Chief editor’s column
Interview of the issue
Topic of the issue
N.V. Kolotova The Right to a Decent Standard of Living: Modern Doctrine and Judicial Practice The right to a decent standard of living presupposes the right to
social benefits guaranteed in the legislation of the State, a certain
amount of which can be protected in the courts. The standards of
fair wages, minimum social security, adequate housing, education,
medical care and other social services can be assessed by the
court in terms of their compliance with the fundamental principle of
human dignity and other legal principles. Some of these standards
are more precisely defined in doctrine and judicial practice. These
are (1) the minimum wage, which is an indicator of the assessment
of a decent wage, and (2) the subsistence level, which is of primary
importance for determining a decent level of social protection for
persons in need of social support. Their application is analysed on
the basis of doctrinal provisions and examples from the judicial
practice of constitutional courts of foreign countries. The concept
of minimum core obligations developed by the United Nations is
considered as one of the approaches to defining universal standards
for the implementation of social rights.
Keywords:
decent life, social rights, social standards, minimum wage, subsistence level, minimum сore obligations
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A.S. Tumanova, A.A. Safonov The Right to a Dignified Existence as Seen by the Legal Corporation of Late Imperial Russia The article considers the theoretical content of the paired
categories ‘level of life’ and ‘quality of life’, developed in the light
of the latest historical reconstructions of these concepts. The
interpretations of the right to a decent human existence given by
Russian legal philosophers V.S. Solovyov, P.I. Novgorodtsev and
B.A. Kistyakovskiy are characterised. The practical contribution of
the leaders of law societies to the development of this concept is
shown. It is proved that the context of this category included the
ideas of reducing working hours, reducing poverty, unemployment
and alcoholism, and introducing social insurance.
The authors conclude that representatives of the legal corporation
have developed the content of the right to a decent human existence
and concretised it in relation to the specifics of the socio-economic
life of late imperial Russia. The idea of a decent existence acted
as a marker of the professionalisation of the legal community and
contributed to the construction of the idea of a socially oriented
state.
Keywords:
right to a dignified e xistence, dignified existence in the views of lawyers of the early 20th century
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E.A. Sorokina Innovative Remedies for the Protection of Socio-Economic Rights: The Constitutional Court of South Africa Jurisprudence The realisation of socio-economic rights continues to raise a number
of questions. Initially, the main issue was the justiciability of these
rights. There is now a growing consensus that socio-economic
rights are justiciable. At the same time, the focus is shifting to a
discussion of effective remedies for its violations.
Violations of most social and economic rights are directly linked to
systemic or structural reasons, when public authorities fail to fulfil
their constitutional obligations to ensure the realisation of these
rights. In this regard, the so-called structural protection of socioeconomic
rights is being developed, and constitutional courts are
elaborating certain approaches and judicial remedies. This article
focuses on the evolution of the practice of the Constitutional Court
of South Africa in the area of the protection of socio-economic rights
and the provision of appropriate remedies in case of their violation.
For comparative legal studies, the South African experience and
practice may be a source of evidence that structural remedies are
often the most effective way to realise socio-economic rights.
Keywords:
socio-economic rights, remedies, structural interdict, Constitutional Court of South Africa
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V.N. Parshenko To Ban or not to Ban: Tobacco and Human Rights in the 21st Century In modern society, there are many debates about the balance of
human rights and responsibilities. On the one hand, any individual
has the freedom of choice and action when making decisions that
are known to be harmful to himself, on the other hand, this freedom
is not infinite, so often the realisation of these or those rights and
freedoms meets obstacles on its way. One of the topical issues of our
time is human health in the context of the question of whether it is a
right or an obligation to “be healthy”. The coronavirus pandemic has
already highlighted this aspect and showed that not always a person
can freely dispose of his health, and even more so, he should take
into account how his actions can affect the health of others. The
article proposes to analyse the current topic of balancing the rights
of smokers, the rights of non-smokers exposed to alleged harm from
passive smoking, the rights and obligations of representatives of the
business community and the interests of the state both in the health of
the population and in material tax benefits. Based upon the example of
New Zealand’s unsuccessful attempt to introduce a complete ban on
the sale of nicotine-containing products to new generations, possible
legal measures to reduce the popularity of smoking, their prospective
effectiveness and the likely risks of radical changes and bans are
examined.
Keywords:
balance of rights and freedoms, limits to restrictions on rights, restrictions on rights and freedoms, decent standard of living, right to life, right to health
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M.M. Panarina, O.L. Soldatkina The Forming up of an Effective System for Ensuring the Employees’ Right to Obtain Information on Labour Conditions The article studies the matter of the effectiveness of executing
the employee’s right to information on labour conditions, which
was recently enshrined in the Russian labour legislation. Based on
the analysis of available regulatory legal acts and defects therein,
which enable employers to confine informing the employees to
formal procedures, the authors offer not only solutions for the
development of legislation on this matter, but also methodological
recommendations for corporate employers. The article focuses
primarily on organisations unrelated to industrial production.
Their activities are analysed, among other things, in the context
of new employees adaptation and the use of digital tools for this
purpose.
Keywords:
the employee’s right to obtain information on labour conditions, informing the employee, forms of informing the employee
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N.V. Letova, N.I. Solovyanenko Digitalisation of State Social Assistance to Certain Categories of Citizens: The Digital Divide and Legal Ways to Overcome It The article examines the legal issues of the use of digital
technologies in the field of state social assistance and services,
including state-provided payments, allowances, pensions, etc. One
of the most pressing issues of digitalisation — the digital divide,
or digital inequality, of socially vulnerable groups of the population
in terms of access to information technologies, knowledge and
skills of effective and safe interaction in a digital environment, —
is explored. The legal problems of transferring social services to a
digital format ‘by default’ and its constant technological complexity
are analysed. The authors have proved that the digital divide serves
as a factor hindering the development of social services and the
implementation of social guarantees in the context of digitalisation
and, accordingly, increases the need for effective state protection
of the rights of citizens in need of social assistance. Additional
measures are proposed to ensure their rights, including recognition
of a citizen in need of social services if he does not have access to
information resources containing information about social services;
the ability to provide such citizens with ‘social assistance’ at home in
the preparation of necessary electronic documents, their placement
in an information system and a number of others.
Keywords:
social assistance, social services, social guarantees, digitalisation of social services, digital divide, Unified portal of state and municipal services, social benefits, pension rights, electronic document, electronic signature
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Legal Chronicle The December Legal Chronicle presents commentary on plans to introduce a levy on advertising;
the new Article 173.3 of the Criminal Code, introducing liability for actions with so-called ‘paper’
VAT; the adopted law simplifying the procedure for the allocation of a share in the ownership of a
parking space, as well as the law introducing new benefits for servicemen and other participants
of the Special military operation who have debts under a credit agreement in the amount of up to
10 million roubles; and the Constitutional Court’s ruling on the case of verification of Article 152
of the Civil Code, in which it analyses the relationship between personal and family rights.
Keywords:
‘paper’ VAT, advertising levy, false invoice, parking space, shared ownership, share allocation, benefits for servicemen, loan agreement, enforcement proceedings, protection of honour and dignity, moral damage
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Press Release
Theory and practice
V.V. Starzhenetskiy, A.V. Santalova Global Magnitsky Acts: A Legal or Rather a Geopolitical Tool? In 2016, the US adopted the Global Magnitsky Human Rights
Accountability Act, which enables the imposition of extraterritorial
sanctions for human rights violations around the world. This tool
has quickly become widespread and was copied by many Western
jurisdictions, including the EU, the UK, Canada, Australia and
other countries. The analysis of application practice shows that
the global Magnitsky Acts are susceptible from the international
law perspective. They serve as a geopolitical tool in the hands of
the applying States and cannot pretend to be universal, objective
and impartial in the context of human rights protection; they are
unilateral in nature and do not reflect the practice and opinio juris
of the world majority. Despite the declared values associated with
the international protection of human rights, the effect of these
instruments on cooperation among states in this field and on
international law in general is more negative than positive. The
dissemination of this legal transplant may turn out to be far from
being as harmless as it may seem at first sight, as it contributes to
the politicisation and transformation of human rights from a sphere
of cooperation into a sphere of rivalry of states, which in the end
may seriously harm the existing system of international protection
of human rights.
Keywords:
human rights, unilateral coercive measures, sanctions, Global Magnitsky Act
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D.O. Tuzov Viam muniunto! On Imposing the Burden of Maintenance of Municipal Property (Adjacent Public Areas) on Private Individuals: Constitutional Aspects through the Eyes of a Civilist Modern legal orders are well aware of the principle, originating
in Roman law, according to which the owner bears the burden of
maintenance of his property. However, even in ancient law there
were exceptions to this principle: for example, the Laws of the XII
Tables imposed on the owners of land adjacent to public roads
the obligation to maintain the latter. Possible exceptions to this
principle — in accordance with the law or contract — are also allowed
by the Civil Code of the Russian Federation. Taking advantage of this
possibility, legislative bodies of constituent entities of the Russian
Federation and local self-government bodies in the regional laws and
local rules of improvement adopted by them have often imposed and
still impose the obligation to maintain public areas on private owners
of real estate adjacent to these areas. Nevertheless, until relatively
recent time, the Supreme Court of the Russian Federation strictly
followed the above basic principle in its practice and, relying also
on the constitutional norm on the exclusive federal competence in
the field of civil legislation, refused to recognise the legal validity of
such norms at the regional and local level. The situation, however, changed in 2018, with the entry into force of amendments to the
Town Planning Code of the Russian Federation and legislation on
local self-government, by which the burden of maintenance of
municipal property in question was explicitly provided for already
at the federal level.
The article discusses the validity and expediency of these legislative
novelties, analyses the judicial practice based on them. It is concluded
that they clearly contradict three fundamental constitutional
principles and therefore cannot be recognised as corresponding to
the Constitution of the Russian Federation.
Keywords:
civil law, constitutional law, municipal law, Roman law, property right, public property, private property, burden of property maintenance, sources of civil law, local rule-making
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S.A. Belov, E.N. Emelchenkova, M.A. Revazov Legal Status of Putonghua in the People’s Republic of China and Russian Language in the Russian Federation The article compares the system of legal regulation of the status of the
national language of the Russian Federation and Putonghua (common
language) in the People’s Republic of China. The authors note the similarity of the language situation in both countries and some
synchronicity in the adoption of regulatory documents regulating
language issues: at the constitutional level in 1982 and 1993, at the
legislative level — in 2001 and 2005, correspondingly. The authors
start from the basic principles and norms determining the status of
national languages in both countries and continue with comparing
the content of detailed legal regulation and the dynamics of its
development. They note both exclusively legal and linguistic features of
regulation in each of the compared countries. As a result, the authors
find less strict mandatory use of Putonghua in the PRC, than of the
national language in Russia. They also describe differences in legal
instruments for standardising the use of language, which are partly
predetermined by the features of the legal and political systems of
both countries, and partly by the specifics of the respective languages.
Keywords:
national language, Putonghua, legal regulation of the use of language, standard language, language norm
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K.V. Geets Registration of the Disposal of an Exclusive Right and the Consequences Of Its Absence Russian Civil contains an exhaustive list of methods of exclusive
rights’ disposal subject to registration. The number of disposal
methods is not limited by law: accordingly, not all of them are subject
to registration. First of all, this is a unilateral transaction of the right
holder, which contains permission to use the object of intellectual
property rights (letters of consent). The order is also not subject to
registration in contracts, the purpose of which is not related to the
granting of the right to use the object, and the provision itself is only
aimed at achieving the main contract’s goal. In practice, registration
of the granting of the right to use a non-exclusive license makes no
sense, because, unlike an exclusive license, it rarely affects the rights
of third parties. In any case, for the parties to the license agreement,
the absence of registration does not entail its invalidity. The inability
to register the contribution of a right to the authorised capital may
negatively affect the potential acquirer of such a right, therefore it
seems important to finalise the relevant rules. Registration of a pledge
and transfer of rights directly affects the rights of third parties and
parties to the contract, therefore ignoring this requirement will entail
negative consequences. In this case, the moment of transfer of the
right in case of alienation and foreclosure is determined by making
an entry in the register of Rospatent, and in case of succession — at
the time of reorganisation or opening of inheritance.
Keywords:
disposal of exclusive right, registration of disposal of exclusive right, letter of consent, license agreement, alienation of exclusive right, transfer of exclusive right
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Yu.D. Zhukova, A.S. Podmarkova Responsibility in Passenger Taxi Transportation Relations The article analyses the new legal regulation of passenger and
baggage transportation relations concerning the model of their
organisation and the distribution of responsibility between their
participants. This issue becomes particularly relevant because of the
admission to this activity, along with individual entrepreneurs and
legal entities, of citizens who do not have the status of individual
entrepreneurs and do not apply a special tax regime “Tax on
professional income” (NAP) (self-employed). The authors analyse
the judicial practice approaches to solution of the problem of
passenger taxi transportation by persons without permits to this
activity and the closely related problem of distribution of tort liability
between the participants of passenger taxi transportation relations.
The authors conclude that the new legal regulation of passenger
and baggage transportation relations distributes this responsibility
among their participants reasonably and fairly. At the same time,
the new law regulation is limited to the establishment of liability
for damage caused by passenger taxi transportation, for violation
of prohibitions and non-fulfillment of public law obligations of
participants in these relations, only in this part affecting the
contractual relations of the parties. The model of organisation of
passenger taxi transportation relations provided by the new law,
in which the access to this activity for self-employed demands the
mandatory conclusion of an agreement with the passenger taxi
ordering service requires to limit the freedom of determining the
terms of its public offer, which can be accepted by a self-employed
carrier only in general.
Keywords:
passenger taxi transportation, responsibility in the field of passenger taxi transportation, owner of the aggregator of information about goods (services), self-employed citizens, professional income tax
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A.V. Latyntsev How to Achieve Uniform Application of Health-Related Patenting Prohibitions The article considers the correlation of the prohibitions of patenting
in the field of health protection provided for in Part 4 of Article 1349
of Russian Civil Code with the provisions of relevant special laws.
Based on the results of a comparative analysis, legal algorithms for
the application of these prohibitions arising from their legal nature
are identified, and it is also proved that the considered exceptions to
the objects of patent rights in patent legislation cannot and should
not replace the norms of special legislation which ban certain types
of activities, but can only be considered as an additional legal tool
to these prohibitions to prevent abuse of law, in particular, in the
course of illegal, immoral, inhumane or unethical activities.
Keywords:
prohibitions of patenting, objects of intellectual rights, nonpatentability, principles of bioethics, patents
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N.N. Kovaleva, N.A. Zhirnova Social Rating System (Scoring) as a Tool for Influencing a Human Behaviour The purpose of the article is the assessment of the advantages and
risks of introducing a social rating system into public administration
practice in the context of ensuring the socio-economic rights of a
person and citizen. The article discloses the legal interpretation of
the concept of a social rating and describes foreign and Russian
experience in its implementation. The possible impact of scoring
assessment on the living conditions of citizens is described and a
conclusion is made that scoring technologies are used to varying
degrees by various entities, and therefore the consequences of their
use cannot be avoided. The only question is the degree of positivity
/ negativity and the severity of the consequences. Therefore, it is
necessary to clearly spell out in regulatory legal acts the methods,
methods, goals and conditions for the introduction and use of
social rating elements, based on the following global idea: no social
ranking should be a tool for belittling the honour and dignity of a
person and citizen.
Keywords:
a social rating system, government control, the right to privacy
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