Russian Law Journal (RLJ)
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Socialist Constitutional Legacies
Full text linkWith the end of the Cold War, many assumed that socialism, together with the specific constitutional values and political structures was dead (or dying). This article will challenge these assumptions. Post-Cold War reality did not, however, follow these assumptions. Some countries, especially in Asia, continue to adhere to socialist constitutional approaches. Some cannot fully overcome their socialist legacy. And still others include socialist values in their constitutions and practice. These values and ideas warrant study. Most notably, socialism carries with it a certain set of values and, consequently, a corresponding pressure on legal institutions. The authors, guest editors of this special issue of the Russian Law Journal on the socialist legacies in the world constitutions, outline a general approach for the study of socialist constitutional legacies. The article therefore addresses (a) the methodology of socialist constitutional legacies analysis, (b) the core values of the socialist constitutions and (c) ways in which socialist constitutional ideas and concepts can be combined with the principles of constitutionalism. This analysis raises a number of important – but under-researched questions. One is the extent to which these socialist ideas or concepts are actually socialist. Another is the extent to which these ideas can be included in constitutional discourse
The Social Issue in Peruvian Constitutionalism of the 20th Century and in the Case Law of the Constitutional Court: Influence of Socialist Constitutionalism?
Full text linkThe socialist ideas of Russian Revolution were well-known in Peru, according with the struggles of working-class and student movements and the birth of socialist and communist parties. But the Peruvian Constitutions of 1920 and 1993 only opened someone social rights, not only for the workers, but also for the indigenous people to protect their community territories. Only with the Constitution of 1979 the leftwing constituents were almost one third of the constituents. In this way the Constitution included social ideas in the type of State as social and democratic Rule of Law, the equal rights between all persons, particularly between men and women, the employment was protect by the State, the public education cost-free, the property had a social function, the natural resources were of the Nation, and the indigenous and Amazonian communities were protected, etc. But, with the neoliberal Constitution of 1993 the economic model was liberalized in favor of the market and the international investors, reducing the social rights, and the national power was centralized in the Executive Power. But, since 2000, after the fall-down of Fujimori’s regimen, the Constitutional Court played a role of balanced the impact of this new model, according with the international treaties of human rights and social rights. In this sense, the Constitutional Court was able to give the Constitution of 1993 a social content
Mandatory Corporate Human Rights Due Diligence Models: Shooting Blanks?
Full text linkThe major stakeholders, including states (at least, in the global North) and transnational corporations (TNCs), have radically changed their attitude to the idea of mandatory human rights due diligence in the last decade. By asking what is behind these good intentions, and whether the mandatory corporate human rights due diligence models enforced so far are effective or represent an exercise in shooting blanks, and by combining a legal positivistic perspective with studies on governance and the production of knowledge, this article contributes to the legal and socio-legal assessment of these changes Assessing the effectiveness of mandatory corporate human rights due diligence, this article discusses the inherent or implied features of this regulatory tool which restrict its ability to serve as an instrument to protect human rights. A special focus is made on two main restrictions that are specific for human rights due diligence: the regulatory boundary revealed in the auxiliary character of due diligence and its limed ability to serve as a standard of conduct, and the epistemic boundary, deriving from the conflicting role of companies as the architects and executives of knowledge production. To a certain extent, the legislative process can counterbalance some of these restrictions by setting up the substantive, precise obligations of companies, and by creating mechanisms of control and remediation. However, the analysis of nine different instruments reveals that neither states, nor the EU have used the potential of the regulatory force
Presumption of Consent or a Lack Thereof of the Victim and the Presumption of Guilt (Innocence) of the Accused in Cases of Sexual Offences: Emphasise What Is Necessary, Cross Out Everything Unnecessary
Full text linkThe 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)
Digitization of Civil Legal Proceedings in the Russian Federation
Full text linkThis work is an analysis of legal trends in the administration of justice and the judicial system of the Russian Federation. Among the main trends, the authors observe an increase in the number of civil cases considered on the merits by both commercial courts and general jurisdiction courts. The authors also analyze some opportunities for increasing the level of integration of digital technologies in the legal environment of the Russian Federation. One of the triggers capable of catalyzing this process is the COVID-19 pandemic. Moreover, the transformations in the administration of justice that require online court trials using the Internet are analyzed, and some foreign experience in implementing such a format of court trials is considered. The authors also assess in this article the impact of judicial reforms in 2019 on the dynamics of the administration of justice
Reasonable Entrepreneurial Risk: Behavioural Criteria for Corporate Managers
Full text linkThis 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
Socialist Constitutional Legacies in Regional Constitutions and Charters in Russia
Full text linkRussia has a federated structure. It is quite complex, with five different types of subjects of the Federation: republics, territories, regions, an autonomous region, cities of federal significance, and autonomous areas. Each of these subjects of the Federation has its own constitutive law. For a republic within Russia, this document is called a constitution. For each of the other subjects of the Federation, it is called a charter (ustav). These “figurehead” constitutions and charters obviously have great significance for their respective subject of the Federation. However, there are interesting disparities between them. This article explores one aspect of these. It considers the legacy of the Soviet approach to law in the precise wording of the constitutions of Russia’s republics and charters of the other subjects of the Federation. This careful textual analysis reveals that there are a few – although only a few – traces of Russia’s socialist past in the wording of these constitutive documents. However, that may not be the only “remnant of the Soviet past” in the approach taken in relation to these important laws. It is argued that the scarcity of an enforcement mechanism which might allow judicial consideration of any breach of a republican constitution or subject of the Federation charter is strongly reminiscent of the situation of constitutional unaccountability which existed under the Soviet regime
Low-Tax Jurisdictions in International Tax Planning
Full text linkUntil 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
China’s Socialist Unitary State and its Capitalist Special Administrative Regions: “One Country, Two Systems” and its Developmental Implementation
Full text linkThe People’s Republic of China is, according to its Constitution, “a unitary multi-national state” based on the socialist system. The Constitution also allows the state to establish “special administrative regions” in light of “specific conditions.” This provision backs the principle of “One Country, Two Systems” that China applies to achieve territorial reunification, through allowing the relevant territories to continue with their capitalist system and way of life. This principle was operationalised in the cases of Hong Kong and Macau, resulting in the establishment of two Special Administrative Regions, each of which governed by a “Basic Law” prescribing the systems of the relevant region, when China resumed the exercise of sovereignty over them on 1 July 1997 and 20 December 1999 respectively. This article considers the two decades of constitutional and legal interactions between the Chinese “Central Authorities” and these sub-national Special Administrative Regions, so as to highlight the socialist mechanisms of central control that have been applied constitutionally, politically, economically and socially in Hong Kong and Macau to ensure that “One Country, Two Systems” with not be “distorted,” that national sovereignty, security and development interests are safeguarded, and that these regions will play a positive role in national economic development. It is clear from this study that the implementation of “One Country, Two Systems” in the two regions has been “developmental,” with the law serving the interests of the “Centre” under the leadership of the Communist Party of China
Historical Comparison of Sovereignty in International Law
Full text linkThe current article aims to study on the concept of sovereignty in international law. To this end, sovereignty is historically examined and compared in different legal doctrines. In fact, there is a verity of legal theories on the formulation and conceptualization of sovereignty. The dominant perspective of the contemporary legal doctrines sees sovereignty as wornout and outdated concept which belongs to classical legal doctrines. This article argues such accounts and shows how the concept of sovereignty survived through historically legal developments and has still been influential in the sphere of international law. Although the main legal events comprising Westphalian truce, world wars, the foundation of United Nation organization and so on have changed the nature and content of sovereignty in the history of international law, it has remained as a fundamental principle of international law. The lack of correct understanding of this concept can reinforce the obstacles for legal modeling and doctrines. So, through such a historical comparison, the research elaborates the reconceptualization process in the concept of sovereignty and elucidates how sovereignty means in the contemporary international law and how this concept defined by the modern legal doctrine influences international law and globally affects the legal order among states. Discussing the different legal doctrines on the concept of sovereignty in different historical periods, the article reveals the present considerations on sovereignty in contemporary international law