Russian Law Journal

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Vol 9, No 3 (2021)
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4-35 264

The article focuses on the significance and relevance of victims consent in sexual offenses cases. The case-law of national legal systems as well as of international judicial bodies demonstrates that consent is a conditio sine qua non for qualifying an act as a sexual offense. However, the recent examples of criminal cases raised from national and international jurisprudence allow authors to conclude that the non-consensual character of sexual acts is frequently complicated to prove in due to some peculiarities of the sexual offenses per se. This paper analyses the modern technique of sexual offenses criminalization which can be characterized by one of two possible approaches: first, the presumption of the alleged victim’s consent to sexual intercourse or, on the contrary, second, the presumption of the lack of thereof. Despite the fact that the second approach seems to be more favorable for alleged survivors, the implementation of this approach entails a number of difficulties. The main one is the hypothetical conflict with the metapresumption of criminal procedure (i.e. the presumption of innocence). In the paper this contradiction is analyzed from the perspective of the legislation and jurisprudence of different jurisdictions, as well as the practice of international judicial bodies (European Court of Human Rights, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda).

36-59 245

The first part of this article is devoted to the legislative proposal for a Directive of the European Parliament and the Council on the right to disconnect that was adopted on 21 January 2021 in the European Parliament Resolution. In this part of the article the legal nature of the “right to disconnect, “the personal and material scope of this right as well as the relationship to other (fundamental) labour rights and different aspects of the employment relationship are analysed. Furthermore, the author discloses the gaps of the legislative proposal and makes some suggestions concerning a new concept of working conditions. The second part of the article focuses on Russian labour law. During the process of reforming the legislation on remote work it was widely discussed whether “a right to disconnect” should be provided for in the Russian Labour Code. The author analyses problems with the organisation of working time concerning the application of a special working regime entitled “unregular working day” and the recording of working time. Furthermore, the perspectives of the application of self-protection of labour rights as a way to guarantee the right to disconnect are examined. The conclusion stresses which measures would be necessary for an effective execution and enforcement of the right to disconnect.

60-82 255

In this article authors discuss existing ideas about liability of artificial intelligence based on guilty and strict approaches to defining the elements of civil liability in the Russian Federation and European Union. These approaches have drawbacks, which are, first of all, in the excessive limitation of the development of innovations, and with low efficiency in achieving the goals of civil legal responsibility and the implementation of its functions. The risk-based approach proposed by the author to the determination of the elements of civil liability for the actions of artificial intelligence is intended to neutralize the named drawbacks. Based on the analysis of the spheres of application and artificial intelligence technology, the risk-based approach allows a more efficient and flexible approach to the definition of the subject of responsibility, its types and limits, ensuring a balance between the development of innovation and the goals of civil liability. As a result of the study, the author’s definition of a risk-based approach to civil liability for the actions of artificial intelligence has been given, its features, elements have been disclosed, and its advantages over existing approaches to civil liability have been demonstrated.

83-110 279

The legislative process is an important tool of direct democracy for creating checks and balances on public authority. Making local laws is an essential function of the local government that is linked to direct communication between public officials and citizens. This paper sets out to evaluate the opportunities, constraints and challenges in the practices of local direct democracy in Russian municipalities, and to describe the frameworks and capacities that municipal authorities provide for citizens. The paper analyzes the political and legal circumstances for law-making initiatives at the local level and examines citizens’ activities in the local legislative process. The research question is whether citizens have the capacity and opportunity to participate in the local legislative process and to what extent barriers and challenges prevent them from doing so. To answer the research question the authors use methods of context analysis to study Russian legislation and municipal legal documents, a case study of several Russian municipalities and a survey with representatives of local communities in Tyumen, a Russian mid-sized city located in Western Siberia. The results of the study show a reluctance on the part of local residents to engage in the various aspects of direct democracy and a lack of the necessary skills, knowledge and willingness to participate in the initiative process. The results further show that the initiative process is frequently not well planned and lacks clear objectives, requirements and guidelines. The study concludes that seminars and professional training as well as roundtable workshops are effective ways to support local law-making initiatives. One promising step towards modernizing initiatives would be to organize them in e-forms. Many citizens demonstrate their ability to use electronic options that can expand the possibilities for their participation in the local legislative process.

111-136 171

In international law, there is no directly prescribed duty of states to create the institution of financial ombudsman. However, in practice this institution is in real terms very popular for effectiveness in various forms. This paper analyzes the models of financial ombudsman in some of the leading European jurisdictions as well as the Russian model and its distinction from all these models. The successful introduction of compulsory financial ombudsmen according to a new Russian law is impossible without deep integration of this institution with the general civil procedure legislation. The Russian financial ombudsman is authorized by law to partially create for himself the rules for resolving disputes, which in essence gives him the right to create rules of civil procedural law. Since pre-trial settlement of certain categories of civil disputes in the financial markets through the financial ombudsman system is mandatory, providing him with unlimited discretion to determine the amount of the fee for considering a case, this can create a conflict of interest in his or her activities. The new Russian law is criticized for numerous inconsistencies with civil procedure legislation, without the elimination of which the practical work of the financial ombudsmen will be ineffective. I offer some legal approaches for the development of this institution. The competence of the further alternative dispute resolution (ADR) Russian institutions depends on the success or failure of the financial ombudsman.

137-162 182

Until recently low-tax jurisdictions have played an important role in the formulation of tax planning schemes by multinational enterprises. However with the onset of global trends towards deoffshorization, existing methods of tax optimization have seen significant changes. As there is currently no one single approach when creating the definition of, or defining a “low-tax jurisdiction”, in this article the definition and the main features of lowtax jurisdictions are proposed and the main stages in the formation and development of low-tax jurisdictions are detailed. On the basis of research carried out on the national legislation of low-tax jurisdictions, the main company types which meet the special legal formulae that can be incorporated into low-tax jurisdictions have been analyzed. In order to highlight similar characteristics and to simplify the analysis of the national legislation of low-tax jurisdictions so that general recommendations covering the nature of measures which can be used to counter illegal tax avoidance, tax evasion, money laundering and other illegal financial machinations, different classifications of low-tax jurisdictions have been analyzed. The unfair and perhaps even illegal use of low-tax jurisdictions often leads to violations of core tax principles which may have an impact on the overall size of budget revenues available to high-tax countries. Therefore, deoffshorization measures are being proposed at the international level. Currently the main global trend has been to increase the transparency of tax information and of financial transactions which are carried out by international exchanges. This is supported by the strengthening and expansion of cooperation between tax authorities which serves to counter the abuse of provisions in international tax treaties on the avoidance of double taxation.

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