstract. A secure global maritime domain in which freedom of navigation is guaranteed, marine resources and the environment are protected, and the rule of law is upheld is essential for international prosperity and peace. In the context of globalisation and increasing international integration, transport communication between states has acquired strategic importance. Comprehensive transport security, both national and international, plays a primary role in this process. However, specific risks arise concerning maritime transport, particularly when navigating on the high seas, which is beyond the territorial sea of any state and therefore beyond the jurisdiction of national legislation.
This article will consider international legal issues of maritime transport safety regulation. In particular, it describes the current state of maritime security and characterizes the main global threats at sea, such as piracy and maritime terrorism. Emphasis is placed on compliance with the requirements of the International Maritime Organization and UN Security Council resolutions. The article also gives an overview of international legal acts regulating the issues of maritime transport safety compliance. The difficulty of legal regulation in the maritime space is that the provisions of national and international law do not always converge and sometimes contradict each other, which leads to the formation of fragmented legal regime governing maritime security. The state of maritime security and the need for comprehensive maritime security, as well as multilateral cooperation of seperate states for international and national security is investigated and justified.

Keywords: maritime security, threats, piracy, international law, maritime terrorism, International Maritime Organization

For citation. Frantskevich M. S. Issues of Maritime Safety Regulation under International Law. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 150—156. (In Russ.) DOI: 10.12737/jflcl.2021.024

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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 dedicated to the review of the 125th plenary session of the European Commission for Democracy through Law (Venice Commission), held on December 11—12, 2020 in an online format. During the current session of the Venice Commission, its members and experts discussed and adopted opinions on the legislation of Bulgaria, Kyrgyzstan, Moldova, Kosovo, Ukraine, and Albania, as well as considered procedural issues related to the functioning of the Venice Commission in 2021.
The subject matter of the requests under consideration, on which the VC opinions were prepared, was mainly related to the implementation of constitutional and other legislative reforms in the states, including the organization of elections. Thus, during the session, the Venice Commission, in addition to the conclusions on specific states, adopted a number of important comprehensive documents, namely: Revised joint guidelines on the regulation of political parties, Principles on the use of digital technologies in electoral processes in accordance with fundamental human rights, a Revised report on individual access to constitutional justice, a Compilation of the VC opinions and reports on the stability of electoral legislation.
The main trend of the opinions and other documents adopted at this session was a critical assessment of the constitutional reforms in the states and related processes. At the same time, the VC members paid special attention to the observance and protection of human rights and fundamental freedoms, both in the context of a “renewed democracy” and taking into account modern challenges, including the pandemic and mass digitalization. The VC experts rightly noted that states consider their constitutional models, including the constitution itself, as the main guidelines for improving legislation and the entire legal system of the state. At the same time, it is necessary to correlate all the constitutional changes taking place in the state with the global humanistic values, including the generally recognized principles of international law, international human rights treaties, focusing on compliance with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms for the member states.
Keywords: Venice Commission, legislation, constitution, elections, political parties, digitalization

For citation. Kashirkina A. A. Review of the 125^th Plenary Session of the European Commission for Democracy through Law (Venice Commission) (11—12 December 2020). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 2, pp. 157—166. (In Russ.) DOI: 10.12737/jflcl.2021.025

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