Contents # 2/2022

Grigory A. Vasilevich¹, Sergey G. Vasilevich
¹Belarusian State University, Minsk, Belarus, Gregory_1@tut.by

Abstract. The article analyzes the new norms in the constitutions of the Russian Federation and the Republic of Belarus due to popular support in our states respectively in 2020 and 2022. Attention is paid to the general and special points in the constitutional construction at the present stage. The role of new constitutional approaches for expanding the legal status of citizens, preserving traditional values and strengthening the state and people’s sovereignty is reflected. The article pays attention to the new paradigm of power relations in the Republic of Belarus due to the expansion of the Parliament’s status, some restriction of President’s authorities and appearance of the All-Belarusian People’s Assembly in the political system of society. Other constitutional novelties are studied, including the use of the positive experience of the Russian Federation in the field of constitutional amendments in Belarus.

Keywords: constitutional changes and additions, modernization of the Constitution, citizens’ rights, representative power

For citation. Vasilevich G. A., Vasilevich S. G. Modernization of Constitutions of the Russian Federation and the Republic of Belarus as a Reflection of Social Development Dynamics. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 5—12. (In Russ.) DOI: 10.12737/jflcl.2022.019

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Ilya G. Shablinskiy
National Research University “Higher School of Economics”, Moscow, Russia, ishablin@yandex.ru, https://orcid.org/0000-0001-6511-3717

Abstract. The article is devoted to the legal problems of the post-authoritarian period of development of two South American states — Paraguay and Chile. Over the past 30 years, since the dismantling of authoritarian regimes (which occurred in these states almost simultaneously), both states have seriously modernized their legislation and have done a lot of work to restore democratic institutions. At the same time, these two States have experienced serious constitutional and political crises in recent years, largely related to the protection of a number of constitutional guarantees and the constitutional system. It is relevant to consider these events and their constitutional and legal meaning in a fairly broad historical context, that is: taking into account the entire approximately 30-year history of consolidating the foundations of the constitutional system in Chile and Paraguay. In this regard, the essential differences between the constitutional legislation (and Constitutions) of the two countries are investigated. The features of the crises that occurred in these states and the ways in which political elites and the broad masses of active citizens sought a way out of the situation are considered in detail. Attention is drawn to the fact that in both cases the commitment of the main political forces to a number of constitutional principles and their willingness to compromise play a decisive role.

Keywords: constitution, constitutional reform, dismantling of the authoritarian regime, constitutional crisis

For citation. Shablinskiy I. G. Post-Authoritarian Development and Resolution of Constitutional and Political Crises: Paraguay and Chile. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 13—23. (In Russ.) DOI: 10.12737/jflcl.2022.020

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Andrey V. Krotov
Southern Federal University, Rostov-on-Don, Russia, pravonnov@yandex.ru, https://orcid.org/0000-0001-5812-8339

Abstract. There are catastrophic consequences associated with the proliferation in 2020—2021 of a new coronavirus infection COVID-19. As of October 31, 2021 the number of infected people in the world of 247,379,304 people and 5,014,057 deaths, demands that the national authorities adopt emergency quarantine rules aimed at combating COVID-19. Both traditional and new, previously untested methods of dealing with the pandemic were used, which had a significant impact not only on the health sector, but also on the sphere of economics, politics, and law. Some of the measures taken to combat COVID-19 were negatively perceived by the general public, assessing the introduced quarantine rules as unfair, incorrect, which made it difficult to implement them, and divided society into two warring camps.
The purpose of this article is to study the problems of legality and social legitimacy of the quarantine rules introduced by the national authorities, for which a comparative analysis of the features of their content both in Russia and in a number of countries of the Western world is carried out. The article proposes the content of the concept of social legitimacy, legality (applicable to the topic of the article) and a solution to the problem of determining the most effective means. This allows establishing an admissible measure of restriction of rights and freedoms by quarantine rules both at the stage of rule-making and law enforcement. The features of the assessment by the judicial authorities, the bodies of constitutional supervision and control, the legality and social legitimacy of quarantine rules, depending on the type of legal thinking (positivistic, as exemplified by the Russian Federation, and natural-legal in an individualistic interpretation, as exemplified by a number of Western countries) are shown. The paper analyzes the decisions of the judicial authorities and bodies of constitutional supervision and control, i.e. the Russian Federation, the French Republic, the Kingdom of Belgium, Israel.
The author puts forward a hypothesis about the decline in the value of natural law doctrine in modern Russian law. It is revealed that there are: the tendency of domestic judicial authorities that ignore restrictions by the quarantine rules of the right to private life; freedom of assembly; freedom of movement; freedom of entrepreneurship; and others. This practice does not contribute to the formation of confidence in the actions of the national authorities on the part of the population, approval of measures taken to combat COVID-19. The stages of applying the proportionality test — when resolving the issue of the compliance of the introduced quarantine rules with the requirements of legality and social legitimacy — have been formulated.

Keywords: quarantine rules, COVID-19, legality, social legitimacy, proportionality test

For citation. Krotov A. V. COVID-19 Quarantine Rules: Legality and Social Legitimacy (Russian and Foreign Experience). Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 24—37. (In Russ.) DOI: 10.12737/jflcl.2022.021

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Marat A. Sarsembayev^{1, 2
1}Institute of Legislation and Legal Information of the Republic Kazakhstan, Nur-Sultan, Kazakhstan, daneker@mail.ru
²Bolashak Consulting Group, Nur-Sultan, Kazakhstan

Abstract. The author analyzes the legal relations in the sphere of the planned digitalized production of electric vehicles and other types of electric vehicles in Kazakhstan, moving both unmanned (due to artificial intelligence) and with the help of drivers. Particular attention is paid to legislative measures that promote the formation and development of a new industrial sector — the production of electric vehicles, self-propelled transport equipment. The set of legislative measures forms a new sub-branch in Kazakhstan law, i.e. digital law of industrial engineering.
The article uses methods of studying empirical material, comparative legal analysis, synthesis, generalization, scientific forecasting.
Through the application of legislative measures, it is proposed to solve the problems of the electrical engineering industry and the intellectual unmanned electric vehicles, the problems of introducing digitalization and automation into the production process of transport plants in Kazakhstan. In order of forecasting, the author proposes to adopt a number of laws on the subject of the article under consideration. New international cooperation agreements on the introduction of digitalization at machine-building plants in Kazakhstan for the production of electric and unmanned vehicles have been proposed for signing.

Keywords: electric car, unmanned vehicle, digital law, cyber threat, artificial intelligence

For citation. Sarsembayev M. A. Legal Regulation of Relations in the Transport Industry of Kazakhstan in the Context of Digitalization: Reality and Prospects. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 38—52. (In Russ.) DOI: 10.12737/jflcl.2022.022

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Lyudmila V. Andrichenko¹, Tatiana S. Maslovskaya², Inna V. Plyugina^{3
1, 3}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
²Belarusian State University, Minsk, Belarus, maslovskayat@rambler.ru 1lvandr@mail.ru, https://orcid.org/0000-0001-5993-6282
³inna_wp@mail.ru

Abstract. The state — when choosing tools for regulating migration — is guided by the strategic goals and objectives of state policy, the characteristics of migration flows passing through its territory, as well as the threats and risks characteristic of them, and takes into account the geopolitical, socio-economic, cultural and other factors. States can decide to pursue a coordinated migration policy, introduce a visa-free travel regime and use identical means and methods of regulatory influence to one extent or another.
The article analyzes the features of public administration in the field of migration in the Russian Federation and the Republic of Belarus. The focus is on asylum issues and mechanisms to counter illegal migration.
The purpose of the work is to study the features of the legal regulation of the issues of granting asylum and counteracting illegal migration in the Russian Federation and the Republic of Belarus, identifying similarities and differences in the tools used.
The following methods are used in the work: comparative legal method; method of special legal research; formal-logical method, including analysis and synthesis, induction and deduction, abstraction and generalization, analogy and comparison; systemstructural method; formal-legal method, etc.
Conclusion. The migration legislation of the Russian Federation and the Republic of Belarus in recent years continues to be modernized in the light of new challenges and threats. Taking into account the focus on the formation of a single migration space, the issue of directions and forms of harmonization of legal regulation in this area, the determination of the most effective ways to counter illegal migration is being updated.

Keywords: refugees, public administration, migration, illegal migration, asylum, identification cards, deprivation of citizenship

For citation. Andrichenko L. V., Maslovskaya T. S., Plyugina I. V. State Administration of Migration Sphere: The Experience of the Russian Federation and the Republic of Belarus. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 53—68. (In Russ.) DOI: 10.12737/jflcl.2022.023

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Elena N. Karabanova
University of the Prosecutor’s Office of the Russian Federation, Moscow, Russia, karabanova.agprf@gmail.com

Abstract. Bringing the perpetrator to criminal responsibility is intended to correct him, restore social justice and prevent the commission of new crimes. However, it is hardly possible to recognize these goals as achieved if the perpetrator did not compensate for the harm caused by the crime.
In order to develop specific proposals aimed at increasing the guarantee of such compensation using criminal law means, the author sets the task to identify and systematize the species diversity of criminal law guarantees for the realization of the victim’s right to compensation for harm caused by a crime, assessing their effectiveness and critically reviewing existing measures.
For a comprehensive and objective study, a comparative legal method is used with a sample limited by the current criminal legislation of the CIS countries (synchronous comparison). The problem is considered on the basis of a study of domestic and foreign criminal legislation, judicial practice and doctrinal sources.
As a result of the study, the author concludes that guarantees for the realization of the victim’s right to compensation for harm caused by a crime can be divided into two groups: measures that stimulate the offender to voluntary compensation for harm; and measures of a non-stimulating nature. Moreover, they differ depending on the stages of the criminal proceedings. When stimulating the perpetrator, the balance of the severity of measures is important, as it allows one to be motivated for maximum compensation for harm, based on specific circumstances. Criminal law should take into account all potential scenarios for the development of events and offer a flexible system of opportunities for a criminal to receive criminal benefits in connection with compensation for harm. Measures that ensure the priority of the interests of the victim over the interests of the state during the confiscation of property are effective guarantees for the realization of the victim’s right to compensation for harm caused by a crime of a non-stimulating nature; exclusion of limitation of actions for claims for compensation for harm caused by a crime; as well as the introduction of the institution of compensation for victims, carried out from the means of special funds.

Keywords: compensation for harm caused by a crime, victim, exemption from criminal liability, release from punishment, circumstances mitigating punishment, the criminal legislation of the CIS member states

For citation. Karabanova E. N. Guarantees for the Implementation of the Victim’s Right to Compensation for Harm Caused by a Crime, Enshrined in the Criminal Legislation of the CIS Countries. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 69—81. (In Russ.) DOI: 10.12737/jflcl.2022.024

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Natalia N. Golovanova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, golovanovanata@yandex.ru, https://orcid.org/0000-0002-6991-3604

Abstract. The article is devoted to a retrospective analysis of corporate criminal liability, which was finalized in the twentieth century, initially in the decisions of the US and UK courts. The role of corporations in the life of states is great, and the negative consequences for society, the economy and the environment associated with such illegal acts as fraud, bribery, legalization of illegal income and other economic crimes by corporations are also great. Finding a company guilty under criminal law can not only destroy its reputation, but also lead to liquidation and the loss of tens of thousands of jobs.
The purpose and objectives of the study are to analyze the experience of the United States, Great Britain and Germany in institutionalizing corporate criminal liability, to study the features of agreements on deferred prosecution and non-prosecution. This practice (at the legislative level in the UK) allows the company not to be prosecuted in court in exchange for its relinquishment of any profits received from illegal activities.
The study uses formal legal, comparative legal, historical and legal methods of research.
Results and brief conclusions: the institution of corporate criminal liability continues to develop and takes on new forms. The phenomenon of corporate criminal liability lies in a peculiar combination of criminal and civil law elements of liability. In the context of excessive criminalization of various violations committed by corporations in the course of their activities, which is accompanied by the emergence of ever new corporate crimes, this institution begins to perform a preventive function, encouraging corporations to strictly comply with the corporate charter. The main feature of the modern period is the use by the state of civil law mechanisms in order to preserve business and maintain balance in society, as well as the possibility of developing for each case specific individual requirements inherent in juvenile justice, which would be excluded in the case of the usual procedure for bringing a corporation to liability in a criminal case.

Keywords: corporation, corporate criminal liability, deferred prosecution agreement, non-prosecution agreement

For citation. Golovanova N. A. Corporate Liability: Transformation of Criminal Law Regulation. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 82—96. (In Russ.) DOI: 10.12737/jflcl.2022.025

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Alexey N. Siryakov
Academy of Law Management, Federal Penitentiary Service of Russia, Ryazan, Russia, 643350@mail.ru, https://orcid.org/0000-0001-8992-1145

Abstract. The development of the Russian penal enforcement system requires legislative decisions aimed at improving the efficiency of its activities. Referring to the experience of Spain in the field of legal regulation of the convicts’ labor serving sentences in ordinary and closed penitentiary institutions allows us to create a basis for comparison and making proposals for adjusting domestic legislation on the execution of criminal penalties. The norms on labor in penitentiary institutions in Spain are enshrined in the Organic Law “General Penitentiary Law”, as well as Royal Decrees “On the approval of penitentiary regulations” and “On the regulation of labor relations of a special nature of prisoners performing labor activities in prison workshops, and social protection of persons subjected to punishment in the form of work for the benefit of society”. In Spanish penal legislation, work is a right and a duty. The right is to work in production workshops, educational employment workshops, and handicraft, intellectual or artistic activities. The obligation in all cases is: obtaining basic education by the illiterate; vocational training of persons with low qualifications; maintenance of common areas without labor relations. The mandatory nature of work is established if it is included in the individual program of correction of the convicted person, developed by the voluntary will of the convicted person. Spanish legislation is known for the production and non-production work of convicts. Paid industrial work is carried out in production workshops located on the territory of penitentiary institutions, within the framework of special legal relations. They have a specific purpose, subject composition and content, grounds for suspension and termination of legal relations. The sphere of labor use of convicts is established. Other forms of labor are non-productive.
Research methods: statistical, comparative legal, systematization.
Conclusion: the legal regulation of the labor of convicts in Spain is not a reference, but some aspects of it can be used in domestic penal enforcement legislation and the practice of execution of sentences in the form of imprisonment.

Keywords: penal enforcement law, foreign experience, Spain, convicted person, penitentiary labor

For citation. Siryakov A. N. Labor Legal Regulation in Spanish Penitentiary Institutions. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 97—107. (In Russ.) DOI: 10.12737/jflcl.2022.026

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Valery G. Istomin
Institute of Philosophy and Law, Ural Branch, Russian Academy of Sciences, Ekaterinburg, Russia, 5555VS@rambler.ru

Abstract. The system of antimonopoly regulation currently existing within the European Union is characterized by a combination of national and supranational legal regulation, a sufficient degree of development of many institutions of competition law, the presence of problematic issues similar to Russian law enforcement practice, and in this sense is of considerable interest for theoretical research in order to determine the possibility of using certain provisions of the EU antimonopoly legislation with further improvement of the norms of Russian competition law. Modern European antimonopoly legislation and the theory of competition law are developing in the direction of unifying the national antimonopoly regulations of the EU member states, ensuring the protection of the rights of subjects affected by anti-competitive behavior, maintaining fair competition in modern digital markets.
Research methods: formal and logical interpretation, systematic and comparative analysis.
As a result of consideration of both the general provisions of the EU regulations of the and the legislation on the competition protection of individual EU member states, it was concluded that it is advisable to use a number of norms of the European antimonopoly legislation concerning the invalidity of cartel agreements, joint liability of their participants, the procedure for compensation of losses caused to economic entities and consumers, as well as some others in order to stimulate development of private law enforcement on antimonopoly disputes in Russia. The norms of the Draft Law on Digital Markets submitted by the European Commission are analyzed, the need for such an act is noted, taking into account the development of digitalization relations and the emergence of a new type of markets, as well as the possibility of using some of its provisions in the development of Russian competition law.

Keywords: antimonopoly regulation, acts of the European Union, national legislation, monopolistic activity, civil liability, digital “gatekeepers”

For citation. Istomin V. G. Antimonopoly Regulation in the EU Countries. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 108—120. (In Russ.) DOI: 10.12737/jflcl.2022.027

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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 highlights the 129th plenary session of the European Commission for Democracy through Law (Venice Commission), which took place on December 10—11, 2021, at which a number of important organizational issues were resolved, in particular, the election of a new President of the Venice Commission, his/her deputies, and new composition of the subcommissions were approved. Also, during the VC session, opinions on the legislation of Albania, Cyprus, Ukraine, Serbia, Hungary, Moldova, Kazakhstan, and Kosovo were discussed and adopted. The topics of the VC opinions are related to the implementation of constitutional and judicial reforms, electoral legislation, protection of human rights, prevention and combating domestic violence, etc.
Based on the results of the opinions adopted by the Venice Commission, noteworthy conclusions were drawn, as well as proposals and recommendations were formulated concerning both specific issues of amending the legislation of individual States and the expert approaches of the Venice Commission to assessing the observance and protection of human rights in accordance with international and European standards. In addition, the session under review saw a radical renewal of the governing bodies of the Venice Commission.

Keywords: Venice Commission, Chairman of the Venice Commission, elections, legislation, constitution, opinion, human rights, electoral legislation, international standards, the rule of law, referendum, judicial system

For citation. Kashirkina A. A. Review of the 129th Plenary Session of the European Commission for Democracy through Law (Venice Commission) (10—11 December 2021). Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 121—129. (In Russ.) DOI: 10.12737/jflcl.2022.028

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Iana I. Lebedeva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, lebedeva. ioanna@yandex.ru, https://orcid.org/0000-0002-2982-5642

Abstract. The value dimension of the European Union (EU) began to take shape since the founding of the European Communities in the 1950s. Historically, values represent the common constitutional heritage of European States and are now not only part of the founding treaties, but also a guideline for any internal and external actions of the European Union, as well as the basis for its expansion. After joining the EU, the Candidate State perceives these values and undertakes to bring them to life. However, over time, there has been a decline in the comparable level of constitutional standards in a number of States. In response to these challenges, the European Union continues to expand the legal tools for the protection of fundamental values. The support of such values both in the activities of the Union and in individual EU Member States and third countries is becoming an increasingly painstaking process that requires detailed strategic planning, adoption of a wide range of political and legal decisions, and attraction of additional financial resources. Cooperation with other international and regional organizations in order to maintain the unity of its own constitutional dimension becomes a separate direction in the Union’s activities. First of all, such an organization is the Council of Europe, which has extensive mechanisms for maintaining and protecting the values of democracy, the rule of law and human rights.
In this article, the author examines the origins and evolution of the value dimension of the European Union, the concept and legal nature of its constituent values, as well as the influence of the latter on the constitutional law of the EU Member States. A separate block of issues is devoted to cooperation between the European Union and another organization in the region — the Council of Europe, whose standards are perceived as a pan-European benchmark in the field of democracy, human rights and the rule of law. In addition, the role of the European Commission for Democracy through Law (Venice Commission) in promoting the European constitutional heritage both in the European region and beyond is considered.

Keywords: rule of law, democracy, human rights, European Union, Council of Europe, Venice Commission, constitutional values, constitutional law, European integration

For citation. Lebedeva I. I. EU Values: Concept, Legal Nature and Impact on the Constitutional Law of Sovereign States. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 130—147. (In Russ.) DOI: 10.12737/jflcl.2022.029

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Dmitry V. Dolgov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, 5753055@gmail.com

Abstract. The main threat to transport security is terrorism. A kind of technological terrorism is transport terrorism, which entails grave consequences. Recently, terrorist activity directed against transport has significantly intensified and has become part of the global terrorist threat. Transport facilities, due to their high vulnerability compared to many other potential targets, are particularly attractive to terrorists, and terrorist attacks on such facilities usually lead to a large number of victims, paralyze key sectors of the economy and can cause serious public upheaval. The growing number of terrorist attacks in the world underscores the importance of understanding the individual and organizational motives driving suicide bombers. Anti-terrorist activity involves the implementation of interrelated measures aimed primarily at preventing, identifying and preventing the causes and conditions that contribute to the spread of terrorism and, accordingly, at suppressing emerging terrorist manifestations.
The subject of this study is the norms of the current criminal legislation of some European countries and the Russian Federation aimed at ensuring aviation security. Criminal penalties that can perform the function of ensuring aviation security are analyzed, a comparative analysis of foreign and Russian criminal legislation is carried out, its strengths and weaknesses are noted.
Research methods: general scientific methods of cognition (analysis, synthesis, induction, deduction, etc.) and special legal (formal legal, comparative legal, etc.)

Keywords: aviation security, terrorist attack, anti-terrorist activity, suicidal terrorism, threat, international law, international terrorism, state legislation

For citation. Dolgov D. V. Terrorism as a Threat to Aviation Security: A Comparative Legal Analysis of the Experience of European States and the Russian Federation. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 2, pp. 148—154. (In Russ.) DOI: 10.12737/jflcl.2022.030

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