Preview

Russian Law Journal

Advanced search
Vol 9, No 1 (2021)
View or download the full issue PDF
https://doi.org/10.17589/2309-8678-2021-9-1

Articles 

4-33 307
Abstract

The time in which we live is not easy. On the one hand, the latest technological advances create an illusion of unprecedented progress. On the other hand, it appears that millions of people in the world are deprived from the opportunity to use these advances in their everyday lives. Moreover, it appears that these technological advances can cause more problems than they help to solve. This situation also applies to the legal sphere where the law is gradually turning into a neutral, depersonalized technique. Mostly restrictive, repressive and estranged from the will of individual social associations, such law (law as a mere technique) generates rather radical responses in the form of different "shadow" (unofficial) norms, institutions and practices. In this paper the problem of a possible clash of the official positive law with shadow social orders is analyzed. Trying to find the way out of the false dichotomy between the technologized official law and fundamentalist rules of some narrow communities, the author discusses the origins and weak spots of the contemporary legal order.

34-57 274
Abstract

This article analyses theoretical and practical implications of inheritance tax as the most debatable tax from legal and ethical viewpoints. Some countries have refused taxing inheritance. Others have applied inheritance taxation from national to local levels. The majority of developed countries tax wealth transfers. The primary purpose of inheritance taxation is the allocation of wealth within society and the mitigation of social inequality. Currently, Russia has neither an inheritance tax, nor any other wealth or wealth transfer taxes. This indicates an unfair tax system. The study is based on the analysis of the history of inheritance taxation in Russia and abroad, and the contemporary legal framework and practices in foreign countries. The authors highlight current advantages and disadvantages of inheritance taxation, the functions of the tax, and state considerations related to the potential design of inheritance tax in Russia. The main conclusion is that inheritance tax should be imposed in Russia as a social-oriented mechanism and levied on only the top-wealth societal cluster.

58-80 263
Abstract

This paper discusses the essence of the entrepreneurial risk, ethical and legal standards, which must be adhered to by the head of a commercial organisation. In the Russian legislation, there is debate concerning the boundaries of the responsibilities of the corporate manager. Existing literature doesn't contain many studies about the norms on the responsibility of persons authorised to act on behalf of a legal entity because it is new for Russian civil legislation, which shows the novelty of this study. We identify problematic aspects that arise both in the doctrine and judicial practice regarding the determination of the criteria of good faith and reasonable behaviour of the head of the corporation. Our study examines the legal nature of entrepreneurial risk and how it affects the formation of managerial decisions. As a result, we propose a basic model of the criteria for the good behaviour of a corporate manager within a reasonable entrepreneurial risk.

81-113 263
Abstract

The restrictions imposed to limit the spread of the coronavirus have intensified public debate about the proper legal format for two kinds of labour - working remotely and working via online platforms. The burden on workers in these two kinds of jobs has increased dramatically during quarantine, as many defects in the legislation and in enforcement practices for remote work and employment through online platforms have come to light. The State Duma is at present considering several legislative initiatives pertaining to remote work. This article analyses those initiatives and the outlook for modifying Chapter 49.1 of the Labour Code, specifically by clearly classifying types of remote work and simplifying electronic interaction between workers and employers, by entitling workers to time when they are not in continuous contact with their employers, by restricting dismissal of remote workers, and through other promising provisions. Certain other important gaps in the law, which will remain even after adoption of these new regulations for remote work, are also identified. The article analyses the feasibility of extending labour law to the rapidly growing sector of employment through online platforms. The proposal is that an explicit norm be included in the Labour Code to the effect that working via online applications through which the platform sets requirements for how the job is to be performed must be considered equivalent to working under an employment contract. In addition, the article concludes that it is necessary to adopt standards concerning the overall liability of a company - the owner of the online platform together with any intermediary companies through which agreements are concluded with online workers. Any more durable and fundamental solution for this new form of employment must include review of all the paradigms of employment and its subjects.

114-137 170
Abstract
The paper analyzes the decision of the German Federal Constitutional Court rendered on 5 May2020 (2 BvR 859/15,2 BvR 980/16,2 BvR2006/15,2 BvR 1651/15), wereby the latter heavily criticized the "democratic" legitimacy of the Public Sector Purchase Program of the European Central Bank (aimed, by purchasing negotiable debt securities issued by governments, public agencies and international institutions located in the euro area, to support the economy of the Member States and to increase the eurozone's inflation rate up to 2%), de facto disapplying the judgment of the CGEU of 11 December 2018, by which that Program had been instead previously "validated." The author places the decision in the context of the long-standing and conflicting relations, on the one hand, between Member States and European institutions and, on the other hand, between national constitutional courts and the Court of Justice of the European Union, outlining the possible repercussions of the decision on a legal, economic, political and institutional level and, ultimately, on the very survival of the eurozone.
138-164 228
Abstract

Amendments to the Russian Constitution take effect on 4 July2020. In Chapter 3, "Federal Structure," of the Constitution of the Russian Federation there is a provision for a set of amendments specifying the status of constitutional law in the Russian Federation regarding domestic and international/interstate relations as well as relating to questions of Russian national/state identity and guarantees of its preservation and protection. On 15 January 2020 in the Presidential Address to the Federal Assembly a number of constitutional amendments were proposed for discussion, including the introduction of certain changes to the Constitution of the Russian Federation. These changes will be guaranteed priority in Russia's legal framework. President Vladimir Putin noted that, "requirements of international law and treaties as well as decisions of international bodies can be valid on Russian territory only to the point that they do not restrict the rights and freedoms of our people and citizens and do not contradict our Constitution"" The topicality of considering the relationship between national and international court jurisdictions is predetermined by the fact that Russia has ratified Protocol No. 15. On 1 May 2017 a federal law-ratifying protocol establishing a subsidiary role of the European Court of Human Rights was signed. Such a role, in addition to the national mechanism of the judicial protection of human rights, is necessary to implement judicial protection, primarily in Russian courts including the Supreme Court (which is the highest court for civil, economic, criminal and administrative cases and which also protects human rights and freedoms by considering cassation and supervisory complaints against final and binding court rulings) and the Constitutional Court (which, as the highest court body of constitutional control, considers cases of citizens' complaints about the violation of constitutional rights and freedoms by a law applied by state bodies). At the current level of legal development, there are both a necessity and practical possibility of altering approaches to the implementation of international rules. This paper considers the correlation of national and international law. On the basis of decisions of the Constitutional Court of the Russian Federation on the so-called request for the applicability of decisions of the European Court of Human Righ ts, legal views are given on the applicability of international rules by Russian courts, including their interpretation by international court institutions. The revised version of Article 101 of the Federal Constitutional Law on the Constitutional Court, which makes it possible to apply to the Constitutional Court contrary to an official ECHR decision, has been in effect since 2014.



ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)