публично-правовые (государственно-правовые науки). Рубрика в журнале - EUROPEAN AND ASIAN LAW REVIEW
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
Статья
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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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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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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ENVIRONMENTAL POLLUTION AND HUMAN GENETIC HEALTH: CRIMINAL LEGAL ASPECT
Статья
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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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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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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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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LEGAL STATUS OF CRYPTOCURRENCIES: THE EXPERIENCE OF BRICS
Статья
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
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
Статья
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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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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