Chief editor’s column
Interview of the issue
Topic of the issue
P.V. Troshchinskiy CHINESE LEGAL CULTURE: FROM TRADITION TO MODERNITY Modern China legislation was formed under the direct influence
of the legal culture of old (traditional) China. The Chinese
civilisation has existed for thousands of years, and during this time
fundamental philosophical, political, and legal doctrines, which
laid the foundation for the legal consciousness of the Chinese
citizen have arisen. This is especially true of Taoism, Confucianism
and Legalism. While the influence of Taoism on Chinese law is not
obvious, the confrontation between Confucianism and Legalism
led to a synergy of these two opposing doctrines in the legislation:
Legalism stood up for the high Confucian morality. Modern Chinese
law is quite repressive, with the institution of the death penalty
and criminal liability of organisations. The institution of reporting
(denunciation) planned and committed offenses is widespread. This
has its origins in Legism. At the same time, developed mediation,
legislation in the field of protection of rights of the elderly, the
existence of an examination filter system for obtaining official
positions is an attribute of Confucianism. Taoism shows itself in the Chinese philosophical attitude to law. It is characterised by a
dislike of written law, a desire to keep a respectful distance from
the law, a disregard for legal prescriptions. Taoism, Confucianism
and Legalism, combined with the law of socialist countries, and the
borrowing of progressive West European legal institutions, have
created a unique «legal system with Chinese specificity,» which
is filled with the necessary laws even today. This «rattlesnake
mixture» works according to quite transparent rules, but is difficult
to embrace by Western scholars, who believe that the Chinese
do not know the law. This is not entirely true: the Chinese do not
like positive law, whereas natural law has always existed in their
society. This is particularly discussed in this article, and specific
examples from contemporary Chinese legal reality are given.
Keywords:
China, PRC, legal regulation, legislation, Chinese law, Taoism, Confucianism, legalism, socialist law, mediation
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W. Haijun ADMINISTRATIVE REVIEW AS AN ALTERNATIVE TO JUDICIAL SETTLEMENT OF DISPUTES WITH STATE AUTHORITIES The article analyses the mechanism of reviewing the decisions
of state bodies in an administrative manner when resolving
administrative disputes in China. In particular, the functions
of this mechanism are considered, such as: reconciliation and
mediation in administrative review, the procedure for considering an
administrative review case, the execution of a decision taken based
on the results of an administrative review, the relationship between
administrative review and administrative proceedings. The author
emphasises the importance of the mechanism of reconciliation
and mediation, through which the administrative and legal dispute
is really resolved on the merits. Administrative review of cases is
the key to achieving justice, therefore it should be optimised and its
application expanded. The execution of a decision taken as a result
of an administrative review is procedural in nature and completely
depends on the authority that must execute it, even if the decision
fully satisfies the applicant’s requirements. Therefore it is necessary
to ensure measures of influence on the relevant state bodies for
the execution of such decisions. Considering the links between
administrative review and administrative proceedings, the author
emphasises that administrative proceedings should in most cases
become the final way to protect the rights of applicants. When
using all these functions of administrative review of decisions, it
is possible to achieve the realisation of the applicants’ objective
interests and resolve administrative disputes on the merits without
judicial proceedings.
Keywords:
administrative review, reform of the administrative review system, administrative dispute, resolution of an administrative dispute on the merits, the Law of the People’s Republic of China “On Administrative Review”
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Yu.S. Kharitonova, Ya. Tianfang RECOMMENDER SYSTEMS OF DIGITAL PLATFORMS IN CHINA: LEGAL APPROACHES AND PRACTICES FOR ENSURING ALGORITHM TRANSPARENCY For many technologically advanced countries, the task of
ensuring the transparency of recommender algorithms is in
the first place today. Chinese law, which is one of the pioneers
of industry regulation, is developing a distinctive approach to
ensuring the transparency of recommender system algorithms.
Online service operators are considered as service providers
of algorithmic recommendations, which are responsible for
the possible risks of harm to users, the nation or society.
Emphasis is placed on the need to introduce specific control
mechanisms to check the safety of recommender systems for
various areas of life, which are reflected in the most general form
in regulations. By creating legal means to minimise algorithmic
risks and protect the fundamental rights of users, the Chinese
legislator seeks to avoid excessive regulation that hinders
innovation and development of the industry.
Keywords:
legal regulation, recommender system, algorithm, digital platform, transparency of the recommender system
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Y. Yi, Ch. Iglu COMPARATIVE ANALYSIS OF THE CRIMINAL PROCESS EVIDENCE IN RUSSIA AND CHINA Unlike the Criminal Procedure Code of the Russian Federation,
the Criminal Procedure Code of the People’s Republic of China has
the following features: it establishes eight separate types of evidence,
postulates the principle of truth, limits the evidentiary power of one
proof, sets the standard of proof in combination with subjective
views. Based on these differences, this article provides a comparative
study of the legislation of the two countries from four aspects:
the concept and types of evidence, the basic principles of evidentiary
law, the collection and use of evidence, and the standard of proof.
Keywords:
the principle of truth, objectivity of evidence, relevance of evidence, standards of proof
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L. Changhai ON THE QUESTION OF THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY IN THE PRC As a result of the adoption of the Amendment to the Criminal Code of
the People’s Republic of China No. 11, on the one hand, the minimum
age of criminal responsibility was formally reduced to 12 years, on
the other hand, material and procedural restrictions were established for bringing minors to criminal responsibility. Intentional murder
and intentional infliction of harm to health committed by minors are
certain criminal acts that have specific features and characteristics,
and for a comprehensive assessment of the act and the possibility
of being held accountable for a crime committed with the use
of particularly cruel means and in the presence of aggravating
circumstances, it is also necessary to take into account subjective
and objective factors accompanying the commission of a criminal
act. The experience of the PRC in lowering the age of criminal
responsibility for juveniles can become a guide for other countries in
the fight against juvenile delinquency.
Keywords:
Amendment No. 11, Criminal Code of the People’s Republic of China, minors, age of criminal responsibility, 12 years
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Ch. Jinzhe LEGAL FEATURES OF ACQUISITION OF PUBLIC STATUS WHEN ESTABLISHING CORPORATIONS IN CHINA This article discusses and analyses the features of the creation of
public and non-public corporations under Chinese law. The author
makes a distinction between public and non-public corporations in
general and addresses the key characteristics of the differentiation
of these institutions in China. The author identifies two ways of
establishing corporations, namely “on the initiative” and “on
the proposal”, subsequently analysing how these ways interact
with public and non-public corporations. The author pays special
attention to the issue of acquiring public status by corporations
in China.
Keywords:
corporation establishing, public and non-public corporations, public status, ways of establishing corporations
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H. Shuju, N. Dantong ON THE NORMATIVE CONTENT OF THE TERM “THIRD CATEGORY CIVIL LAW SUBJECT” IN CHINA The article considers the legislative term «subject of civil law of
the third category» from the point of view of its normative content.
The Civil Code of the People’s Republic of China fixes the type
of organisation as an unincorporated organisation using the term
«subject of civil law of the third category», thus introducing it into
practice. Based on the analysis of legal texts in which the term
«subject of civil law of the third category» occurs, the authors
found that the concepts of «unincorporated organisation» and
«other organisations» are mixed in Chinese legislation. After the
publication of the Civil Code, this confusion has not been eliminated,
thus some laws and regulations still do not comply with the Civil
Code of the People’s Republic of China in this regard. The content
and scope of the concept of «other organisations» are unclear to
a certain extent, which does not contribute to understanding the
purpose of regulation, clarity of legislative language and accuracy in understanding the legislative intent. By analysing the content
and scope of the concepts of «non-corporate organisations»
and «other organisations», the authors of the article clarify the
relationship between them by comparing the context of the use of
these concepts and propose a definition of the concept of «third
category civil law subject» in order to further improve the law
with the purpose of fully implementing the principle of unity of
legislative regulation.
Keywords:
subject of civil law of the third category, term, legislative regulation, unincorporated organisation
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Discussion Board
L.V. Golovko THE INSTITUTE OF PREJUDICE IN THE CRIMINAL PROCESS OF FRANCE: TO THE RUSSIAN DISCUSSIONS The Criminal Procedure Institute of prejudice (Article 90 of the Code
of Criminal Procedure of the Russian Federation) is subjected to
opposite assessments in Russia today: it is sometimes seen as
a reflection of the universal latest trends in the formalisation of
evidence, then it is argued that we are talking about purely domestic
deformations, since there is no prejudice in classical law and order, at
least in its Russian interpretation. Is there an institution of prejudice
in the criminal process of France — one of the key countries for
the continental legal understanding? And if it exists, how does it relate to the fundamental principle of evaluating evidence according
to the internal conviction of the court? The answers to these
questions require special analysis, taking into account the complex
and multidimensional development of approaches to prejudice in
French law, and from the point of view not so much of legislation as
of doctrine and judicial practice.
Keywords:
prejudice (issue preclusion), legal force of sentence, criminal proceedings, civil proceedings, intersectoral nature, intra-sectoral nature
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Theory and practice
E.V. Mokhova CROSS-BORDER EFFECT OF BANKRUPTCY: INSOLVENCY-SPECIFIC RECOGNITION IN FOREIGN LAW AND IN INTERNATIONAL STANDARDS (PART 2) The article is the second part of the study devoted to the problems
of the cross-border effect of bankruptcy. The article reveals various
models and features of insolvency-specific recognition used in foreign
law, as well as in the international standards developed by UNCITRAL
in the Model Law on cross-border insolvency. The author identifies two
main vectors in the development of insolvency-specific recognition:
the first is the recognition of foreign insolvency proceeding per se
without extension of its effect on the territory of the recognising
state, but with the providing of assistance and relief by the latter.
The second is the recognition of foreign insolvency proceeding per
se with the extension of its effect to the territory of the recognising
State, but with exclusions from the lex concurusus in applicable law.
At the same time, in both the first and second cases, the effect of
foreign bankruptcy may be limited to the opening of local collective
proceedings if the necessary jurisdictional criterion is available.
The author states that the insolvency-specific recognition has not been
established in Russia, and at the same time, Russian instruments of
procedural recognition do not allow for an effective differentiation of
main and secondary (non-main) proceedings in order to recognise
them in different qualities and provide them with different legal
consequences, and also do not imply adequate mechanisms of control
and assistance in relation to foreign insolvency proceeding.
Keywords:
сross-border bankruptcy, cross-border insolvency, recognition of foreign bankruptcies, modified universalism, main proceeding, secondary proceeding, non-main proceeding, insolvency-specific recognition, UNCITRAL
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A. V. Yudin PROVING THE SOURCE OF THE ORIGIN OF FUNDS IN BINDING DISPUTES: PROCEDURAL ISSUES In the judicial practice of recent years, the approach
to disputes on the recovery of funds has spread, which
involves the study of the question of the source of origin and
the actual possibility of the transfer of funds by the creditor
to the debtor. If there is no evidence that the creditor has
money transferred to the debtor, the claim should be
dismissed with the reference to the fact that the transfer
could not have taken place in reality. The author proposes
to distinguish between situations in which the study of
the source of funds is dictated by the possible actual
coincidence of the interests of the creditor and the debtor,
seeking to create the appearance of debt obligations,
to violate the rights of other creditors and to other unfair
purposes. With regard to situations where there are no
grounds to suspect the parties of a de facto common
interest, and where the reference to the creditor’s lack of
funds is an instrument of protection against the claim of
the debtor-defendant, the legal grounds for applying to
the study of this circumstance are not obvious and need
to be investigated. Due to the system of logical and legal
argumentation, the author comes to the conclusion that it
is unacceptable to involve this circumstance in the subject
of proof as a general rule, but specifies certain conditions
under which such an approach could have the right to exist
(reasonable grounds to doubt the ability of the creditor to
provide a certain amount of money; it is unacceptable to
require proof of the exact coincidence of the amount of
income of the creditor and the amount of money issued
by him, etc.). The negative assessment of this practice,
supported recently by the Supreme Court of the Russian
Federation, is based on the inadmissibility of arbitrary
interference in private affairs; the absence of this fact
in the norms of substantive law as a fact included in
the subject of proof in the case; the objective complexity
of the source of origin and accumulation of funds by
the creditor; doubts about the relevance of such evidence
to the case, etc.
Keywords:
subject of proof, creditor’s property status, loan agreement, non-monetary nature of the loan agreement, evidentiary fact, transfer of funds, relatability of evidence
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M.A. Rozhkova PROSPECTS OF LEGAL REGULATION OF ONLINE CONSUMER DISPUTE PROCEEDINGS The rapid expansion of cross-border Internet commerce, especially
in a pandemic environment, has qualitatively changed the role of both international and national online marketplaces. However, it is
not a secret that Internet commerce is not free from shortcomings
and cases of violation of consumer rights, buying goods online — in
various Internet stores and marketplaces / commodity aggregators,
are not exceptional. In this regard, of great importance are initiatives
for the development of legal regulation, aimed at empowering
consumers to protect their rights. In these circumstances, it is
extremely important to properly assess the mechanism of online
dispute resolution used by online marketplaces in order to identify
the prospects of forming a legal framework for such proceedings
not only to improve consumer protection, but also to develop
extrajudicial ways of resolving consumer disputes, which will
contribute to relieving the state courts of resolving minor disputes.
This is the subject of the present article.
Keywords:
online dispute resolution, online platforms, consumer disputes
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E.A. Ostanina LIMITED LEGAL CAPACITY OR INCAPACITY: AN ATTEMPT AT DIFFERENTIATED CIVIL LAW AND CIVIL PROCEDURE ANALYSIS The recognition of a person with legal capacity limited due to mental
illness is a relatively new institution associated with a number of civil
and procedural problems. In particular, how a person with limited legal capacity responds for the harm? The author has concluded
that a person with limited legal capacity should be responsible
for those obligations, in the event of which he did not understand
the meaning of his actions and cannot direct them. When appointing
a forensic psychiatric examination on the application for recognition
of a person as having limited legal capacity, the court should remind
the rule about informed consent. Involuntary referral for examination
is possible to prevent harm to the person himself or to third parties.
During the forensic psychiatric examination, the question of
whether a person can independently perform certain categories of
transactions, or whether a person needs an assistant to complete
all transactions, should be resolved. The norm on the restriction
of a person’s legal capacity, if interpreted correctly, can become
the main one for a differentiated approach to incapacity, which will
help provide sufficient protection to persons suffering from mental
illness.
Keywords:
disability, limited legal capacity, mental illness, trustee, forensic psychiatric examination
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R.R. Bevzenko GROUNDS FOR INVALIDITY OF TRANSACTIONS IN RUSSIAN LAW: LEGISLATION, SENATE PRACTICE AND DOCTRINE OF THE SECOND HALF OF THE XIX — EARLY XX CENTURIES The article analyses the grounds for invalidity of legal acts in
Russian pre-revolutionary law, primarily in the Code of Civil Laws
and the Draft Civil Code of Russian Empire. For the purpose of better
understanding of the changes that the Draft had been preparing for
Russian civil law, the article examines, along with the provisions of
the law, the case law of the Civil Cassation Department of the Ruling
Senate (Russia’s Supreme Court), as well as the works of prominent
Russian scholars of that time.
Keywords:
invalidity of legal acts, nullity of legal acts, Russian civil law of the XIX century, Russian Code of Civil Laws, case law of the Civil Cassation Department of the Ruling Senate, the Draft Civil Code of Russian Empire
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Foreign experience
Ya.D. Avilov HUMAN RIGHTS AFTER THE COUNCIL OF EUROPE: IS THERE A FUTURE FOR THE ELECTORAL STANDARDS OF THE CIS COUNTRIES? The article analyses the normative regulation of the procedure
for the implementation of passive suffrage in four CIS states
that were previously part of the USSR: Armenia, Kyrgyzstan,
Moldova and Russia. The latter ceased to be a member of
the Council of Europe in 2022 and this actualised the problem
of studying the accumulated experience of national electoral
standards of the CIS. With the use of the comparative legal
method and the method of systematic interpretation, the author
reveals general and special features of the development of
standards for the implementation of the right to be elected in
parliamentary elections, trends in the constitutional development
of the political systems of these states. In particular, the study
demonstrates a composition of subjects enjoying the right to
nominate individual candidates and their lists, restrictions on
passive suffrage and features of the electoral systems which are being used in the relevant elections. The main provisions
of the international electoral standards of passive suffrage of
the Council of Europe are analysed.
The researcher shows the presence of specific guarantees of
the right to be elected for certain categories of citizens, namely
for ethnic minorities, as well as gender quotas. The article
contains a conclusion about the significant influence of
European standards on the development of electoral systems
in the countries under study notwithstanding their geographical
and historical background as well as about the potential for
the implementation of the accumulated legal and political
experience in the international electoral standards of the CIS.
Keywords:
right to be elected, nomination of candidates, electoral process, political parties, CIS, Council of Europe, electoral system
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