Comparative Legal Analysis Research Articles

Increasing the effectiveness of anti-corruption as a condition for ensuring national security

The presented article, based on the identification of the multifaceted impact of corruption manifestations on the parameters of national security, identifies areas for improving the effectiveness of measures aimed at leveling the threats produced by this negative phenomenon. The subject of the study is a set of forms and methods of strategic anti-corruption used in the activities of public authorities of the Russian Federation, which is ensured by using methods of systemic, structural, comparative legal, historical and genetic analysis. The main message of the article is to substantiate the close relationship between the processes of ensuring national and public security in the context of countering corruption threats, which significantly reduce the level of both of these manifestations of security as a complex, multidimensional concept. In this regard, the emphasis is on the need to strengthen public participation in anti-corruption activities. Among the most important manifestations of such participation is the implementation of mechanisms of public anti-corruption control, the effective implementation of which implies the need for the formation of a set of so-called "anti-corruption competencies" among those who carry it out. Based on the analysis, it is stated that one of the most important conditions for ensuring national security is the activation of the role of society as a whole and citizens, in particular, which should be ensured by a well-formed anti-corruption worldview. Persons who must have competencies can be divided into the following two groups: basic competencies, which presuppose the possession of key knowledge, skills to ensure the formation of an anti-corruption worldview, its implementation in one’s life. Professional competencies that allow you to successfully perform functions that are directly related to combating corruption, including as part of the implementation of public anti-corruption control procedures.

Институт завещания в праве зарубежных стран

In the article considers the institute of will and peculiarities of its legal regulation in foreign countries. The author analyzes the main current legislation in this area, the mechanism of implementation, conducts a comparative legal and historical analysis of the institute of will.

On the question of the place and role of the inheritance contract as a novelty of Russian legislation in the system of agricultural land turnover

This paper presents the results of a systematic analysis of the design of inheritance by contract, which is quite new for Russian legislation and its place in the system of agricultural land turnover. This novel was introduced in 2019 and, of course, received some critical assessment from both legal scholars and law enforcement officials. The paper raises a number of issues related to some unequal characteristics of the rights and obligations of the testator and the heir, possible difficulties in applying within the framework of inheritance of agricultural land. In fact, the parties to the inheritance agreement, based on the right regulation of their status, have unequal opportunities to protect their interests, the testator is endowed with greater will and freedom when making and implementing this transaction. Nevertheless, the formation of new norms in legislation, especially in the civil law sphere, has a direct significant impact on the sustainable development of the agro-industrial complex in particular and, in general, on the self-determination of Russian statehood and its integration into the world system. The author analyzes the results of the legal regulation of this institution in foreign legislation, as well as examines historical experience. A study of the inheritance system in other states, as well as a comparative legal analysis of the legislations of various countries, has been conducted. In the course of the study, the author comes to the conclusion that there is a need for more detailed regulation and legislative regulation of this institution, working out clear criteria for distinguishing an inheritance contract from inheritance by will, as well as eliminating practical difficulties for using it in the agro-industrial complex, including when inheriting agricultural land.

Regularisations of Irregularly Staying Migrants in the EU. A Comparative Legal Analysis of Austria, Germany and Spain

Regularisations of Irregularly Staying Migrants in the EU. A Comparative Legal Analysis of Austria, Germany and Spain

Общетеоретические и межотраслевые проблемы противодействия коррупции: современное состояние

Corruption is one of the main threats to the national policy of the Russian Federation, impeding socio-economic development, the effective functioning of public authorities and the formation of civil society. Corruption control should be carried out as a result of a systematic approach aimed both at identifying offenses and eliminating the causes of their occurrence. The main provisions of national legislation aimed at combating the socio-legal phenomenon under consideration, as well as the norms enshrined in international legal acts, are studied. It is concluded that the Russian legislation aimed at countering corruption activities is an interdisciplinary institution, as a result of which it is based on the norms of various branches of law, in particular, criminal, administrative, civil and others. One of the features of countering corruption in the Russian Federation is the use of the most stringent repressive measures, which is expressed in legal formalization and standardization. The trends in tightening measures of criminal and administrative legal means, sanctions for violation of restrictions and prohibitions, as well as strengthening control over ongoing anti-corruption activities are highlighted. As a result of the comparative legal analysis, it is noted that the corruption control in the Russian Federation is carried out through mandatory norms enshrined in criminal and administrative legislation, which is due to the complex corruption situation in the state.

ՊԵՏՈՒԹՅԱՆ ԳԼԽԻ ՍԱՀՄԱՆԱԴՐԱԿԱՆ ՊԱՏԱՍԽԱՆԱՏՎՈՒԹՅԱՆ ՀԻՄՆԱՀԱՐՑԵՐԸ ՍԱՀՄԱՆԱԴՐԱԿԱՆ ԲԱՐԵՓՈԽՈՒՄՆԵՐԻ ՀԱՄԱՏԵՔՍՏՈՒՄ

The work is dedicated to the powers of the President of the Republic of Armenia and issues of constitutional responsibility in the context of the 2015 constitutional amendments. Historical and comparative legal analysis presents the evolution of the constitutional institution of the president in the Republic of Armenia, examines the demands presented to the presidential candidate, the powers of the head of the state and the structures of their implementation according to the Constitution adopted in 1995, then the constitutional amendments of 2005 and 2015. The issues of positive and negative constitutional responsibility of the presidents of RA and other states, the grounds and procedure for the dismissal of the president are also a subject of study. It is noted that it is a primary task for the President of the Republic of Armenia to observe the observance of the Constitution, as this duty derives from the constitutional position of the head of the state. The head of state is the highest official who carries out the highest representation of the state both in domestic and international relations. ensures the continuity of state institutions, acts as the guarantor of the constitutional order, integrity and independence of the state. The analysis of the international constitutional practice proves that the head of the state can occupy a different place in the system of state power. In a number of countries, the institution of the head of state is not provided in any branch of the state power, or it is provided in the legislative and executive powers at the same time, or only in the executive power. In the Republic of Armenia, the institution of the head of the state is under development due to changes in the form of government formed as a result of constitutional changes in the country.

Меры противодействия недобросовестным торговым практикам на зарубежных биржевых товарных рынках

Currently, one of the reasons for the increase in fuel prices at trading on exchanges is the use of unfair exchange practices by trading participants, which has been repeatedly emphasized by the Russian Ministry of Energy and the Federal Anti-Monopoly Service. The concept of “unfair trading practices” is not enshrined at the level of statutes and regulations of the Russian Federation, and therefore, exchanges determine actions that relate to such practices at their own discretion, which entails, in particular, regulatory risks for exchanges, and may negatively affect the market as a whole. This article analyzes foreign practice in terms of the level of enshrinement of types of unfair practices: the legislative and/or local level, as well as analyzes the types and criteria of unfair practices in order to further analyze the implementation of foreign experience in Russian laws or local instruments of exchanges. As a result of a comparative legal analysis, it was revealed that in each jurisdiction there is regulation of unfair practices both at the legislative level and at the level of trading rules, their types and criteria are established, which allows us to conclude that the regulation of unfair behavior in stock trading is an area in which the participation of both an exchange and the state is required, including in terms of establishing criteria and types of such behavior.

A Comparative Legal Analysis of the Right to Adequate and Quality Education

A Comparative Legal Analysis of the Right to Adequate and Quality Education

Функциональная децентрализация государственного управления: релевантность заимствования опыта зарубежных стран

The paper undertakes a comparative legal analysis of the legal status elements of the Russian Federal Service for Supervision of Communications, Information Technology and Mass Media and the French National Commission on Informatics and Liberty (Commission nationale de l’informatique et des libertés; hereinafter – CNIL, Commission). The purpose is to activate the deficient researchers’ attention to the problem of functional decentralization of public administration. The authors propose a definition of functional decentralization of public administration. The paper notes the contradiction between the commodification of services provided by CNIL and its democratic nature. Particular attention is paid to the possibility of vesting independent administrative authorities with legislative powers. It is argued that the peculiarities of CNIL’s human resource capacity should be explained through intentionality of the state. It is emphasised that the sanctions imposed by CNIL do not have the force of res judicata, which entails the authors’ conclusion on untenability of the theory proclaiming jurisdictional immunity of independent authority. The explicable impossibility of absolute independence of the commented de-etatisation phenomenon is substantiated in terms of correlation of autonomy and autarky. It has been revealed that a possibility of hypertrophied conceptualisation of autonomy of independent administrative bodies serves to be a structural drawback of the concept of functional decentralization of public administration. It is asserted that the direct linkage between the subject of governance and the managed object should be considered as a substantive feature of functional decentralization of public administration. It has been established that the introduction of the institute of independent authority in the public administration system should be preceded by consideration of relevant factors. The paper notes the deficit of theoretical studies on functional decentralization in the legal literature of the Russian Federation. The ensuing conclusion is that the development of the discussed concept within the framework of the Russian institutional landscape is possible at present only at the theoretical level.

К вопросу о классификации следственных групп на основе сравнительного анализа уголовно-процессуального законодательства Российской Федерации и США

The authors in the content of the article carries out a comparative legal analysis of the criminal procedural and departmental legislation of the Russian Federation and the United States of America regulating the processes of organization and activity of investigative groups formed in the system of law enforcement and investigative bodies of these states. It is noted that the criminal procedure legislation of the United States, due to the peculiarities of the Anglo-Saxon system of law, has many differences in the field of regulatory regulation of criminal proceedings, especially pre-trial stages. The author defines the preliminary investigation bodies of the Russian Federation and the investigative bodies of the United States, whose structure provides for the possibility of organizing and operating investigative groups. Thus, it is determined that these bodies in Russia, in accordance with the criminal procedure legislation of the Russian Federation, include investigative bodies of the Investigative Committee of the Russian Federation, as well as investigative units of internal affairs bodies. In the law enforcement and law enforcement practice of the United States, the investigative bodies include, in accordance with national legislation, the police, as well as the Federal Bureau of Investigation, while it is established that the form of investigation is an inquiry carried out by the judicial authorities authorized to investigate crimes. In the substantive part of the presented article, the author analyzes the provisions on the classification of investigative groups of investigative bodies of the Russian Federation and the United States, that is, on the types of investigative groups provided, the grounds for their division into types depending on the grounds defined by legislation. Thus, it is determined that investigative groups of Russian investigative bodies can be formed in the divisions of the relevant investigative bodies on the grounds provided for in Part 1 of art. 163 of the Criminal Procedure Code of the Russian Federation, at the same time, similar grounds for the creation and assignment of an investigation to an investigation team are also enshrined in American criminal procedure legislation. As a rule, such grounds are the complexity of the criminal case (meaning the complexity in the process of investigation, collecting evidence, evidentiary information and attaching them to the criminal case), as well as a large amount of procedural and (or) other work on the criminal case. Another similar aspect in the context of comparative legal analysis of investigative groups of law enforcement agencies of the Russian Federation and the United States is the possibility of organizing investigative and operational and interdepartmental groups. However, according to US law, the organization of investigative and operational groups is directly provided for by the norms of departmental legislation, and according to the legislation of the Russian Federation, the possibility of organizing investigative and operational groups (as well as interdepartmental ones), unfortunately, is not provided, as a result of which the procedural registration of the creation of such groups is reflected exclusively in the acts of the bodies of inquiry. In conclusion, the author also analyzes the features of the creation of investigative groups of US law enforcement agencies associated with the wide differentiation of investigative groups depending on the activities carried out: the investigation of certain types and categories of crimes; the formation, accumulation, systematization and improvement of law enforcement practices related to the activities of investigative groups to investigate crimes; the permanent nature of the activities of various investigative teams, which determines to a certain extent their effectiveness.

Penitentiary liability for environmental crimes

Speaking about the social importance of preventing crimes in the field of the environment, it is worth noting the danger of consequences caused by these acts. The planned course of the policy of humanization of criminal law has an ambiguous effect on the reduction of environmental crimes. As a result, in places of deprivation of liberty there are persons convicted (including for environmental crimes) in respect of which cases of acquiring the status of a persistent violator of the sentence serving regime are not excluded. The article discusses the problems of changing the legal status of those convicted of environmental crimes. A structural, retrospective and comparative legal analysis of the concept of «malicious violator» in the legislation is carried out. The study analyzes the points of view of scientists who determine the legal personality of a convicted person for environmental crimes. On their basis, the goals and objectives are synthesized to establish the doctrinal positions of the legal personality of malicious violators of the penitentiary regime, their features and specific features are given. In particular, the issues of the emergence of their legal capacity, capacity to act and «delictual capacity» are disclosed. Summarizing the discussion conducted in the study, the authors cite their own concept of a malicious penitentiary violator, highlighting the special legal status of a convicted person for crimes in the field of ecology.

Codification of general principles of administrative law

On the basis of the method of historical and comparative legal analysis the experience of codification of the general principles of administrative law of the CIS member states has been studied. The vast majority of codification was carried out by adopting the German model of legislative regulation of administrative procedures. The analysis of reception required the reference to its source — the German model of partial codification of the General Part of Administrative Law. As a result of the study, three models of interaction of the general principles of administrative law and their codification have been identified. The first model is marked by the development of the judicial doctrine of the general principles of administrative law and their subsequent codification. The second model is distinguished by the codification of the general principles of administrative law with the necessity of their subsequent development in the judicial and scientific doctrine. The introduction of the general principles of administrative law by borrowing a foreign codified act due to the resistance of local law, as well as the lack of judicial and scientific doctrine, can create conditions for the emergence in administrative law of a significant gap between “law in books” and “law in action”. In addition, the third model, characterised by the absence of codification of the general principles of administrative law and their differentiated regulation in sectoral laws, has been identified. It has been established that the effectiveness of the general principles of administrative law depends not only (and even not so much) on their legislative consolidation, but on the intensity and quality of judicial activism in the relevant legal system. Moreover, in some legal systems a significant contribution to the identification and development of general principles of administrative law is made by constitutional courts, in other legal systems — by administrative courts.

Социальное государство как универсальное средство обеспечения модернизации российской экономики

The subject of the study is public relations related to ensuring state policy in the social sphere and strengthening the foundations of the welfare state in Russia. The purpose of the work is to develop theoretical ideas about the doctrine of the welfare state and its practical implementation in the legislation of the Russian Federation. Due to the analysis of theoretical approaches to the definition of the concept of "social state" from a legal point of view, it has been established that at present there is an urgent need to clarify the substantive content of the concept of a social state. Through a comparative legal analysis of federal and regional legislation in the social sphere, the need for the adoption of a social code has been identified, which should be valid throughout the state due to the fact that a huge array of normative legal acts, legal documents related to the socio-economic sphere of life of Russian society, not only complicates the work of state bodies designed to ensure the implementation of the doctrine of social the state, but also the realization of human and civil rights and freedoms on the territory of Russia. It is concluded that the social doctrine of the Russian Federation should proceed from the spirit and letter of the Constitution of the Russian Federation, the principles of social justice and social equality based on the understanding of the welfare state, assuming mutual responsibility of citizens, society and the state.

The constitutionalisation of private law: Comparative analysis

This article is divided into four parts. The first part discloses the definition of constitutionalisation of private law, which means the influence of fundamental (constitutional) human rights on private law. The second part is devoted to the analysis of the key issue related to the topic of constitutionalisation of private law — how and to what extent fundamental (constitutional) human rights influence private law. In this regard, the four models of private law constitutionalisation identified in comparativism and the pro/contra arguments for each of them are examined. The third part of the article examines which of these models is embodied in foreign legal orders (in particular, Germany, the Neatherlands, Canada, South Africa and the UK). The author concludes that the most widespread is the model of indirect influence of fundamental human rights on private law. The fourth part of the article provides a comparative legal analysis of the application of the indirect model of constitutionalisation. This model identifies two approaches that characterise the attitude of foreign lawmakers to human rights provisions in different ways. The first approach, the “strong” indirect model, assumes that human rights provisions enshrine rights that constitute binding rules. This approach is represented in particular in the UK. The second, the “weak” indirect model, views human rights provisions as enshrining values and being principles to be taken into account alongside other circumstances. This approach is represented in particular in Germany.

РАЗВИТИЕ ГРАЖДАНСКОЙ СЛУЖБЫ РОССИЙСКОЙ ФЕДЕРАЦИИ: ЭКСПЕРТНЫЕ ИДЕИ И ПРАВОВЫЕ РЕАЛИИ

The purpose of the article is to summarize the positions of modern domestic scientists on key problems in the development of the civil service, to assess how these problems have been solved in recent years at the regulatory level, and to develop recommendations for further directions of development. An institutional approach, methods of bibliometric analysis of scientific publications and subject-thematic classification by key (thesaurus) words were used. The method of comparative legal analysis was used to assess the degree of fulfillment of the tasks set in the “Main Directions for the Development of the State Civil Service of the Russian Federation” and plans for their implementation in 2016–2018 and 2019–2021. Some proposals for the development of the civil service institution of the Russian Federation are formulated using methods of legal modeling and thought experiments. Some proposals are developed related, in particular, to highlighting the status of an official as a qualifying feature when adjusting the legislation on the civil service, as well as to extending the status of public officials to all types of public sector organizations. The potential of digital transformation is proposed to be used to fix the connection between the volume and quality of implementation of government functions (powers), on the one hand, and the number of civil service positions and budgetary expenditures for their financing, on the other.

Comparative legal analysis of guarantees of independence of judges (on the example of Ukraine, Georgia and the Republic of Moldova)

Comparative legal analysis of guarantees of independence of judges (on the example of Ukraine, Georgia and the Republic of Moldova)

Customs monitoring experiment: administrative and legal characteristics

The purpose of the work is an administrative and legal analysis of customs monitoring, an experiment on which has been launched since April 3, 2023. The subject of the study is the institute of customs monitoring, which has an administrative and legal nature and acts as a measure ensuring customs control. The author highlights the features of the regulatory regulation of customs monitoring, conducted a comparative legal analysis of customs monitoring with other types of monitoring, in particular with tax monitoring. The paper identifies the time and subject limits of customs monitoring, gives a description of its information support Formal legal and comparative legal methods, the method of system analysis and analysis of normative legal acts were used as research methods. The result of the work was the analysis of the regulatory framework of the Institute of customs monitoring, the characteristics of its evolution, the allocation of influence on the regulation of customs monitoring of legislation on state control (supervision), tax legislation. The characteristics of the information support of customs monitoring by the customs authorities and the participants of the experiment are given, the circle of participants and the period of the experiment are determined, as well as the frequency of collecting information for customs monitoring. A special contribution of the author to the study of the topic is the positioning of customs monitoring as a measure ensuring customs control and aimed at solving fiscal problems of the state. Noteworthy is the conclusion about the incompleteness of administrative and legal regulation of the institute of customs monitoring, the limitations of its use.

ПРАВО ЮРИДИЧЕСКОГО ЛИЦА ХРАНИТЬ МОЛЧАНИЕ: СРАВНИТЕЛЬНО-ПРАВОВОЙ АНАЛИЗ

The article discusses theoretical and practical problems of implementing one of the most important principles of criminal procedural law - the principle of the prohibition of self-incrimination through the implementation of the right to silence. The relevance of the topic is due to the reform of the criminal procedural legislation of various countries, including the Republic of Armenia, which provides for a special procedure for criminal proceedings against legal entities due to the reorganization of criminal procedural legal relations. The author clarifies some legal issues about the right to silence of a legal entity as an accused, and conducts a comparative legal analysis of various legislations and judicial practice of foreign countries.

Some features of legal regulation of higher and postgraduate education in Kazakhstan and the USA

The education system in Kazakhstan has been continuously developing since independence, with each passing year gaining new momentum and setting itself certain tasks towards the formation of a national model of education, including higher and postgraduate education, aimed at improving the quality of training of human resources, meeting the needs of the individual, society, and the state. The research aims to conduct a comparative analysis of the legal regulation of higher and postgraduate education in Kazakhstan and the United States.The scientific significance lies in a comprehensive analysis of the legal regulation of higher and postgraduate education in Kazakhstan and the United States.The practical significance is to develop proposals for improving the Kazakh legislation in the field of higher and postgraduate education based on the best practices of the United States.The research was conducted using the method of comparative legal analysis, formal-logical, historical legal, and system-analytical methods.The value of the research lies in its provision of a comprehensive overview of the legal regulation of higher and postgraduate education in Kazakhstan and the United States. The research results can be used to improve Kazakh legislation and develop programs for the development of higher and postgraduate education.

Российский конституционализм 30 лет спустя

Introduction. The actualization of the processes of improving constitutional prescriptions in modern Russia necessitates the search for the theoretical foundations of constitutional reforms. The reason for writing the article was the anniversary date – the 30th anniversary of the adoption of the Constitution of the Russian Federation. Any anniversary is always an occasion to reflect, analyze, return to the times when everything began. As the purpose of the analysis of the evolution of Russian constitutionalism, it is possible to define a rethinking of approaches to models, methods and tools for changing the legal reality. Materials and Methods. The transformation of the constitutional model of the state as a subject of scientific research in this work is based on the analysis of the transformations of the Constitution over three decades, the study of domestic experience in the legal regulation of public relations, the interpretation of constitutional provisions and institutions. Analysis. The Constitution of the Russian Federation defines the structure and principles of the organization of public power, the rights and obligations of citizens and much more. However, despite its importance, the Constitution of the Russian Federation, as well as the basic laws of other countries, does not always correspond to the realities of life and needs constant updating and improvement. Results. The article is devoted to the study of constitutional transformations in the aspect of retrospective and comparative legal analysis of some constitutional and legal institutions – federalism, public power, special attention is paid to the evolution of constitutional guarantees of the realization of human rights and freedoms.