Practical law manual
Reference:
Mikryukov V.A.
The Limits of Analogy in the Private Legal Status of the Beneficial Owner of a Legal Entity
// Law and Politics.
2022. ¹ 9.
P. 1-8.
DOI: 10.7256/2454-0706.2022.9.38698 EDN: XPLCCO URL: https://en.nbpublish.com/library_read_article.php?id=38698
Abstract:
The author reveals the inconsistency of judicial practice on the issue of the private legal status of beneficial owners (final beneficiaries, beneficiaries) of a legal entity: in cases of challenging decisions of general meetings of participants and transactions of such legal entities, courts without proper references to the legal basis tend to recognize the beneficiaries of the right to appropriate claims, and in disputes over their demands for information the activities of the corporate entities actually controlled by them are denied on the grounds of the lack of grounds for applying the analogy of the law, considering the silence of the legislator about the relevant protective instrument of the beneficiary qualified. Due to the absence of special rules on the presence or absence of analyzed protective capabilities of beneficial owners, the effectiveness of analogy as a traditional means of overcoming legal gaps has been tested. The prospects of the analogical introduction of the public-law concept of "beneficial owner" into the structure of the private-law status of legal entities are evaluated. The development of a formal approach based on the absence of a direct legal connection of the beneficiary with the organization controlled by them is not excluded. It is concluded that it is necessary to develop a unified judicial approach to the possibility of an analogical application of public-law rules on the figure of beneficial owners to private-law relations with their indirect participation before the legislative solution of the issue under study.
Keywords:
qualified silence of the legislator, legal gaps, subsidiary liability, conduit organization, beneficiary, indirect claim, analogy of the law, controlling person, final beneficiary, beneficial owner
Theory
Reference:
Solomko Z.
The Concept of Legal Relations in a Marxist Perspective
// Law and Politics.
2022. ¹ 9.
P. 9-19.
DOI: 10.7256/2454-0706.2022.9.38703 EDN: ULAQJB URL: https://en.nbpublish.com/library_read_article.php?id=38703
Abstract:
The article is devoted to the problem of theoretical and legal understanding of legal relations. The subject of the study is bifurcated – the general attitudes of the post-Soviet mainstream discourse in this area are compared with the marginalized ideas of the Marxist theory of legal relations, supplemented by the ideas of the modern Marxist theory of society, which are significant for its concretization in modern conditions. The article's main goal is to problematize the methodological foundations of the understanding of legal relations that prevails in the post–Soviet theory of law, and to draw attention to the potential of Marxist methodology. The methodological basis of the work is the authentic and early Soviet Marxist theory of law and the modern concept of a global class society. Representatives of the post–Soviet mainstream theory failed to make a breakthrough in understanding legal relations and comprehend one of the most pressing problems of post-Soviet law and order - the gap between positive legal models of legal relations and the practice of their implementation. Theoretical understanding of legal relations has a chance to break out of the vicious positivist-neo-Kantian circle, within which legal relations are understood as a derivative of the norm of positive law, and thinking gets bogged down in the dichotomy of due and being, if the tools of Marxist theory, cleared of ideological layers, are restored. An important role in the dialectical understanding of legal relations is played by the distinction between material and volitional relations, the understanding of legal relations as a type of volitional relations that simultaneously act as a form of other social relations, while the legal relations that are actually developing are understood as the most concrete form of law. In modern conditions, the scientific understanding of legal relations requires distinguishing between different types of material and volitional relations – orthocapitalist and paracapitalist – within the framework of a global class society. Their difference explains the "gap" that has arisen in the post-Soviet space between positive legal models of legal relations, constructed largely on the model of orthocapitalist relations, and real legal relations, which by their nature are paracapitalist.
Keywords:
paracapitalism, orthocapitalism, form of law, ideological social relations, material social relations, mainstream theory of law, positivism, marxism, legal relationship, post-Soviet law and order
State security
Reference:
Begeza V.V.
Problems of Law Enforcement Agency Interaction to Ensure National Security
// Law and Politics.
2022. ¹ 9.
P. 20-29.
DOI: 10.7256/2454-0706.2022.9.38379 EDN: SYVQZV URL: https://en.nbpublish.com/library_read_article.php?id=38379
Abstract:
Ensuring national security and measures to protect it are at the heart of the prosperity of any State and its people. The Russian Federation's modern national security system, which is a complex, multi-level system, plays a vital role in ensuring state and public security. The elements of this system are represented by security at various levels, interacting and functioning through direct and feedback links. An important direction of the Russian Federation's National Security Strategy is consolidating law enforcement agencies and civil society institutions to create positive external and internal conditions to implement national interests and priorities. In this article, the author examines the activities of law enforcement agencies aimed at ensuring national security and issues of interaction. The problem of law enforcement agencies' effectiveness in ensuring the Russian Federation's national security is also considered based on an analysis of regulatory legal acts and the effectiveness of law enforcement agencies. The system of safeguarding and protecting national security is considered in the totality of subjects in interaction, as well as various bodies, forces, and means of ensuring security at a national level, provided through existing legal norms. What determines the necessary relevance of the important issues under consideration in the current situation?
Keywords:
national interests, citizens, state, law enforcement agencies, national security, law enforcement activities, threats, safety, society, state security
Human and environment
Reference:
Kolobov R.Y., Ditsevich Y.B., Ganeva E.O., Borodin L.V.
The Potential of International Law for Regulating Tourist Relations at the World Heritage Site Lake Baikal
// Law and Politics.
2022. ¹ 9.
P. 30-44.
DOI: 10.7256/2454-0706.2022.9.38735 EDN: WCJYJL URL: https://en.nbpublish.com/library_read_article.php?id=38735
Abstract:
The research subject in this article is the international and national practice of regulation and implementation of activities in the field of tourism in the Central Ecological zone of the Baikal Natural Territory. Based on the materials from the authorities as part of the analysis of the impact of tourism activities on the ecosystem of the "Lake Baikal" World Heritage site, conclusions are formulated about the possibility of deterioration of its ecological state and the emergence of social tension in the event of an increase in the number of tourists on its shores. The content of guidelines on the organization of tourism at UNESCO World Heritage sites is disclosed, and the most successful international practices of tourism management are correlated with the implementation of regional programs for the development and organization of sustainable tourism. The conclusion is formulated about the importance of collecting information about the tourist infrastructure and statistical data. The program documents defining the policy in the field of tourism in the Central ecological zone of the Baikal Natural Territory are analyzed, and the conclusion is made that there is no unified strategy for the development of Baikal as a World Heritage site. The factor of significant influence and participation of the local population in the implementation of tourist activities is noted, and the need for the involvement of the local population in the planning of tourist activities is indicated. The main content of the Global Initiative to Reduce Plastic Consumption in Tourism and recommendations for improving procurement activities in the tourism sector are revealed. The problem of compliance with moral and ethical requirements by stakeholders in tourism is noted as an underestimated problem. The study resulted in recommendations both on the modernization of the existing domestic regulatory framework and the development of new documents in the field of sustainable tourism.
Keywords:
rules of tourism, environmental law, tourism management, Baikal Natural Territory, legal protection, organization of tourism, international law, world heritage site, Lake Baikal, tourism activities
Legal and political thought
Reference:
Mikhailov A.M.
Understanding the Rule of Law in Joseph Raz's Positivist Doctrine
// Law and Politics.
2022. ¹ 9.
P. 45-60.
DOI: 10.7256/2454-0706.2022.9.38771 EDN: QSBRWA URL: https://en.nbpublish.com/library_read_article.php?id=38771
Abstract:
The subject of the present paper is the interpretation of the doctrine of the rule of law in the teaching of the leading representative of exclusive legal positivism, Joseph Raz (1939–2022). The importance of analyzing the doctrine of the rule of law from this perspective lies in the fact that such a study is able to identify the fundamental ideas of the positivist understanding of the law and the rule of law from the standpoint of the post-Hartian stage of its evolution. The article reveals two main approaches to understanding the rule of law in modern British legal literature: material and formal concepts. Raz's views on the rule of law are compared with the classical ideas of Albert Venn Dicey, the principles of the "inner morality" of law by Lon L. Fuller, and the position of Friedrich August von Hayek. The scientific novelty of the article is that, for the first time, an attempt has been made to reveal the differences between formal and material concepts of the rule of law in British jurisprudence in Russian legal literature. Raz's arguments about the nature and goals of the rule of law are not generally accepted in English constitutional doctrine but are quite indicative of the position of post-Hartian legal positivism on the problem of building a stable and predictable legal order. On the one hand, the principles of the rule of law revealed in Raz's teachings relate exclusively to the legal form, which is generally characteristic of the neo-positivism of the twentieth century. On the other hand, sociological attitudes can also be distinguished in Raz's teaching, which allows us to assert that post-Hartian legal positivism combines a number of ideas of "classical" and "sociological" positivism.
Keywords:
F. A. Hayek, analytical jurisprudence, discretionary power, Lon Fuller, Joseph Raz, post-Hartian positivism, law and order, principles of law, rule of law, legal positivism