Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo最新文献

{"title":"Constitutional bases of legislative and supplementary legal regulation in the Republic of Kazakhstan: Practical issues and doctrinal interpretation","authors":"E. Abdrasulov","doi":"10.21638/spbu14.2022.412","DOIUrl":"https://doi.org/10.21638/spbu14.2022.412","url":null,"abstract":"The article examines the issues of differentiation of legislative and subordinate regulation of public relations. It is noted that in the process of law-making activities, including the legislative process, practical questions often arise about the competence of various state bodies to establish various legal norms and rules. These issues are related to the need to establish a clear legal meaning of the constitutional norms devoted to the definition of the subject of regulation of laws. In particular, there is a need to clarify the provisions of paragraph 3 of Art. 61 of the Constitution of the Republic of Kazakhstan in terms of the concepts “the most important public relations”, “all other relations”, “subsidiary legislation”, as well as to establish the relationship between these concepts. Interpretation is also required by the provisions of paragraph 4 of Art. 61 of the Constitution of the Republic of Kazakhstan in terms of clarifying the question of whether the conclusion follows from mentioned provisions that all possible social relations in the Republic of Kazakhstan are subject to legal regulation, including those that are subject to other social and technical regulators (morality, national, business and professional traditions and customs, religion, standards, technical regulations, etc.). Answering the questions raised, the author emphasizes that the law and bylaws, as a rule, constitute a single system of legislation, performing the functions of primary and secondary acts. However, the secondary nature of subsidiary legislation does not mean that they regulate “unimportant” public relations. The law is essentially aimed at regulating all important social relations.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"23 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84000335","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mass claims in international investment arbitration","authors":"Konstantin E. Ksenofontov","doi":"10.21638/spbu14.2022.207","DOIUrl":"https://doi.org/10.21638/spbu14.2022.207","url":null,"abstract":"Following the economic crisis in Argentina international investment tribunals faced a new challenge: mass claims characterized with multiple claimants bringing the significant amount of homogeneous investment protection claims against the host state. Neither the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, nor applicable bilateral investment treaties cover the tribunals’ power to resolve mass claims. They are silent on crucial questions of jurisdiction and consent and do not address important procedural issues either. In these circumstances arbitral tribunals face the inevitablegap-filling process, which boils down to the critically important question of legal nature of mass claims. If mass claims are nothing more than a mere variety of “ordinary” claims, than the issues of special or “secondary” consent are irrelevant, since the general consent for arbitration will suffice for the tribunal to find itself competent to resolve the dispute. By contrast, if mass claims are different in their legal nature from “ordinary” bi- or multiparty arbitration, they cannot “fit” into the scope of parties’ general consent. In controversial Abaclat decision the majority ruled that the questions of tribunal’s powers to decide on mass claim brought by Italian investors against Argentina pertain to the sphere of admissibility rather than jurisdiction. This analysis was not accepted by dissenting arbitrator G. Abi-Saab. Interestingly, other multi-party “Argentinian” awards followed the line of argument which significantly differed from both the majority opinion in Abaclat and G. Abi-Saab’s dissent. This only highlights the controversial nature of mass claims in international investment arbitration. This article is dedicated to analysis of jurisdictional issues raised in the course of “Argentinian” arbitrations. Since this analysis is strongly intertwined with two other systems of resolution of mass claims, namely American class arbitration and public international law mechanisms dealing with the compensations for states’ international wrongdoings, these two mechanisms are also explored to provide better context and understanding.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"35 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79052907","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Inheritance of social media accounts in Germany and Sweden","authors":"E. Abrosimova, Ellina V. Vlasenko","doi":"10.21638/spbu14.2022.210","DOIUrl":"https://doi.org/10.21638/spbu14.2022.210","url":null,"abstract":"The question how the legal framework may cover Internet relations is not new and has been discussed at least since the end of the 20th century. But over the past decade and a half, the electronic environment has been developing, while classification and regulation of new institutions raise some complexities. One of them is social media accounts. Their legal status as objects of rights is unclear since such accounts are a set of rights and relationships laying at the intersection of different institutions and law branches such as contractual relationships, copyright for posts and photos, personal correspondence, and privacy. At the same time, commercialization of social media accounts is gaining momentum, which turns them into an “electronic enterprise”. The purpose of this research is to identify order of inheritance of accounts in Sweden and Germany. These legal systems are close to the Russian one, the results obtained may be used to improve Russian legislation. Moreover, the authors know the relevant foreign languages, which allows them to analyze the legislation in detail. The object of analysis is the relationships that arise in connection with the need to determine the legal fate of a user’s account after his death. The scope of inheritance relations is chosen because this issue has become increasingly common in law enforcement practice. Besides, the Federal Supreme court of Germany recently issued a controversial decision which might affect German law, other European legal systems, or the relevant elements of the content of user agreements. The authors use the comparative method, methods of analysis, synthesis, deduction, and induction. The authors’ conclusion is the issue is unsettled. The solution proposed by the German Federal Supreme court is imperfect. In the article there are also some comments on improving Russian regulation, taking into account the experience of the legal systems studied.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"16 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88041877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The role of language in providing intelligibility and certainty of normative legal acts","authors":"S. Belov","doi":"10.21638/spbu14.2022.201","DOIUrl":"https://doi.org/10.21638/spbu14.2022.201","url":null,"abstract":"Clearness (intelligibility) and certainty of content are required from normative legal acts in the contemporary legal doctrine and in judicial practice (especially in the practice of constitutional courts). These requirements primarily concern language of texts of normative legal acts, as most lawyers find guarantees of accessibility for understanding by most of addressees in the textual fixation of legal norms. The question of how texts of normative legal acts can provide this — the question lying on the border between law and linguistic — is not answered today. Lawyers focus on ways and means of interpretation of texts, and these ways and means are treated as universal principles and dogma, but this is a solution for extraction of legal norm that often does not guarantee certainty and usually does not provide intelligibility. This article demonstrates rules of making normative acts which can provide intelligibility and certainty as interconnected but autonomous and independent requirements to legal texts basing on joint legal-linguistic researches of intelligibility and certainty of legal texts. There is a tension between requirements of intelligibility and certainty, though it should not be exaggerated, as the effective measures providing these two do not conflict and could be realized together. Fulfilling these requirements working out all normative acts should be accompanied with description of their meta-normative parameters, inter alia — description of addressees of normative prescriptions of norms of these acts as well as signs of occurrences, conditions and circumstances significant for the content of legal norms and its applying.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"15 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90559066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Good faith performance of contractual obligations under Russian law","authors":"D. S. Alyakin","doi":"10.21638/spbu14.2022.106","DOIUrl":"https://doi.org/10.21638/spbu14.2022.106","url":null,"abstract":"The paper examines the implementation of the good faith performance of contractual obligations under Russian law, and identifies requirements addressed to parties in this area. The relevance of the paper stems from the increasing Russian legislator’s attention to extending the application of good faith in civil circulation, including the performance of obligations. The research aim is to examine the nature of good faith performance of obligations. The research material was the Civil Code of the Russian Federation, Russian jurisprudence, and domestic authors’ studies in the field of civil law. The methodological basis consisted of general scientific (analysis, synthesis, analogy) and special legal methods (comparative-legal, formal-logical, systemic, structural-functional methods, and a method of interpretation). It is justified that the principle of good faith, being a general principle of the Russian Civil Law, is implemented, in particular, in the field of performance of obligations. The implementation of this principle regulated by legal norms ensures a balance between the interests of a creditor and debtor, allows achieving the result implied and pursued by the law, and maintains the stability of civil circulation. It seems appropriate to consider good faith in doing business, cooperation between parties, and cost-effective performance as requirements contributing to the understanding and achieving goals and objectives of the principle of good faith in relation to the performance of obligations. It is important to continue working on the formation of a uniform approach to the implementation of the listed requirements in the mentioned field by improving the existing legal regulation. The effectiveness of this process will contribute to increasing the level of judicial discretion within the established limits and will allow to guide parties in patterns of conduct aimed at achieving objectives of obligations, in other words, their due performance.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"47 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91071472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International cooperation in the fight against cyberpression in the context of response to new challenges and threats","authors":"K. Klevtsov","doi":"10.21638/spbu14.2022.306","DOIUrl":"https://doi.org/10.21638/spbu14.2022.306","url":null,"abstract":"This article explores criminal procedure and other organizational and legal aspects of international cooperation between states in the fight against cybercrime in the face of new challenges and threats. The aim is to identify and consider formal and informal measures of international cooperation in response to transnational cybercrime. Through legal analysis, we demonstrate that such crimes, as a rule, have an international character, as they have negative consequences on the territory of other sovereign countries. The author analyzes various forms of international cooperation in the fight against crime, which include extradition (extradition), legal assistance in criminal matters, transfer of criminal prosecution (judicial proceedings), as well as informal cooperation between law enforcement agencies (international police cooperation), in particular within the framework of US law called “СLOUD Act”. As an empirical basis for the study, materials of Russian operational and investigative practice for 2018–2019, as well as decisions of courts of foreign states, were used. However, the majority of law enforcement agencies deliberately or without intent resort to the practice of obtaining evidence on cybercrimes that are physically located on the territory of another country, independently, without obtaining the consent of this state. This happens through a remote connection in real time to the subscriber device of a criminally prosecuted person or its withdrawal from a victim or witness located on the territory of the state by law enforcement agencies that conduct proceedings on a cybercrime case with subsequent inspection to find information relevant to the case, as well as through the use of other legal methods.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"45 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91130568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transnational law: The scientific breakthrough of professor Liudmila Nikiforovna Galenskaya","authors":"Sergey V. Bakhin","doi":"10.21638/spbu14.2022.416","DOIUrl":"https://doi.org/10.21638/spbu14.2022.416","url":null,"abstract":"The article discusses the main provisions of Professor L. N. Galenskaya’s monograph “Legal regulation of transnational relations” published in 2022. The totality set of L. N. Galenskaya’s ideas is characterized as a scientific breakthrough, which makes it possible to explain the correlation of various regulators of international relations — international and transnational law. The article examines the nature of relations regulated by transnational law, the mutual position (relationship) of international, transnational and private international law. The issues of special principles of transnational law and its subjects, the nature of regulated relations, branches of transnational law are analyzed. According to L. N. Galenskaya, the regulators in the field of transnational law are the basic principles of international law, to the action of which all legal relations are subject — both within the framework of international and domestic relations. In addition, as a special regulator, it highlights the special principles of transnational law. The legal principles cannot be considered either as fundamental ideas in law or as norms of a special kind. Among them, the principle of equality of legal systems, the principle of non-discrimination, the principle of legal protection should be highlighted. In the sphere of cross-border relations, on the one hand, the principle of freedom of subjects to participate in transnational relations operates, on the other hand, participation in them is possible only with the general or special permission of the state. Moreover, in the sphere of transnational relations, the principle of constant connection with the state of nationality of the subject operates. Since the monograph was released published in 2022, when in the year that Professor L. N. Galenskaya celebrates her anniversary, the author tells separately about the scientific achievements of the hero of the day and her long-term work at Leningrad (St Petersburg) State University.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"55 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82115510","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Armed attacks and murders in educational organizations: Criminal law and criminological assessments","authors":"S. Kochoi, K. Trapaidze","doi":"10.21638/spbu14.2022.405","DOIUrl":"https://doi.org/10.21638/spbu14.2022.405","url":null,"abstract":"The tragedy of May 2021 in one of the Kazan schools could not but bring back to the society a heated debate as to ways to counter violence against students and teachers in educational organizations (the so-called “school shooting” after the respective term in the English language). We believe that alongside with journalists, psychologists and politicians, experts in the field of criminal law and criminology should also come out with their recommendations. This paper examines the practice of criminal law as to classifying mass shooting in educational organizations of the Russian Federation, and concludes on the legality of prosecuting the crime perpetrators, there being cause, either such as murder or as a terrorist act. The authors do not consider it expedient to amend the terrorist act statutory definition (Article 205 of the Criminal Code of the Russian Federation) so that it would cover all cases of “school shooting” without distinction. Nonetheless, doubts are expressed as to the sufficient propriety of the recommendation issued by the Plenum of the Supreme Court of the Russian Federation (Resolution “On court practice several issues related to criminal cases on crimes of terrorism”) to qualify an act of terrorism, which resulted in intentional death, under Article 205 of the RF Criminal Code alone. The authors analyzed the materials available to them regarding the cases of mass shooting in educational organizations, which fact has provided an opportunity to identify a number of circumstances, considering which appears necessary when developing measures to prevent and stop them. Particular attention among such measures should be paid to engaging as necessary directly with students in educational organizations, harmonizing relations both among students per se and between students and teachers.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"9 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80555919","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Characteristics and problems of the termination of the employment relationship with the teaching staff for committing immoral act or harassment","authors":"A. Zavgorodniy, E. Akhmatshina","doi":"10.21638/spbu14.2022.116","DOIUrl":"https://doi.org/10.21638/spbu14.2022.116","url":null,"abstract":"In the process of carrying out their professional activities, pedagogical workers are assigned special responsibility for the spiritual, moral, and patriotic education of students The Federal Law “On Education in the Russian Federation” defines “upbringing” as an activity aimed at personal development, creating conditions for self-determination, and socialization of a student on the basis of socio-cultural, spiritual, and moral values and socially accepted rules and norms of behavior in the interests of the person, family, society, and the state. This article summarizes basic requirements and restrictions on persons applying for teaching posts. The circle of persons who can be dismissed for committing immoral misconduct is determined. Issues related to the definition of immoral misconduct and harassment are considered. Peculiarities and problems of the termination of labor relations with a pedagogical worker for committing immoral misconduct incompatible with the continuation of pedagogical work (paragraph 8 of part 1 of Article 81 of the Labor Code of the Russian Federation) are considered. Attention is also drawn to peculiarities of dismissing a teacher for his application, including one-time, of the method of education associated with physical and (or) psychological violence against the student’s personality (Clause 2 of Article 336 of the Labor Code of the Russian Federation). The relevance of the topic raised by the author, on the one hand, is determined by considerable scholarly interest, and on the other hand, is of great practical importance in determining the procedure for terminating labor relations with teachers for committing an immoral misconduct. However, a comprehensive study on this topic by legal scholars in recent years has practically not been conducted.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"13 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81708675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legalization of marijuana use in comparative criminal legislation","authors":"V. Slavkovic","doi":"10.21638/spbu14.2022.312","DOIUrl":"https://doi.org/10.21638/spbu14.2022.312","url":null,"abstract":"In light of the rapidly shifting legislation regarding the legalization of marijuana use, the popular notion seems to be that marijuana is a harmless pleasure, access to which should not be regulated or considered illegal. World Health Organization recommended to delete cannabis and cannabis resin from Schedule IV of the UN Single Convention on Narcotic Drugs (1961), but to maintain it in Schedule I of the 1961 Convention. The UN Commission on Narcotic Drugs decided by 27 votes to 25 and with one abstention to follow this recommendation. Тhere is the issue of how much this decision will affect the legalization of marijuana in the world. In the paper are analyzed two legislation of the Anglo-Saxon legal system, which supported this initiative (Canada and USA) and legislation of Euro-Continental legal area (Russia) that did not accept the reclassifying of cannabis from the 1961 Convention. Author has compared the Canadian code with Uruguayan, and the U. S. bill with the Mexican legislation, because Mexican bill does not provide the full legalization of marijuana use. In the Russian Federation, all deeds related to narcotic drugs, which were committed on a significant, large, and an especially large scale, and also all acts coherent to traffic of narcotic drugs, regardless of its scale, are regulated by Criminal Code of the Russian Federation. Otherwise, there will be applied an administrative law.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"11 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81830112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}