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Vol 75, No 9 (2022)
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ANNIVERSARY / LIBER AMICORUM

PRIVATE LAW / JUS PRIVATUM

10-19 323
Abstract

The paper analyzes the current legislation and considers certain legal problems of recovery of losses for unfair behavior of credit institutions. The author notes a different understanding in the theory of law of the principle of good faith and the evaluation of its criteria, as well as an increase in cases of unfair behavior of credit institutions. It is concluded that unfair behavior is the basis for civil liability. As a result of the reform, the Civil Code of the Russian Federation has been replenished with new compositions of the civil wrongdoing providing for damages for unfair behavior. The paper considers the legal features of the recovery of losses for unfair behavior of credit institutions. The Author examines the recovery of losses in cases provided for in Articles 10, 434.1 of the Civil Code of the Russian Federation using case studies from banking practice. The author notes that unfair behavior at the stage of negotiations on conclusion of banking contracts is more often manifested by credit institutions. In particular, providing incomplete or unreliable information to a party allows credit institutions to sell one service under the guise of another (misseling). As examples of recovery of losses, cases of unfair behavior in collecting bank commissions, as well as in case of unilateral increase in the amount of the interest rate, are considered. The author believes that the inequality of the bank’s and the client’s capabilities (professional knowledge, different property status, the client’s lack of special knowledge, etc.) makes it difficult to prove the amount of losses for such a client, especially when unfair behavior is not related to financial conditions. The conducted research allowed the author to conclude that unfair behavior serves not only as a basis for collecting damages, but also as a tool influencing the possibility of reducing losses. In conclusion, the author gives suggestions for improving the rules for collecting losses for unfair behavior of credit institutions.

20-32 439
Abstract

The paper is devoted to the analysis of current factors of ESG (Environmental Social and Corporate Governance) sustainable development. The paper shows how the ESG agenda is implemented in practice, as well as what changes in legal regulation or behavior of investors, counterparties, consumers of products and services may be associated with it. The author examines to what extent ESG standards are included in the risk management strategy of cross-border business. The risk management system is a set of techniques and methods that allow you to accurately predict the occurrence of risk events. Risk management standards presuppose the choice of both «positive» and «negative» aspects (risks). The term «aspect» is intended to identify the consequences, probabilities of risk, its matrix in the long and short term. The most successful are the standards of the so-called best practice, most often they are called «integrated risk management».
The paper highlights the chains of concluded contracts, considers the environmentally friendly management solutions embedded in them. The paper substantiates the categorical apparatus of two directions of risk management, influenced by ESG factors: social risk management and corporate risk management. The paper argues for a procreditor’s approach to the risks of improper distribution of corporate assets, the formation of valuation and regulatory capital reserves. It is shown which of the problematic debts gives rise to a corporate group of debtors-borrowers to claim and whether it is worth resorting to a foreign jurisdiction in this regard. The author admits that social risks range from such a root cause as conflicts of socially significant interests to more complex legal structures, the basis of which is formed by contradictory processes of coordination of corporate investment strategy. As a result, even the minimum legal standards detailing insurance risks are of lasting importance, with the comparability of the risks of social and credit groups.

33-45 350
Abstract

Global value chains (supply chains) have attracted close attention of representatives of the scientific, business and political circles. Foreign scholars and researchers have convincingly proved that the global value chain is an independent object for study in international commercial law.
In recent years, the leading European legal systems have strengthened the protection of the most vulnerable participants in cross-border relations: workers, other individuals affected by the negative impact of global supply flows. In France, the UK, the Netherlands, Germany, Switzerland, as well as at the supranational level in the EU, legislation regulating supply chains is developing. By assigning responsibility to large corporations for cross border violations committed in chains coordinated by them, foreign law is focused on solving socially significant tasks.
From a legal point of view, the supply chain is a complex, multi-level system of contracts subordinated to a uniform economic goal. The dominant legal regulation of private relations within supply chains has a non-state origin and is formed by private entities, mainly large multinational corporations. To explain the legal effect of such global regulatory systems, the paper introduces the concept of a «transnational legal order» based on the mechanisms of private law. The transnational legal order, along with the formation of binding (contractual) ties between entities, plays a unifying — organizing and coordinating — role in supply chains. In addition, it creates a platform for the international dissemination of national norms of law, as well as «voluntary» standards and rules formulated in private, social and ethical practices that are not initially endowed with legal force. The contractual form of consolidation contributes to their legitimization. The paper justifies the emergence of a new direction of research in the framework of international commercial law — transnational supply chain law.
The trends in the development of international commercial law include digitalization, environmentalization, socialization, industry fragmentation and extraterritoriality of regulation.

PUBLIC LAW / JUS PUBLICUM

46-54 588
Abstract

The paper is devoted to the consideration of the principle of social orientation of financial activity of the state and municipal entities. Under Part 1 of Article 7 of the Constitution of the Russian Federation, the Russian Federation is recognized as a social state with the state policy aimed at creating conditions that ensure a decent life and free human development. Proceeding from this, the social orientation of financial and legal regulation is regarded as one of the principles of the legal field under consideration.
The social orientation of financial activity finds its external expression in many forms. In particular, it manifests itself in the tasks of financial activity, which, among other things, are associated with the formation of centralized state extra-budgetary funds as the basis of social insurance, accumulation of funds in the budgets of public entities in order to solve social problems, development of the main directions of state financial policy in the social sphere, as well as a number of other tasks. In addition, it is concluded that each principle of the sate financial activity is in one way or another connected with the social sphere. The author traces the manifestation of the principle of social orientation within the framework of other principles of financial activity — planning, legality, publicity, federalism, unity of purpose, etc. The author also comes to the conclusion that today all sub-branches of financial law (budget law, tax law, legal regulation of the financial market and the law of monetary circulation) in one way or another are connected with the social sphere — providing a direct or indirect regulatory influence on it or being subjected to the influence of social factors. The conclusion is made about the fairness of attributing the social orientation of the financial activity of the state to the fundamental principles of financial law, as well as that financial law is a socially oriented branch of Russian law.

THEORY OF LAW / THEORIA LEX

55-65 1263
Abstract

The well-being and security of the individual and society largely depend on state regimes that determine the state of social institutions, economics and law. The trajectories of regime transformations in some states can cast doubt on the possibility of achieving a quality of life that corresponds to modern views on social prosperity. The idea of fascism as an ideology and a political regime that has remained in the past forever is hardly justified: under certain conditions, the probability of its revival in certain political and legal systems cannot be excluded. Knowledge of the conditions and signs of fascization of society makes it possible to recognize dangerous features in public policy and law in a timely manner. Fascism can be embodied in a variety of images and forms, but at any time the properties of extreme anti-liberalism as a complete denial of freedom and individual rights are inevitable and inseparable from it. It is characterized by the priority of the state over society and society over man, propaganda of xenophobia, rallying in hatred of a common enemy that act as the bearers of any disagreement. The study of the genesis of extreme right-wing forms of undemocratic political regimes that require the consolidation of the values of statism, false ideas of exclusivity and criminal methods of violence in politics and law for their existence is the basis of the system of countering the fascization of the state. The elements of this system include actualization of the social role and function of law, a high level of legal awareness and legal culture, liberal democratic traditions and maturity of civil society, which is obliged to be wary of any increase in violence, restriction of the rights of the media, persecution of political dissent, militarization and other signs of aggressive ideology that can destroy its civilized appearance. Extreme forms of undemocratic regimes can be resisted only by the sociopolitical principles of liberalism and the values of developed democracy, which are perceived by society: equality of citizens and the real exercise of their rights and freedoms, humanism and constitutionalism, as well as public understanding of the state as an organ limited in the forms and methods of exercising power to protect these principles and values.

66-78 283
Abstract

Introduction of information technology (IT) in the legal sphere, in particular, providing the functions of machine reading and machine execution of law, requires not only rethinking of such phenomena as law and a statute at the philosophical level, but also obtaining applied results that make it possible to implement theoretical developments in a digital form. All this entails the need to develop a methodology for the perception of law that is adequate for solving the problems of digital transformation. The author provides the definitions of the concepts of «machine reading of law» and «machine execution of law» and gives a number of comments on them. In order to develop a methodology that provides approaches to solving the problems of machine reading and machine law, based on the research of academician B.V. Rauschenbach on spatial constructions in painting the author refers to the practices of describing the reality by the masters of ancient and medieval painting and to the peculiarities of their use of artistic techniques. Some techniques are given in the paper. The author comes to the conclusion that when developing the methodology of machine reading of law and constructing theoretical and utilitarian models of machine perception of law, one should not only rely on the mechanisms of rational cognition of legal reality, but also, like the ancient masters, strive to perceive and transmit information about an object simultaneously on rational (conceptual) and irrational (intuitive, sensual) the law itself, as a multidimensional phenomenon, must be considered in several dimensions. In the context of the processes of digital transformation, legal scholars should go to the formulation of the problem of legal perception and its systematic study, taking into account the factor of the multidimensionality of legal reality and the law itself, moreover, exploring the problem on an interdisciplinary basis and not deliberately seeking to be limited to the framework of any one specific theory of legal understanding.

79-93 387
Abstract

Principles have always been given considerable attention in the literature, and in different historical and political periods scholars have repeatedly highlighted their significance. The legal doctrine shows diametrically opposite theories and concepts considering these principles in the system of law, depending on the theories of legal understanding. Ambiguity in relation to the principles is explained by their deep nature, versatility and multi aspect. Thus, for a long time in the domestic legal doctrine, the role of technical means by which the construction of a legal norm is carried out was assigned to the principles. The author notes the relevance of rethinking the role of principles, which is explained by the ongoing changes in society, the emergence and penetration of «non-legal regulators» into the sphere of regulation of law. The purpose of the paper is to study interests in the system of general legal values and principles of law. It is noted that the object of the principles are values, mindset, but not the subjective behavior of the individual.
The paper considers that principles in law constitute a certain hierarchy based on objective criteria. The role of the principles of law lies in the «introduction» of the value fixed by the principles into legal reality. The author concludes that the main purpose of law is determined through general principles and law acts as a special social regulator, and certainty is its distinctive feature as a regulator of relations. The principles in law themselves should express common interests and act as criteria for evaluating law-making. The system of legal principles should correspond to the interests of society, but at the same time this system does not belong to the norms of law themselves. It is concluded that in the norms of law, the principles should be implemented in a conventional form through social and legal discourse.

94-107 402
Abstract

Manipulative technologies have become widespread in various fields and are used in the process of legal regulation of public relations. The fact that representatives the theory of law and branch legal sciences ignore this form of legal influence on social processes can lead not only to a biased understanding of certain stages of the mechanism of legal regulation, but also to an obvious leveling of the social conditionality of the legal technique used in law-making, law-realization and law interpretation processes. The paper gives the main focus to the concept and signs of manipulation as a generic concept that manifests itself in a specific way in the process of legal influence on public relations. The author proposes his definition of manipulation and technologies of manipulation of legal goals in legal regulation. The concept of technologies for manipulating legal goals is being formed. It includes six groups of key techniques and methods by which the subject of manipulative influence: a) formulates and objectifies legal goals; b) uses already existing legal goals, coordinating the behavior of participants in legal relations in their own interests; c) stimulates the management object to achieve the set goal through the use of appropriate legal means; d) restricts the activity of the management object that runs counter to the plans of the subject of manipulation. The paper argues the according to which manipulation of legal goals is legitimate behavior, a common way of exercising public power, socially conditioned practice of legal regulation and the legal reality, which is a natural stage in the development of public relations. It is proved that all technologies of manipulation of legal goals are based on legitimate aspirations of participants in legal relations, nevertheless leading to the realization of the interests of the subject of manipulative influence at the expense and to the detriment of the interests of the object of manipulation. Despite the legality of technologies for manipulating legal goals, they can significantly reduce the effectiveness of the mechanism of legal regulation by creating an imbalance in the coexistence of the interests of the individual, society and the state.

108-120 441
Abstract

The paper presents a theoretical and legal analysis of the processes that result in bringing individuals, legal entities and society as a whole to the «digital circuit», that is, a special environment for communication between subjects and management of their behavior through algorithmic systems of processing and analyzing data thereof. The main directions of building a system for regulating the behavior of individuals through the analysis and processing of personal data are noted. The integration of various state databases with information about subjects within the framework of e-government projects, the development of video surveillance systems and automated analysis of video events, control over the digital traces of an individual on the Internet. Digital profiling of individuals and organizations based on the data collected about them allows government agencies to implement a policy of admission and restrictions, conditioning access to public services and private services on the content and quality of biographical (reputational) information about the subject in the relevant databases. To a certain extent, the developing regulatory system echoes the ideas of Confucianism. A hierarchical (ranked) society is formed instead of the principle of equality of subjects before the law and the court; the boundaries of freedom of its members are determined not by the law, but by their reputation, that is, data in relevant sources; the legal behavior of subjects is ritualized, becomes more the result of habit and conformity than conscious choice; law merges with social ethics. These transformations mean an irreversible change in the very foundations of Western-type legal systems. The author presents a probabilistic forecast of the development of legal systems following the identified trends, and proposes a possible explanation of these transformations.

HISTORY OF LAW / HISTORIA LEX

121-129 243
Abstract

The paper deals with the issues of assistance of the population to the police in the fight against criminal crime and the protection of public order in the USSR in the 20s. of the 20th century. The author examines some features of the involvement of auxiliary forces by the Soviet Ukraine police, including committees of non-eligible villagers, village performers, janitors, workers’ squads. The role of each type of auxiliary forces in the protection of public order and the fight against criminal crime is revealed.
The author points out that the committees of the unfit villagers, contributing to the realization of the goals of combating banditry, actively opposed the kulaks. The role of the institute of rural performers who contributed to solving the tasks of the police by protecting public order, supervising the execution of decisions of local councils, performing security and convoy functions is considered. It is noted that the tasks of street cleaners in each city household included supervision of order and public safety within the boundaries of the territory of households. The paper also reveals the specifics of assisting the police by workers’ teams (druzhinas) who opposed thefts and hooliganism on the streets of large cities, actively conducted propaganda activities among workers.
The paper focuses on the widespread use of explanatory work and campaigning through speeches to workers’ organizations and village gatherings, posting publications in the media in order to attract the population to the tasks of the police.
The author concludes that due to the close connection with the working class and the peasantry, the tasks set to combat crime and protect public order by the Soviet police were successfully carried out, specifying what prospects in the work of the modern police will reveal the appeal to similar experience of the Soviet state.

130-140 299
Abstract

The paper is devoted to various approaches to the study of political and legal doctrines. Each of them in its structure contains a methodological basis. It is the methodology of political and legal ideas that largely determines their scientific validity and practical feasibility. In this regard, methodological techniques are of great importance. The peculiarity of the history of political and legal doctrines as a scientific and educational discipline is that it not only uses certain methods of scientific cognition, like any other science, but also has a powerful methodological potential itself. Currently, we are witnessing an uncompromising war of ideologies having certain values and interests behind them. In this context, the paper reveals methodological approaches used in the cognition of the political and legal reality reflected in the ideas of thinkers of past eras and modernity. The paper does not consider general, particular and special methods of cognition. The emphasis is given to certain cognitive approaches and actions in order to analyze the content of political and legal doctrines. In this regard, the author attempts to consider history, for example, not as a science, but as a scientific method. The same applies to philosophy and sociology. This is somewhat at odds with certain «standards» regarding methodology as a set of methods and techniques for obtaining scientific knowledge. Nevertheless, in relation to the history of political and legal doctrines, such an approach is justified by virtue of the object and subject of the study. Competition between these approaches means only freedom of choice of research techniques and their ability to complement each other.

141-156 292
Abstract

The subject of the research is the processes of cognition of the doctrines of politics, state and law from the perspective of applying a special cognitive tool of the modern science of the history of political and legal doctrines, i.e. theoretical problematic methodological approach. The purpose of the study is to substantiate and actualize the problem: theoretical methodological approach in the Russian science of the history of the teachings of the state and law. The paper examines the main historical stages of the formation of this approach in the historiography of the history of political and legal doctrines. The author proves that the theoretical problematic methodological approach is a worldview policy that is based on the achievements of theoretical legal science. This expresses the orientation of research on political and legal doctrines of the past as an integral part of the most urgent tasks aimed at generalizing nature of modernity, used for the purpose of incrementing, and enriching knowledge about legal concepts. The author considers the structure of this approach at the philosophical level of methodology. It consists of the general idea of the construction of the past, the principles of historicism and constructivism, the modern conceptual apparatus of theoretical jurisprudence, as well as value foundations. The technology of application the theoretical problematic methodological approach is determined by the chronological description, synchronous and diachronic research plans, biographical direction (portrait method) in close relationship with the structural elements of political and legal doctrines. The paper highlights and reveals the following functions of the theoretical problematic methodological approach: transformative, explanatory, heuristic and ordering. The purpose of the approach is determined by the totality of the designated functions and consists in the development and increment of fundamental theoretical knowledge obtained from the teachings of the past, in the transformation and development of political and legal views on politics, the state and law. The main conclusions of the study are discussed.



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ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)