EUROPEAN AND ASIAN LAW REVIEW
Статьи журнала - EUROPEAN AND ASIAN LAW REVIEW
Все статьи: 76
ATYPICAL WORK RELATIONSHIPS: A COMPARATIVE ANALYSIS AS EXEMPLIFIED BY EAEU MEMBER STATES
Статья
The paper is dedicated to the issues of the correlation between typical and atypical work legal relationships, the problem of classification of atypical work legal relationships based on the modification of personal, property, and organizational criteria. Based on an analysis of EAEU member states’ legislations on certain kinds of atypical work legal relationships, the author comes to a conclusion about expanding fixed-term work legal relationships in combination with the elements of age discrimination that constitutes a negative trend and does not enable improvement in the quality of work-life for employees. After the COVID-19 pandemic, the demand for various kinds of remote work will grow. It is not implausible that in due time, the execution of work functions in a hybrid format (some working hours remotely and some – in the office) will become an element of typical work legal relationships. Although the regulation of atypical work legal relationships in EAEU member states differs (sometimes significantly), the establishment of common economic space, common markets, including a labor market, mutual influence of legal systems on each other, striving to take the experience of neighbors into account and other circumstances will lead to the gradual harmonization of the legal space in the field of work and other relationships directly connected to them.
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CHALLENGES OF JUDICIAL PRACTICE FOR LITIGATIONS RESULTED FROM FOREIGN ECONOMIC TRANSACTIONS
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A specific nature of foreign economic relations determines a need for the generation of a new approach to the structure of its legal regulation. Its specificity is that the legal regulation of the aforementioned relations is formed in the context of various spheres of public life and branches of law. Relevant issues of judicial practice regarding litigations resulted from foreign economic transactions are examined in the paper. The research is based on the objective dialectic method of cognition of legal phenomena and procedures related to the selected topic and of the examination of their interconnections. Besides, the research is based on general scientific methods: analysis, synthesis, historical and logical methods, generalization, abstraction, system analysis, modelling and others. Currently, the national economy obviously tends to develop in a sinusoidal manner. It requires considering the possibility (in the frameworks of development of the intersectoral institute of foreign economic law) of using a chance to improve the mechanism of legal regulation in the field of state control over the external economic activities with a focus on judicial practice. The conducted research develops and specifies a theory of intersectoral linkages in respect to the relations in question. As a result of the conducted research, a unique legal regime of intersectoral functional legal institute of foreign economic law is established to change more prominently with the transformation of legal and objective realities.
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CIVILISTICS AS AN INTERNATIONAL PHENOMENON
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The definition of the value of law, including private law, is currently quite a relevant and significant issue both from philosophical (theoretical) and practical points of view, since recognition of the law’s value will help to improve legal control over social relations and, therefore, will encourage social and national development in a progressive vein. The purpose of the research in the framework of this article is to define the functional role of civilistics regarding its functional purpose in the context of control exerted over various areas of social life on a world-wide scale. A systemic functional approach is used as the definitive research method that allows studying functions of private law in the context of the axiological approach. Aside from the abovementioned approach, other scientific methods of inquiry were used in the course of the research, including a legal hermeneutics approach. Over the course of the research, the authors have come to the conclusion that civilistics as a category is a multidimensional one, while proving that civilistics constitutes the greatest accomplishment not of a certain nation, but of all of humanity, since it serves as an all-purpose controller of social relations, in the life of society and the state.
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Статья
The problem of protecting the labor rights of workers definitely attracts the attention of labor /scientists not only within the framework of national legal, but also cross-border legal field. Thus, new issues arise in this area during the unification of labor legislation within the framework of the Eurasian Economic Union. If the jurisdictional ways of protecting labor rights are to some extent developed within the framework of the national legal order of the member states of the Union, then the institution of self-defense is deprived of the attention of the legislator in these legal orders. In this regard, it seems important to analyze such a way of protecting rights as self-defense, guided not only by the ideas of the national development of the institute in the legislation of the Eurasian Economic Union member countries, but also its implementation within the framework of Union labor law. This work, as a scientific try to study the institute of self-defense by employees of their labor rights in the countries of the Eurasian Economic Union, takes as its basis a comparative legal scientific method. Applying this method, we can conclude that the legal model of self-defense of employees of their labor rights can be unified due to the uniform understanding of its nature by the legislation of most of the member countries of the Eurasian Economic Union. Nevertheless, the defective and obviously insufficient elaboration of the regulation of labor and legal self-defense in the studied legal systems shows a number of practical and theoretical problems that will ultimately affect the consolidation of such a legal model1 within the framework of the Eurasian Union labor law. In this regard, it seems important to present a single legal definition of self-defense, comprising the fundamental features of this method of protection. The adoption of such a term will allow to form a uniform understanding not only among labor scientists, but also among law enforcement agencies, and will serve as a starting point for the further development of the institute of self-defense in the Eurasian Economic Union.
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CONSTITUTIONAL FRAMEWORK TRANSFORMATION TO REINFORCE INTERETHNIC ACCORD
Статья
This paper explores constitutional reforms that occurred in Russia and some countries of the Euro-Asian Region aimed at interethnic accord solidification and protection on the way to national unity among other things; it also reveals terminological ambiguity in the field of interethnic relations. The following methods are used: a technical legal method, a systems analysis method, synthesis and test methods are used in the research. The main results of constitutional transformations in the field of interethnic relations are reconsidered in the paper; national and international acts that enable interethnic accord solidification are analyzed; the value of interethnic accord solidification is established; certain legislation defects preventing harmonization of interethnic relations are revealed. The authors state the following results: 1) two approaches to the term ‘interethnic’ have been illustrated; 2) various practices of terminology application have been demonstrated based on regulatory acts and documents; 3) the main results of Russia’s 2020 constitutional reform and constitutional reforms in the field of interethnic relations made in other countries have been provided; 4) the analysis of regulatory enforcement in the field of interethnic accord has been conducted; 5) the role of interethnic accord as a constitutional and universal human value for social and economic development of the state has been explained.
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CRIMINAL LAW CONDITIONS FOR CONDUCTING A SCIENTIFIC EXPERIMENT ON A PERSON
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The problem of causing harm to a person’s health during an experiment (including for medical purposes), and the issue of the person’s consent for conducting the experiment by third parties has long been in the focus of legal scholars. Recent developments in the Russian criminal legislation have intensified research in this sphere. There is no doubt that in modern society we need to find an adequate balance between the achievements of science and the basic values of persons, and, first of all, their life and health. In this regard, it is necessary to elaborate a clear definition of legitimate conditions for conducting a scientific experiment on a person under criminal law. Relying on the analysis, deduction and induction of scientific views regarding the conduct of a scientific experiment on persons and their consent to it, the author of the article has formulated universal conditions necessary and sufficient for such an experiment.
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Статья
The goal of this paper is to describe some aspects of one type of corruption – judicial corruption – and to minimize it by introducing into practice new legal provisions and digital technologies. The experience of some states, including Kyrgyzstan, in the use of digital technologies for minimizing corruption has been summarized in the paper. Also, the reasons have been provided for active development of new areas for anticorruption efforts by introducing digital technologies. According to the authors, digitalization can increase openness, public disclosure and transparency significantly, reveal corruptogenic ties, schemes and relationships, and optimize the anti-corruption efforts by the state. The research materials can prove useful for law enforcement agents who are working in corruption prevention, as well as for the general public interested in corruption problems.
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Статья
The paper examines the issue of victim / witness testimony, an investigative procedure introduced in the Kyrgyz Republic Criminal Procedure Code in 2019. It can be argued that this institution enables the development of the adversarial principle and the principle of equality of parties in pre-trial proceedings. The author points out that for the Criminal Procedure code of some former Soviet states, this institution is new, though it was first reflected in English law of the 19th century. The author notes the debatable nature of re-examining a victim / witness when the merits of the case are considered. In this regard, improvement in Art. 208 of the existing Kyrgyz Republic Criminal Procedure Code is suggested. Additionally, the article examines the issue of what a deposition is – an investigative procedure or an institution. The author states that deposition of testimony is an investigative procedure.
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DEVELOPMENT OF PENSION RIGHTS FOR MIGRANT WORKERS ON THE TERRITORY OF THE EURASIAN ECONOMIC UNION
Статья
The Treaty on the Eurasian Economic Union defined the establishment of a shared labor force market as one of the main goals of the integration association. Ensuring the freedom of movement for workers from EAEU member states is inextricably linked with exercising their right to pension benefits. The Agreement on Pension Benefits for the Working Population of EAEU Member States is based on the recognition of equal rights for workers, territorial equality, and export of pensions. As of the effective date of the Agreement, pension rights of the working population of EAEU member states shall be developed in full parity with the citizens of the state of employment. The Agreement establishes the types of pension contributions based on which the pension rights of the working population of EAEU member states are developed and the types of pension benefits these legal norms apply to. The paper includes a comparative analysis of legislations of EAEU member states the provisions of which define the development of pension rights of the working population of EAEU member states. In the course of work, the conditions for pension rights development have been analyzed, similarities and differences have been identified. The conducted research has shown that the pension systems of EAEU member states are in the process of being restructured. The stability of the pension systems is impacted by demographic, economic and migration issues. Under their influence, EAEU member states introduce structural changes to the pension systems, improve the rate policy, raise the retirement age and raise requirements for the length of employment.
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DIFFERENTIATION OF THE PROCEDURAL FORM IN ADMINISTRATIVE LEGAL PROCEEDINGS: THEORETICAL ASPECTS
Статья
The Russian judicial administrative procedural law has in a relatively short period of time been replenished with a number of special institutes devoted to independent types of proceedings for considering administrative cases or transforming existing types of proceedings according to new requirements adding features to the consideration of administrative cases. The goal of this study is to gain a theoretical understanding of the processes of differentiation of the procedural form in administrative proceedings and their assessment from the standpoint of their compliance with the goals and objectives of legal proceedings. The conclusion based on an analysis of the current legislation on administrative proceedings is that the differentiation of the procedural form does not always meet the specified goals and objectives, and therefore, as a result of the study, the author points out that the model of differentiation of the procedural form in administrative proceedings should be built depending on the protected substantive rights, the nature of material legal relations and with the orientation towards the optimization of legal institutions
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DIGITAL TECHNOLOGIES INCORPORATION INTO LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN
Статья
The incorporation of digital technologies at the level of the legislation of the Republic of Kazakhstan has taken place since 2003. Numerous legislative acts and amendments to them in pursuit of digital technologies development have been adopted. The article analyses the changes in the civil legislation, civil procedural and labour legislation of the Republic of Kazakhstan, regulating the turnover and use of digital technologies. In the accordance with the legislation of the Republic of Kazakhstan the author considers new concepts in the sphere of digital technologies, including digital assets and digital rights. Most of legal scientists in the field of civil law conclude that digital assets, digital rights are not by their nature a new type of property, property right, and the digital form represents only a way of fixing the property. Moreover, in response to legal proceedings digitalization access to justice had made a significant step towards development, there are much more positive aspects in this process: avoiding document exchange, saving time, simplified search for court cases, notifying the parties involved using various communication methods, which makes it possible to speed up the communication process, unlike postal service providers. Nevertheless, it is highly important to ensure legal regulation in the conditions of global digitalization in order to protect rights of a person to information and confidentiality.
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DIGITALIZATION AND COVID-19: GLОBAL TREND OF THE CIVIL PROCEDURE DEVELOPMENT
Статья
The widespread development of digital technologies, their relationship with the globalization of the modern world are beyond doubt. The sphere of the civil process is not an exception in this regard. The process of its digitalization should be perceived precisely in the context of globalization and the pandemic that covered the world gave us a demonstration of new attributes of this process. That is why, despite the serious scientific attention to the problems of cross-border jurisdictional interaction and the transformation of the civil process in the conditions of coronavirus restrictions, an exhaustive analysis of these phenomena has not yet been conducted in relation to the digitalization of the civil process. On the basis of the specifics of the subject, the following methods were used in its study: a) the system method, b) the method of comparative law. In the framework of this study, based on the analysis of the achieved level of practical development and doctrinal understanding of digital technologies in the Russian and foreign civil process, an attempt is made to theoretical and practical study of the problems of cross-border interaction of civil jurisdictional systems in the context their widespread digitalization and the coronavirus pandemic. The study has led to the following conclusions: a) the Covid-19 pandemic not only marked, but also accelerated the process of digitalization of the civil process now, both nationally and globally. At the same time, the increasing usage of digital technologies in the civil procedure has led to the new issues that represent structural shifts occurring in the ‘classical’ civil process under the influence of a new technological basis. b) Digitalization is a global civil procedure development trend, and the Covid-19 pandemic only emphasized it has lack of alternatives. In the context of the dematerialization of civil circulation, the blurring of state borders, and competition of national law enforcement systems, the digitalization of the civil process perhaps is the only possible way to adapt the traditional civil process to the needs of the modern world and preserve its former significance.
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ENVIRONMENTAL POLLUTION AND HUMAN GENETIC HEALTH: CRIMINAL LEGAL ASPECT
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The purpose of this work is to study the issue of effectiveness of the criminal law regulati ons for minimizing the consequences of environmental pollution, including the consequences related to human genetic health. Moreover, the author of the article analyzes data concerning environmental pollution. The article assesses the importance of the protective power of criminal laws regulating responsibility for committing environmental crimes in order to protect human genetic health. An assessment of the dispositions of a number of environmental crimes was made using the formal legal method, and in particular the corpus delicti provided for in Part 1 of Article 251 of the Criminal Code of the Russian Federation (air pollution), in terms of the formulation of criminal consequences, in particular from the point of their differentiation from the compositions of related administrative offenses. Proposals were developed for discussion on improving these elements of environmental crimes based on the results of the study.
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Статья обзорная
This paper includes a brief review of the systems for contesting decisions made by the Eurasian Patent Office regarding the issue of Eurasian patents for inventions – systems for administrative annulment of Eurasian patents for inventions and systems for invalidation of Eurasian patents for inventions by competent bodies of the Eurasian Patent Organization member states. Based on the analysis of the two systems conducted by the author, the conclusion is drawn that it is reasonable to create a uniform regional court jurisdiction under which an efficient mechanism will be generated to appeal the decisions about issue or refusal of Eurasian patents approved by the Eurasian Patent Office, the body of the international inter-governmental organization. Also, based on the statistics provided in the paper, the high quality of Eurasian patents for inventions issued by the Eurasian Patent Office as a result of carrying out a patent search across the global patent pool and an expert examination of Eurasian patent applications is summarized. A conclusion can be made about the need for the Eurasian Patent Office to participate in considering disputes associated with protectability of inventions protected based on the Eurasian patents that are contested in member states of the Eurasian Patent Convention. The goal of this participation will be to provide assistance to the patent owners in terms of protecting their interests regarding Eurasian patents for inventions.
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Статья
The article discusses the legal framework for regulating labor migration in the Commonwealth of independent states (hereinafter referred to as the CIS). Particular attention is paid to the definition of ‘labor migration’ in the legal literature, international legislative documents and agreements about labor migration within the CIS. The author analyzes the UN Convention ‘On the Protection of the Rights of All Migrant Workers and Members of Their Families’, the ILO Migration for Employment Convention No. 97 (Revised), 1949, and the Agreement between the CIS states ‘On the protection of labor migrants and members of their families’, as well as individual intergovernmental agreements between the CIS states, some legislative acts of the CIS states. He defines the essence and features of the legal regulation of labor migration in the CIS states at the present stage of social development. At the conclusion the author presents his opinion regarding the definition of the term ‘labor migration’ and the ways of legal regulation of labor migration within the CIS.
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FUNCTIONS OF LEGAL POSITIONS OF SUPREME FEDERAL COURTS IN LABOR LAW
Статья
Legal positions of supreme federal courts in the Russian Federation have a direct effect on the labor legislation, law enforcement practices, as well as the subject and method of labor law. Certain forms of this influence have not been studied by the science of labor law until recently that results in unlocked theoretical and practical potential for judicial legal positions on labor disputes. To discover the influence of these legal positions on the industry in general, their main functions shall be identified. Through philosophical, general-theoretical and special juridical analysis of academic literature, labor legislation, law enforcement practices, and international legal acts the attributes of the functions of legal positions of supreme federal courts have been identified, the relevant definition has been articulated, the structure of functions has been shown, and specific types of these functions have been discovered. The theoretical structures worked out during the research can be applied in practice as well. On the national level – to solve the problems of platform employment, to ensure a balance in unity and differentiation in labor law, and to improve the mechanism for social partnership. On the international level – for the Eurasian Economic Union member states to solve the problems associated with human resources mobility, protection of working migrants, social partnership, introduction of international labor standards.
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HUMAN RIGHTS AND CRIMINAL PROCESS: MODERN TENDENCIES
Статья
The subject of the research is social relations in the field of ensuring and protecting human rights in the criminal process. The goal is to identify and to describe the factors that determine ensuring and protecting human rights in the criminal process. The hypothesis of the research suggests that there are positive and negative trends that influence ensuring and protecting human rights during criminal proceedings. Also, it is possible to identify basic components of these trends. General scientific methods (analysis, synthesis, a dialectical method) have been applied, as well as Hexagram – a categorical symbol-based approach. As a result, the main factors enabling ensuring and protecting human rights in the criminal process have been identified along with the main obstructions; correlations between them have been found and comprehended; a factor model has been designed to represent both factor groups comprehensively. Conclusions: the factors enabling ensuring and protecting human rights in the criminal process include proper substantiation of the circumstances of the committed crime; the priority of human rights in legal and law enforcement activities; protection of those categories of individuals who cannot pursue their rights to the full extent. The factors preventing ensuring and protecting human rights in the criminal process include a criminal-legal conflict, legislation drawbacks, flaws in organizing law-enforcement activity. Range of applicability of the results: the resulting factor model facilitates the search for a comprehensive solution to the problem of ensuring and protecting human rights in the criminal process.
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Статья
When it comes to the development of society, digitalization appears to be one of its megatrends. Both on international and national levels, program acts are adopted toestablish strategic areas of state policy, their principles, goals, objectives, and indicators. The world of work is also subject to digital transformation. That is why it becomes relevant to study the influence of state policy in the field of building an information society and digital economy development on the modernization of labor legislation. Three EAEU member states have been included in the subject of research: Russia, Belarus, and Kazakhstan. The methodology of work is based on a general scientific dialectical method of objective reality recognition. When conducting the research, general scientific logic techniques (analysis, synthesis, induction, deduction, the method of rising from the abstract to the concrete, etc.) and specific scientific methods of cognition (a legalistic approach, a legal historical method, and a comparative-legal analysis) were used. A special feature of the work’s methodology is the use of a political and legal approach. As a result of the conducted research, the following results have been obtained: on the number of amendments introduced into legislations of Russia, Belarus, and Kazakhstan over the years; on the total number of amended articles and new articles and chapters labor codes were supplemented with; on the political decisions made regarding the digitalization of labor, and on the content of legislative innovations. It has been established that each of the studied state pursues the state policy aimed at developing a digital economy and that during the researched period, some changes associated with regulating the use of digital technologies by addressees of labor law had occurred. However, the extents of state policy influence on improving labor legislation are different in these countries, just as their paths to modernization are unique. However, two areas of labor legislation digital transformation have been identified in all three countries. One of them is associated with remote work regulation, and the other – with regulating the electronic document flow in work relationships. In respect thereof, other promising areas for developing state policy and labor law in the context of global digitalization have been proposed: regulating the labor of platform workers, improving the system of rights guarantees for employees and employers in the field of employee training, protecting employees’ rights for personal privacy during their working activity, and regulating the use of the artificial intelligence system.
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INTERACTION AND COMPETITION OF LEGAL SYSTEMS: A STUDY OF CIVIL PROCEDURE
Статья
The long outlined process of globalization interferes not only with the economy, politics, and ecology but with law directly as well. Regarding globalization in the field of law, we use such terms as rapprochement, unification, and harmonization. That said, generally, the abovementioned terms are intended to denote the process of creating something shared, of a similar meaning. Conventionally, these processes can be observed in the framework of various integration associations. The opposite phenomenon is a competition of legal systems that provide for the establishment of the best conditions for social and economic development. The same is true for civil procedure as well. At the same time, in recent years, an interesting trend has emerged – competition within integration associations. This paper is the first attempt to show the aforementio- ned trend in the field of civil procedure. The authors note that this trend can be traced both in the EU (in the context of Brexit) and in the EAEU (in the context of establishing the Astana International Financial Centre and the AIFC Court). The paper analyzes the consequences of these actions in view of their impact on integration associations and a more detailed exploration of the legal status of the AIFC Court and its jurisdiction in this regard. Based on the research, the authors draw the conclusion that increased competition in the field of civil jurisdiction does not have to weaken integration associations, it can even enable further rapprochement
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Статья
The article raises the problem of necessity and expediency of reception into the Russian labor legislation of civil legal construction of invalidity of legal transactions, evaluates the experience of member states of the Eurasian Economic Union on the implementation of legal regulation of invalidity of employment contracts on certain grounds. Both general scientific (analysis, synthesis, deduction, induction) and special methods of legal research (comparative method) are used in the study. Based on the analysis of the Labor Codes of the Republic of Belarus, the Kyrgyz Republic, the Republic of Kazakhstan and the analysis of materials of judicial law enforcement practice of Russia each condition of invalidity of the employment contract was investigated and the effectiveness of these conditions and the identified grounds of invalidity of the employment contract on the sphere of labor relations in Russia was evaluated. Enshrining norms on the invalidity of an employment contract in the LC RF are inexpedient, the legislator has developed adequate ways and means to overcome defects of form, content and subject composition of labor legal relations. Defect of subject composition of an employment contract, defect in the content of the employment contract and its (contract) form, as a rule, do not entail the recognition of this contract as invalid. Failure to comply with the will of the parties of labor legal relations in the process of its emergence, change and termination should be a subject of legal regulation at the level of a codified act. It seems necessary to fix at the level of the Labor Code of the Russian Federation norms on the ratio of will and expression of will; on the primacy of expression of will over the will. In ideal legal relations, the will and expression of will must coincide. Establishment in the law of the factors that influenced the process of evolution of will and deformed it is necessary only in case of defective development of one or another model of exercising subjective rights and / or performance of duties. The article makes proposals to adjust the norms of the current labor law, aimed at eliminating the flaws in the flawed nature of certain conditions of the employment contract identified by the courts.
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