Contents of issue # 4/2021

■ CONSTITUTIONAL AND MUNICIPAL LAW

Ideology of Constitutional Reform of the Legal System of the Russian Federation

Valeriy V. Lazarev

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, lazarev@izak.ru, https://orcid.org/0000-0003-0910-0609

Abstract. The article examines the essence of the value-ideological approach to assessing the Constitution of the Russian Federation and the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation of March 14, 2020 No. 1-FKZ “On improving the regulation of certain issues of the organization and functioning of public authorities”. The adoption of this Law is associated with a textual change in the Constitution of the Russian Federation. However, the constitutional reform is not limited to this. All elements of the legal system are being reformed: legislation, state institutions, law enforcement, legal awareness. These changes are based on vital needs and new challenges of social and political development. The answer to them should not be a spontaneous and purely pragmatic reaction of the authorities, but the systemic activity of each of the divided powers in accordance with its competence and in accordance with the ideas enshrined in the first two chapters of the Constitution of Russia, with amendments to the ideas that caused the adoption of this Law. A deeply meaningful, conceptually formulated set of those and other ideas constitutes the ideology of both the current Constitution and everything that is designed to ensure its operation.

Keywords: Constitution of the Russian Federation, constitutional values, the fundamentals of the constitutional system, democracy, Constitutional Court of the Russian Federation, President of the Russian Federation, community, social evolution, freedom, justice, human rights, dignity

For citation. Lazarev V. V. Ideology of Constitutional Reform of the Legal System of the Russian Federation. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 5—17. (In Russ.) DOI: 10.12737/ jrl.2021.042

Evolution of Ideas about Constitutional Identity in Legal Science of the 18th — 20th Centuries

Vasilii A. Tokarev

National Research University “Higher School of Economics”, Moscow, Russia, basiletok@gmail.com, https://orcid.org/0000-0001-5281-5517

Abstract. The article is devoted to the main directions of the evolution of ideas about constitutional identity — an important concept of legal science in the 18th — 20th centuries. Today, it allows states to protect the values proclaimed in their basic laws from sociocultural globalization.
Using the comparative-historical method, the author has identified three approaches to the definition of constitutional identity. The first approach is formed in the 18th Century and is associated with the concept of the basic laws of the nation. Despite their vague and too general content, the principles of public law covered by them find their normative expression in the declarations and constitutions, which were developed during the French revolution. Therefore, this approach can be called “national” or “French”. Its distinctive feature is the definition of constitutional identity as a correspondence between two “social contracts”: formal and actual. Representatives of the second approach are German jurists of the 19th Century, who considered constitutional identity in the context of the problem of self-limitation of the state. Their concepts had a significant impact on Russian lawyers of the late 19th — early 20th centuries, who applied the “statist” or “German” approach to studying the state-legal tradition and collective legal consciousness in the transition period from an absolute monarchy to a legal (constitutional) state. According to the author, this approach makes it possible to detect timely the points of rupture that arise within the constitutional identity as a result of the conflict of legal norms with other social norms that regulate the behavior of people in a particular political union. According to the third approach— “interpretative”— the constitutional identity is considered as the result of matching the expectations of the majority of modern society with the values of the founding fathers of the constitution, which is obtained by interpreting its provisions.
These approaches are complementary, as it is shown by the analysis of modern concepts of constitutional identity and law enforcement practice of the bodies of constitutional control. In the presence of obvious differences between them, their common elements are: raising the question of the most effective custodian of constitutional identity; search for ways to resolve on a legal basis conflicts arising from the nature of representative democracy.

Keywords: constitutional identity, nation, state, constituent power, sovereignty, interpretation, representative democracy

For citation. Tokarev V. A. Evolution of Ideas about Constitutional Identity in Legal Science of the 18th — 20th Centuries. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 18—36. (In Russ.) DOI: 10.12737/jrl.2021.043

■ STATE AND LAW IN THE MODERN WORLD: PROBLEMS OF THEORY AND HISTORY

Authority as a Category of Russian Jurisprudence: Dialectics of Polysemy and Unification

Ivan V. Leksin

Lomonosov Moscow State University, Moscow, Russia, Leksin@spa.msu.ru, http://orcid.org/0000-0002-5635-820X

Abstract. The article examines a category, on the one hand, related to the well-known and widely used, and on the other, unjustifiably deprived of due attention from the general legal theory. In comprehending powers, each branch of jurisprudence is essentially left to itself. At the same time, in the public law sphere, in which the mention of powers is most in demand today, the conceptualization of this phenomenon is in the most neglected state.
The purpose of the study is to assess the problems and prospects of conceptualizing powers as a general legal category. The article shows the dynamics of the use of the term “authority” in different areas of legal science and practice. It also touches upon the problem of translation from Western European languages; analyses the circle of persons vested with powers; critically analyses the connection of powers with rights and obligations and with legal status and general and special features of powers in different areas of legal regulation and in the relevant areas of scientific knowledge.
Research is based on: general scientific (dialectical, deduction, induction, analysis, synthesis) and specific scientific (formal legal, comparative legal, historical legal) methods.
On the basis of the conducted research, it establishes: discrepancies between the prevailing practice of using the word “authority” in public law regulation and in the relevant branches of legal science; practical unreasonableness of confusion of powers with rights and obligations; the sufficiency of universal features of powers in various spheres of legal regulation to give the powers of general legal understanding. The author recognizes the difficulty of such unification, but considers it as the most acceptable means of conceptualizing the considered phenomenon.

Keywords: full power, rights, duties, legal obligation, competence, legal status, governmental bodies

For citation. Leksin I. V. Authority as a Category of Russian Jurisprudence: Dialectics of Polysemy and Unification. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 37—58. (In Russ.) DOI: 10.12737/jrl.2021.044

Establishment of the Limits of Legal Regulation in Law Enforcement

Ekaterina S. Zaytseva

Omsk Academy, Ministry of the Interior of the Russian Federation, Omsk, Russia, zay_tseva@mail. ru, https://orcid.org/0000-0003-0688-2967

Abstract. The effectiveness of legal regulation is largely based on the correct establishment of its borders. A few studies — which reflect the problem of the limits of legal regulation — reveal it in the context of law-making activity. However, the need to establish the limits of legal regulation arises in the process of enforcement.
The purpose and objectives of the study is: to highlight typical situations that necessitate the establishment of the limits of legal regulation in law enforcement; indicate what limits of legal regulation (scope or subject) must be established in these situations; clarify the concept of “qualified silence of the legislator” and determine its relationship with the concept of “gaps in the law”, where each of them reflects typical situations involving the difference between the limits of legal regulation and the subsequent algorithm of actions of the law enforcer; identify the problems of establishing the limits of legal regulation in law enforcement.
Research methods: general scientific (analysis, synthesis, induction, deduction, abstracting, generalization) and special scientific (formal legal, structural-functional, comparative legal).
Conclusions: the law enforcer may face the need to establish both the limits of the subject and the scope of legal regulation. Two typical situations can be distinguished, which determine the difference in setting the limits of legal regulation. This is a gap in positive law and “qualified silence of the legislator”. The article assesses the essential problems of establishing the limits of legal regulation in the process of law enforcement. It, thus, notes the influence of the subjective factor and, as a consequence, the different views of the law enforcement officer about the limits that he needs to establish. Nevertheless, the influence of the subjective factor cannot be viewed exclusively negatively. It is an inevitable consequence due to the creative nature of law enforcement. The tendency of unwillingness and unwillingness of the law enforcement officer to recognize the creative nature of his activity, expressed in a formal approach to the interpretation and application of the rule of law, seems to be more dangerous.

Keywords: limits of legal regulation, sphere of legal regulation, gap in law, qualified silence of the legislator, law enforcement

For citation. Zaytseva E. S. Establishment of the Limits of Legal Regulation in Law Enforcement. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 59—70. (In Russ.) DOI: 10.12737/ jrl.2021.045

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

Agreement for Cryopreservation and Storage of Human Biological Material in a Personal Biobank

Marina N. Maleina

Kutafin Moscow State Law University, Moscow, Russia, aspirantstudent@yandex.ru

Abstract. The creation of banks of human biological materials follows from Federal laws and other regulations. However, there is no legal regulation of the Biobank — client relationship. Therefore, the role of studying specific contracts concluded by biobanks is increasing in order to derive general rules and then consolidate the contract model in the law.
The goals and objectives of the study are to justify the optimal contractual regulation of relations between the personal Bank of biological materials and the citizen (client); and to formulate the necessary changes in legislation.
Research methods: general scientific methods; systematic and logical analysis of business practices of biobanks, scientific literature and Russian legislation; and the method of comparative law.
Results. The article defines the contract for cryopreservation and storage of human biomaterial and substantiates the essential conditions of this contract. The subject of the agreement is proposed to consider the actions of the Biobank for the collection of human biomaterial, its testing, cryopreservation, storage, return and actions of the client (customer) on payment. The article proves the independent nature of the contract for cryopreservation and storage of human biological material as a contract for the provision of non-medical services. The basic rights and obligations of the Biobank and the citizen (client) are formulated. The article justifies the introduction of state funding for voluntary storage of germ cells in cases involving the risk of loss of reproductive health or risk to life as a result of professional activity or military duty. Options for solving the fate of human biomaterial in the event of death, nondemand of biomaterials and liquidation of the Biobank are proposed. If the biomaterial is an embryo obtained as a result of using the germ cells of the spouses, then the future law proposes to establish that both spouses act on the client's side and sign a contract with the Biobank.

Keywords: biobank, bank of biological material, cryoconservation, cryostorage, biobanking, human biomaterial, genomic technologies, reproductive rights, agreement for cryopreservation and storage of human biological material

Acknowledgments. The reported study was funded by RFBR according to the research project No. 18-29-14014.

For citation. Maleina M. N. Agreement for Cryopreservation and Storage of Human Biological Material in a Personal Biobank. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 71—82. (In Russ.) DOI: 10.12737/jrl.2021.046

The Phenomenon of Collective Dominance as the Antipode of the Cartel: The Results of a Critical Analysis of Russian and European Approaches

Igor V. Bashlakov-Nikolaev, Sergey V. Maksimov

I. V. Bashlakov-Nikolaev1, S. V. Maksimov2
1Institute of Public Administration and Civil Service, Russian Presidential Academy of National Economy and Public Administration, Moscow, Russia, bniv@list.ru, https://orcid.org/0000-0002-5593-1967
2Institute for the Study of Science, Russian Academy of Sciences, Moscow, Russia, sergeymax2006@ yandex.ru, https://orcid.org/0000-0002-2416-9543

Abstract. The article examines the institution of “collective” dominance. Its concept and definition are absent in the Russian antitrust law, but is used in the theory of competition law and law enforcement practice both in Russia and abroad. The legal uncertainty of the signs of collective dominance creates the prerequisites for the unreasonably widespread use of this legal institution and its substitution of legal instruments aimed at combating the most dangerous forms of anticompetitive behavior.
The study allows the authors to conclude that in order to establish the fact of collective dominance, it is necessary to determine not only the market share. Its acquisition by any business entity operating in the oligopolistic commodity market can be recognized not only as a participation in collective dominance and, accordingly, abuses its status. It is also necessary to define a real nature of the interaction between its participants, different from the more dangerous form of anticompetitive behavior — the cartel.
The authors conclude that the classical collective dominance, based on the absence of real competition between the dominants, is the antipode of the cartel (the relevant business entities do not consider it appropriate to agree on the division of the market, fixing the price or volume of goods, or have already abandoned plans to conclude a cartel agreement with competitors based on their economic interests). In this regard, the use of this institution for the purpose of decartelizing the economy cannot give the expected effect. As a first step towards solving the uncertainty problem of the legal institution of collective domination, the authors propose to consider the possibility of amending Articles 5 and 10 of the Federal Law “On Protection of Competition”.

Keywords: oligopoly, collective dominance, individual dominance, abuse of dominant position, cartel

Acknowledgments. The article was funded by RFBR, project number 20-010-00773.

For citation. Bashlakov-Nikolaev I. V., Maksimov S. V. The Phenomenon of Collective Dominance as the Antipode of the Cartel: The Results of a Critical Analysis of Russian and European Approaches. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 83—91. (In Russ.) DOI: 10.12737/jrl.2021.047

Interaction of National and International Legal Regulation Concerning Legal Guarantees of Foreign Investors

Dmitry V. Yulov

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, yulov.d@yandex.ru

Abstract. Legal guarantees of foreign investors are contained in the national legislation of the countries, which receive foreign investment, as well as in international bilateral and multilateral agreements. At the same time, we should also highlight the problem of interaction between national and international regulation in the field of investment. The article deals with the problem of interaction between national legislation and international treaties, also in the light of the implementation of the constitutional reform in the Russian Federation.
The article emphasizes that in accordance with the proposed amendments to the Constitution of the Russian Federation, the primacy of international law is possible only if the decisions of international bodies adopted in accordance with international treaties don't contradict to the Constitution of the Russian Federation.
It is indicated that additional legal guarantees are provided to a foreign investor through international legal regulation. In turn, the legal guarantees contained in civil contracts concluded between a foreign investor and a state accepting foreign investments, as well as in the national legislation of this state, can't conflict with international legal guarantees, since in case of their contradiction, uncertainty is created in the activities of a foreign investor on the territory of the recipient state.
The state should implement and transform into its national legislation only those provisions of the treaty that correspond to the foundations of the constitutional system of the state and which will also later be included in civil contracts between the receiving state and the foreign investor. Thus, the state can implement its obligations to comply with the provisions contained in the international treaty, including those in the field of regulation of cross-border investment activities arising from civil relations with a foreign investor.

Keywords: legal guarantees, constitution, national legislation, international agreements, civil contracts, foreign investor, decisions of international organizations

For citation. Yulov D. V. Interaction of National and International Legal Regulation Concerning Legal Guarantees of Foreign Investors. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 92—102. (In Russ.) DOI: 10.12737/jrl.2021.048

■ LABOR LAW AND SOCIAL SECURITY LAW

A Reflection of the Constitutional and Legal Regulation of Wages in the Decisions of the Constitutional Court of the Russian Federation

Tatyana Yu. Korshunova, Svetlana V. Kamenskaya

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, labour@izak.ru

Abstract. The development of socio-economic relations, including labor relations, is now largely due to the influence of technological progress. There are changes in the organization of labor, its rationing and payment, which requires timely and adequate legal regulation. Such regulation can only be achieved by relying on principles as fundamental ideas that permeate legal norms and set the right direction for the practice of their application.
This article describes some issues that occur in the field of remuneration, such as: lowering the wages of workers to the level of payment for unskilled labour; the absence of the reasonable differentiation in the setting of wages depending on the skills of the workers, the complexity of the work and working conditions; imperfect indexation of wages and application compensation payments and incentive. In many respects, such problems arose as a result of changes in the legal regulation of relations on remuneration of labor and the established practice of applying the norms of the Labor Code of the Russian Federation by the courts that affect these relations.
The authors analyze the key decisions of the highest judicial instances of recent years on the issues of remuneration of employees, identifying the importance of the legal positions formulated in them in filling gaps and overcoming conflicts of labor legislation. Despite the fact that judicial decisions are not traditionally recognized as sources of law in the legal doctrine, the article focuses on the increasing role of justice in specifying the norms of labor law in relation to the establishment of wages for employees. The changes in the composition of wages have led to a distortion of its original value when correlated with the value of the minimum wage, taking into account all its constituent elements, and, as a result, to a violation of the basic principles of remuneration (equality, justice, prohibition of discrimination, etc.). As a result, the practice of interpretation has developed, leading to disputes among law enforcement agencies on the question of whether it is permissible to take into account compensation and incentive payments as part of the monthly salary for the purpose of comparing it with the minimum wage. The legal positions of the Constitutional Court of the Russian Federation, which provide clarity and transparency of the legal regulation of remuneration of labor, also help to overcome negative phenomena in the law.

Keywords: remuneration, minimum wage, principles of law, law enforcement, protection of labor rights

For citation. Korshunova T. Yu., Kamenskaya S. V. A Reflection of the Constitutional and Legal Regulation of Wages in the Decisions of the Constitutional Court of the Russian Federation. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 103—118. (In Russ.) DOI: 10.12737/jrl.2021.049

The “Multiplicity” of Fixed-Term Employment Relationships: How to Protect the Rights and Interests of Employees

Vladimir A. Abalduev

Saratov State Law Academy, Saratov, Russia, vabalduev@ssla.ru

Abstract. The article considers the problem of the implementation in Russia of the restriction of the employers' rights to apply fixed-term employment relations provided for by the acts of international labor law. The Plenum of the Russian Supreme Court, in its Decision No. 2 of March 17, 2004, clarified the right of the court to recognize multiple fixed-term employment contracts concluded for an indefinite period. The wording of this explanation and its non-normative nature has received a negative assessment in the science of labor law. The practice developed in recent years has shown that the multiplicity of disputes on the terms of employment contracts for the Russian courts does not have an independent legal significance. The explanation of the Russian Supreme Court does not protect the labor rights of employees. This problem requires reflection and the adoption of legal solutions to correct this situation.
A comparative analysis of the approaches recommended by the International Labour Organization and enshrined in the guiding practice of the Russian Supreme Court is carried out. Their differences are shown. Based on the opinions expressed in science, as well as the systematization and analysis of relevant materials of the Russian justice, it is concluded that the consequences of multiple fixed-term employment contracts require legislative consolidation. A draft law is proposed that specifies this rule and defines its connection with the grounds for concluding fixed-term employment contracts specified in Part 2 of Article 59 of the Labor Code of the Russian Federation.

Keywords: multiplicity, fixed-term employment contract, agreement of the parties, the Supreme Court of Russia, judicial practice, law

For citation. Abalduev V. A. The “Multiplicity” of Fixed-Term Employment Relationships: How to Protect the Rights and Interests of Employees. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 119—128. (In Russ.) DOI: 10.12737/jrl.2021.050

■ PROCEDURAL LAW

Court Costs and Their Place in Criminal Proceedings under the Statute of 1864

Sergey R. Zelenin

Supreme Court of the Russian Federation, Moscow, Russia, zelenin_sr@vsrf.ru

Abstract. The procedure for reimbursing participants in criminal proceedings for their costs of participation in the case and collecting incurred costs from convicted persons remains problematic due to the lack of comprehensive research on this topic. Publications that deal with certain aspects of cost recovery, even if they are of high quality, are not able to fully represent the emergence, development and termination of legal relations related to costs. Meanwhile, doctrine and practice are in urgent need of such an approach in order to form ideas about trends in the development of legislation. 
The purpose of the study was to examine the institute of costs through the logic of its formation, which predetermined the task of referring to the experience of the drafters of the Statute of criminal proceedings in 1864 and conducting a comparative historical study.
The article provides a systematic review of the rules of the Statute governing court costs, which allows you to take into account the features of legal proceedings in the magistrate and general court rulings. A comparative analysis of the Statute and the modern criminal procedure law leads to the identification of both norms that have received further development, and those that the legislator has now abandoned, despite their positive potential. Special attention is paid to determining the place of court costs in the system of norms of criminal procedure legislation, for which the author turned to the modern Statute of scientific and educational literature.
The study makes it possible to conclude that the institution of court costs is related to the “general” part of the criminal process, as a cross-cutting process that ensures the entire course of proceedings. The results of the study also allowed us to identify opportunities for improving modern legislation and suggest that we turn to the undeservedly forgotten norms of the Statute, designed to encourage participants in criminal proceedings to perform their procedural duties in good faith.

Keywords: Statute of criminal proceedings, court costs, reimbursement of expenses

For citation. Zelenin S. R. Court Costs and Their Place in Criminal Proceedings under the Statute of 1864. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 129—143. (In Russ.) DOI: 10.12737/ jrl.2021.051

Implementation of the Judicial Proceeding Tasks in Arbitration Courts

Polina D. Bagryanskaya

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, pbagryanskaya@mail.ru, https://orcid.org/0000-0002-3113-0057

Abstract. The article deals with the theoretical and practical issues of the implementation of the judicial proceeding tasks in arbitration courts.
The aims and objectives of the study are aimed at identifying the problems of legislative regulation and law enforcement practice that hinder the proper implementation of the arbitration proceeding tasks and, as a result, the effectiveness of justice in economic disputes.
The article uses general scientific methods (comparison, analysis and synthesis, system analysis), as well as methods of legal research (comparative legal, formal legal, method of interpretation of legal norms), on the basis of which it is concluded that it is necessary to introduce legislative changes to the provisions of Article 2 of the Arbitration Procedure Code of the Russian Federation to bring the provisions of this article with theoretical ideas about the objectives of arbitration proceedings. In addition, the author substantiates the need to further improve the mechanisms for implementing the task of peaceful settlement of economic disputes through the development of mediation institutions, the claims procedure for dispute settlement and increasing the overall role of the arbitration court in reconciling the parties.

Keywords: arbitration procedure, goals and tasks of legal proceedings in arbitration courts, settlement of economic disputes

For citation. Bagryanskaya P. D. Implementation of the Judicial Proceeding Tasks in Arbitration Courts. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 144—156. (In Russ.) DOI: 10.12737/jrl.2021.052

■ LAND LAW AND ENVIRONMENTAL LAW

Assessment of the Effectiveness of the Application of Environmental and Legal Restrictions on Economic Activity in Russia

Natalya I. Khludeneva

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, khludeneva@mail.ru, https://orcid.org/0000-0003-4612-9697

Abstract. The implementation of economic activities at the present stage of society development is associated with the need to comply with a significant number of legal restrictions in the field of environmental protection, designed to motivate the subjects of such activities to environmentally responsible behavior. In the Russian system of legal coordinates, such restrictions are mainly concentrated in legislation in the field of environmental protection and industry-specific natural resource legislation (water, forest, land legislation, legislation on subsurface resources, and on the animal world). However, the establishment of environmental and legal restrictions is not an end in itself of the legal regulation of environmental protection. Performing a preventive environmental role, environmental and legal restrictions are aimed at creating conditions for preventing and minimizing the negative impact of economic activities on the environment, ensuring the sustainable development of the country.
The methodology of the study of the identified problematic issues included both general scientific and private scientific methods of cognition (formal-legal, system-structural methods, functional, etc.). The methodological tools used by the author allowed us to assess the current state of the system of environmental and legal restrictions in Russia, to identify problems that reduce the effectiveness of their application.
The article examines the content and system of restrictions on economic activity established by environmental legislation. It is concluded that the social orientation of environmental and legal restrictions on economic activity is predetermined by the subject area of their action — social relations that develop in the process of environmental protection, as well as the goals and objectives of environmental law at the present stage of its development. Some problems of applying environmental and legal restrictions of economic activity, as well as criteria for evaluating the effectiveness of their action, are identified.

Keywords: legal restrictions in the sphere of environmental protection, economic activity, legal category, assessment of effectiveness of environmental legal restrictions

For citation. Khludeneva N. I. Assessment of the Effectiveness of the Application of Environmental and Legal Restrictions on Economic Activity in Russia. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 157—172. (In Russ.) DOI: 10.12737/jrl.2021.053

■ INTERNATIONAL AND INTEGRATION LAW

Interpretation Based on the Constitutional Traditions of Member States and the Protection of Fundamental Rights by the CJEU and the EAEU Court

Ekaterina B. Dyachenko, Kirill V. Entin

E. B. Dyachenko1, 2, K. V. Entin2, 3
1Institute of State and Law, Russian Academy of Sciences, Moscow, Russia, DyachenkoEB@ gmail.com
2Court of the Eurasian Economic Union, Minsk, Belarus
3kirill.entin@coleurope.eu, https://orcid.org/0000-0003-3876-5458

Abstract. The present research is devoted to the analysis of the methods of interpretation used by the Court of Justice of the European Union in the absence of its own catalogue of fundamental rights in order to grant them protection on EU level as well as to the forming case law of the Court of the Eurasian Economic Union (EAEU) in that regard.
As the experience of the Court of Justice of the European Union (CJEU) shows, besides traditional methods it managed to develop its own approaches to the interpretation of legal rules including a comparative methods that allow recourse to the legislation of Member States as well as to sources of international law. One of the spheres in which this method has been used the most is the field of fundamental rights. Despite the absence of a reference to fundamental rights in the text of the founding Treaties the CJEU managed to include them in the EC legal system as general principles of law. This allowed the Court to ensure their respect based on the constitutional traditions of the Member States and the provision of the European Convention on Human Rights. A comparative analysis of the advisory opinions of the EAEU Court allows to draw a number of parallels with the early case law of the CJEU. A particular attention is devoted to the legal position on the necessity to ensure the protection of fundamental rights on a level not below the one in the Member States.
In the authors' opinion, this indicates the willingness of the EAEU Court of have recourse to a comparative method of interpretation based on a study of the constitutional law of the Member States as is further demonstrated by the Court's advisory opinion in the non bis in idem case. It should be also noted that the use of the comparative method does not imply establishing the lowest common denominator or calculating the simple average, but instead recourse to the highest standard of protection. Taking into account that for Armenia and Russia in the majority of cases this would be the standard of the European Court of Human Rights; this opens the possibility for an active recourse by the EAEU Court to the case law of the ECtHR.

Keywords: Eurasian Economic Union, EAEU Court, Court of Justice of the European Union, fundamental rights, constitutional values, comparative method of interpretation

For citation. Dyachenko E. B., Entin K. V. Interpretation Based on the Constitutional Traditions of Member States and the Protection of Fundamental Rights by the CJEU and the EAEU Court. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 173—186. (In Russ.) DOI: 10.12737/jrl.2021.054

■ SCIENTIFIC FUNDAMENTALS OF COUNTERING CORRUPTION

Limits of Anti-Corruption Ethical Regulation of State and Municipal Service

Artem M. Tsirin, Nikita M. Tuguchev

A. M. Tsirin1, N. M. Tuguchev2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, artemtsirine@yandex.ru, https://orcid.org/0000-0003-0690-074X
2National Research University “Higher School of Economics”, Moscow, Russia, ntuguchev@gmail. com, https://orcid.org/0000-0003-0692-2201

Abstract. Unethical actions of officials that cause a wide public response have a negative impact on the image and authority of the state authorities. Therefore, the state is interested in having ethically motivated individuals among its officials. The concept of anti-corruption ethics is more focused not on sanctioning unethical actions, but on establishing positive rules of behavior, the observance of which allows you to “be ethical”. In this regard, the researchers face two significant questions: how to prescribe ethical behavior in regulatory legal and other acts and how to assess the ethics of actions (inaction) of an official?
The article considers the legal and institutional framework for regulating anti-corruption ethical requirements imposed on officials. Based on the analysis of judicial practice, the most common situations associated with unethical behavior of officials are identified.
The authors concluded that it is necessary to take the following comprehensive measures aimed at minimizing situations of unethical behavior on the part of officials: training officials in anti-corruption ethics; improving codes of ethics and official conduct; preparing new methodological materials containing specific examples of ethical and unethical behavior; conducting educational activities with officials. Practical proposals were also developed for the formation of a platform for ethical anticorruption consulting, as well as for improving the work of commissions on compliance with the requirements for official behavior and resolving conflicts of interest, and other measures.

Keywords: anti-corruption, public ethics, code of ethics, ethical decision making, deontology

For citation. Tsirin A. M., Tuguchev N. M. Limits of Anti-Corruption Ethical Regulation of State and Municipal Service. Journal of Russian Law, 2021, vol. 25, no. 4, pp. 187—198. (In Russ.) DOI: 10.12737/jrl.2021.055

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