Russian Law Journal (RLJ)
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The compliance movement in russia: what is driving it?
Full text linkThe introduction of compliance management systems is becoming more and more important in Russian companies. Initially limited to anti-corruption compliance and driven by foreign extraterritorial legislation, corporate leaders are now considering the benefits of enhanced risk management systems. From a corporate law perspective, the driving force behind this is the business judgement rule. Corporate leaders should be encouraged to take reasonable entrepreneurial risks without fearing liability. Therefore, by adopting compliance and risk management systems corporate leaders will be able to exculpate themselves when business decisions go wrong and losses are suffered. But the question is who will be the driving force in the Russian corporate context: the executive director or the board of directors? This paper examines two strands of domestic compliance regulation: anti-corruption compliance and the 2014 Code of Corporate Governance. It shows that while there are grounds for the possibility that in Russia the executive directors will be the drivers of compliance, the greater likelihood is that the board of directors will be collectively responsible. Important incentives for the day-today management of the companies will therefore most likely be missed.
The Problem of Imposing Criminal Liability on Legal Persons in Germany and Russia
Full text linkThe article is devoted to the consideration of problems in connection with the introduction of the institution of criminal liability for legal persons in Germany and Russia. The authors analyze the doctrinal discussions that have been held for over 200 years with respect to this problem and the arguments raised by supporters and opponents of introducing criminal liability for legal persons. They also consider the modern practice of making legal persons liable. In particular, the institution of “quasi criminal” liability of legal persons in Germany and their administrative liability in Russia is examined. The comparative study shows that there are many similarities with regard to this question in both Germany and Russia.
A Brief Historical and Legal Essay on “Economic Constitutions”
Full text linkThis article explores constitutional regulation as it relates to the foundation of economic relations. The proper norms and divisions of the basic laws (constitutions) of states are analyzed from the historical and legal point of view: the authors develop an idea of “economic constitutions.” This conception is based on the ideas of American and European economists and lawyers, including the works of the Nobel-prize winner James Buchanan, the author of the conception of “constitutional economy.” The analysis of the individual, the most obvious norms of “economic constitutions” is made in their evolution. The common regularities of formation, development, and functioning of “economic constitutions” are researched. “Economic constitutions” are considered as the immanent legal expression of material conditions of life of communities. The research is based on the criteria of the correspondence of “economic constitutions” with the demands of social economic development of state organized communities. The genesis of “economic constitutions” of the USA, France, Germany and other states, for example, Latin American states are researched. Special attention is paid to “economic constitutions” of socialist and postsocialist states, especially to the “economic constitution” of the Russian Federation. The peculiarities in the development of the newest “economic constitutions” based on the basic laws of Finland and Switzerland are revealed. The authors develop an idea that “economic constitutions” are not limited to the questions of the influence of a state on an economy and of the determination of the borders of state regulation. Economic rights and freedoms, questions of interrelations of labor and capital, financial system, taxation, etc. are considered as the components of “economic constitutions.” Taken into account is that modern international standards are refused from the secondary role of the social economic rights of mankind. The conclusion is made about the interrelationship of the progress of “economic constitutions” and social economic rights in the information society that are able to ensure the fundamentally new level of a direct democracy in the management of a state
Applying the European Convention on Human Rights to the Conflict in Ukraine
Full text linkThe “annexation” of Crimea by the Russian Federation and the ongoing conflict in Eastern Ukraine have resulted in widespread human rights abuses. Both Ukraine and the Russian Federation are signatories to the European Convention on Human Rights and the Convention should apply within the territory and to the conflict. However, recent applications to the European Court of Human Rights reveal a great deal of confusion over which State bears responsibility for protecting human rights in different parts of Ukraine. This article seeks to shine a light on this problem presenting a deep analysis of the European Court of Human Rights’ jurisprudence and discussing how it applies to both the conflict in Eastern Ukraine and “annexed” Crimea. It addresses salient issues such as responsibility for the actions of non-state actors and armed groups in Eastern Ukraine and whether the legality of the “annexation” has any bearing on the human rights obligations of each State. The article presents a detailed critique of recent judgments from the European Court of Human Rights arguing that the jurisprudence of the Court has created a bewildering degree of complexity and uncertainty as to the obligations of each State and discussing the practical implications of this uncertainty
The Republic of Abkhazia as an Unrecognized State
Full text linkThe international legal right of peoples to self-determination is an integral part of the basis for the formation of an independent state. The most acute problems are with those regions that seceded from the Soviet Union in political and military conflicts and now seek recognition of sovereign status. Until the middle of XX century, such recognition was achieved following global military conflict, and then following the struggle against colonialism. In the past three decades, it has been associated mostly with the destruction of totalitarian regimes. This study is analysis the formation of the unrecognized state and historical, political and legal processes in a changing world political environment, and the implementation of the right of peoples to self-determination. The modern search for optimal forms of self-determination subject to the ideas of external and internal forms predetermines the scientific analysis of the historical political and legal formation of statehood in the territories for which the implementation of the right of peoples to selfdetermination is problematic. Here we examine the example of the Republic of Abkhazia.The methodological basis of research is the systemic approach that allows a holistic view of political and legal processes in the state. We also use comparative, structuralfunctional and historical approaches. The current status of the Republic of Abkhazia at its present stage of development is “denied,” which affects its political and legal system, characterized by a mixture of traditional and modern state and legal institutions. The state and the law in Abkhazia largely depend on the geopolitical situation in the region and the world, as well as the political systems of its neighbors and strategic allies. Quite a large role in the formation of Abkhazian statehood and its legal system is played by the Russian Federation, which has influenced power structures of the Republic of Abkhazia so as to integrate them into a single economic, political and legal space. Conclusions:The state and the legal system of the Republic of Abkhazia are in a state of transition and undergoing synchronization with the state and legal system of the Russian Federation in in order to establish a sovereign state. The status of an unrecognized state makes it impossible for the Republic of Abkhazia to fully participate in international processes and slows down the possible impact of international legal institutions on its state legal system
CRIMINAL LAW BETWEEN THE CAPITALIST AND SOCIALIST PARADIGM?
Full text linkSocialist legal theorists claimed they introduced a new paradigm of (criminal) law. To verify or falsify this claim, the article is searching for specificities of socialist criminal law. Out of numerous East-European countries, Czechoslovakia was taken as an example here. There, the new regime in 1948 had already simplified the entire criminal justice system. Other major changes, still influencing the legal system in Slovakia (a descendant of Czechoslovakia) nowadays, include the introduction of: lay judges, protective measures as new forms of sanctions, material understanding (dangerousness) of the criminal offense, and the increased role of public prosecution. On the other hand, since the 1960s, the formalistic approach to (criminal) law was adopted in Czechoslovakia, becoming a characteristic feature of criminal law in the whole Eastern Bloc, just like in Western Europe. Therefore, it seems that despite some minor differences between socialist and capitalist criminal law, these do not actually represent contradictory paradigms of criminal law. Should any paradigm shift in its proper (Kuhnian/Foucaultian) meaning be seen in the socialist countries, rather a more general paradigm shift might be proposed: the socialist society could namely be seen as a potential precursor to a post-modern “control society” (replacing the previous “disciplinary society”), due to the omnipresent control by Communist Party structures
THE INFLUENCE OF SOVIET LAW ON THE LEGAL REGULATIONS OF PROPERTY IN POLAND (1944–1990)
Full text linkThe aim of this paper is to show how the Marxist conception of ownership was introduced in Poland after World War II, and how it was then removed. The paper shows also to what extent the regulations introduced in Poland were different from the ones in force in the Soviet Union. In particular, the provisions of the Constitution of the Polish People’s Republic of 1952 and the Civil Code of 1964 are elucidated. The author points out that contemporary Polish courts sometimes question the legal meaning of some civil-law institutions from the period of 1944–1989
THE INSTITUTIONAL RESILIENCE OF RUSSIAN LAW THROUGH 1905–1917 REVOLUTIONS
Full text linkThe article aims to describe the dynamics and characteristics of Russian law throughout 1905–1917 Revolutions. It considers how Russian law survived through the gradual breakdown of the autocratic state. The resilience studies’ approach is introduced to the study of the continuity of the Russian legal tradition. A fresh outlook of the resilience framework allows to answer the main research questions: how did the legal system of the Russian empire lose its equilibrium in the beginning of the 20th century and what resources were exploited in order to make Russian law work for the Soviet state and people
The Court of the Eurasian Economic Union: Challenges and Perspectives
Full text linkThe Court of the Eurasian Economic Union (EAEU Court) is a new structure operating since 2015, and whose mission is to ensure the uniform interpretation and application of EAEU law. The article focuses on the main challenges the Court is presently facing: limited competence; a lack of procedural mechanisms to ensure the dissemination of its case-law among national courts; and a low number of applications. Consequently, it is divided into three sections.The first section is devoted to an analysis of the Court’s competence and focuses on the loss of the preliminary reference procedure that existed under the EurAsEC law. The authors analyze its role and the possibility of compensating for its lost powers. The second section explores the other tools available to the Court in order to influence the case-law of national courts indirectly. It explores the practical difficulties which economic entities face when bringing parallel proceedings before the EAEU Court and a national court, or when trying to obtain a review of a national court judgment following a positive outcome in the EAEU Court.The third section tackles the issue of the low number of applications, linked to a lack of trust from the business and legal communities. Thus, it is vital for the Court to earn a reputation based on accessibility, professionalism and efficiency. To this end, the authors analyze such issues as the duration of proceedings, the locus standi of economic entities and the way in which judgments should be drafted to ensure the protection of rights and legitimate interests of economic entities