Self-regulatory Organizations Research Articles

RESPONSIBILITY OF MEMBERS OF SELF-REGULATING ORGANIZATIONS: PECULIARITIES AND PROBLEMS OF REGULATION IN THE REPUBLIC OF KAZAKHSTAN

In the scientific literature, the understanding of the legal nature of the responsibility of members of self-regulating organizations causes conceptual discrepancies. This liability is considered as a separate type of legal liability based on civil law principles. In the laws regulating issues of self-regulation with mandatory participation, the concept of disciplinary misconduct is used, which leads to the use of the name of this responsibility as «disciplinary». Nevertheless, the special grounds for the liability of members of a self-regulating organization, the subject composition and the nature of legal relations make it possible not to identify the responsibility in question with disciplinary liability in labor and administrative law. The Law on Self-Regulation and legislative acts concerning mandatory self-regulation contain the basics of regulating liability issues, but these norms need to eliminate contradictions. In addition, it is necessary to provide for the definition of the concept of responsibility of members of self-regulating organizations and its elements (misconduct, penalties). The study of internal documents of self-regulating organizations in terms of the responsibility of their members revealed the inconsistency of the content of the documents with certain requirements of the Law on Self-Regulation. Based on the results of this work, the specifics of the responsibility of members of self-regulating organizations are noted, the features and shortcomings of the regulatory regulation of this institution in the Republic of Kazakhstan are identified, facts of violations of legal norms in law enforcement practice are revealed, and differences in the approaches of organizations to choosing the procedure for bringing to responsibility and determining liability measures are established. Solutions are proposed for the identified shortcomings. The conclusions obtained in the course of this study can be used in scientific research and legislative work.

Саморегулівні організації: юридичні особи на межі приватного і публічного права

The article analyses the legal status of self-regulatory organisations (SROs). These organisations are formed among the actors of various types of professional and business activity (lawyers, doctors, auditors, accountants, etc.), but the notion ‘self-regulatory organization’ has started to be used in legislation only recently. The main function of these organisations is to carry out self-regulation, i.e. to regulate the activity of their own members by adopting rules of conduct and monitoring compliance with them. However, these organisations often acquire regulatory powers not only from their members, who voluntarily agree to be subject to their regulation, but also from the state, which delegates to them or recognizes their public regulatory powers. This creates a kind of paradox: on the one hand, SROs are established in a manner typical of private law entities. However, on the other hand, their activities acquire the features of administrative activity. This raises a number of issues in law enforcement practice. Firstly, there are difficulties with the type of legal regulation that should be applied to the activities of these organisations - general permissive or special permissive. Secondly, the issue of court jurisdiction is ambiguous as well, i.e. which courts (administrative or commercial) have competence to resolve disputes arising between self-regulatory organisations and their members. Thirdly, the issue of compulsory membership in self-regulatory organisations is also quite acute, as this may lead to a violation of the right to freedom of association. Finally, the question of whether SROs are liable in the event of damage caused by them when exercising public authority is also ambiguous. There is a question concerning the conditions of their liability: shoud these be general conditions (Articles 1166-1167 of the Civil Code of Ukraine) or special conditions according to the rule of ‘truncated’ composition, which is typical for the liability of public authorities (Article 1173 of the Civil Code of Ukraine). This article provides a detailed analysis of these and other issues and outlines the ways to resolve them

Reducing privacy risks of China's healthcare big data through the policy framework.

While healthcare big data brings great opportunities and convenience to the healthcare industry, it also inevitably raises the issue of privacy leakage. Nowadays, the whole world is facing the security threat of healthcare big data, for which a sound policy framework can help reduce privacy risks of healthcare big data. In recent years, the Chinese government and industry self-regulatory organizations have issued a series of policy documents to reduce privacy risks of healthcare big data. However, China's policy framework suffers from the drawbacks of the mismatched operational model, the inappropriate operational method, and the poorly actionable operational content. Based on the experiences of the European Union, Australia, the United States, and other extra-territorial regions, strategies are proposed for China to amend the operational model of the policy framework, improve the operational method of the policy framework, and enhance the operability of the operational content of the policy framework. This study enriches the research on China's policy framework to reduce privacy risks of healthcare big data and provides some inspiration for other countries.

REGULATION OF THE PROFESSIONAL ACTIVITY OF LEGAL CONSULTANTS

Abstract. Legal consultants are the important component of the system of ensuring legal and social protection of the population, as well as maintaining law and order and justice in society. The importance of the professional activity of these persons determines the need to establish requirements for their qualifications and for the organization of the activity itself. This article examines the historical experience and features of state and alternative regulation of the activities of legal consultants. The initial regulation of the activities of persons providing paid legal services, from 1997 to 2005, was carried out at the state level through licensing and state control, then the activities of these persons were regulated in a civil law manner. In 2018, a specialized legislative act defined the status of a legal consultant and chambers of legal consultants, as well as fixed the mechanism for self-regulation in the field of legal assistance with mandatory participation of consultants in a self-regulatory organization. The article examines the provisions of legislative acts regulating the procedure for regulating the activities of legal consultants. Currently, the state imperatively establishes regulatory requirements for the qualifications of legal consultants, and also indirectly influences their activities by exercising regulatory, implementation and control functions in relation to the chambers in which they are members. In the context of self-regulation, it is the chambers that directly affect the activities of legal consultants, since they are endowed with regulatory and supervisory powers in relation to their members. The results of this study are to identify the specifics of regulating the activities of legal consultants, through different periods, as well as to identify the individual shortcomings of the current regulatory mechanism both in legislative acts and in practice of their application, with the development of proposals to eliminate them.

Self-Regulatory Organizations in Penal Institutions: Experience of Past Years and Legal Novelties in the Conditions of the Establishment of Penitentiary Probation

Self-Regulatory Organizations in Penal Institutions: Experience of Past Years and Legal Novelties in the Conditions of the Establishment of Penitentiary Probation

Проблемы разграничения деликтной и договорной ответственности саморегулируемых организаций

в статье анализируется возможность привлечения к солидарной ответственности саморегулируемые организации, членами которых являются застройщики, причинившие вред третьим лицам в результате строительных работ, не отвечающих требованиям безопасности. Вопросы юридической ответственности, традиционно, являются дискуссионными не только в науке гражданского права, но и в юриспруденции в целом, особенно если речь идет о нетипичных субъектах. Анализ реализации норм об ответственности и особенностях правового статуса саморегулируемых организаций в строительной сфере и их членов указывает на то, что тенденции развития уже устоявшегося процесса саморегулирования направлены на самостоятельное, практически без вмешательства государства, формирование моделей взаимодействия с различными хозяйствующими субъектами. С учетом того, что саморегулирование, как правило, рассматривается в качестве одного из способов социального регулирования общественных отношений необходимо стремиться к балансу прав и законных интересов как лиц, осуществляющих предпринимательскую или профессиональную деятельность, так и иных лиц, чьи права могут быть затронуты. Автор на основе анализа действующего законодательства, исследуемой судебной практики, а также доктринальных подходов приходит к выводу о том, что саморегулируемая организация может быть привлечена к гражданско-правовой ответственности за действия третьих лиц (застройщика). the article analyzes the possibility of bringing to joint responsibility self-regulatory organizations, whose members are developers who have caused harm to third parties as a result of construction works that do not meet safety requirements. Issues of legal responsibility are traditionally debatable not only in the science of civil law, but also in jurisprudence in general, especially if we are talking about atypical subjects. An analysis of the implementation of the norms on responsibility and the peculiarities of the legal status of self-regulating organizations in the construction sector and their members indicates that the trends in the development of the already established process of self-regulation are aimed at independently, practically without state intervention, the formation of models of interaction with various business entities. Taking into account the fact that self-regulation, as a rule, is considered as one of the ways of social regulation of public relations, it is necessary to strive for a balance of rights and legitimate interests of both persons engaged in entrepreneurial or professional activities and other persons whose rights may be affected. The author, based on the analysis of current legislation, the studied judicial practice, as well as doctrinal approaches, comes to the conclusion that a self-regulating organization can be held civilly liable for the actions of third parties (the developer).

К вопросу о правовой характеристике членства в саморегулируемой организации

The article draws attention to the fact that the legal status of a member of a self-regulating organization is built on the basis of membership in the association, but at the same time it is supplemented and/or modified in connection with the special functionality of the status of a self-regulating organization, which primarily affects the list of responsibilities of members of these organizations, which are an instrument for ensuring the status of the self-regulating organization itself. It is proved that a sufficiently broad and unlimited measure of dispositivity in determining the corporate rights and obligations of members of self-regulating organizations does not have the best effect on the issues of protecting the interests of the members themselves and their exercise of corporate rights. The author also tracks the trend of involving self-regulation mechanisms in blogging activities.

Economic and legal aspects of consumer rights protection

The article is devoted to the study of the construction "protection of consumer rights as a component of the economic legal order". The sustainable development of our country can be solved in the context of ensuring the rights of consumers, since the development of the economy is not possible without the reliable functioning of the consumer market. Only a protected and confident consumer is able to create conditions for the sustainable development of the enterprise even in adverse conditions of large-scale military aggression. It is the consumer at the microeconomic level who decides on the direction of his money, thereby exerting a kind of economic influence on business entities. Therefore, the protection of consumer rights cannot be reduced only to the restoration of already violated rights, since this does not allow to prevent their repetition.
 It was concluded that the prevention of violations of consumer rights requires the state to implement a preventive approach to prevent and prevent such violations, which is possible within the limits of ensuring compliance with the economic legal order. For this, the state must ensure compliance with the requirements of legitimate economic activity, in particular, the rules on fair competition and prevent the abuse of a monopoly position and other types of distortion of competition, as well as manifestations of unfair competition in areas of economic activity related to the consumer sphere. These tasks can be solved only under the condition of the introduction of the appropriate state economic policy. In order to ensure the interests and rights of consumers, there should be a consolidated influence of state bodies, local self-government bodies, as well as self-regulatory organizations of business and consumers, which will ensure compliance with high standards of conducting business activities that take place in organizational and economic relations. Also, ensuring the observance of consumer rights should be carried out in the organic interconnection of economic-production and intra-economic rela­tions, as this allows for the creation of a system of compliance with the quality standards of goods, works and services sold to consumers.

Принудительные способы прекращения членства в саморегулируемых организациях: вопросы теории и практики

anization as a compulsory way to terminate membership in the named corporate organization. The author draws attention to the imperfection and inaccuracies of the procedure for excluding a member of the SRO, it is proposed to introduce a judicial procedure in relation to the named method of termination of membership in a self-regulating organization.

Basis for Legislating to Institutionalize Personal Deposit Protection System

The article conducts a legal analysis of approaches to understanding the nature of the powers of the Deposit Guarantee Fund for Individuals, impacting the institutional reform of the respective deposit guarantee system. The author delineates the powers of the Fund. According to the proposed approach, the powers of the Fund regarding the functioning of the deposit guarantee system are divided into two subgroups: managerial and entrepreneurial. Managerial functions aim to institutionalize the deposit guarantee system itself. They are oriented towards the interaction of the Fund with banks participating in this system rather than towards depositors. Entrepreneurial powers essentially represent a specialized form of commercial activity, involving measures to preserve and increase the funds collected from participants in the deposit guarantee system. Powers related to ensuring the functioning of the deposit guarantee system for individuals, both managerial and entrepreneurial, are inherent to the Fund and require further development in accordance with international standards and Ukraine’s European integration commitments. It is essential to ensure a balance between state intervention and self-regulation through market instruments in the relevant sphere. Additionally, regulatory, administrative, and supervisory powers are separately highlighted, primarily concerning the removal of insolvent banks from the market and bank liquidation procedures. During the institutional reform of the Fund, it is necessary to review these powers, taking into account their nature and the constitutional regulation of relevant legal relationships. In particular, it should be noted that the concepts of “deposit guarantee” and “deposit insurance” are legally distinct in nature. This is a crucial aspect that further elucidates the functional orientation of the Fund’s powers, the specific procedure of its formation, and, most importantly, its role and significance in the banking system of Ukraine. It is critically important for the entire deposit guarantee system for individuals, as well as the removal of banks from the market to be legally transparent and predictable. To achieve this goal, all main mechanisms, procedures, and forms of activity should be appropriately regulated at the legislative level. In this regard, the experience gained from the relevant legislative regulation of the activities of state “regulators” and the functioning of self-regulatory organizations in related fields can serve as a basis for further institutional reform of the deposit guarantee system in Ukraine.

Analysis of non-profit corporations' status in the Republic of Kazakhstan

Relevance. This paper holds the scientific and legal analysis of the status of non-profit organisations in the Republic of Kazakhstan in terms of the presence or absence of signs of corporations in comparison with similar legal entities under the legislation of the Russian Federation. The relevance of the subject under study is conditioned upon the fact that the civil legislation of Kazakhstan lacks norms on the definition and types of corporate organisations; and the science of civil law holds next to no studies on the legal status of non-profit organisations as corporations. Purpose. The purpose of this study is to identify the signs of corporations in the legislative acts of the Republic of Kazakhstan on non-profit organisations. Methodology. The study employed a comparative legal analysis and the application of international corporate governance principles to identify and evaluate the corporate characteristics of non-profit organizations in Kazakhstan. Results. The analysis revealed that Kazakhstani non-profit organizations exhibit almost all identified signs of corporations, such as non-distribution of profit among members, rights to participation, and the formation of supreme governing bodies. Special attention is given to self-regulating organizations (SROs), which, due to their public function and compliance with corporate governance principles, are proposed to be recognized as non-profit corporations. Conclusions. Based on the results of the study, the authors conclude about the need to classify self-governing organisations, including associations and unions based on professional membership of participants, notary chambers, bar associations, chambers of private bailiffs, etc., as corporate non-profit organisations.

ВОПРОСЫ НАДЕЛЕНИЯ САМОРЕГУЛИРУЕМЫХ ОРГАНИЗАЦИЙ ПУБЛИЧНО-ВЛАСТНЫМИ ФУНКЦИЯМИ: ПРОБЛЕМЫ И ПУТИ СОВЕРШЕНСТВОВАНИЯ

The article discusses the problematic issues of endowing self-regulatory organizations with public authority functions and powers aimed at exercising delegated functions. The author studies the essence of the representative, regulatory, organizational, accounting, control and jurisdictional functions of self-regulating organizations. The positive impact of the model of legal relations with the participation of self-regulating organizations, state executive authorities and participants of such organizations on the entire system of legal relations in the field of self-regulation is noted. Special attention is paid to the problems and contradictions that occur in the sphere of direct implementation of representative, regulatory functions by self-regulating organizations, as well as unnecessarily cumbersome control over their activities by the state. The ways of improving legislation in the field of performance of delegated public authority functions by self-regulating organizations are proposed. The conclusion is substantiated that the existence of such legislative problems as: the declarative nature of the representative function, excessive state interference in the regulatory function, cumbersome legislation in the field of control and supervision of SRO activities significantly reduces the functional potential of SRO and does not allow achieving the goals set in their activities.

Общественный контроль в строительстве: место и роль саморегулируемых организаций

Общественный контроль в строительстве: место и роль саморегулируемых организаций

A Commentary Article Reprinted from the July, 2021 Issue of Mealey's Emerging Securities Litigation Can An Investor Sue A Self-Regulatory Organization For Failing To Enforce Its Own Bylaws?

A Commentary Article Reprinted from the July, 2021 Issue of Mealey's Emerging Securities Litigation Can An Investor Sue A Self-Regulatory Organization For Failing To Enforce Its Own Bylaws?

방송·통신 영역에서 자율규제와 법제도 구성에 관한 고찰

Self-regulation can be defined as “an organized business group self-regulating the actions of its members to protect users.” If there is a need to respect the autonomous discipline of the business organization itself in a specific field, it would be good to introduce a self-regulation system. In newly emerging areas, areas that are rapidly changing or areas that require specialized or policy considerations, would be appropriate for business organizations in those areas to self-regulate because existing legal regulations do not reflect reality or cannot properly reflect reality. Even if a self-regulation system is introduced, the degree of legal intervention in the self-regulation system of business organizations may vary depending on the characteristics of the industry. If the scope of the area is diverse or subject to frequent change, the scope of self-regulation may be narrowed due to strong legal intervention, and in areas dealing with detailed, technical, and specialized matters, the private sector should be able to demonstrate efficiency and expertise. It is desirable to reduce the degree of legal intervention through self-regulation. In relation to freedom of speech, due to the constitutional order to guarantee the public’s freedom of expression as much as possible, state regulation should be minimized, and self-regulation by business organizations to replace it is judged to be effective. In addition, due to the emergence of new technologies and technological advancement in the field of broadcasting and communications, regulation by the existing positive system for industries in this field makes efficient industrial development difficult. However, as the provision of information through social media, Internet news, OTT services etc., the side effects caused by digital media exceeded a certain level and reached a level of social conflict and infringement of other people’s rights, countries around the world have started to regulate illegal information through national legal regulations. Self-regulation was judged to be insufficient to prevent the creation and distribution of false information, hate speech, etc. In order for a self-regulatory system to operate properly, it is important to secure the democratic legitimacy of self-regulatory organizations, operational transparency, independence, and enforcement of regulations. The German self-regulatory organization for multimedia service providers is the German Self-Regulation Organization for Multimedia Service Providers(FSM). The German Youth and Media Protection Committee approved FSM, a self-regulatory organizationy, to protect youth from media content. The United States is a country that operates a representative private self-regulation system. However, direct administrative regulations have recently become more prominent in the broadcasting and communications fields due to issues such as unfair trade or monopoly. The UK's self-regulatory organization is the Internet Watch Foundation(IWF). IWF carries out tasks such as deleting posts related to child sexual abuse, blocking access, and preventing search/access, and is operating a hotline as the most basic activity to make this possible. The Australian Communications and Media Authority(ACMA) is the broadcasting and communications regulator. ACMA is a government-affiliated organization and is a co-regulation model between the government and the private sector that supports and cooperates in the establishment of industry codes. The self-regulation system stipulated in Korea’s Information and Communications Network Act is actually close to administrative regulation. It is appropriate for information and communication service provider organizations to determine and implement a code of conduct for information and communication service providers, rather than a matter to be stipulated in the Information and Communications Network Act,

Entrepreneurial activity in the form of rendering services

The article discusses the main types of services as a subject of entrepreneurial activity. The literature discusses the ratio of works and services. The article gives the author’s definition of services. The features of the provision of services, a non-exhaustive list of which is listed in Article 779 of the Civil Code of the Russian Federation, are noted. The differences between consulting and information services are noted. The subjects of the provision of services and the requirements imposed on them (license, membership in a self-regulating organization) are indicated. Professional training is required for the provision of services, where appropriate. Examples of documentary confirmation of the qualifications of a person providing services are considered. Services are provided on the basis of contracts. The characteristic of contracts is given, as well as such conditions as confidentiality, quality of services, quantitative characteristics of services, ways of fixing the identified shortcomings of the quality of services are considered.

Formation of the mechanism of state antimonopoly policy on national consumer markets

The article examines the formation mechanism of state antimonopoly policy on national consumer markets. It was determined that the formation of the state antimonopoly policy takes place according to the state's general economic policy needs. The general economic policy of the state is established depending on the values inherent in the state in each changeable period. Depending on the values of the state, in a certain period, the goals of state regulation in general and goals of antimonopoly policy in particular form. Determined that the mechanism of formation of state antimonopoly policy includes and correlates the interests of state regulation, which correspond to the interests of the market participants majority and the interests of individual business entities. It was determined that the state component of antimonopoly regulation is subject to established norms and rules at the legislative level. Market participants, in addition to the norms and rules established by legislation, are influenced by the institutional environment. They are generally accepted market participants, norms, and rules that are not documented and not mandatory – established that an essential component of the mechanism of state antimonopoly policy formation on national consumer markets is the coordination of regulation between state authorities and non-state self-regulatory organizations consisting of market participants also interested in antimonopoly regulation. It is established that the results of antimonopoly regulation are aimed at the factors of sustainable socio-economic development, which in turn form the general economic policy of the state. Keywords: State regulation, antimonopoly policy, competition policy, mechanism of antimonopoly policy.

Self-regulation of audit activity: current state and development prospects

The proposed article discusses the current state and further development of the institution of audit self-regulation. The features of the system of regulation of audit activity are indicated, which, taking into account world experience, is based on a combination of regulation carried out by the Ministry of Finance of Russia, the Bank of Russia, with a self-regulation mechanism by the professional community of auditors. The features of the legal status of the self-regulatory organization of auditors are determined from the standpoint of its special functions, rights and obligations. In accordance with the legislation on audit activity, the governing bodies and specialized bodies of the self-regulatory organization of auditors, including the Committee of audit organizations in the financial market, are characterized. The provisions on the control powers of the Ministry of Finance of Russia for self-regulatory organizations are outlined. Attention is paid to assessing the real state of audit self-regulation, taking into account the negative trends that can be traced today in the field of audit self-regulation. The prospects for the development of self-regulation as “the main institution of the audit profession”, which will significantly reduce the negative trends of the current period of audit selfregulation, are determined.

Диагностика и развитие готовности к конкуренции

One of the tasks of modern education is to prepare future specialists for competition. At the same time, the em-pathy and humanistic values of representatives of socionomic professions make them relatively more vulnera-ble to the stress of competition, including the need to regularly maintain their competitive ability. Objective: to study students’ readiness to compete and to develop psychological means of its development. Methods: “The level of competitiveness”, “The level of ability to self-learning and self-education” (V.I. Andreev); correlation analysis. Sample: 46 students studying socionomic professions. Results: The prevalence of students’ average level of competitiveness and ability to self-education is revealed. A set of psychological education measures is developed, contributing to the formation of adequate ideas about competition, about the qualities that hinder self-education and competitiveness, the formation of skills of organization of developmental leisure and self-regulation in stressful situations, the development of productive solutions and the implementation of competi-tive interaction. Available methods are used, recommended for the activities of the psychological service and in the teaching of special courses in psychology.

Содействие достижению целей устойчивого развития и трансформации российского бизнеса посредством разработки новых финансовых инструментов

The article discusses the development of practices for the integrated application of ESG standards in the financial market, directly to the activities of financial organizations, as well as to financial instruments. The existing standards of self-regulating organizations are considered and proposals for the formation of a new accounting standard ESG are formed. ESG ratings are considered. Proposals have been formed for the development of new financial instruments and their reflection in legislation.