Chereshneva I. —
Experimental legal regime in the field of digital innovations: on the issue of ensuring legal certainty
// Law and Politics. – 2023. – ¹ 12.
– P. 27 - 34.
DOI: 10.7256/2454-0706.2023.12.69354
URL: https://en.e-notabene.ru/lpmag/article_69354.html
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Abstract: The rapid development of digital technologies that transform objective reality by their implementation, combined with the need for the Russian state to rely mainly on internal resources (which is due to the introduction and expansion of the sanctions regime of unfriendly countries against Russia), "calls" for the search for effective mechanisms and tools capable of: 1) to ensure technological sovereignty, 2) to mobilize the digital economy, 3) to preserve the well-being of our society. One of these mechanisms may be an experimental legal regime in the field of digital innovation (hereinafter referred to as EPR), the study of the essence of which is the subject of this work.
In the course of the research, the author pays special attention to: 1) consideration of the category "legal experiment"; 2) disclosure of the essence of the EPR through the study of the category "legal regime of entrepreneurial activity", including within the territories with a special regime of entrepreneurial activity; 3) consideration of the issue of ensuring the principle of legal certainty in the context of the EPR. The following methods of scientific research were used in the study: analysis, synthesis, generalization, analogy, etc.; a systematic approach, special legal and comparative legal methods were used. The main conclusions of the conducted research are:
- firstly, the system of entrepreneurial legal regimes can be represented by the following triad: general, special, extraordinary; in relation to territories with a special regime of entrepreneurial activity, when it comes to a special preferential regime;
- secondly, the dual legal nature of the EPR makes it possible to consider it both as one of the types of territory with a special regime of entrepreneurial activity, and as a legal experiment;
- thirdly, the intermediate place of the EPR between the advanced legal regulation is determined and the postponement of legal regulation, which allows us to talk about the dynamism of legal certainty; fourth, EPR can be considered as an effective means of overcoming the effect of lagging legislation only when legality is not replaced by expediency.
Chereshneva I. —
Family entrepreneurship: towards the formulation of the problem
// Legal Studies. – 2023. – ¹ 7.
– P. 1 - 11.
DOI: 10.25136/2409-7136.2023.7.40989
URL: https://en.e-notabene.ru/lr/article_40989.html
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Abstract: Modern geopolitical conditions combined with the sanctions cause an objective need to search for internal economic mechanisms capable of both leveling the consequences of an unprecedented economic impact on Russia and acting as a support for its further socio-economic development; therefore, the appeal to the study of family entrepreneurship seems justified. At the same time , its relevance is due to the following reasons: 1) the socialization of the economy and law; 2) the social component of entrepreneurship; 3) the development of social entrepreneurship; 4) state family policy.
The subject of this work is family entrepreneurship - a complex intersectoral institution that combines the norms of family and business law.
In the course of the study, the author draws attention to the consideration of the following issues: 1) the relevance of family entrepreneurship; 2) the main essential features of family entrepreneurship; 3) the need for legislative consolidation of family entrepreneurship as a special legal regime for the activities of a certain category of subjects.
The research uses general scientific methods of analysis and synthesis, a systematic approach; special legal methods. As a result of the study, the following conclusions were made. The constitutive feature of family entrepreneurship is the family-legal ties that develop between family members; other features also include: 1) the similarity of institutional forms of family entrepreneurship with small business; 2) the implementation of entrepreneurial activity, including to achieve a social positive effect; 3) the axiological component of family entrepreneurship.
Consideration of family entrepreneurship as a special legal regime for the activities of a certain category of subjects allows for variability, represented by two directions. The first is civilistic, where there is no need to allocate a special legal regime for the activities of a certain category of subjects, and the second is social, in which the understanding of family entrepreneurship as a family value leads to its isolation as one of the special legal regimes for the activities of certain categories of subjects. The latter option is preferable.
Chereshneva I. —
Estoppel in Russia: to the problem statement
// Law and Politics. – 2020. – ¹ 9.
– P. 81 - 89.
DOI: 10.7256/2454-0706.2020.9.33913
URL: https://en.e-notabene.ru/lpmag/article_33913.html
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Abstract: In view of the continuing interest of the legal community in the problem of the prohibition of contradictory behavior or in the Anglo-American tradition of law – estoppel, the subject of this study is an attempt to determine the legal nature of the so-called norms of the Civil Code of the Russian Federation on estoppel. The topic chosen for the study becomes particularly relevant, since there is no consensus among representatives of legal science regarding the nature of estoppel; it is considered as an intersectoral principle, doctrine, institution of law, sanctions for violation of the principle of good faith, one of the manifestations of the principle of good faith, legal mechanism, etc. The author has attempted to consider estoppel from different angles: through the prism of English contract law (promissory estoppel), from the standpoint of the continental maxim "venire contra factum proprium", in relation to the principle of good faith. The research uses general scientific methods of analysis and synthesis, a systematic approach; special legal methods (comparative legal, formal legal).
As a result of the conducted research, we came to the following conclusions. The so-called norms of the Civil Code of the Russian Federation on estoppel are a special case of the doctrine of consistent behavior, known to the continental legal order by the maxim "venire contra factum proprium", which acts as a manifestation of the principle of good faith. Proceeding from this, it is incorrect to designate the above norms as estoppel, because, firstly, even in the Anglo–American tradition, the diversity of types of estoppel does not allow it to be considered as a universal principle, and, secondly, what is understood by estoppel in this system of law does not correspond to its Russian interpretation. In addition, being part of the Romano-Germanic legal family, the domestic legal order does not need to borrow alien legal phenomena, especially when similar legal constructions can not only be found in the depths of centuries, but also trace their evolution in the bosom of the continental legal system, to which Russia belongs.
Chereshneva I. —
Estoppel in Russia: to the problem statement
// Law and Politics. – 2020. – ¹ 9.
– P. 81 - 89.
DOI: 10.7256/2454-0706.2020.9.43391
URL: https://en.e-notabene.ru/lamag/article_43391.html
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Abstract: In view of the continuing interest of the legal community in the problem of the prohibition of contradictory behavior or in the Anglo-American tradition of law – estoppel, the subject of this study is an attempt to determine the legal nature of the so-called norms of the Civil Code of the Russian Federation on estoppel. The topic chosen for the study becomes particularly relevant, since there is no consensus among representatives of legal science regarding the nature of estoppel; it is considered as an intersectoral principle, doctrine, institution of law, sanctions for violation of the principle of good faith, one of the manifestations of the principle of good faith, legal mechanism, etc. The author has attempted to consider estoppel from different angles: through the prism of English contract law (promissory estoppel), from the standpoint of the continental maxim "venire contra factum proprium", in relation to the principle of good faith. The research uses general scientific methods of analysis and synthesis, a systematic approach; special legal methods (comparative legal, formal legal).
As a result of the conducted research, we came to the following conclusions. The so-called norms of the Civil Code of the Russian Federation on estoppel are a special case of the doctrine of consistent behavior, known to the continental legal order by the maxim "venire contra factum proprium", which acts as a manifestation of the principle of good faith. Proceeding from this, it is incorrect to designate the above norms as estoppel, because, firstly, even in the Anglo–American tradition, the diversity of types of estoppel does not allow it to be considered as a universal principle, and, secondly, what is understood by estoppel in this system of law does not correspond to its Russian interpretation. In addition, being part of the Romano-Germanic legal family, the domestic legal order does not need to borrow alien legal phenomena, especially when similar legal constructions can not only be found in the depths of centuries, but also trace their evolution in the bosom of the continental legal system, to which Russia belongs.
Chereshneva I. —
To the question of legal qualification of mining
// Law and Politics. – 2019. – ¹ 9.
– P. 48 - 55.
DOI: 10.7256/2454-0706.2019.9.30750
URL: https://en.e-notabene.ru/lpmag/article_30750.html
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Abstract: The lack of legal clarity with regards to the legal nature of cryptocurrencies and the process of its mining, the subject of this research lies in the attempt to view the latter as one of the types of business activity, which is particularly relevant in both, theoretical and practical terms. The author meticulously examines the concept and types of mining; analyzes the activity in the area of mining through the prism of the legislatively established definition of business activity; as well analyzes case law and foreign experience on the matter. The conclusion is made that mining corresponds with the legislatively established definition of business activity, and thus it is necessary of demarcate the business and non-business character of activity in the area of mining. At the same time, the future federal law “On the Digital Financial Assets” should envisage the set of criteria (such as profit margin per calendar year, existence of infrastructure used exclusively for cryptocurrency transactions, rapid changes in the volume of cryptocurrency reserve, etc.) that allow considering mining as one of the types of business activity.
Chereshneva I. —
To the question of legal qualification of mining
// Law and Politics. – 2019. – ¹ 9.
– P. 48 - 55.
DOI: 10.7256/2454-0706.2019.9.43271
URL: https://en.e-notabene.ru/lamag/article_43271.html
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Abstract: The lack of legal clarity with regards to the legal nature of cryptocurrencies and the process of its mining, the subject of this research lies in the attempt to view the latter as one of the types of business activity, which is particularly relevant in both, theoretical and practical terms. The author meticulously examines the concept and types of mining; analyzes the activity in the area of mining through the prism of the legislatively established definition of business activity; as well analyzes case law and foreign experience on the matter. The conclusion is made that mining corresponds with the legislatively established definition of business activity, and thus it is necessary of demarcate the business and non-business character of activity in the area of mining. At the same time, the future federal law “On the Digital Financial Assets” should envisage the set of criteria (such as profit margin per calendar year, existence of infrastructure used exclusively for cryptocurrency transactions, rapid changes in the volume of cryptocurrency reserve, etc.) that allow considering mining as one of the types of business activity.