Articles

The review outlines the main content of scientific reports presented during the expert round table held on November 26, 2020 as part of the X Moscow Legal Week. The round table was attended by experts in the field of constitutional law and constitutional justice. Participants discussed the main directions of constitutional control reform, including the problems of modernization of the institution of constitutional complaint; issues related to expanding the competence of the Constitutional Court of the Russian Federation; clarification of the status of a judge of the Constitutional Court, as well as a whole range of issues related to the upcoming abolition of the constitutional (charter) courts in the constituent parts of the Russian Federation. The main attention of the speakers was paid to the problems and trends of changes in the sphere of constitutional justice in connection with the reform of the Constitution of the Russian Federation held in July 2020.

The article reveals the concept of “corporate law” in the legal science of China. This article examines the historical origin of the concept of corporation, its definition and classification in the legislation of the Qing Dynasty (China in 1636–1912) and modern Chinese legislation. It is determined that in China, a corporation acts simultaneously as a commercial legal entity and an enterprise, characterized by such features as focus on making a profit, limited liability of its participants and distribution of profits between its participants. A comparative analysis of the concept of corporation with such concepts as “legal entity” and “enterprise” is also carried out on the basis of the legislation and legal doctrine of China. Different approaches of Chinese and Russian scientists to this issue are analyzed. The study identifies: the legal definition and scientific concept of corporation in China; main features of a corporation in China and Russia.

The article is devoted to the issues of risk assessment and their justification arising in the process of challenging sanitary and phytosanitary measures taken by the WTO member states in the WTO SDO on the basis of the Agreement on Sanitary and Phytosanitary Measures. The article shows the difficulties of applying in practice the thesis that such measures should be taken only if necessary to eliminate or minimize the emerging risks to the life and health of their population, animals and plants, and at the same time have sufficient scientific justification. It is noted that in addition to the high standards of proof established by the WTO Appellate Body for the legitimacy of sanitary and phytosanitary measures taken by states, the question of what other factors, in addition to scientific evidence, should be taken into account when assessing the risk and priority of such factors over scientific justification is extremely controversial.

The functioning of the spot labor market is based on technologies that contribute to its international character. Thanks to digital platforms, employers can find performers of personal labor in various States that are most favorable to their ways of organizing business and managing labor in terms of minimizing costs, especially when it comes to performing remote work. The complexity of the situation is that there are significant uncertainties regarding the qualifications of the emerging relationship with gig employees. Judicial practice on this issue is being developed in various States, which, however, cannot be characterized by uniformity and certainty at the moment. In this regard, taking into account foreign experience, the article identifies a number of problematic issues of transnational performance of personal labor (determining the level of rights and guarantees provided to a person performing personal labor; possible attribution of this person to the “third” category of persons in some legal systems; possible formation of a plurality of persons on the employer’s side, etc.) and a comprehensive analysis of the relevant legal regulation (including in the field of remote labor regulation) is carried out. A number of definitions describing changes in the modern labor market are given, including: gig-employment; spot labor market; digital platform; participants in the spot labor market (consumer and performer of personal labor); crowdwork; on demand work, etc.

The article examines the approaches elaborated in the decisions of international courts and arbitration tribunals as well as in the writings of the researchers in international law towards stale claims, i.e. claims submitted after a passage of considerable time. The courts and arbitration tribunals dealing with the stale claims applied the doctrine of extinctive prescription as a tool to deny such claims in case where the applicable international treaty does not contain any fixed rime limits. Nevertheless, current practice reveals that the status of the doctrine of extinctive prescription as one of the principles of International law remains vague and problematic due the position of the International Law Commission reflected in its Commentary to the Draft of the Articles of state responsibility for internationally wrongful acts and some recent decision of the investment arbitration tribunals. It’s argued that the treaty-based time limitations appear in all cases of establishment of the permanent courts with compulsory jurisdiction and access of private persons. One of main rationale for such time limitations is a necessity to ensure legal certainty and procedural fairness. A current practice of the modern international courts especially of the courts of the regional integration and human rights courts shows a high degree of convergence that in full analogy with national legal systems there are different treaty-based time limitations for different claims and different types of claimants.

Standard control is one of the key focus areas of the judicial authority, both domestic and supranational. In spite of the existence of common features, the standard control of the Courts of integration associations has a number of features, which are the subject of study within the framework of this article. Operating analysis of a supranational judicial authority of compliance check with higher-level norms of legal position enshrined in acts lower in the hierarchy is carried out on the basis of the establishment of the features of constitutional standard control, research of the effects of the nullification of relevant acts, the relationship between the resolution of a case in constitutional proceedings and its consideration in ordinary types of proceedings. The formulation of approaches to the standard control activities of the EAEU Court, the identification of the presence or absence of characteristics inherent in constitutional regulatory control, is preceded by an understanding of the general theoretical definitions of these legal categories. The author sees the similarity of the activities of the EAEU Court with constitutional standard control in that the basis of the Court’s verification of acts of EAEU law is always the question of their compliance with the EAEU Agreement as a certain standard, which is dependent on the legality of other legal standards. An important part in this aspect is played by the desire of the EAEU Court to ensure the protection of fundamental human rights and freedoms within the framework of the integration association.

The article is devoted to the analysis of the draft federal law on amending the Criminal and Criminal Procedure Codes of the Russian Federation, approved by the Plenum of the Supreme Court of the Russian Federation at its meeting on October 13, 2020. The author of the article notes the absence in the Draft of a general definition of a criminal offense; referring to the number of misdemeanors of crimes of average gravity; deviation from the established rules for determining a crime committed for the first time. The provisions of the draft legislation relating to “other” measures of a criminal-legal nature are being investigated in more detail. The author critically evaluates the idea of expanding the system of such measures, believing that if the draft legislation is adopted, the system of criminal legal sanctions will acquire a dualistic character: along with the system of punishments, a system of security measures will be created that will be applied in the absence of a conviction by the court to persons who have not been found guilty of the established okay. The article examines the legal positions of the Constitutional Court of the Russian Federation, formulated by it in relation to the confiscation of property. The author draws attention to the experience of certain foreign countries (France, Germany), noting that there is a tendency in them to reduce the number of measures that act as legal consequences of the commission of a crime, but are used outside the forms of implementation of criminal liability. The final conclusion is to state the significant shortcomings of the draft legislation, which do not allow supporting it as a whole.

The war accompanied mankind from the moment of its appearance until the XX century. there was no legal prohibition on warfare. Fixation of prohibition was associated with difficulties in defining the conceptual framework, in particular the concepts of “war”, “aggression” and “aggressive war”. This article examines the process of formation of these concepts and the identification of their relationship based on the study of international legal documents and the practice of international tribunals.

The article analyzes the right of a judge in England and the USA to defer sentence. Based on long-standing division of the criminal proceedings on merits into trial and sentencing stages, anglo-american criminal procedure empowers a judge in the certain cases to defer sentence in order to induce a convicted person to correct his behaviour. Reflecting the need for flexibility in criminal justice, this institution represents a real alternative to a criminal punishment.

The article is devoted to the problem of distance education, which became extremely urgent during the pandemic and self-isolation. Both the positive and negative sides of the transition to online learning are shown. Based on a review of the results of empirical studies on distance education, including copyright, it is concluded that the rejection of traditional forms of education and reorientation to the distance model in the strategic plan will negatively affect the effectiveness and quality of higher education.