No. 3 (2024): Business, management and law

DIGITALIZATION OF ECONOMY AND ARTIFICIAL INTELLIGENCE

Results of the work of the Digital Law Laboratory of the Ural State Law University named after V.F. Yakovlev for 2023-2024.

Anniversary greetings

 

THEORY OF STATE AND LAW

 

Kashanina Tatyana V. Algorithm legal document

 

Abstract. The article is devoted to the concept, features and types of legal documents. The idea is that the creation of any legal document should obey a single algorithm, i.e. represent a series of sequential steps. This is important in order to guarantee the rights of those to whom legal documents are addressed and to ensure their effectiveness and use digital technologies in their preparation and implementation. The basic rules for writing legal documents (relating to their content, logic, structure and language) are outlined.

 

Key words: legal technique, legal document, types of legal documents, substantive rules, logical rules, structural rules, language rules.

 

PUBLIC LAW

 

Belykh Sergey V. Institute of constitutional basis of entrepreneurial activity: concept, content

 

Abstract: The formation and development of market and entrepreneurial legislation in the Russian Federation (RF), the emergence of legal positions of the Constitutional Court of the RF in this area contribute to the adoption of various complex acts affecting the rights and interests of legal entities. In this regard, in the legal literature, all cases of the emergence of new legal institutions are reduced to two: 1) the extension of legal regulation to those social relations that were not previously regulated by legal norms; 2) the separation from one or several branches of law of an interconnected set of legal norms regulating individual types of social relations and thereby acquiring special legal properties. At the same time, the question of how new branches, sub-branches and institutions arise and are formed remains insufficiently studied in theoretical terms. No less significant is the question of when and why there are grounds to believe that a new branch has been formulated or a new institution of law has arisen. The article considers such categories as institution, legal institution, constitutional institution and institution of constitutional law. The author proposes the concept of the institute of constitutional basis of entrepreneurial activity as a complex institute of Russian law, combining the norms of constitutional law and a significant number of norms of other branches of Russian law, aimed at securing the constitutional principles of entrepreneurial activity, the legislation of the RF on entrepreneurial activity, the delimitation of law-making competence in the sphere of legislative regulation of entrepreneurial activity, and law enforcement support for the constitutional principles of entrepreneurship. The publication also discloses the purposes, functions and content of this institute.

 

Keywords: Legal institution, subject of constitutional law, institution of constitutional law, constitutional institution, systems of institutions of constitutional law, complex and inter-branch legal institutions, subjects of jurisdiction of the Russian Federation and subjects of the Russian Federation in the sphere of legislative regulation of entrepreneurial activity, main areas of interaction of constitutional and other norms,

institution of constitutional foundations of entrepreneurial activity.

 

 

CIVIL AND BUSINESS LAW

 

Bublik V.A., Belykh V.S. Concept and types of state participation in joint stock companies.

 

Abstract: the article deals with the topical issues related to state participation in joint-stock companies. It is noted that public entities (the

state, subjects of the Rus-sian Federation) can participate in civil-law relations both directly and with the help of legal entities created by them.

Such participation is called mediated (indirect).  The authors of the article draw attention to the fact that public entities, as well as state and

local authorities cannot engage in entrepreneurial activity, although this statement is sometimes disputed in the legal literature. The conclusion

that public entities cannot engage in entrepreneurial activity follows from the provisions of the Constitution of the Russian Federation. Taking

into account the analysis of eco-nomic and judicial practice, the definition of the concept of ‘companies with state participation’ was formulated.

They include commercial organizations established in the organizational and legal forms of joint-stock companies and limited liability companies

in which the Russian Federation and (or) a constituent entity of the Rus-sian Federation acts as a shareholder (participant). Further, the article

considers such issues as a special rule (‘golden share’), budget investments, indirect partici-pation, escheat property.

 

Keywords: state participation, public entities, public property, joint-stock companies, direct participation, indirect participation, special rules

(‘golden share’), budget investments.

 

Panova Albina S. Legal Regulation of Corporate Standards

 

Abstract: This article is devoted to the examination of legal issues related to corporate standardization. It is noted that the term «corporate

standard» is not defined in Russian legislation, and a precise terminological framework in the field of corporate standardization has not been

established in the Russian legal field. The relationship between the legal concepts of «codes of corporate governance (corporate behavior, business

ethics, etc.)» and «corporate standards» is analyzed. The concept and legal nature of a corporate standard are considered. Special attention

is paid to the current state and characteristics of corporate standards in enterprises of the real sector of the economy. Conclusions are drawn

about the current insufficiency of legal regulation in corporate standardization. In certain cases, corporate standards are intended to contribute

to the protection of public interests. The possibility of registering company standards in the Federal Information Fund of Standards is seen as

a positive step in the development of the national economy. A new direction in standardization – Smart (SMART) standards – is considered.

It is noted that the features of SMART standards are their specific content types and informational structure, characterized by a unique

informational environment of operation. The conclusion is made that despite increasing attention to corporate standards from businesses and

the government, the development of corporate standardization in our country is still in its early stages.

 

Keywords: corporate standardization, legal regulation, corporate standard, organizational standard, SMART standard, business activity,

enterprises of the real sector of the economy.

 

Fedotov Dmitry V. On the issue of distinguishing between offset and balancing

 

Abstract: The article analyzes the criteria proposed in the literature for distinguishing between offset of counter homogeneous claims and balancing. It is substantiated that balancing cannot be considered an «automatic offset», since the settlement is a transaction that entails the termination of counter-similar claims, while balancing is not a transaction, but a legal consequence of certain legal facts. In contrast to offset, in the case of balancing there are no counter homogeneous claims, and balancing itself is a mathematical operation of calculating the size of the obligation of one of the parties to the obligation. Balancing occurs by force of law, and its implementation cannot be made dependent on the will of either party.

 

Keywords: offset, automatic offset, balancing, counter homogeneous claims, expression of will.

 

Kosyanenko Elena M. Regulation of the risk of loss of exclusive right to a know-how

 

Abstract. The article is devoted to the legal analysis of the process of protecting intangible assets in the form of trade secrets (know-how) and other confidential data in a competitive environment, issues of establishing an acceptable level of information disclosure that can guarantee the interests of copyright holders, users and society. In the legislation, there is some inconsistency in the modes of confidentiality of information included in trade secrets and a gap in the regulation of the substantive boundaries of the exclusive right to know-how. In this regard, the copyright holders of an intellectual property object are restrained in the use and disposal of their property rights. The risks of loss of rights may arise both as a result of the actions of competitors, the publication of acts of state bodies, and as a result of the carelessness of copyright holders. The purpose of the study is to study the controlling behavior of know-how copyright holders, allowing them to fulfill the obligations and requirements of authorized persons, using for example the Russian Federal Antimonopoly Service, without fear of losing the exclusive right and the object of protection. The conclusions formulated in the article will allow business representatives to coordinate the implementation by employees of tasks to preserve their secret innovative technologies that provide advantages in competitive markets, including when inquiries are made by regulatory authorities and the introduction of products into civil circulation.

 

Keywords: intellectual property, intangible asset, confidentiality, know-how, trade secret, actual monopoly, competition.

 

Zvezdina Tatyana M., Slobodyanyuk Alexander S. Double indirect claim as a tool to secure the rights of controlling persons and beneficiaries

 

Annotation: The business legislation, which is changing in the process of development of economic relations and is characterized by such a property as adaptability and flexibility of legal norms, mediates the tendency to complicate the system of organization of large business, which may involve from several to a large number of legal entities. In such a situation there may be problems related to the manageability of such a system and preservation of control over the decisions of corporations and their assets, as there is often an "estrangement" of controlling persons and persons profiting from the results of corporate activities - beneficiaries from the legally significant status of a direct participant (member) of the corporation. Such "estrangement" complicates the access of the above-mentioned persons to the rights of participation (membership) and, as a consequence, puts on the legal agenda the issue of ensuring their interests by instruments based on the right of participation (membership). where procedural means of protection occupy a special position. Particular attention should be paid to double indirect claims, due to which controlling persons and beneficiaries of complexly structured systems of corporations, connected not only by relations of multilevel participation (membership), but also by contractual structures and economic ties, should receive in their arsenal of procedural tools to ensure their interests.

This article attempts to understand the peculiarities of the implementation of such a seemingly specific, but at the same time, in our opinion, necessary and expected tool to ensure the rights of controlling persons and beneficiaries as a double indirect claim, to analyze the regulator framework and judicial practice - as a basis for the formation of this institution.

 

Keywords: double indirect claim, indirect claim, indirect claim, controlling person, beneficiary, control of a corporation, corporate control

 

Aminov Evgenii R. Some issues of the application of mandatory rules by the arbitration courts of the Russian Federation in the consideration of cases involving foreign legal entities

 

Abstract: The article examines some problems of the application of mandatory rules by the arbitration courts of the Russian Federation in the consideration of cases involving foreign legal entities. It is emphasized that the existence of such norms in certain branches of Russian legislation significantly influences law enforcement in the field of entrepreneurial activity related to foreign trade. It is concluded that this is explained not only by the special geopolitical situation in the world, but also by the need to ensure state influence on socially significant relations in order to protect the citizens of the Russian Federation and Russian legal entities from the undesirable consequences of the application of foreign law from the point of view of the Russian legal order. The author draws attention to such trends in modern judicial practice as a multiple increase in the number of cases in which such norms are applied, as well as an expansion of the scope of application of rules of immediate application.

Examples from the practice of the arbitration courts of the Russian Federation are given. As a result, the conclusion is made about the need for a detailed study of the content of the rules of immediate application, their purpose at the present stage of the development of private international law in relation to certain types of legal relations.

 

Keywords: private international law, mandatory rules, arbitration courts, foreign legal entities, foreign economic activity, security.

 

URBAN PLANNING, LAND, ENVIRONMENTAL LAW

 

Vagina Olga V. Alternative ways of protecting the rights of owners of land plots encumbered by zones with special conditions of use of the territory

 

Abstract: the author considers in the article a sufficiently urgent problem related to the protection of the rights of owners of land plots that fall into zones with special conditions for the use of territories (hereinafter - ZOUIT). Relevant judicial practice allows us to state that the right holders of land plots, due to modern legal regulation, are practically deprived of the opportunity to recover losses from ZOUIT, since normative legal acts that introduce regulation on one or another type of ZOUIT were adopted later than the norm that allows the recovery of such losses.

However, an analysis of the current legislation has revealed alternatives to protect the rights of land owners who can take advantage of the demand for the redemption of their real estate object, which fell into the ZOUIT or the so-called "amnesty" in the ZOUIT.

 

Keywords: ownership of land plots, restriction of the rights of land owners, zones with special conditions for the use of the territory, compensation for losses, purchase of land plots

 

Gaevskaya Ekaterina Yu. Features of ensuring environmental safety in the operation of motor transport

 

Abstract: the scientific article considers topical issues of ensuring environmental safety of the transportation sphere. The author focuses on environmental requirements in the production and operation of motor vehicles as sources of increased negative impact on the environment.

The groups of problematic aspects requiring legislative and organizational-legal solution are defined. Analyzing the environmental safety of the transport sphere, the author notes the need to ensure and environmental friendliness of transport infrastructure. The article defines such indicators as chemical and toxic safety as indicative indicators of ecological danger of automobile transportation. The increase in the scale of negative impact on the environment is confirmed by statistical data reflecting the intensification of motorization development and the increase in the number of transport infrastructure facilities. The issues of ensuring environmental safety of motor vehicles are analyzed in the context of the "green" political agenda and the Strategy for the Development of the Automotive Industry of the Russian Federation until 2035.

Attention is also paid to the issues of recycling vehicles, their individual parts and car tires.

 

Keywords: environmental safety, road transport, environmental problems, emissions, environment.

 

EDUCATION AND LAW

 

Kalashnikov Igor Zh. Features of the manifestation of some legal conflicts in educational law

 

Abstract: This article examines individual problems of inconsistency of some provisions of educational law with the logic of a clear interpretation of the operation of legislation in the education system. The basis for distortion and non-compliance with the standard of manifestation of the democratic foundation becomes individual legal personality, which on a liberal basis is considered as a categorically ideal legal category, while the legal personality of other members of the community is violated. Using the example of some provisions of the Federal Law of December

29. 2012 No. 273 "On Education in the Russian Federation", as well as other regulatory legal acts relating to the Russian education system, separate, most contrasting collisions in the education system, in the area of educational law are considered: 1. within the framework of inclusive education, it is impossible for a student to pass PMPK who has obvious signs of disabilities, due to the disagreement of his legal representative, which can consequently lead to the disharmonious development of this child or his death, and his illness itself can create problems for others (interference in the education system for other students, personal safety of others if the offender has other psychiatric diseases that have an aggressive vector in social behavior); 2. the very procedure for expelling a student from school who has obvious signs of antisocial behavior is blocked by the conditions of reaching a certain age (from 15 years old), and due to the need to obtain consent from legal representatives and the territorial commission for children's rights, which complicates such a formal expulsion process to implement on practice; 3. according to the constitutional obligation, only basic general education has a binding disposition, but in practice the binding disposition is projected onto basic secondary education (compulsory education in secondary school for those former students who entered a college or technical school after the ninth grade and were expelled from it due to poor academic performance); 4. Given the equivalence of the three subjects of educational relations in the Federal State Educational Standard with a clear paradigm of a democratic basis, it can be stated that the law itself does not contair an algorithm for democratic communication between parents, students and teaching staff, there are no clear formulations of professional anc personal communication for the implementation of the technology of developing learning embedded in based on the federal state educationa standard. All these collisions do not allow the rights of citizens of the Russian Federation to be fully realized, and with some liberal orientatior they allow one to protect the rights of one subject of legal relations, violating the rights of other subjects.

 

Keywords: conflicts; compulsory basic general education; expulsion as a disciplinary measure; legal personality; consent of the Commissior on minors and their rights.

 

 

INTERNATIONAL AND COMPARATIVE LAW

 

Nechkin Andrey V., Istomin Maksim A. The constitutional foundations of the regulatory potential of the head of state in the economic sphere using the example of the Russian Federation and the Republic of Belarus.

 

Abstract: The article examines in a comparative manner the powers of presidents in the Russian Federation and the Republic of Belarus, which make it possible to assess the regulatory potential of the head of state in the economic sphere. The authors note that among all the countries of the Commonwealth of Independent States and the Eurasian Economic Union, the closest integration in the post-Soviet space, including in the economic sphere, is demonstrated by the Russian Federation and the Republic of Belarus, which form the Union State. This is largely due to close interaction at the level of heads of state and their key position in the system of government bodies. Based on the comparative legal analysis, the authors come to the conclusion that the presidents of the Russian Federation and the Republic of Belarus as a whole have comparable regulatory potential in the economic sphere, but differences, in favor of the Republic of Belarus, are still present. Such differences are observed in such areas as the legislative process, the budget process and control, and monitoring the monetary regulator. The authors also come to the conclusion that such differences cannot affect the further deepening of economic cooperation within the Union State.

 

Key words: head of state; the president; union state; CIS states; post-Soviet states.

 

TRIBUNE FOR YOUNG RESEARCHERS

 

Sukharev Alexandr A. Legal regime of lands and legal regime of land parcels in the CIS countries

 

Annotation. The managed development of land parcels is carried out by establishing, changing, and determining the rights and obligations of it rightsholders.

The uncertainty of the concepts of the legal regime of lands, the legal regime of a land parcel, their elements and their relationship in the current land legislation of the Russian Federation is a widespread and long-discussed problem in the scientific and professional legal community.

Without the definition of these concepts by scientific doctrine and, ultimately, by the legislator, a high degree of uncertainty remains in judicial and administrative disputes regarding land rights and obtaining permits for construction in the Russian Federation.

This uncertainty entails an increase in investment risks and costs for overcoming administrative barriers in the implementation of land development.

Studying concepts of the legal regime of lands, the legal regime of land parcels, their key elements - purpose, permitted use, restrictions on rights to lands and land parcels, lands, land parcels in CIS countries land legislation allows to reduce the degree of uncertainty and develop the optimal conceptual apparatus of land legislation for post-Soviet states in future.

Such research is especially interest because there are no analogous research's in the free access.

This article may be useful both for land rightsholders who wish to get information about legal regime of land parcel in land legislation of the CIS countries, and for scientists who study issues of land, urban planning, environmental, special legislation and law.

 

Keywords: Legal regime of lands, legal regime of a land parcel, restrictions of rights to a land and land parcel, land legislation of CIS countries.

 

Kourov Maksim V. Origins of the US Bankruptcy Law

 

Abstract: This article examines the historical features of the emergence of U.S. bankruptcy law. In particular, the author pays attention to the historical prerequisites, as a result of which bankruptcy rules were formulated in modern US legislation. The author also highlights the development of rules governing the legal status of creditors and debtors in bankruptcy laws from the time of the Old Testament, Ancient Greece, the Roman Empire, medieval England until the advent of bankruptcy legislation in the United States.

The author highlights the formation of bankruptcy legislation in England, its development, due to the need to regulate the rights of creditors in relation to the debtor and to each other. The author also pays attention to the subsequent liberalization of the provisions of the bankruptcy legislation of England in relation to the rights and obligations of debtors related to the development of the economic life of society. In addition, it describes the formation of such legal categories in bankruptcy legislation as a settlement agreement and invalid transactions made by debtors before bankruptcy proceedings in order to conceal property from creditors.

In general, the author traces the formation of the norms of US bankruptcy law as a result of the consistent reception of legislative norms in medieval England, and that, in turn, in the Roman Western Empire.

 

Keywords: insolvency (bankruptcy), the position of the debtor and creditors, bankruptcy law of medieval England, bankruptcy law of the USA, debt forgiveness, Roman insolvency law, liberalization of the debtor's position in bankruptcy laws, the procedure for debt collection by creditors, settlement agreement.

 

Berkumbaev Nurlan S. Remote shareholders' general meeting: prerequisites, innovations and risks

 

Abstract: in this article the author reveals the following prerequisites for the digitalization of corporate governance: minimization of economic costs, the need to create favorable conditions for shareholders to exercise their corporate rights, the need to ensure the security of meeting participants, and also examines the practice of introducing elements of electronic voting among Russian public joint stock companies. An attempt is made to analyze the Federal Law dated 08.08.2024 Nº 287 "On Amendments to the Federal Law 'On Joint Stock Companies' and Certain Legislative Acts of the Russian Federation", which amends the legislation on business companies in terms of regulation of meetings of the general meeting of shareholders with remote participation. The author gives a positive assessment of the innovations, states the emergence of new forms of meetings of the general meeting of shareholders: hybrid meetings and virtual meetings. The article formulates the problem of possible abuses related to falsification, theft, as well as other loss of control over the electronic signature with its subsequent unauthorized use, and proposes a solution to the problem. The author concludes that the organization of hybrid sessions of general meetings of shareholders allows to create the most favorable conditions for the realization of shareholders' rights.

 

Keywords: corporate governance, remote voting, hybrid meeting, virtual meeting, electronic signature, digitalization of law.

 

REVIEWS AND FEEDBACK

 

Gerasimov Oleg A. Review of the monograph 'Law and the Real Sector of the Russian Economy'

 

Abstract: The article represents a review of the monographic research 'Law and the Real Sector of the Russian Economy', prepared by the author's team under the general editorship of I.V. Ershova and V.A. Laptev which contains a comprehen-sive study of the real sector of economy and legal mechanisms of its regulation in Russia. The work analyses the economic and legal structure of the real sector of the economy and reveals the role of law, primarily entrepreneurial law, in the system of sustainable development of the country. The review of legal regulation of separate kinds of activity is given.

 

Keywords: monograph, law, digital law, real sector of economy, efficiency of legal regulation, industrial policy.

 

REVIEW OF THE PRACTICE

 

Belykh Marina L. Review of the practice of the Constitutional Court of the Russian Federation on challenging certain provisions of the Civil Code of the Russian Federation in constitutional proceedings

 

Abstract: The article is devoted to the issues of constitutional rights protection in the Constitutional Court of the Russian Federation. The Civil Code of the Russian Federation was the subject of the judicial review in the mechanism of the federal constitutional justice. Several cases are pointed out in the article. The Constitutional Court of the Russian Federation plays the significant role in the matter of human rights protection and improvement of the Russian Civil Code.

 

Keywords: The Constitutional Court of Russian Federation, the decisions (cases), federal constitutional justice, judicial review, Civil Code of the Russian Federation.

 

Dalabayeva Alissa Zh. Other participants of the construction contract - a practical overview

 

Abstract: A modern construction contract shall regulate the multisided relations between legal entities having different status. This article will provide review for such participants as subcontractors and suppliers / manufacturers as per the Civil Codes of the RF and the RoK, as per the practical materials of the real contracts. Different subcontracts are regulated by different sections of the RF and RoK Civil Codes. Correct compilation of the construction contract in the part of subcontractors and suppliers / manufacturers involvement will eliminate legal disputes arising in future, and will enable putting minimal necessary regulating terms into the contract.

 

Key words: subcontractor, subcontract for execution of assembly of equipment and materials of own production, subcontract for special works execution with special construction equipment, supplier, manufacturer.