Contents # 3/2022

Alexey V. Zyryanov
South Ural State University, Chelyabinsk, Russia, zav-nauka@mail.ru

Abstract. The article is devoted to the legal analysis of the role of the armed forces as an element and factor in the development of modern state-political systems.
Research objectives: determination of the military component of the state-political reality; comparative analysis of militarism and democracy; studying the problem of civilian control of military institutions.
The methodological basis of the study is: empirical, historical, comparative, systemic, structural-functional, statistical methods.
As a result it can be noted that a state in which there is an imbalance in development between the institutions of state control and institutions of popular participation is vulnerable to interference in order to defend the corporate interests of the military. However, the rigid dichotomy between “civil” and “military” regimes cannot be static; the transition from military rule can be seen as a transition from one mixed system to another mixed system. The principle of political control of the armed forces is rooted in the concept of representative democracy. It speaks of the supremacy of civil institutions based on popular sovereignty, including the development of defense and security policy and military leadership.
It can be concluded that in a pluralistic democracy, strong constitutional guarantees must protect the state — including the military one — from two types of potential dangers: from politicians with military ambitions and from military with political ambitions.

Keywords: democracy, militarism, armed forces, civil government, state, political regime, constitution

For citation. Zyryanov A. V. Armed Forces as an Element and Factor of the State-Political System (International Experience). Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 5—15. (In Russ.) DOI: 10.12737/jflcl.2022.031

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Nikolay L. Denisov¹, Alexander A. Tit^2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, DenisovNL@yandex.ru, https://orcid.org/0000-0003-3594-1292
²Academy of the Ministry of Internal Affairs of the Republic of Belarus, Minsk, Belarus, tsitalex@tut.by

Abstract. The article provides a comparative analysis of the criminal and penitentiary legislation of the Russian Federation and the Republic of Belarus regarding the criminal liability institution and the specification of the criteria of the correction of convicts in the process of serving their sentences. The authors carried out an academic understanding of the essence of criminal liability contained in both states’ codes in the context of the punishment goals.
This study’s goals and objectives are the unification of the criminal and penitentiary legislation of the Russian Federation and the Republic of Belarus in the framework of emerging single legal space within the Union State in matters of effective correction of convicts.
The methods of the study mainly are comparative legal, formal legal and dogmatic methods. The comparative legal method allows identifying the main models of criminal repression under the legislation of the Russian Federation and the Republic of Belarus; to analyze their advantages and disadvantages; and to assess the possibility of implementing individual decisions in the domestic criminal legislation. The formal legal method is used directly to study both Russian and Belarusian normative legal acts in the field of criminal and penitentiary legislation and materials of judicial and investigative practice. The dogmatic method used allows assessing the compliance of national legislation for correction of convicts in the process of serving their sentence.
On the basis of the analysis carried out, directions for improving the criminal and penitentiary legislation in terms of their unification are proposed to optimize the correction of convicts in the process of serving their sentences.

Keywords: Union State, unification of legislation, criminal liability, goals of criminal liability, correction of the convicted person, degrees of correction, release from punishment

For citation. Denisov N. L., Tit A. A. Unification Issues of Individual Elements of Criminal Law Repression in the Russian Federation and the Republic of Belarus. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 16—26. (In Russ.) DOI: 10.12737/jflcl.2022.032

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Roman I. Dremliuga
School of Law, Far Eastern Federal University, Vladivostok, Russia, dremliuga.ri@dvfu.ru, https://orcid.org/0000-0003-1607-1228

Abstract. Russia’s transition to a digital economy and building information society are inevitable. Society’s confidence in information technology and the pace of digital transformation depend on the proper functioning of the information infrastructure. Many countries have realized that the first priority is to ensure legal protection against encroachments of the main nodes of the digital infrastructure. The stability and security of society and the state depend on their operation.
The study aims to analyze the norms in the field of liability for unlawful impact on critical information infrastructure in the legislation of foreign countries. Among the selected countries there are leaders in building the digital economy, so their experience can be useful to develop and modify Russian legislation in the area of liability regulation for wrongful impact on critical information infrastructure. Research objectives are: to determine the regulatory framework related to the regulation of relations on liability for wrongful impact on critical information infrastructure; to identify the position of countries related to issues of definition of objects of critical information infrastructure.
The methodological basis of the study is the dialectical method of knowledge, general scientific methods of abstraction, analysis and synthesis, as well as special legal methods (comparative-legal, logical-legal, etc.).
The analysis shows that according to the majority of the reviewed normative acts and official documents of the national and international level, critical information infrastructure includes computer systems belonging to or serving public authorities. In addition, a significant number of national regulations define critical information infrastructure through the possible consequences of attacks on its objects.

Keywords: critical information infrastructure, criminal offenses, criminal liability, data economy, cyber law

Acknowledgments. The reported study was funded by RFBR, project No. 18-29-16129.

For citation. Dremliuga R. I. Critical Information Infrastructure as a Subject of Encroachment in the Legislation of Foreign Countries. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 27—36. (In Russ.) DOI: 10.12737/jflcl.2022.033

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Julia V. Bobrova¹, Fiammetta Borgia^2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, juliabobrova@gmail.com, https://orcid.org/0000-0003-3635-5770
²University of Rome “Tor Vergata”, Rome, Italy, fiammettaborgia@gmail.com

Abstract. The transition to the use of high technologies dictates the emerging and developing interest of the world community in marine biodiversity — including marine genetic resources — of actual or potential utility or value to humanity. The task is to create international legal regulation under the 1982 UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.
The authors analyze the provisions of the relevant international treaties, documents of the UN General Assembly in this area, as well as the works of experts in the field of international law. The following main provisions of the topic are investigated: definitions of biological diversity; marine genetic resources (1992 Convention on Biological Diversity, etc.); the process of forming the need to develop an international legally binding document based on the Convention on the Law of the Sea; draft Agreement based on the Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity in Areas beyond the national jurisdiction; application of the concept of the common heritage of mankind in the draft of the said Agreement; the correlation of public international and private international law in the draft Agreement based on the Convention on the Law of the Sea regarding the inclusion of norms directly regulating the conduct of subjects of national law in international treaties with an example of the activities of the International Seabed Authority, the Chamber for Disputes concerning the Seabed; and others.
Research methods are: dialectical method of scientific cognition, methods of formal logic and historical analysis, systemstructural method.
A critical analysis of the above provisions is presented, which may be useful for understanding the process and completing the work on preparing a draft Agreement based on the Convention on the Law of the Sea within the framework of the subsequent session of the Intergovernmental Conference under the auspices of the United Nations (in accordance with UN General Assembly resolution 72/249).

Keywords: the United Nations Convention on the Law of the Sea (the 1982 UNCLOS), marine biological diversity, marine genetic resources, access and benefit sharing, conservation and sustainable use, areas beyond national jurisdiction, the principle of the common heritage of mankind, Intergovernmental Conference, draft text of an Agreement under the 1982 UNCLOS

For citation. Bobrova J. V., Borgia F. Problems of International Legal Regulations of the Conservation and Sustainable Use of Marine Biological Diversity in Areas beyond National Jurisdiction. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 37—47. (In Russ.) DOI: 10.12737/jflcl.2022.034

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Olga V. Kadysheva
Lomonosov Moscow State University, Moscow, Russia, o.kadysheva.prikaz@gmail.com, https://orcid.org/0000-0003-0827-1537

Abstract. The article presents a comparative review of the provisions governing the issue of legal remedies in the legal orders of WTO, the European Union and the Eurasian Economic Union from the view of international law on responsibility and compensation for damage occurred. The author concludes that from such angle relevant provisions of WTO could be considered as lex specialis, meaning that the provisions of the Draft Articles of international responsibility of states shall be applicable to the extent not covered by the WTO rules including the issues of compensations. In its own turn the relevant rules of the European Union based on the concept of autonomy of the EU legal order presents an extreme form of lex specialis entirely excluding the applications of the provisions of the Draft Articles of state responsibility as well as the rules of the Draft Articles of responsibility of international organizations. The absence in the EAEU legal order provisions governing the issues of legal remedies makes possible either an application of the rules of both Drafts of the Articles with their concepts of horizontal control and enforcement or a creation of its own rules excluding such horizontal enforcement as undermining the unity of internal market of the Union. For the purpose of successful integration on the EAEU level it seems highly important to establish effective set of legal remedies available to all subjects of the EAEU law including private persons.

Keywords: international responsibility, Drafts articles of international responsibility, compensation for damage, WTO, EU public liability law, lex specialis

For citation. Kadysheva O. V. Comparative Legal Characteristics of Liability and Reparation Norms in the WTO, the EU and the EAEU. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 48—58. (In Russ.) DOI: 10.12737/jflcl.2022.035

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Elena P. Ermakova
Law Institute, Peoples’ Friendship University of Russia, Moscow, Russia, ermakovaep@mail.ru, https://orcid.org/0000-0001-5722-3641

Abstract. The article analyses the US concept “privatization of civil proceedings”. The privatization of legal proceedings refers to the process of transferring dispute resolution to other, non-governmental or alternative bodies. The conducted research has shown that currently in the USA the privatization of civil proceedings has three varieties: 1) judicial forms of ADR (court ADR); 2) transfer of dispute resolution powers to administrative bodies (devolution of adjudication to administrative agencies); 3) transfer of dispute resolution powers to private ADR providers. These three changes represent what should be understood as a “new Private Process”, replacing the traditional model of legal proceedings proposed in the “Federal Rules of Civil Procedure” of 1938. We emphasize that the privatization of civil justice means that large elements of the state civil justice system are moving from the public sphere to a wide range of private services and dispute resolution processes. This phenomenon means the transition to private ownership and control over civil justice services. Most often, this trend is embodied by alternative dispute resolution methods (ADR). The American authors recognize that there is no more important topic in law than the procedural norms under which the democratic system operates. The main parts of this system are dispute resolution procedures. Without sound, accountable, but creative dispute resolution procedures, the American legislator potentially jeopardizes individual rights along with fundamental democratic values. New procedural forms (“new private process”) close public access to legal proceedings, since they resolve disputes outside the public sphere confidentially. The current trends in the privatization of US civil proceedings clearly show that democratic rights and values are already under threat. In any case, if the American state (or any other state) is going to continue experimenting with the privatization of civil justice, this should be done only with full disclosure to the public the consequences of the introduction of such dispute resolution tools.

Keywords: US civil procedure, privatization of justice, new private process, alternative dispute resolution

For citation. Ermakova E. P. Privatization of Civil Proceedings or the “New Private Process” in the United States. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 59—70. (In Russ.) DOI: 10.12737/jflcl.2022.036

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Nataliya V. Vlasova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, natasha.vlasova@rambler.ru, https://orcid.org/0000-0001-8167-4143

Abstract. The current regulatory fragmentation of the unified substantive regulation of cross-border relations of voluntary representation prevents the achievement of legal certainty in the event of disputes between the parties to these relations, for example, regarding the availability and scope of the representative’s powers. In this regard, the conflict-of-laws way of regulating cross-border representation (in international treaties, supranational and non-national regulators, national legislation on private international law), despite the diversity of international and non-state substantive legal regulators of these relations, remains relevant.
The purpose of the study is to identify and generalize the patterns and trends of conflict of laws regulation of representation in foreign law. For this purpose, the article, based on formal legal and comparative legal research methods, defines doctrinal approaches to conflict regulation of cross-border representation, gives a general description of the state of national conflict regulation of these relations, analyzes the norms of legislation of more than 50 states defining the law to be applied to internal and external relations of cross-border representation.
Conclusions are formulated about the prevailing general approaches of a foreign legislator to the creation of conflict of laws rules on representation: the widespread application of the principle of autonomy of will in regulating both internal and external relations of representation with certain specifics in the second case; the application of the law of the closest connection to regulate contractual relations of the representative and the right represented in the absence of their choice; the predominance of independent (as opposed to accessory) conflict-of-laws bindings for determining the law applicable to external relations of representation in the absence of its choice, the main among which are bindings to the law of the representative’s location or to the law of the place where he exercises his powers.

Keywords: conflict of laws regulation, conflict of laws rule, representation, agent, principal, third party, internal relations of representation, external relations of representation, law on private international law

For citation. Vlasova N. V. The Main Approaches to Conflict-of-Laws Regulation of Relations of Voluntary Representation Abroad. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 71—82. (In Russ.) DOI: 10.12737/jflcl.2022.037

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Muslim Kh. Khassenov
M. Narikbayev KAZGUU University, Nur-Sultan, Kazakhstan, muslimkhassenov@gmail.com, https://orcid.org/0000-0002-8064-1267

Abstract. In the context of the formation of a single legal space for the free movement of labor resources between the states of the Eurasian Economic Union (EAEU), the issues of legal regulation of termination of an employment contract at the initiative of the employer are in high demand.
The purpose of the work is to conduct a comparative legal study of the legislation of the EAEU states on issues related to dismissals at the initiative of the employer, to reveal gaps, collisions and compliance with international labor standards. For this, the author analyzed the relevant international standards and legislative norms.
The study used comparative legal and formal legal methods, analyzed the grounds and procedure for terminating employment relations at the initiative of the employer, based on four key criteria: notifications, severance pay, prohibitions (restrictions) and special conditions (guarantees). All grounds for dismissals were considered within the framework of four classification categories: economic, medical and qualification, disciplinary, and special (specific for certain categories of workers).
As a result of the study, it was revealed that some approaches to the legislative regulation of the termination of labor relations differ from each other, and also do not fully comply with international labor standards. In particular, this concerns unacceptable grounds for dismissals and non-compliance of the established guarantees to employees with the ILO conventions and recommendations. There have been revealed explicit violations of international obligations within the framework of the ILO, related to age discrimination and legislative consolidation of the possibility to fire persons called up for military service. The author concludes that the formation of the Eurasian labor market requires the harmonization of the labor legislation of the EAEU countries in terms of layoffs in accordance with minimum labor standards. Recommendations are formulated for improving the legislative basis for terminating an employment contract at the initiative of the employer.

Keywords: termination of labor relations, employer’s initiative, dismissal, international labor standards, International Labor Organization, labor legislation, Eurasian Economic Union, legal grounds, notice, compensation, severance pay

Acknowledgments. The study was carried out with the financial support of the Russian Science Foundation in the framework of a scientific project No. 19-18-00517.

For citation. Khasenov M. Kh. Grounds and Procedure for Termination of an Employment Contract at the Initiative of the Employer in the States of the Eurasian Economic Union within the Context of International Labor Standards. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 83—94. (In Russ.) DOI: 10.12737/jflcl.2022.038

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Evgeniy A. Fokin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, venkom@izak.ru, https://orcid.org/0000-0002-1121-6830

Abstract. The article continues a series of studies on the activities of the European Commission for Democracy through Law (Venice Commission).
The study purpose is to codify the approaches of the Commission on the independence of the judiciary.
The article starts with an overview of the first analytical approaches of the Venice Commission formulated in the 1990s. It was stated that the independence of justice in certain states as a necessary precondition for the rule of law became a priority in the legal analysis of the Commission at the earliest stages of its activity. Considerable attention is paid to the independence of the judiciary in a number of thematic reports of the Venice Commission: “On judicial appointments”, “On the independence of the judiciary”, “On the rule of law”, as well as in a special Checklist for assessing compliance with the rule of law. In the article the legal positions of the Venice Commission on modern judicial reforms in Hungary, Serbia, Poland, Ukraine and Cyprus are highlighted and analyzed. The general and special approaches of the Commission are also revealed. At the same time, special attention is paid to the Ukrainian and Polish judicial reforms. It is shown that the main conclusions of the Commission’s experts repeatedly form the basis of the legal positions of international justice bodies while establishing violations of the applicants’ right to a fair trial in Poland and Ukraine. The article especially shows that the main theoretical ideas about the independence of the judiciary in Russian science coincide with the main approaches of the Venice Commission.
Conclusions are formulated, in particular, on the theoretical and practical significance of the main legal positions of the Venice Commission.

Keywords: justice, independence of justice, judicial system, Venice Commission

For citation. Fokin E. A. Evolution of the Venice Commission’s Legal Positions on the Independence of the Judiciary. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 95—106. (In Russ.) DOI: 10.12737/jflcl.2022.039

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Emil K. Sayfullin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, emil-izak@list.ru, https://orcid.org/0000-0002-5727-0779

Abstract. The relevance of the work is due to the strengthening of the role of private military and security companies in the international security system in the absence of a relevant international legal treaty and the lack of elaboration of the topic in domestic legal science. The problems of regulation of private military and security companies are complicated by the uncertainty of the international legal status of their employees, often operating in conditions of armed conflict. To date, there is only one internationally recognized document on the regulation of the activities of private military and security companies — the Montreux Document, created as part of an initiative of the Swiss Government and the International Committee of the Red Cross and has united 58 States to date. However, this document has no legal force and is purely advisory in nature.
Research objectives: to study the prerequisites, the context of the creation and the process of adoption of the Montreux Document and identify the problems that have arisen; to analyze the provisions of this Document and its structure; to study the best practices given in this Document, with a view to possible subsequent use in the formation and improvement of the international legal framework in the field of regulation of private military and security companies.
Conclusion: The Montreux Document is the first step in regulating the activities of private military and security companies. At the same time, it is necessary to create a specialized international agreement, coupled with the improvement of the national legislation of states related to the origin and activities of private military and security companies.

Keywords: private military and security companies, The Montreux Document, international law, international humanitarian law, International Committee of the Red Cross, mercenaries, State responsibility

For citation. Sayfullin E. K. The Montreux Document as a Regulatory Tool for Private Military and Security Companies: The Context of Adoption and Analysis of the Provisions. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 107—116. (In Russ.) DOI: 10.12737/jflcl.2022.040

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Bunyod O. Islomov
Academy of the Ministry of Internal Affairs of the Republic of Uzbekistan, Tashkent, Uzbekistan, bunyodislomov@gmail.com, https://orcid.org/0000-0001-8827-4900

Abstract. The national criminal legislation of Uzbekistan is in the process of improvement, including liberalization. According to the author, the study of the institute of punishment mitigation, as well as the circumstances excluding the criminality of the act under the Swiss criminal law, will contribute to the development of proposals for amendments and additions to the criminal legislation of Uzbekistan.
The purpose of the study is to conduct a comparative analysis of the current criminal laws of Switzerland and Uzbekistan in terms of taking into account by the court the circumstances mitigating the punishment, as well as excluding the criminality of the act. The final task of the work is to present a new study of the Institute of mitigation of punishment under the criminal legislation of Switzerland, which is relevant for the development of a new edition of the Criminal Code of Uzbekistan.
Within the framework of the study, general scientific and specific scientific methods were used. The historical method, which made it possible to comprehensively study the process of formation of the criminal legislation of Switzerland, belongs to the general scientific method. Specifically scientific methods, namely comparative legal and logical (analysis and synthesis), allowed us to identify similarities, positive aspects and shortcomings of the criminal laws of the studied states, to determine the reason for the failure to provide legislative regulation to most of the terms used in the criminal law related to mitigating circumstances.
The results of the comparative analysis of criminal legislation make it possible to take into account the positive aspects of the Swiss criminal law when developing and adopting a new version of the Criminal Code of the Republic of Uzbekistan, as well as to avoid a number of shortcomings.

Keywords: sentencing and mitigation of punishment, crime, misdemeanor, violation, intent, negligence, insanity, limited insanity, necessary defense, extreme necessity, attempted crime, minor, complicity in crime, inpatient therapeutic measures

For citation. Islomov B. O. Circumstances Mitigating Punishment and Excluding Criminality of the Act under the Criminal Legislation of the Swiss Confederation (Comparative Analysis). Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 117—124. (In Russ.) DOI: 10.12737/jflcl.2022.041

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

Abstract. There are four officially recognized national minorities in addition to citizens of German nationality, who inhabit on the territory of the Federal Republic of Germany as well: Danes, Frisians, Sorbians, Sinti and Roma. At the same time, the interstate agreements of the FRG have the references to other ethnic groups, which the state could also recognize as national minorities. However, the Basic Law of the FRG does not contain norms on ethnic communities, implying their protection within the general constitutional provisions. The legal practice of lands, where national minorities predominantly reside, is different, including in terms of the instruments of their participation in public affairs.
The purpose of the article is to identify the features of the German model of the determination and protection of national minorities on the example of the practice of their involvement in participation in public affairs of the state. Tasks: to characterize of the right to participation of national minorities in public affairs; to study of the specifics of the determination of national minorities in the FRG; to research characteristics and development of the constitutional and legal status of national minorities of the FRG; to study of the forms of participation of German national minorities in public life; to identify features and differences in the situation of national minorities.
Methods: dialectical, epistemological, philosophical, formal-logical, system-structural, comparative-legal, historical-legal.
Conclusions: the specific features of the German model of the determination and protection of national minorities are: general adherence to the provisions of international legal acts on national minorities; the traditional concept of determining national minorities based on the autochthonous nature of ethnic communities; the absence of special federal norms on the protection of national minorities due to the derivative nature of their rights from universal human rights; the predominance of land legal practice of constitutional and legal regulation of the status of national minorities.

Keywords: Framework Convention for the Protection of National Minorities, Ethnic Associations, Advisory Bodies, Commissioner for the Rights of National Minorities, Sinti and Roma

For citation. Sukhanov K. A. Participation of National Minorities in Public Affairs of the State: German Experience and Instruments. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 125—136. (In Russ.) DOI: 10.12737/jflcl.2022.042

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

Abstract. The article is devoted to the scientific heredity and social activities of the outstanding legal scholar-comparativist: Veniamin E. Chirkin (1924—2019). It notes the extraordinary breadth of scientific interests of the scientist.
The initial stage of his activity concerns the analysis of development of regulation in developing countries, part of which proclaimed the path of socialist transformation. “The theory of transitional state forms” was at one time a new word in state studies. But its author emphasized the instability of these forms, which was confirmed by the further development of these states.
Veniamin Chirkin stood at the origins of Soviet, and then Russian theoretical science, enriched the conceptual apparatus both in the field of constitutional law and political science itself. He also laid the methodological foundations for the comparative studies of state, which is of special interest for the legal development of modern Russia. He initiated the publication by the Institute of Legislation and Comparative Law of a multi-volume edition “Constitutions of the World”.
Veniamin Chirkin actively participated in drafting the constitutions of various developing countries, as well as the Constitution of the Russian Federation of 1993, number of legislative acts, which all required his encyclopaedic knowledge. The mighty potential of the comparativist — scholar was successfully realized in practice.

Keywords: comparative law, state administration, constitution, legal systems

For citation. Kovler A. I. V. E. Chirkin: Theoretician and Practitioner of Comparative Law. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 3, pp. 137—150. (In Russ.) DOI: 10.12737/jflcl.2022.043

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