Annotations № 1 (154) / 2024

INTERNATIONAL LAW

Skuratova A. (Moscow) The principle of legality in international criminal law: specifics of its content and application

The article analyses the content of the principle of legality and the way it was developed in international criminal law as well as the main legal acts where the principle of legality is fixed. An analysis is focused on the meaning of the term «law» (lex), that used in the maxima nullum crimen sine lege, nulla poena sine lege, in relation to international law. The peculiarities of the application of the principle of legality in international law are examined. The practice of international criminal courts and ad hoc tribunals (the Nuremberg Military Tribunal, the International Tribunal for the former Yugoslavia, the Special Court for Sierra Leone) is analysed with the special attention to the interpretation of the principles nullum crimen sine lege, nulla poena sine lege; some legal issues, where the judiciary’s adherence to the principle of legality was called into question, are considered. It is concluded that the implementation and application of the principle of legality in international criminal law has special features in comparison with national law.

Key words: nullum crimen sine lege, nulla poena sine lege, international custom, general principle of law, individual criminal responsibility, Nuremberg trial, international criminal law, international criminal courts

Tolstykh V., Yang Tianyu (Moscow) The Taiwan question in international law

The international legal status of Taiwan is a matter of debate. Most Western authors take the position that Taiwan is legally part of China, but is in fact a separate entity (de facto regime). As a result, it cannot possess rights derived from statehood, but can participate in international relations of an economic and humanitarian nature and enjoy international legal protection against the use of force. According to Chinese authors, the island belongs to China by virtue of succession and two declarations (Cairo and Podsdam); the San Francisco Treaty in this part is invalid or inoperative; Taiwan does not meet the Montevideo test and is not a state. The main difference between this position and that of Western authors is the denial of Taiwan’s international legal status and the consideration of the issue as an internal Chinese affair that can be resolved, including through the use of force. Some American and Taiwanese authors believe that Taiwan is already a state; its territorial title can be based on the prescription, right to self-determination, or external recognition which is given a constitutive effect. The participants in this debate use various arguments borrowed from treaty law, institute of succession, right of nations to self-determination, etc., present original concepts and rely on sophisticated logical sequences. The historical argument (i.e. the argument based on the existence of a cultural link) is mainly used by Chinese authors, while the argument based on efficiency is used by their opponents. The purpose of this article is to present the official positions of China, Taiwan and the United States, and to outline this debate so that the Russian reader can form his or her own opinion.

Key words: international law, statehood, right to self-determination, territorial titles, de facto regimes, international legal status of Taiwan

PROBLEMS OF LEGAL SCIENCE AND EDUCATION

Vinnik A. (Yekaterinburg) The autonomy of scientific organisations as a principle of scientific funding

The article is devoted to the legal criteria for establishing a balance between scientific autonomy, academic freedom of scientific organisations and control over the targeted nature of spending budget funds by regulatory authorities. The author analyses the norms of Russian legislation regulating scientific activities, the provisions of international legal acts, as well as relevant judicial practice. The author comes to the conclusion that, despite the formal enshrinement of the principles of autonomy and freedom for scientific and educational organisations in a number of Russian legislative and other regulations, these principles are almost not applied in the implementation of state financial control. The author substantiates the role of the principle of financial autonomy of scientific organizations as the basis for achieving the necessary balance between protecting the interests of scientific organisations as recipients of budget funds and ensuring the control over the efficiency of the use of budget funding.

Key words: scientific activity, scientific autonomy and academic freedom, recipients of budget funds, efficiency of use of budget funds, state financial control

COMPARATIVE JURISPRUDENCE

Popondopulo V., Silina E. (St. Petersburg), Koshkin V. (Changchun, People’s Republic of China) The system of bankruptcy regulation in Russia and China: a comparative analysis

The article compares Russian and Chinese bankruptcy legislation, identifies similarities and differences in the legal regulation of bankruptcy in the two countries. The conclusions are drawn that, despite the significant influence of the state on the economy in Russia and China, the bankruptcy legislation of these countries fully complies with market standards for regulating bankruptcy relations. At the same time, there are significant reserves for improving the legislation under consideration – its further simplification, shortening the time of bankruptcy proceedings, strengthening the protection of creditors’ rights and interests in bankruptcy proceedings, and ensuring equality of competing creditors.

Key words: Russia, China, insolvency, bankruptcy, bankruptcy legislation, creditor

Baranov D. (Minsk, Republic of Belarus) Trends in improving the legislation on unauthorized construction in the Republic of Belarus

The article examines the legal regime of unauthorized construction in the legislation of the Republic of Belarus. Some aspects of the concept of unauthorized construction in the legislation of the Russian Federation are touched upon. The author points out that relations in the field of unauthorized construction are regulated by normative acts of various branches of law, which causes difficulties both in theory and in practice. The need to develop legal regulation of public relations in the field of unauthorized construction within the framework of the institution of real estate is emphasised. A different concept of legal regulation of relations arising in the field of unauthorized construction is proposed. It consists in the development of a separate comprehensive normative legal act on unauthorized construction.

Key words: unauthorized construction, legal regulation, urban planning legislation, legal institution, real estate, capital structure, construction object, building, structure

Vasilev S. (Sevastopol) Comparative legal analysis of the family legislation of Russia and Ukraine

Against the background of a number of events related to the special military operation on the territory of Ukraine, as well as the accession of four new subjects of the federation to Russia, attention in the political and legal discourse has shifted away from two regions of the Crimean peninsula, which had long been viewed as similar to other parts of Russia. Meanwhile, the federal constitutional law regulating the transitional period of the entry of the specified territory into the Russian legal space is still in force. The adaptation of people who maintain the habits of living in another state is lengthy. The article provides a comparative analysis of the main provisions of the family legislation of Russia and Ukraine. Despite the initially common approaches to regulating marital and family relations, the legislation of the two countries differs in regulating certain aspects of marriage and children’s rights. Although Ukrainian legislation in some cases offers more detailed regulation, it is more politicised and focuses on European values. Russian family legislation is more socially oriented and reflects traditional family values. The author believes that the provisions of Russian legislation on marriage and family and the actual practice of its application contribute to the reintegration of new subjects into the Russian legal system.

Key words: family law, reintegration, Crimea, Sevastopol, Russia, Ukraine, identity, marriage, guarantees for orphans

CRIMINAL LAW AND PROCEDURE

Alexandrova L. (Yekaterinburg) Validity and motivation as requirements for the content of the sentence

In practice, the issue of validity of procedural decisions is acute. Often, when appealing against sentences, defence lawyers point to the absence of this necessary feature. Confusion occurs between the concepts of «reasonableness» and «motivation». The article proposes a simple approach to the interpretation of these categories in the context of the completeness of the final document and taking into account the interrelation of factual and legal circumstances, which the law enforcer should carefully analyse, when justifying the position on the case. Controversial procedural decisions – sentences justified in one way or another by judges, as well as the results of their appeal to the appellate and cassation instances – are cited. Some cases where the sentences have not been cancelled by higher judicial instances, although they contain diametrically opposite conclusions in criminal cases about the same crimes committed in similar circumstances, are reviewed. The author formulates conclusions about the essence of the motivation and grounds of the sentence, as well as about their relationship within the framework of the general concept of validity of the final court decision.

Key words: criminal procedure law, sentence, properties of the sentence, validity, motivation, factual circumstances, legal grounds

Pankratov V. (Moscow) The subject of bribery: some issues of understanding and interpretation

The article examines the problems of modern understanding and interpretation of some subjects of bribery. The article analyses «illegal services» and «other property» as economic rather than civil categories, and therefore substantiates the position that these goods as objects of economic turnover can be the subject of bribery regardless of whether they are legal or not and whether they are negotiable from the point of view of civil law. It is suggested that any good with a use value can be the subject of a bribe (provided that the official is aware of the illegal nature of the offering and the property benefit to be derived). The author proposes some options for monetary valuation of bribe items, the value of which is difficult to establish: it is necessary to use any information about the value of the bribe item, regardless of whether these data belongs to the legal or illegal information segment; the main thing is to ensure the regulatory development of protocols for detection, fixation, receipt and processing of this data.

Key words: subject of a bribe, illegal services, other property, property with a turnover defect, monetary valuation of the subject of a bribe

CIVIL LAW AND PROCEDURE

Shvalev K. (Yekaterinburg) Legal regime of alimony for minor children in the context of hereditary succession

The purpose of the article is to determine the subject composition of alimony obligations for the maintenance of minor children both before and after the child’s majority, including in relation to alimony arrears accumulated in connection with the untimely fulfilment of these obligations. The possibility of transfer of rights and obligations in the order of hereditary succession to other persons in terms of future alimony payments and payment of accumulated arrears is assessed. The defects of civil legislation are revealed, which allow for situations where the rights of claim in respect of arrears of alimony previously collected for the maintenance of the child are transferred to persons who, under normal circumstances, would not have the right to claim for alimony (such as stepfather or stepmother, stepbrothers and stepsisters living with the recipient of alimony at the time of his death), and the child for whose maintenance the alimony should be paid, becomes a debtor. The author considers it necessary to establish by law a legal regime of limited negotiability of claims for alimony arrears recovery, and to supplement Article 120 of the Family Code of the Russian Federation with the norm, according to which the obligation to pay alimony arrears should be terminated if the child, for the maintenance of whom the alimony was initially collected, becomes a debtor under it. Alternatively, it is proposed to recognise the child as a creditor of the alimony obligation, whereby the child would become the owner of the sums of alimony payments, and the parents or custodians would perform the function of money managers for the maintenance, upbringing and education of the child.

Key words: alimony obligation, subject composition of alimony obligations, alimony arrears, inheritance of alimony arrears, heirs, dependents of the testator

Kositsky A. (Moscow) Copyright protectability of works of applied art and design

The article is devoted to the problem of the copyright protectability of objects that have both aesthetic properties and a functional purpose. It is substantiated that not the entire object is subject to copyright protection, but only those elements of it that are not technically determined or related to the purpose of use. At the same time, such aesthetic elements must constitute an independent work. The author shows that the judicial doctrines used in Germany and the USA to research such objects are not contradictory and lead to similar results. However, according to the author, the existence of two instruments with the same function within the same legal system is redundant.

Key words: criteria of protectability of copyright objects, works of applied art, works of design

Lisachenko A. (Yekaterinburg) Running in place at the expense of copyright holders

The article analyses the consequences of the technological revolution in the field of rights management for musical works (and other content) in Russia. It traces the evolution of the relationship between organisations for collective management of copyright and related rights and new domestic Internet services for licensing musical works. The article studies court practice on disputes between organisations for collective management of copyright and related rights and end users involving alternative Internet services. The author concludes that the earlier forecasts regarding the replacement of contracts with accredited organisations by a contractual licensing model «each to each» through Internet services turned out to be erroneous.

Key words: copyright, related rights, exclusive rights, musical works, rights management

Lapteva A. (St. Petersburg) Digital rights as objects of investment activity

The article examines the content of the concept of «object of investment activity», its differences from related categories. The object of investment activity is proposed to be understood as what investments are invested in, i. e. certain types of objects of civil rights, the list of which may vary depending on the type of investment activity. The features of the legal regime of digital rights as objects of investment activity are investigated. It is noted that the legislator seeks to create a controlled digital rights market, ensure the protection of the rights and legitimate interests of investors, and reduce their risks. At the same time, there are two options for regulating digital rights, i. e. similar legal relations are regulated by different rules. It is indicated that the legislator has chosen a balanced approach to regulating investment activities in the field of digital rights: on the one hand, it stimulates this type of activity; on the other hand, it introduces special requirements for professional investors and restrictions for the least qualified participants in this market – individuals.

Key words: investment, investment activity, object of investment activity, digital economy, digital rights, digital financial assets

ECONOMICS AND LAW

Rybakova S. (Saratov) Platform ecosystem as a financial and legal phenomenon

Actively developing information and telecommunication technologies in the field of finance determine the formation of platform ecosystems that ensure the calculation and payment of taxes, the distribution of funds between the budgets of the budget system, financial investments, etc., and require not only the appropriate legal regulation, but first of all the comprehension of the formations created in this process. Of great importance are the characteristics of the participants in the emerging legal relations, the quality of the connections formed between them, the nature of these connections, and methods of interaction not only with each other, but also with the operator of the digital platform. In the context of financial and legal regulation, the phenomenon of the platform ecosystem requires special understanding. Although the cognition of this phenomenon occurs in the process of formation and functioning of specific ecosystems, this does not exclude the need for such cognition for the purposes of legal regulation of the quality of the legal environment formed within such systems.

Key words: financial law, platform ecosystem, platform law, noosphere of financial law

Vasyanina E. (Moscow) Legal issues of regulation of the Russian financial market

Based on the analysis of financial legislation and financial and legal doctrine, the author comes to the conclusion that the instruments used by the Bank of Russia and the Government of the Russian Federation to ensure the stable functioning of the financial market are insufficient. The weak sides in the legal regulation of the financial market are: the lack of legal conditions for the integration of cryptocurrency turnover into the financial system; the lack of a legal structure for managing the money supply; the lack of special legal personality for individual entities attracting investments, corresponding to the activities on the financial market; uncoordinated actions of the Government of the Russian Federation and the Bank of Russia on a number of key aspects to ensure the financial stability of the state. The author points out that in modern conditions it is necessary to develop legal mechanisms for ensuring the integration of the tasks of the Bank of Russia with the tasks of the Government of the Russian Federation to achieve the goal of sustainable economic development of the state.

Key words: financial market, monetary mechanism, Bank of Russia, financial pyramids, financial organisations, legal structures, monetary policy, budget policy

Аgamagomedova S. (Moscow) Financial stability of the subjects of customs relations

The article examines the specifics of using the category of financial stability in the customs legislation. It is noted that the term «financial stability» is used in relation to two categories of participants in customs relations: authorised economic operator and legal entities applying for this status. The conclusions are drawn about the selective approach of the legislator to the establishment of requirements for financial stability of the subjects of customs relations; about the regulation of financial stability requirements at the EAEU level, as well as at the level of national customs legislation and by-laws; and about the possibility of replacing the requirement for financial stability for a certain category of legal entities with a condition for providing security for the performance of duties. It is established that, at the EAEU level, absolute and relative indicators of financial stability for legal entities applying for inclusion in the register of authorised economic operators are determined. It is noted that the financial stability of non-governmental entities in customs relations forms the financial stability of the state as a whole and acts as a condition for ensuring financial security in the customs sphere.

Key words: financial stability, financial security, customs relations, authorised economic operator, privileged status, special simplifications

Shved Yu. (Minsk, Republic of Belarus) The place of supply for VAT taxation of intra-EAEU transactions

The dependence of a right of a particular state to charge VAT on the location of the «place of supply» within its territory allows to distribute taxes between states and prevent excessive taxation (absence of taxation). The technical and legal design of the procedure for determining the place of supply in the EAEU legislation and its subsequent systematic construction in the national legislation of the member states plays a decisive role in the VAT taxation of intra-Union transactions. The article notes that the EAEU legislation provides for the principle of destination and uses a consistent approach to determine the place of supply of goods for VAT purposes. A categorical approach is used in relation to cross-border supply of services within the EAEU. At the same time, the EAEU law does not establish the order of taxation of intra-Union supply services, which triggered a development of different approaches in the local tax legislation of the states. The general concept of VAT taxation developed at the EAEU level, which is based on the principle of neutrality, and joint efforts of the states to create a unified tax mechanism will allow to implement a coordinated approach to VAT taxation at the level of member states.

Key words: value added tax, neutrality principle, place of supply of goods, works and services, EAEU

Kavkaeva K. (Moscow), Malysheva A. (Saratov) The «Krug Dobra» Foundation: prerequisites for establishment and specifics of financial and legal regulation

The article reveals the prerequisites and reasons for the creation of the «Krug Dobra» Foundation, and the peculiarities of its functioning. It is established that the establishment of the fund is connected with frequent refusals of state authorities of the constituent entities of the Russian Federation to provide citizens with medicines for the treatment of diseases that are included in the list of life-threatening and chronic progressive rare (orphan) diseases. The purpose of the fund is to finance the provision of children with orphan diseases with medicines, medical devices, including those not registered in Russia, and technical rehabilitation devices that are not included in the federal list of rehabilitation measures. A downward trend in the amount of money in the budgets of the constituent entities of the Russian Federation allocated to pay for the provision of medicines to seriously ill patients is noted. It is established that the fund is an additional mechanism of financing of the above activities and should not replace the main source of financial support provided by the legislation – the funds of budgets of constituent entities of the Russian Federation.

Key words: financial support, «Krug Dobra» Foundation, orphan diseases, budgets of constituent entities of the Russian Federation, medicines

PAGES OF HISTORY

Tumanova A., Mamtsev R. (Moscow) Abolition of the death penalty in the legal discourse of late imperial Russia

During the First Russian Revolution, a movement for the abolition of the death penalty was born and actively developed in the public environment. Its ideologists were prominent Russian lawyers. On the one hand, it was formed in the context of the tightening of the repressive policy of the state and the increase in the growing number of death sentences imposed by military field and military district courts, and on the other, it was an important part of the constitutional project of the beginning of the last century. The protest against capital punishment expressed by representatives of the legal community was reflected on the pages of the legal press and in collective collections of articles, at congresses of Russian criminologists and during parliamentary discussions. The judgments expressed by domestic lawyers in the discussion of this problem were characterised by a high level of argumentation. The arguments given by jurists allow to judge about the state of legal thought and legal awareness of Russian society, to look at the constitutional process of the early XX century from a new angle.

Key words: death penalty, Russian lawyers, First Russian Revolution, movement for the abolition of the death penalty, legal press, State Duma, State Council, M. N. Gernet, V. D. Nabokov, N. S. Tagantsev