EUROPEAN AND ASIAN LAW REVIEW
Статьи журнала - EUROPEAN AND ASIAN LAW REVIEW
Все статьи: 76
LABOR ON ONLINE PLATFORMS: THEORETICAL AND PRACTICAL ISSUES
Статья
Labor on online platforms has increasingly gained momentum in the recent years. However, there are still disputes regarding the nature of the established relations, such as whether such relations should be considered employer-employee, self-employed, civil law, etc. Foreign courts are recognizing these relations as labor relations more and more often, but the courts of the Russian Federation do not see it that way. As a result, workers on online platforms are still lack guarantees and benefits provided by labor law standards. The use of online labor has gained momentum particularly in the context of the COVID-19 pandemic. However, this is not only connected with development of delivery services or taxis. This area also includes IT work such as web design, financial consulting, social media marketing, handling documentation, administration, creative professions, blogging, teaching online, medical work, etc. This format of employment provides the opportunity to combine work with family duties, looking after children or parents, staying at home, and working in the most convenient time. Also, this work format provides the employer with extra opportunities for business expansion and cost savings such as saving on office rental costs, utility bills, etc. However, online work blurs the lines between work time and time for rest, puts the observation and guarantee of health and safety requirements, standards of social assistance and social security of workers under question.
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Статья
Education is one of the goals of economic growth and employment of the population, health care, sustainable consumption and production, as well as climate change. In European countries special attention is paid to the quality of education. International organizations aim to strengthen education systems around the world and to propose solutions to the global problems of our time through education. In this article the authors try to consider the content of the main international acts regulating the vocational education system. Based on the analysis, the authors have come to the conclusion that among the basic standards in the field of education the most significant ones are non-discrimination, accessibility of education, mutual recognition of diplomas, equal access of everyone to education. It is advisable in the near future to systematize all international acts or create a single act that would apply to all countries where there would be uniform terms and provisions.
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LEGAL STATUS OF CRYPTOCURRENCIES: THE EXPERIENCE OF BRICS
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According to the BRICS Economic Partnership Strategy until 2025, one of the goals of mutually beneficial cooperation between the BRICS member states is to overcome the digital gap and obtain common benefits from digitalization, taking into account the different levels of digital development of the member states. Spreading the use of blockchain technology and cryptocurrencies is of a special interest in the process of digital transformation of the economy, both at the state and global levels. Authors carried out a comparative legal analysis of the legal regulation of cryptocurrencies in the BRICS member states considering the relevance of the need to exchange experience and study approaches to regulating the digital transformation of the economies of the BRICS member states as one of the tasks of BRICS cooperation in the sphere of digital transformation. The subject of the research is the legal status of cryptocurrency as a digital asset, which does not provide its owner with any rights of claim in relation to other objects of civil rights. The authors analyze the current legal regulation of cryptocurrency in Russia and offer recommendations for its development based on the experience studied.
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Статья обзорная
This article is aimed at studying the problems of criminal law-making when determining sanctions in the Criminal Code of the Republic of Bulgaria. The theoretical basis of these problems includes legal aspects on the following issues: a) functional connection between the disposition and sanctions in the structure of the criminal law provision; b) legal technique, criteria and methods of the Bulgarian legislator when formulating sanctions in the Criminal Code; c) need to modernize the foundations of the criminal law in connection with the determination of sanctions of legal provisions.
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PHILOSOPHICAL AND LEGAL FOUNDATIONS OF THE METHODOLOGY OF SCIENTIFIC KNOWLEDGE OF THE GENOME
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One of the priority tasks of modern science is the knowledge of the genome in general and the human genome in particular. The human genome as an object of scientific knowledge is also of interest for jurisprudence. The main tasks of legal science in this area are a proactive response to the challenges arising from the development of technologies in the sphere of genetics, constant interaction with other humanitarian, natural and technical sciences and the development of interdisciplinarity of scientific knowledge about the human genome. Purpose of the study is to formulate the philosophical and legal foundations of interdisciplinary scientific knowledge of the genome. Tasks are development of a system of methods for interdisciplinary genome cognition; formation of a conceptual list of categories ‘genomic information’; search for the criterion of truth in interdisciplinary knowledge of the human genome; formulation of the main prospects for the development of the ‘bio-law’ branch, its civil and criminal law aspects. When preparing the work, the empirical methods, the formal legal method, the method of constructing conceptual lists were used. Coherence is used as a truth criterion. The system of methods applicable to interdisciplinary knowledge of the human genome was determined, a conceptual list of the category of ‘genomic information’ was formed, a coherent criterion of true scientific knowledge was determined as a result of the study. A ‘bio-law’ branch is being formed as a result of interdisciplinary knowledge. It is assumed that the branch will be functional in nature; it will combine diverse knowledge (constitutional, civil, criminal, administrative), but the functional unity of the elements of legal impact will be the basis for such unification.
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PROBATION UPON HIRING: A NEED FOR TRANSFORMATION
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This publication invites discussion on the issue of probation upon hiring as an institution in need of transformation, in the author’s opinion. The goal of probation should be specified, since it can be established either to test the fitness of an employee for the job assigned, or for the employee to decide whether the offered job is suitable for them. Also, it is necessary to resolve the issue of the exact rationale and the moment in time the labor relations with an employee should be terminated during probation in case they do not succeed. The author suggests introducing a new special rationale – termination of a labor contract at the end of the employee’s probation without further employment of the worker at this employer’s based on a wrongdoing by the employee during probation or in case the employer discovers that the worker’s professional aptitude does meet the employer’s requirements. These amendments to the legislation can allow identifying fault-based (disciplinary) grounds for the labor contract termination among all the cases when the worker was considered to have failed the probation upon hiring, as well as to link them directly to the institution of labor discipline. It is no secret that in practice, multiple issues regarding the interaction between the regulatory provisions on probation outcomes and the regulatory provisions on disciplinary responsibility of workers arise: these problems should be resolved, since the court practice examples provided by the author often show diametrically opposed conclusions made by the courts based on their interpretation of statutory regulations. Also, the paper invites discussion on the renunciation of possible replacing probation by a fixed-term temporary labor contract and establishing a probation model for the change in employment functions (transfer to a new job).
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PROPERTY RIGHTS OF SPOUSES IN CASE OF CROSS-BORDER INHERITANCE
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This article analyzes the practical and doctrinal problems associated with the documentation and determination of the scope of rights belonging to the surviving spouse in the event of international inheritance. These relations are at the junction of inheritance and family law, which causes difficulties in determining the law regulating these relations. In preparing the article, general scientific and special legal methodswere used. In order to ensure the logical structure of the narrative, groups of problematic issues are distinguished, on the correct solution of which the final determination of the scope of the rights belonging to the surviving spouse depends. It is demonstrated that the application of the law of different states to inheritance relations and to property relations of spouses may result in a violation of the balance of the rights of the spouse and other heirs. The article substantiates the need to plan inheritance, if it is expected to be tied to more than one legal order, conclusion is made that it is necessary to expand the discretion in the international inheritance plan by providing an opportunity to choose the applicable law, and analyzes the potential value of the inheritance contract for ordering complex legal relations.
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Статья
Perhaps the most critical step in international litigation is effectiveness, i.e, enforcing a judgment rendered in a foreign jurisdiction. From a global perspective, the enforcement of foreign judgments is generally a complex field, governed by a variety of approaches in different jurisdictions, involving a mixture of bilateral and multilateral conventions and jurisdiction-specific procedural laws, rules and regulations. The approaches to recognition and enforcement of judgments differ widely around the world, hence the importance of analyzing the similarities and differences between foreign legal systems that will be the subject of study in comparative law. The research regarding the recognition and enforcement of foreign judgment in each of the BRICS member countries began with the speech we delivered at the Euro-Asian Law Congress, ‘Ninth Session, Law and national interests in modern geopolitics – Expert Group: International and national mechanisms of dispute settlement in Euro-Asian Region’, held on June 18–19, 2015, in Yekaterinburg, Russia. This article is the beginning of a larger research project where, in the end, we intend to bring a comparative picture of the system in each of the BRICS countries. In this paper we will deal with the Brazilian legal system, detailing all the steps to be faced to have a foreign decision recognized in Brazil.
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Статья
In the context of sanctions pressure on Russia the issues of import substitution in the field of digital technologies are getting even more urgent. Highly qualified specialists with respective competencies are in short demand in the country. The government take some measures to that end, but they can solve all the problems. Engagement of required specialists from abroad – those working on a remote basis – could improve the situation. However, there are certain unresolved issues in the labor legislation of the Russian Federation and some other countries, including members of international economic integration organizations such as the Eurasian Economic Union that hinder this process. Identification of hindrances and restrictions preventing free movement of human resources in EAEU member states and efficient use of remote work in the field of IT is what this paper is dedicated to. To that end the actual situation unfolding in the labor market of the field of IT on the territory of EAEU member states has been analyzed, and so has been labor and other legislation of member states regulating the labor of remote workers and the academic literature and papers published in the periodicals. The system analysis and comprehensive review of sources and comparative legal studies have become the main methods of research. As a result, legal and organizational restrictions preventing efficient application of remote work of IT specialists typical for some or even all EAEU member states have been identified. Also, there have been suggested some ways to overcome the identified restrictions that can be implemented by adopting new legal provisions or by amending the existing ones.
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SANATORIUM AND HEALTH RESORT TREATMENT AS SOCIAL SUPPORT: A COMPARATIVE LEGAL ANALYSIS
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The generally-recognized principles and international norms of law, the Constitution of the Russian Federation enshrine the right of every person to health protection. However, implementation of this right often faces difficulties. The analysis of the legislation of the Russian Federation, and that of the post-Soviet states, is carried out on the example of social support for certain categories of citizens, including free sanatorium and health resort treatment, in order to identify similarities and differences, as well as legal structures that can be perceived by Russian social security law with a focus on increasing its effectiveness. A differentiated approach to determining the frequency of sanatorium and health resort treatment, its free character for some former beneficiaries, is proposed. The conclusion is substantiated that such proposals will make it possible to implement the principle of social justice, which presupposes an equal, but not equalizing approach to social protection and social support. This principle assumes that within the framework of society the disabled people must take into account not only their individual interests and needs, but also the interests and needs of other citizens and society as a whole. It was concluded as a result of the study that a change in the procedure of providing sanatorium and health resort treatment, as well as the scope of services being provided on the basis of a differentiated approach, will allow not only to implement the principle of social justice, not only to proclaim the right to such treatment in order to protect the health of citizens, but make it accomplishable too.
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SOCIAL INVESTMENT AS A TOOL FOR ALIGNING PRIVATE AND PUBLIC INTERESTS IN LABOR LAW
Статья
This research work attempts to assess the potential of using social investment as a tool for aligning public and private interests, which is especially relevant in the context of the impact of modern global challenges on the sphere of work. Based on such a category as “interest” used by the legislators to characterize the goals and objectives of labor law, the author summarized that in the context of modern global challenges, like never before, it is necessary to align the interests of the parties in the labor relationship, as well as the government for the purpose of mutual support and mutual assistance in solving social issues. Having studied the policy declarations of the United Nations on sustainable development and the International Labor Organization on the future of the sphere of work, the author came to the conclusion that the international trend is to treat the laborer as an investment object, and the Russian Federation is ready to follow this trend. This is evidenced both by the 2020 amendments to the Constitution of the Russian Federation, which laid the conceptual foundations for the development of a social welfare state as a state of social investment, and by strategic planning documents that outline the social policy. The research work draws attention to the fact that the adopted federal law on public and private partnership provides for private investment objects that can have a positive impact on the sphere of work, however, nowadays it is not focused on social investment in this particular area. Besides, there is a kind of contradiction with the institution of social partnership, traditional for labor law, aimed at the interaction between employees and employers, therefore it seems important to determine whether these types of partnerships should interact with each other when addressing issues of social investment in the sphere of work. The author has also identified the directions in which the development of law on social investments should take place, and demonstrated some of the difficulties that investors face due to the lack of elaboration of this aspect of the labor law.
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Статья
The article considers some features of legal regulation of participation of a prosecutor in consideration of cases on administrative offenses in arbitration courts, presents the main directions of improvement of legislation regulating the participation of a prosecutor in this area. The research methodology includes general scientific methods of cognition - materialistic and dialitic, method of analysis and synthesis, special legal method - formal-legal method. The analysis of practice and theory of participation of a prosecutor in consideration of cases on administrative offenses in arbitration courts has been carried out. It is proposed to recognize, taking into account the existing practice, the existing mechanism of participation of a prosecutor in consideration of cases on administrative offenses in arbitration courts as having shortcomings, to make advisory adjustments to the legislation.
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Статья
The article deals with the issue of the specifics of bringing prosecutors to administrative responsibility of bodies and institutions of the prosecutor’s office of the Russian Federation. The main directions for improving the procedure and procedure for conducting an inspection (official investigation) of the fact that a prosecutor has committed an offense are considered. General scientific methods of cognition – materialistic and dialytic, method of analysis and synthesis, special legal methods: formal legal method and method of legal modeling. Based on an analysis of the judicial practice of bringing to administrative responsibility and the practice of bringing prosecutors to disciplinary responsibility in the framework of inspections (official investigations) in relation to prosecutors of bodies and institutions of the prosecutor’s office of the Russian Federation. It is proposed to recognize, taking into account the prevailing practice, the existing mechanism for bringing prosecutorial employees of bodies and institutions of the prosecutor’s office of the Russian Federation to administrative responsibility as having significant shortcomings, to make advising adjustments on the part of the Prosecutor General’s Office of the Russian Federation in the form of methodological recommendations, to work towards improving the mentoring mechanism and organizing personnel work in this direction.
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SYSTEMATICITY AS A WAY TO INTERNATIONALIZE THE DIRECTION OF CRIMINAL LAW IN RUSSIA
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The paper provides the rationale for systematicity of phenomena (processes) that serves (can serve) as a way to internationalize the direction of criminal law in Russia. The research methodology includes using historical, sociological, axiological, and logical methods of comparative legal studies that allows expanding the subject matter of research significantly. However, due to the specificity of the research, structured system analysis and functional analysis are used as the main methods. The accomplishment of the objectives set by the authors allowed them to be convinced that the internationalization of Russian law (just like the law of any other country) is not only possible but necessary in a number of cases. This fact is substantiated by the multipolar world order that also reigns in the criminal world, where the development vector has rapidly changed from unipolar to multipolar in the context of recent events. Internationalization of the measures countering such crimes as, for instance, illegal traffic, slave traffic, kidnapping, acts of terrorism, etc. can be taken as an example. Countering any of these crimes as well as any other similar crimes is more than one country can manage, particularly, when the country is less developed or dependent. In this context, efficacy can only be achieved through consolidated and highly organized unity of many countries, which in turn, is impossible without proper international efforts of many countries of the world or – in many cases – of their majority.
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Статья
The article will briefly review the international standards of the United Nations and the ILO regarding the interpretation of the right to strike. Then the author examines the norms of the current labor legislation of Belarus, which regulate the procedure for organizing a strike. Special attention in the article will be paid to the new law of May 28, 2021 No. 114-Z, which significantly restricted the right to strike, prohibiting political demands and introducing a number of new grounds for dismissal related to participation or campaigning for strikes. The author substantiates measures to liberalize the legislation of Belarus in terms of the right to strike.
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THE ROLE OF JUDICIAL POWER IN PROTECTING HUMAN AND CIVIL RIGHTS AND FREEDOMS
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Courts of the Kyrgyz Republic are considered as an effective legal mean for protecting and ensuring the rights, freedoms and legitimate interests of citizens. The Constitution of the Kyrgyz Republic and legislation of the country guarantees the equality of all before the court, and the administration of justice should be realized through the principle of court independence. The author raises the question of whether the Kyrgyz Republic has an independent judiciary that is focused on protecting the dignity and interests of the individual. However, there are some doubts concerning this issue. The author analyzes the statistical data pointing that the number of complaints about actions or inaction of law enforcement and judicial authorities is steadily growing. It is highlighted that the solution of this issue is the following: it is necessary to stat that the main function of the judiciary should be the protection of the rights and freedoms of the individual.
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Статья
The author of this research aims, through this research, to create a theoretical understanding of the role of Resolutions of the Plenum of the Supreme Court of the Russian Federation (SCRF) in the regulation of labor relations and others directly associated with them, as well as the possibility of their classification as a source of labor law. By researching these acts’ significance in labor law both in Russia and other countries a conclusion is drawn that currently the acts of supreme judicial authorities may be classifiedas sources of labor law, since they influence on the emergence, changing and termination of legal labor relations and have an objectified form of expression. However, the aforementioned acts are issued by judicial authorities, not law-making authorities, and a failure to comply with the rules of conduct that they create cause consequences not only for the courts, but for other subjects as well. Considering the latest trends in the formulation of rules of conduct by supreme judicial authorities and their perception by legislators via their reflection in regulatory acts, the significance of supreme judicial authorities’ acts is to serve as a basis for the development of typical sources of labor law, specifically labor law acts.
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THE SCOPE OF LABOUR LAW IN THE PLATFORM ECONOMY
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The development of the digital economy, accompanied by new forms of employment, has an impact on the scope of labour law. Using systemic, formal legal and comparative legal methods, the article explores strategies directed on expanding the scope of labour law at national, European and international levels. The article reflects the actual narrowing of the scope of labour law; it considers case law on the legal status of platform workers and analyses the policies of the International Labour Organisation, the European Union and several Member States of EU aimed at expanding the scope of labour law guarantees. In the author’s opinion, when courts classify legal relations with platform workers as labour relations, it is correct to speak about preventing an unreasonable narrowing of the scope of labour law rather than about an extension of the scope of labour law. A new interpretation by courts of already existing characteristics of an employment relationship will prevent the circumvention of labour law regulations by platform providers and their partners.
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THE SOCIAL VALUE OF LABOR LAW: THE VARIETY OF APPROACHES
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Initially, a distinction is made between the studied phenomenon and natural law, then with legal axioms and legal principles. The article considers the position of the German researcher R. Stammler on the definition of the social ideal used as the basis for his definition of ‘natural law with variable content’. M. Weber’s approach to emphasizing the value-rational behavior is noted, which allows separating social values from social norms. The main research methods are: historical and legal method, methods of analysis and synthesis, comparative legal and normative dogmatic methods. The article analyzes various approaches to defining the value of labor law, taking into account the value assessment of law and labor. The definition of the social value of law as an ideal phenomenon, a phenomenon of spiritual culture, formed as a result of a sufficiently long social interaction in a specific place and at a specific time (here-now). This article discusses a number of problems related to the definition of the social value of labor law. Its contents are the ideals, goals and assumed results of the existence and functioning of law. Further, three value hypostases of hired labor are identified: 1) as a source of livelihood (socio-economic value), 2) as the realization of the goal of human life set by God (religious value), 3) as a way of implementing one’s creative potential, self-expression in work (creative value). Four interrelated components are identified as the social value of labor law: justice, equality, freedom, humanism.
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THE SOCIAL VALUE OF LABOUR LAW THROUGH THE PRISM OF NEEDS OF AN INDIVIDUAL AND SOCIETY
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This article raises and justifies a thesis on the social value of labour law as an independent branch of law. The authors conclude that the social value of labour law arises from the fact that it is based on a triad of social values that are of key significance for the development of civilization development. The first element of the triad is labour since it represents the material basis for the development of society and the foundation for any civilization. Labour, as an activity aimed at meeting the needs of the individual and society, is an essential condition for human life and determines its quality. The second element is law as an institution of civilization: it is the mechanism for implementing requirements that ensure the “self-preservation” and development of society. Because the law is a social regulator, it not only ensures that society as a whole functions normally, but it also ensures the safety of an individual in society, as well as fundamental rights and freedoms. The third element is socially significant needs, which cannot be satisfied without entering into public relationships regulated by laws. Based on the theory of the hierarchy of needs and motivation of human activity, the analysis of international normative instruments upholding basic human rights and freedoms, the authors conclude that labour law as the independent branch of law possesses social value and maintains it in current conditions. This conclusion is based on the fact that for the overwhelming majority of the working population, satisfaction of basic needs (physiological and safety needs) necessary to sustain livelihood is possible precisely through entering into labour relationships. At the same time, labour law affects the rate of state economic development, and its regulations have an impact, both directly and indirectly, on the creation and support of public peace in society. This confirms the thesis on the social value of labour law.
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