Contents # 6/2022

Yuriy M. Yumashev
Institute of State and Law, Russian Academy of Sciences, Moscow, Russia, yuri.marina.ivan@gmail.com

Abstract. Immanuel Kant understands international law in the modern sense as the regulation of relations between states, which he classifies according to the principle of domination (autocratic, aristocratic and democratic) and governance (republican and despotic). The scientist’s contribution to the development of the theory of international law lies primarily in the fact that he is a supporter of “federalism of free states”, a republican form of government and refuses to consider international law as “the right to war”. At the same time, I. Kant defends the idea of “universal civil law based on the principle of universal hospitality”. This limits the possibility to use the “law of war” solely in the interests of self-defense. It is this approach that underlays the League of Nations and the United Nations. With regard to human rights, I. Kant elevates to the absolute the principle according to which “the right of man must be sacred, no matter what sacrifices it may cost for the ruling power”.
Many ideas and principles of I. Kant in the international legal sphere were put into practice in the second half of the 20th Century, when the era of the formation of international integration economic communities began. They were created on various continents and currently their number reaches 50. However, the European Union is especially developed from a political, legal and economic point of view, which includes 27 member states and which, in the words of I. Kant, can be called a “federation of free states”. It is in the EU that the so-called European law operates, which has priority over the national law of the member states, which makes it possible to rightly call “European law” a kind of analogue of Kant’s “universal civil law”. The European Union also has “European citizenship”, according to which EU citizens can enjoy throughout the EU the rights and diplomatic and judicial protection of the Member-State of their location. And this is a practical step towards the implementation of the “idea of the right of world citizenship” by I. Kant, in which he saw the basis for establishing “eternal peace”.

Keywords: international law, state, self-defence, federalism, cosmopolitan law, human rights

For citation. Yumashev Yu. M. The Ideas of Immanuel Kant on International Law and Human Rights and Their Further Development in the Modern Era. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 5—17. DOI: 10.12737/jflcl.2022.071

  Download

Polina Yu. Malkova
National Research University “Higher School of Economics”, Moscow, Russia, poli.malkova@gmail.com, https://orcid.org/0000-0002-3300-0387

Abstract. Due to the COVID-19 pandemic the world community has faced the need for quick response to challenges, including in the field of law-making and law enforcement. However, due to a high level of uncertainty and a lack of uniformity, law-making processes in emergency situations are associated with inevitable legal risks. Different countries cope with them in different ways, and understanding the global experience is important for understanding the factors leading to legal risks and for developing recommendations to minimize them.
To form such recommendations, the article sets out the tasks to: conduct a theoretical assessment of the concepts “legal risk” and “legal risk factors”; analyze these concepts in the context of the pandemic and identifying specific legal risk factors specific to these conditions; and analyze the practices of regulatory response to the pandemic by different states.
A comparative legal method based on a sample of countries with the most striking examples reflecting legal practice serve as the basis for developing recommendations for minimizing risks, which are necessary to developed legal responses to crises.
The author comes to the conclusion that in order to minimize the risk factors identified in the article, legal initiatives should be based on the principles of legal certainty, interaction, intergovernmental dialogue, respect for human rights and communication with the society.

Keywords: legal risks, lawmaking, law enforcement, legislative process, COVID-19, constitutional law

Acknowledgements. The author thanks the scientific director of the Institute for National and Comparative Law of HSE Professor Yuri Tikhomirov for the direction of the idea of the research, valuable recommendations and corrections, and theoretical concepts that formed the basis of this article.

For citation. Malkova P. Yu. Factors of Legal Risks During State Response to the COVID-19 Pandemic: Comparative Analysis and Ways to Overcome. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 18—30. DOI: 10.12737/jflcl.2022.072

  Download

Sergey E. Vyltsan
Lomonosov Moscow State University, Moscow, Russia, servyltsan@mail.ru

Abstract. At present, there are four Islamic republics on the political map of the world: Iran, Pakistan, Mauritania and Afghanistan. One of the elements that characterize the form of government — known as the “Islamic republic” — is the justification for the creation of state bodies with reference to religious norms. In Iran, according to the constitutional norms referring to specific provisions of the Koran, there is a system of so-called “Islamic councils”. First of all, from the very name of the system of these bodies it is not clear what their function, place and role are in the state mechanism of modern Iran. It is also not quite clear what exactly is the Islamic nature of the functioning of these councils in practice. On this basis, within the framework of the presented article, the author aims to analyze the legal basis of the organization and functioning of Islamic councils in Iran, to determine their legal nature and importance for the Iranian state and society.
As a result of the study, the author comes to the conclusion that Islamic councils at the grassroots level (cities and rural settlements) are local self-government bodies. The higher levels of the councils, on the other hand, are bodies that provide inter-municipal cooperation, as well as control over the activities of the executive authorities in certain administrative-territorial formations in Iran. The religious characteristic inherent in the very name of these councils is realized in practice only in the presence of a religious qualification for election of these bodies.

Keywords: Islamic Republic of Iran, Islamic councils, local self-government bodies, state mechanism, religious qualification, control powers

For citation. Vyltsan S. E. Legal Basis of Organization and Functioning of the System of Islamic Councils in Iran. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 31—39. DOI: 10.12737/jflcl.2022.073

  Download

Shamil A. Shovkhalov^{1, 2}, Hussein V. Idrisov^{1, 3
1}Kadyrov Chechen State University, Grozny, Russia
²Chechen State Pedagogical University, Grozny, Russia, shovkhalov.shamil@gmail.com, https://orcid.org/0000-0001-8430-3276
³huseyn23@rambler.ru, https://orcid.org/0000-0002-7008-8904

Abstract. The relevance of the study is due to the fact that the cryptocurrency as an absolutely new, trending phenomenon of recent times has become the object of research, discussions on all global financial and economic platforms, which focus on the following key issues: the essence and features of the cryptocurrency, its disadvantages and advantages as an object of financial, economic and civil law relations. Separately, the question of the characteristics of the cryptocurrency from the point of view of Islamic law is touched upon.
The purpose of the work is to conduct an economic, legal and Sharia analysis of the cryptocurrency, identifying the most problematic sides in each highlighted aspect.
The work includes three blocks: the first block examines the essence of cryptocurrency as an economic category; the second part is devoted to its legal analysis; and the last part of the article analyzes the view of Islamic law on this new financial instrument. The religious and legal analysis of the cryptocurrency phenomenon has shown that the Muslim world has not yet made a single decision on this issue. The author’s opinion is expressed that a balanced analysis of the combination of positive and negative elements of the factors of its influence will be the basis for the final adoption of a Sharia decision in Islamic law regarding its permissibility or prohibition for Muslims. In conclusion, the scientific article notes that further research is required on the practice of using cryptocurrencies and its impact on the economy and legal institutions in order to identify all the advantages and disadvantages of its turnover for subjects of market relations and, first of all, the main subject of such relations — the state.

Keywords: cryptocurrency, economic characteristics of cryptocurrency, legal content of cryptocurrency, bitcoin, money, mining, Islamic law, Sharia

For citation. Shovkhalov Sh. A., Idrisov H. V. Cryptocurrency as an Specific Financial Instrument: The Economic and Legal Aspect and the Islamic View of the Essence. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 40—53. DOI: 10.12737/jflcl.2022.074

  Download

Yuliya N. Shved
Belarusian State University, Minsk, Belarus, ynshved@gmail.com, https://orcid.org/0000-0002-0823-9193

Abstract. In order to build an optimal system of taxation by a certain tax within a specific legal system, it is recommended to rely on the experience of countries where this tax has proven its economic efficiency. The best way to condense the legal content of proven tax structures is through the consistent conscious design of their underlying characteristics and principles. With regard to value added tax (VAT) — which for the most states is one of the most important sources of budget — it should be noted that it is the Member-States of the European Union (EU) and the Organization for Economic Co-operation and Development (OECD) that have achieved the greatest success in building an effective VAT system. In this connection, their relevant experience is of great value to other states, including Members-States of the Eurasian Economic Union (EAEU).
The purpose of the research is: to analyze the experience of the EU and OECD Member-States in the field of implementing the principle of VAT neutrality and the internal parameters of the tax mechanism designed in accordance with this principle for its subsequent use in order to remove barriers to the economic development of the EAEU Member-States and strengthen their cooperation.
Research methods are: dialectical method, analysis and synthesis, deduction and induction, comparative legal method.
Conclusion: the principle of VAT neutrality implies reduction of the distorting impact of the tax on decision-making and economic behavior of business entities and (or) consumers in the domestic and foreign markets. Its implementation necessitates the regulatory legal alignment of the VAT mechanism and its subsequent practical implementation, taking into account the totality of interdependent structure-forming characteristics. Certain flexibility in the meaningful interpretation of the principle — limited by the outlined characteristics — makes it possible to build a consistent legal array that meets modern economic realities.

Keywords: value added tax, neutrality principle, OECD, EU, VAT refund, deduction

Acknowledgments. The author expresses his gratitude and deep gratitude to Ph.D. in Law, associate professor S. K. Leshchenko for advice and valuable comments while working on this article.

For citation. Shved Yu. N. Neutrality of Value Added Tax: Substance of the Principle. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 54—67. DOI: 10.12737/jflcl.2022.075

  Download

Maxim G. Zhilkin
Moscow Region Branch, Moscow University of the Ministry of Internal Affairs of the Russian Federation named after V. Y. Kikot, Staroteryaevo, Moscow region, Russia, zmax71@mail.ru

Abstract. The purpose of the article is to identify the positive legislative experience of the foreign countries in the formation of constructs of a completed and an inchoate crime in a domestic criminal legislation. And in the furtherance of this goal, analysis of the provisions of the criminal legislation of a number of foreign countries in terms of regulating liability for a completed and inchoate crime has been performed.
During the research, the comparative legal method is used as the main one and other methods of logical and structural analysis.
As a result of the comparative analysis, the main differences in the normative regulation of a completed and inchoate crime in Russian and foreign criminal legislation are highlighted; conclusions are drawn about the existence of provisions that can be implemented, taking into account the Russian legal specifics in the Criminal Code of the Russian Federation. In a point of fact, it is proposed to indicate the full realization of the intent of the person committing the crime in the concept of a completed crime; to introduce a differentiated approach in determining the moment of the end of formally and materially defined crime; as well as the possibility of excluding the stage of attempt (preparation) for certain types of crimes; differentiate the measure of responsibility depending on the type of attempted crime — completed or inchoate — to consolidate the requirement to reduce the lower threshold of sanctions for an inchoate crime depending on its category; to introduce qualification rules for determining the stage of a crime in case of an actual error.

Keywords: completed crime, inchoate crime, stages of crime, attempt, preparation, comparative analysis

For citation. Zhilkin M. G.Completed and Inchoate Crimes: A Comparative Aspect. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 68—76. DOI: 10.12737/jflcl.2022.076

  Download

Anastasia V. Danchevskaya
East-Siberian Institute, Ministry of Internal Affairs of the Russian Federation, Irkutsk, Russia, vashan16@mail.ru, https://orcid.org/0000-0003-2263-3768

Abstract. The Russian police has rather closed structure, which rises to a number of features of its functioning. In order to develop a more effective legal framework for police activities and improve the organizational form of the latter, there is a need for regular analysis of foreign experience in organizing police activities. The purpose of the study is a comparative analysis of the organizational and legal foundations of police activity in Russia and the UK. For this purpose, the legal foundations of police activity in these states, the tasks and functions of the police, the principles of its activities (ensuring openness and taking into account public opinion), the basics of organizing personnel selection and training of newcomers, the grounds and principles of the use of firearms by police officers, as well as the experience of involving the public in the protection of public order were studied. The main method of research is the method of comparative analysis. The content analysis method was also used. The results of the study. In contrast to the Russian vertical of internal affairs bodies from the ministry to territorial departments in the UK, the police is represented by a number of independent police agencies in England and Wales, Scotland and Northern Ireland. In Russia, the organization of the police service is regulated by a set of uniform federal laws, while in the UK there is a significant amount of various regulations regulating the work of individual police agencies in different parts of the state. Different regulatory frameworks determine the difference in the functions of the Russian and British police. In both countries, public opinion is given great importance, but ensuring the openness of police activities in Russia and the UK is carried out in different ways. The procedure for selecting police officers varies, but there are similarities in some stages of admission, the implementation of preliminary checks and mandatory training of recruits.

Keywords: police, Russia, Great Britain, England, Wales, Scotland, Northern Ireland, bobby, weapons, constable, police service, firearms

For citation. Danchevskaya A. V. Comparative Analysis of Organizational and Legal Bases of Police Activity in Russia and the UK. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 77—86. DOI: 10.12737/jflcl.2022.077

  Download

Yuri V. Truntsevsky¹, Artem M. Tsirin^{2
1, 2}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
¹trunzev@yandex.ru, https://orcid.org/0000-0002-8425-2533
²artemtsirine@yandex.ru, https://orcid.org/0000-0003-0690-074X

Abstract. In practice, the distinction between external and internal spheres of corruption is becoming increasingly blurred, especially with regard to transnational corruption. The purpose of the study is to identify the most relevant trends and problems in this area. The anti-corruption policy of some states is focused on the fulfillment of relevant international obligations, while other states give anti-corruption regulation an extraterritorial character, while invading not only foreign jurisdictions, but also international public relations. Dominating the global space, the United States is also taking active actions in the implementation of the national anti-corruption policy. The authors describe the main elements of the US Anti-Corruption Strategy 2021 and the Russian National Anti-Corruption Strategy.
The activities of the Russian National Anti-Corruption Plan for 2021—2024 involve improving the effectiveness of anti-corruption standards, specifying the concept of conflict of interest, developing channels for receiving information about corruption, as well as conducting educational and other activities aimed at anti-corruption education and popularization of anti-corruption standards in society. At the same time, the main emphasis is placed on the development of methodological support for the development and implementation of anti-corruption plans in government bodies, ensuring the implementation of prohibitions on entrepreneurial activity, as well as participation in the management of organizations. In addition, it is planned to prepare a review of the law enforcement practice of protecting applicants about corruption.
Conclusion: the Russian Federation is following the path of strict fulfillment of its international obligations and further improvement of domestic regulation, while not seeking to implement legal expansion in relation to foreign jurisdictions.

Keywords: geopolitics, plan, counteraction, corruption, strategy, legislation, convention

For citation. Truntsevsky Y. V., Tsirin A. M. State Anti-Corruption Policy: National Initiatives. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 87—98. DOI: 10.12737/jflcl.2022.078

  Download

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

Abstract. This article examines the doctrinal approaches of foreign and Russian international law academics to the concept of State sovereignty in cyberspace.
There are three main approaches in the international legal doctrine to determining the role of State sovereignty in regulating relations between States in cyberspace. The first approach is nihilistic; its representatives deny the very possibility of recognizing the sovereignty of the State in cyberspace. His supporters base their arguments on the idea of cyber exclusivity, they propose to recognize cyberspace completely free from the sovereignty of the State. The article provides a reasonable criticism of the theoretical provisions of this concept. The second approach recognizes the importance of State sovereignty for the international legal regulation of the status of cyberspace, however, tends to assert the impossibility of its application to the regulation of interstates relations in cyberspace. His followers, relying on pragmatic considerations, consider it real to use in cyberspace not the principle of sovereignty, but the concept of State jurisdiction. This palliative jurisdictional-oriented approach to the concept of the role of State sovereignty is based on a number of theoretical conclusions justifying ways to overcome challenges to international legal regulation of States’ activities in cyberspace. The author of the article recognizes the need to use the concept of State jurisdiction as a means of combating cybercrime, but notes the insufficiency of its potential to maintain international information security. The third doctrinal approach, recognizing the growing interest of States in strengthening sovereignty in cyberspace, justifies the recognition of sovereignty as a necessary basis for achieving a satisfactory international legal settlement of relations between States in cyberspace. The article presents theoretical and practical considerations of the use of this concept of sovereignty in cyberspace to ensure international information security.
In conclusion, it is concluded that the formation of a new environment of interaction between States, to which the ICT sphere belongs, in itself cannot be considered as a determining factor in limiting or, moreover, abolishing the sovereignty of the State.

Keywords: sovereignty, jurisdiction, state, state power, cyberspace, doctrine of international law, “digital sovereignty”

For citation. Kapustin A. Ya. State Sovereignty in Cyberspace: International Legal Dimension. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 99—108. DOI: 10.12737/jflcl.2022.079

  Download

Sergey N. Chernov^{1, 2}, Tatyana I. Chernova^{1, 3
1}Department of Multidisciplinary Scientific Research, Karelian Research Centre, Russian Academy of Sciences, Petrozavodsk, Russia
²Institute of Economics and Law, Petrozavodsk State University, Petrozavodsk, Russia, chernov@petrsu.ru
³tchernova@krc.karelia.ru

Abstract. Environmental legislation and permitting activities in the field of nature protection in Finland and Norway aim to protect biological, geological and landscape diversity and ecological processes through conservation and sustainable use, and in such a way that the environment provides the basis for human activity, culture, health and well-being. In the 1980s, these countries tried to solve complex environmental problems by doing scientific research on environmental protection problems. The analysis of the state of the northern nature showed that the environmental consequences of the intensive industrialization of states led to frequent cases of contamination of land, air and water resources with toxic materials and other pollutants. Despite the global attention to pollution, the impact of the other pollutants is still felt due to its serious long-term consequences.
The main purpose of the study is to search for legal means and ways that can avert a real threat to human health and help in the preservation of global ecosystems, based on both domestic and foreign experience. Such a means is control and supervisory activity, which makes it possible to tighten responsibility for environmental offenses and create conditions for the preservation of the natural environment.
Research methods: synthesis, system analysis, analogy, as well as special scientific methods (technical and legal analysis, logical, comparative legal methods, etc.). When writing the work, the requirements of completeness of the material, objectivity of analysis, reliability of data were fulfilled.
Conclusions: Finland and Norway have made efforts to limit the impact of pollution on the northern nature, the organization of environmental management. Countries successfully use control over nature protection facilities in their environmental activities. Of particular importance is the environmental supervision of enterprises that require permits for activities related to interference with the natural environment, and which are responsible for submitting reports in accordance with the Law on Environmental Protection. Surveillance operations help to reduce emissions into surface and groundwater, air and soil, reduce the use of hazardous substances, ensure the collection, transportation and processing of waste in accordance with legal requirements. Supervision and inspections are the dominant approach to environmental management.

Keywords: protection of biological, geological and landscape diversity, environmental management, health protection

For citation. Chernov S. N., Chernova T. I. Permissive and Supervisory Activities of Finland and Norway in the Field of Environmental Protection. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 109—117. DOI: 10.12737/ jflcl.2022.080

  Download

Natalia S. Volkova¹, Natalia V. Putilo², Elvina Aksu^{3
1, 2}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
¹volkova@izak.ru
²social2@izak.ru, https://orcid.org/0000-0001-7148-5875
³Girne American University, Girne, Turkey, elvina@vevin.pro

Abstract. Modern challenges of scientific and technological development and the need to ensure national security actualize the issues of preserving the Russian scientific tradition, training young scientific personnel and creating conditions for reducing scientific migration. The Russian state is making a lot of efforts to overcome the negative situation in science that developed in the early 2000s, characterized by both a decrease in the quantity and quality of scientific research, and the outflow of talented scientists abroad to continue their scientific careers. Meanwhile, the concept of “young scientist” has not yet been enshrined at the legislative level, there are no guarantees for the activities of young scientists, and measures to support them are unsystematic. The problem of shortage of scientific personnel is not unique to the Russian state. In the “post-COVID” conditions, many states have experienced a sharp shortage of young researchers who preferred financially more reliable areas of business and production during the unstable economic period of the COVID-19 pandemic. This is especially evident in the field of fundamental sciences, where the diversification of academic staff is an acute problem. The solution of this problem is facilitated by the promotion of various forms of stimulation of scientific activity and measures of social support for researchers.
The article analyzes the terminological features of the development of legislation on science in terms of modifying the concepts of “young scientist”, “young researcher”, “novice scientist”; the measures provided for by Russian and foreign legislation to support young scientists and novice researchers are studied. Particular attention is paid to the experience of the Republic of Turkey — this state has recently begun to pay close attention to the development of science, but the measures to support scientists in this country are diverse, and in some cases — unique.
The purpose of the research is to study the Russian and foreign experience of legal regulation of support for young scientists and researchers; to identify similarities and differences in the legal regulation of the status of young scientists.
Research methods: comparative-legal method, formal-logical, system-structural, formal-legal, method of special-legal research, etc.
Conclusion: improving the status of young scientists and novice researchers remains an urgent task of developing legislation on science. At the same time, foreign experience demonstrates a wide variety of mechanisms and means by which it is possible to provide incentives for young people to engage in scientific activity, although financial instruments are fundamental.

Keywords: scientific research, young scientist, novice researcher, legal status, support for young scientists, scholarships, grants

For citation. Volkova N. S., Putilo N. V., Aksu E. On the Legal Status of Young Scientists and Novice Researchers: Russian and Foreign Experience. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 118—127. DOI: 10.12737/jflcl.2022.081

  Download

Iskander A. Khalikov
Kazan Law Institute (branch), University of Prosecutor’s Office of the Russian Federation, Kazan, Russia, iskanderh@mail.ru

Abstract. Improving the effectiveness of the national system of historical and cultural protection implies the need to refer to the experience of foreign countries rich in both legal traditions and monuments of the World natural and cultural heritage UNESCO.
In order to develop concrete proposals aimed at improving the effectiveness of the norms of the domestic criminal law providing for responsibility for crimes committed against the domestic historical and cultural heritage, the author sets the task of generalizing the diversity of criminal law regulations contained in the norms of foreign criminal law (China, Spain), distributed between the criminal law and legislative acts other branches of law (Greece, Italy, France), as well as those set out in the norms of positive law (Turkey).
The study used a comparative legal method with a sample limited by the legislation of countries rich in historical and cultural monuments, cultural values of global importance.
The author concludes that in foreign legislation providing for criminal liability for the commission of crimes against cultural and historical heritage, there is a general tendency to expand the scope of criminal legal protection by taking measures to prevent the possibility of using and disposing of elements of heritage obtained by criminal means, the use of other measures of criminal legal impact in the form of confiscation of the subject of criminal encroachment and forced restoration of a damaged historical and cultural monument, as well as creating legal conditions that stimulate lawful behavior by refusing to commit further crimes. Certain provisions of foreign legislation can be taken into account by the domestic legislator to increase the effectiveness of the norms of the criminal law providing for responsibility for committing crimes against historical and cultural heritage.

Keywords: historical and cultural heritage, objects of cultural heritage, identified objects of cultural heritage, cultural values, historical and cultural monuments

For citation. Khalikov I. A. Criminal and Legal Protection of Historical and Cultural Heritage in the Legislation of Foreign States. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 6, pp. 128—136. DOI: 10.12737/jflcl.2022.082

  Download

  Download