Contents # 4/2021

Sergey V. Chirkin¹, Iana I. Lebedeva^{2
1, 2}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
¹venkom@izak.ru
²lebedeva.ioanna@yandex.ru, https://orcid.org/0000-0002-2982-5642

Abstract. The Institute of Legislation and Comparative Law under the Government of the Russian Federation continues to publish the legal positions of the European Commission for Democracy through Law (the Venice Commission) and the European Court of Human Rights. This article is devoted to the guidelines and recommendations developed by the Commission in the field of electoral law. The basic principles in this area are mainly formulated in the Commission's studies (codes of good practice and reports) in the first decade of the 21st century. In the second decade, the Commission becomes actively involved in the issues of modern technologies used in the electoral process, including “electronic challenges”, digital tools and abuse of administrative resources. In connection with the COVID-19 pandemic, the most recent studies in this area are the analysis of the EU's anticrisis measures (including during elections) and a Report on the principles of using digital technologies in electoral Processes in accordance with basic human rights (2020). The European Court of Human Rights, although on a limited scale, also protects the electoral rights of applicants. The article examines the few precedents of the ECHR, which marks this area of public relations. Since the topic of direct expression of the will of citizens is always relevant for politicians and legal scholars in Russia, the positions of the Constitutional Court of the Russian Federation are not ignored.

Keywords: Venice Commission, European Court of Human Rights, electoral law, electoral process, electoral technologies, elections, referendums, representation, digital technologies

For citation. Chirkin S. V., Lebedeva I. I. Electoral Law Standards in the Positions of the Venice Commission of the Council of Europe and the European Court of Human Rights. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 5—19. (In Russ.) DOI: 10.12737/jflcl.2021.037

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Mikhail M. Кakitelashvili
University of the Prosecutor Generalʼs Office of the Russian Federation, Moscow, Russia, mmk2010@yandex.ru

Abstract. The correlation between governments and parliamentary parties in the CIS countries is revealed. The object in this research is public relations between a parliament and a government in the CIS Member States. The subject of the study is norms of constitutional legislation and practice of their application.
The research methodology includes general scientific methods of cognition (dialectical, analysis and synthesis, etc.), as well as sociological, historical, comparative legal, formal legal, and other methods.
The author analyses the changes made to the constitutional legislation and law enforcement practice established in the CIS Member States in the period from 1993 to 2020. It thus concluded that there is a general tendency to increase the influence of political parties on governments. Depending on the institutional design, the level of influence of political parties on government activities may vary. The author uses the degree of influence of parties in forming governments and divides the CIS countries into the following groups: Armenia, Moldova, Russia, Kyrgyzstan and Ukraine, where constitutions and ruling parties (coalitions) embody the formation of the government: Azerbaijan, Belarus, Kazakhstan, Tajikistan and Turkmenistan, where the role of political parties in government formation is minimal. Legislative provisions that can be used to determine the degree of influence of political parties on the government in the CIS Member States are identified and systematized.
The author comes to the conclusion that legislation as such was not the decisive factor that determines the degree of influence of parties on governments in the CIS countries, the political environment dominates. The proposed conclusions can be used to improve Russian legislation.

Keywords: political party, parliament, government, faction, president, prime minister

For citation. Кakitelashvili M. M. The Influence of the Parliamentary Parties on the Government in the CIS Member States. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 20—30. (In Russ.) DOI: 10.12737/jflcl.2021.038

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Ekaterina V. Kudryashova¹, Michele Casetti^2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, ev_ kudryashova@inbox.ru, https://orcid.org/0000-0002-7029-5794
²University of Bologna, Bologna, Italy, MCasetti@protonmail.ch

Abstract. Wine is a special subject for legal regulation. Due to several reasons legislators aim to distinguish wine from other product of fermentation with alcohol by legal means. In Russia the law on viticulture and wine making is in force since 2020, and therefore it becomes relevant to discuss the sector regulation. The supply of wine exceeds the demand in the world markets. Therefore the quality prevails over the quantity unlike for many other agricultural products. The priority of wine quality impacts substantially the legal regulation. There are a few other factors influencing the legal norms about wines, which are presented in this article. The wine is defined in the legislation of different jurisdictions in a similar way. The globalizing wine markets and international organization dealing with wine contribute to the unification of the approach. However, there are still differences and at least three models of wine definitions. The definition of wine in legislations is determined by the priority of quality and collective reputation formation on the one hand and by climate features of the country and its capacity.

Keywords: wine, viticulture and wine making, fermentation product, law on wine, collective reputation, protected geographical indication, protected designation of origin, wine with protected designation of origin

For citation. Kudryashova E. V., Casetti M. Wine: Idea Behind the Legal Definition and Legislatorʼs Goals. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 31—39. (In Russ.) DOI: 10.12737/jflcl.2021.039

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Aleksander I. Ponomaryov
Military University, Ministry of Defense of the Russian Federation, Moscow, Russia, api.88b@mail.ru

Abstract. The author of this article notes that at the turn of the 20th Century and beginning of the 21^st Century the political leadership of the Federal Republic of Germany was forced to rethink the traditional approaches to managing the market economy and implementing the concept of the state governed by law in the practice of the state governing. It led to the formation of an original methodology of the state administration, assuming the convergence of legal, economic and ideological management methods in a single model called the “sustainability management system”.
As a theoretical basis for describing these processes, the author uses the concept of “goal-setting model”, which includes the following features: goal-setting documents; subjects involved in the development of goal-setting documents and their functions; the procedure for working-out goal-setting documents; validity period of goal-setting documents; characteristics of targets and methods used for goal-settings.
With regard to theoretical approach used by the author, the article presents the results obtained by the methods of structural and formal legal analysis of the main goal-setting documents in the state administration of the Federal Republic of Germany. The use of these methods allows the author to reveal the main elements of the goal-setting model in the state administration of the Federal Republic of Germany.
In summary, the article draws conclusions about the features of the goal-setting model in the state administration of the Federal Republic of Germany, which can be used in practice.

Keywords: goal-setting model, state administration, socio-economic development, strategic planning, management concept for sustainability, sustainable development strategy

For citation. Ponomaryov A. I. А Political and Legal Model of Goal-Setting in the State Administration of the Federal Republic of Germany. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 40—56. (In Russ.) DOI: 10.12737/jflcl.2021.040

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Kairat A. Bakishev¹, Asylmurat K. Alikhan^2
1Karaganda Economic University of Kazpotrebsoyuz, Karaganda, Kazakhstan, bakishev@yahoo.com, https://orcid.org/0000-0002-9841-4353
²JSC “ArcelorMittal Temirtau”, Karaganda, Kazakhstan, assylmuratalikhan@gmail.com

Abstract. Violation of labour protection rules — along with criminal offences that infringe on the safety of road traffic and the operation of vehicles — is the most common criminal offence in the structure of careless crime. During the period of legal reform the legislator made significant changes to the disposition of the article 156 of the Criminal Code of the Republic of Kazakhstan in order to successfully counteract this socially dangerous act. But its systematic interpretation and application still cause difficulties in investigative and judicial practice, which makes it necessary to analyze this criminal law norm. The purpose and objectives of the study are: to conduct a legal analysis of objective and subjective signs of violation of labour protection rules, under the Art. 156 of the Criminal Code of the Republic of Kazakhstan; to conduct incisive analyses of the conclusions and decisions in this sphere, existing in the doctrine of criminal law; to identify the problems of development; to examine the legislative activity and the law enforcement practice of countries of the near abroad in the sphere of labour protection; to formulate proposals for the improvement of article 156 of the Criminal Сode.
The research is based on the formal-legal, comparative-legal and analytical methods. The studyʼs results are: the author finds that there is the necessity to move the article 156 of the Criminal Code to the Chapter “Criminal offences against public security and public order”, as there are special formulations concerning violation of labour protection rules; it is necessary to optimize the article 156 of the Criminal Code and in this regard the author proposes a different version of the analyzed criminal law norm. To ensure uniform investigative and judicial practice, correct qualification and sentencing, it is proposed to adopt a regulatory resolution of the Supreme Court of the Republic of Kazakhstan, which contains explanations to lower courts on the application of criminal legislation on liability for violations in the field of labour protection.

Keywords: labour protection, the composition of a criminal offence, violation of labour protection rules, safety, industrial sanitation, qualification of a criminal offence

For citation. Bakishev K. A., Alikhan A. K. Regulation of Liability for Violation of Labour Protection Rules (Article 156 of the Criminal Code of the Republic of Kazakhstan). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 57—66. (In Russ.) DOI: 10.12737/jflcl.2021.041

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Olga А. Ternovaya^{1, 2}, Stanislav S. Shcherbak
¹Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, foreign3@izak.ru, https://orcid.org/0000-0002-7857-5088
²Private Law Research Centre under the President of the Russian Federation named after S. S. Alexeev, Moscow, Russia

Abstract. The article examines the current trends in the legal regulation of business activities in the EU and EAEU Member States. In the current period of economic crisis in most countries — as the world faces the COVID-19 pandemic — it becomes obvious that it is necessary to develop new legislative initiatives aimed at supporting entrepreneurship and ensuring international economic cooperation. In the context of the development of global deglobalization processes, large integration associations take measures that contribute to the preservation and strengthening of economic ties between their members. It is noted that the effective functioning of the single market of the European Union is associated with the formation of a general favorable business climate and the development of regulations, programs and recommendations in order to harmonize legislation, that regulates business activities. Creating a favorable business environment is especially important for small and medium-sized enterprises, which have gained significant popularity in the EU and the EAEU. Despite the intensification of efforts and the achievement of certain results in supporting SMEs in the EAEU countries at the national level, it is advisable to continue working on the development of small and medium-sized businesses in the EAEU. The experience of regulating the activities of SMEs at the pan-European level can be taken into account when developing new measures to support small and medium-sized businesses is conducted in the EAEU. For example, a Strategy for small and medium-sized businesses can be developed as a single Eurasian framework program.
Based on the analysis of the national and supranational regulation of business relations in the EU and the EAEU, it is concluded that the main trends and directions of development in this area are digitalization and socialization of business, support for small and medium-sized enterprises and prevention of bankruptcy. The article examines the latest EU legislative initiatives aimed at ensuring the best conditions for delivering innovative digital services in the domestic market, which can contribute to greater digital security, protection of e-commerce participants, creation of a reliable management structure and effective control over the activities of digital platforms.

Keywords: entrepreneurship, single digital market, socialization of business, social enterprises, digital platforms, European Union, Eurasian Economic Union, administrative barriers, support for entrepreneurship, small and medium-sized businesses, crisis situations, consequences of the COVID-19 pandemic

For citation. Ternovaya O. A., Shcherbak S. S. Legal Regulation of Entrepreneurial Activity: The Experience of the EU and the EAEU. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 67—79. (In Russ.) DOI: 10.12737/jflcl.2021.042

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Kirill I. Naletov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, kirillnaletov@gmail.com, https://orcid.org/0000-0002-7994-7322

Abstract. This article is dedicated to the legal grounds for participation in arbitration of the persons who did not sign the arbitration clause (agreement). According to the author, such a legal situation arises in cases where these persons: 1) are bound by the binding provisions of a legal act, an international treaty, or even legal custom; 2) have accepted the arbitration clause by the force of their actions; 3) have joined the arbitration clause by the virtue of adhesion agreement; 4) acquired the status of a party to the arbitration proceedings by virtue of a broad interpretation of the rules of law; 5) played the role of “the actual party to the contract”. These cases are described and illustrated in this article. In view of the gradual departure of the Russian state arbitration courts from a purely positivist approach to qualifying the existence of a legal connection between business entities, the grounds for their qualification as a “de facto party to the contract” and, accordingly, an arbitration agreement become relevant. On the one hand, this approach contributes to the efficiency of the arbitration proceedings, but on the other — it increases the level of entropy, reducing the predictability of the decision on the involvement of a person in the arbitration proceedings.

Keywords: international commercial arbitration, internal non-state arbitration, arbitration clause, compromise, public law entities, state, third parties, international treaty, ICSID, Arbitration Institute of the Stockholm Chamber of Commerce, Yukos, acceptance by action, adhesion contracts, “armʼs length” principle, group of companies, implied consent theory, estoppel

For citation. Naletov K. I. Non-Signatories of Arbitration Clause as Parties to Arbitral Procedure. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 80—94. (In Russ.) DOI: 10.12737/jflcl.2021.043

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Nikita A. Sutormin
Moscow State Institute of International Relations (University), Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia, nsutormin@mail.ru

Abstract. The article is devoted to multi-party lawsuits and group proceedings in Australia, which has a number of specific features and features in its regulation of a class action that could be useful in developing a Russian law on class action lawsuit that meets modern requirements. As valuable ideas, there could be: the lack of certification of a class action, a simplified, more appropriate to the circumstances, the numerical composition of the group, an understanding of the common interests of the group developed by Australian judicial practice, a flexible model of group proceedings organized on the basis of participation in it, the possibility of investment financing of the process at the expense of a specialized investor corporation, and many others.
The study raises such issues as: classification of class actions in Australia; the history of the development of representative and actual class action; the conditions for filing a class action; the definition of the group necessary for its formation; the numerical composition of the group that best meets effective legal proceedings; the development of an understanding of the generality of the group necessary for the effective unification of the claims of various persons filing a group claim; the sub-institution of the subgroup; the procedure for replacing an improper representative of the group specific to Australian law; the procedure for notifying group members; the main types of group formation, distinguished on the basis of the participation of their members in group proceedings; payment of court costs; conclusion of a settlement agreement; a court decision on a group case; appeal; the constitutionality of the group procedure, discussed by the highest judicial authorities of Australia in relation to the resolution of specific cases. All these issues can be the subject of close study in order to improve the class action procedure in our country.

Keywords: class action, representative action, group action, multi-party action, Australia, multiplicity, judicial costs

For citation. Sutormin N. A. Class Action Lawsuit in Australia. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 95—109. (In Russ.) DOI: 10.12737/jflcl.2021.044

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Dmitry B. Gorokhov¹, Anar A. Mukhasheva², Natalia A. Shingel^3
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, julia7709@ yandex.ru, https://orcid.org/0000-0003-0973-6527
²L. N. Gumilyov Eurasian National University, Nur-Sultan, Kazakhstan, anarabai@mail.ru, https://orcid.org/0000-0002-6147-060X
³Belarusian State University, Minsk, Belarus, singel.61@list.ru

Abstract. One of the main goals of the Treaty on the Eurasian Economic Union (EAEU) is to harmonize and unify the legislation of the member States of this Union, to establish similar mechanisms of legal regulation to ensure the freedom of movement of goods, services, capital and labor, and to conduct a coordinated or unified economic policy. A necessary condition for this is the absence of inconsistencies and contradictions in the national legislation in each of the States parties to the Treaty and members of the Union, which makes it urgent to conduct comprehensive comparative legal studies.
Unlike other environmental and legal problems, the state of scientific development of hunting legal regulation and conservation of hunting resources in the EAEU member states and the degree of study of the relevant legal regimes by lawyers are clearly insufficient. The article presents the results of a comprehensive study of the legal regimes of hunting in the three EAEU states, aimed at forming common scientific and doctrinal views justifying the need for harmonization and unification of legislation, establishing similar, comparable mechanisms of legal regulation in the field of hunting and conservation of hunting resources in the EAEU member states.
The formal-legal and comparative-legal methods of research are applied.
The results of the study: currently, harmonized legal norms and terminology are applied in Russia, Belarus and Kazakhstan, similar mechanisms of legal regulation of relations arising in connection with the implementation of activities in the field of hunting are established, comparable legal regimes are in place to ensure respect for human rights and human safety, the use and protection of wildlife objects (hunting resources) and their habitat. A negative trend common to the three countries was noted — the deviation of legal regulation in the field of hunting and hunting management from the public-legal sphere to the private-legal one, which calls into question the observance of the principle of priority of public interests in nature management and environmental protection.

Keywords: Eurasian Economic Union, legal regime, hunting and hunting economy, objects of the animal world, hunting resources, hunting grounds

For citation. Gorokhov D. B., Mukasheva A. A., Shingel N. A. Legal Regimes of Hunting in Russia, Belarus and Kazakhstan. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 110—126. (In Russ.) DOI: 10.12737/jflcl.2021.045

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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. Decision to comment on the Grand Chamber judgment of the European Court of Human Rights in the case of “Vavricka and Others v. the Czech Republic” is connected not only with the interest in the issues raised therein, but also with the urgency of the topic itself due to the current challenges posed by COVID-19, which provides a special general context of the whole problem. The commented judgment stands out by the fact that it considers a legal duty to vaccinate children against diseases that are well known to medical science. Parents who refused to comply with compulsory vaccination of their children referred to various circumstances, including religious and philosophical beliefs. Public health system implies interventions designed to strengthen and protect the health of the population. It is public health system that determines what we should do together as a society to provide conditions for the good health of people. It seeks to improve health through collective action, including compulsory vaccination of such a sensitive group as children. Success in achieving the vaccination goals depends on the normative legitimacy associated with cultural solidarity and mutual assistance. The State's efforts are more likely to succeed in an atmosphere of social solidarity and trust. Vaccination of children is both a means of protecting the health of others and promoting the common weal. Requirement to comply with the vaccination duty for admission to educational institutions is the most effective method for achieving herd immunity. The Court concluded that the respondent State enjoyed a wide margin of appreciation in this area and that the measures applied were “necessary in a democratic society”.

Keywords: vaccination, public health system, health, disease, obligation, herd immunity, solidarity

For citation. Dedov D. I., Gadjiev Kh. I. Commentary on the Judgment of the ECtHR Grand Chamber in the Case “Vavricka and Others v. the Czech Republic”. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 127—138. (In Russ.) DOI: 10.12737/jflcl.2021.046

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Kirill A. Sukhanov
National Research University “Higher School of Economics”, Moscow, Russia, kirsukhanov@yandex.ru

Abstract. The article examines the key features of the constitutional and legal status of the autochthonous national minorities of Austria and the approaches of the constitutional control body to their protection. The author attempts to identify the positive and negative characteristics of the current Austrian system of protection of ethnic communities with the aim of possible implementation of approaches for the Russian constitutional and legal regulation of this sphere.
The purpose of the study is to identify the features of the legal regulation of the situation of national minorities in the Republic of Austria and the protection of their rights through the constitutional justice bodies for the possible implementation of the most successful approaches in the domestic legal system. Tasks: to study and analyze the fundamental legal acts of the Republic of Austria on national minorities; to characterize and develop the constitutional and legal status of autochthonous ethnic groups, to identify the peculiarities and differences of their situation; studying the practice of the constitutional control body and determining the impact of its decisions on constitutional and legal regulation.
Methods: dialectical, epistemological, philosophical, formal-logical, system-structural, comparative-legal, historical-legal.
Conclusion: hardly all Austrian ethnic groups can be recognized as equal legal status due to the historical specifics of their settlement and residence. Nevertheless, it seems that a unified approach of the legislator and a more active application of universalization by the constitutional control body in this matter would help to exclude such segregation. The Austrian experience could also be of interest to Russia (mainly for autochthonous ethnic communities) both in the issue of their definition, and in the practice of recognizing national-territorial entities, using the language in public and private spheres, and installing bilingual designations.

Keywords: national minorities, ethnic groups, constitutional court, legal positions

For citation. Sukhanov K. A. Austrian National Minorities: Evolution of the Legal Regulation and Protection Their Rights in the Constitutional Court. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 139—153. (In Russ.) DOI: 10.12737/ jflcl.2021.047

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Le Trong Tai
Southern Federal University, Rostov-on-Don, Russia, letrongtait32@gmail.com

Abstract. Preventive measures are an institution that occupies an important place in criminal proceedings. They clearly reflect the position of the state authorities in relation to persons accused of committing a crime. In this article, the author analyzes the overall changes in the system of preventive measures in Vietnam from the first half of the XIX century to the present with two periods before and after the adoption of the first Criminal Procedure Code. Some provisions of the criminal procedure legislation of Vietnam concerning preventive measures are also compared with the provisions of the Russian Federation.
From the analysis, it can be concluded that from the first half of the XIX century to the present time, it is a historical period during which the system of preventive measures in the Vietnamese criminal process has undergone the greatest changes and extensions. At the same time, in the subsequent editions of the Criminal Procedure Code of Vietnam, new preventive measures will appear with a tendency to increase the number of measures that do not deprive suspects and accused of liberty, which will ensure that citizens preserve their rights and freedoms.

Keywords: Vietnam, criminal process, preventive measures, arrest, temporary detainment, detention

For citation. Le Trong Tai. Preventive Measures in Vietnam Criminal Process. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 4, pp. 154—162. (In Russ.) DOI: 10.12737/jflcl.2021.048

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