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Legal Science in China and Russia

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No 5 (2022)
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ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Правовое регулирование промышленного и аграрного сектора экономики

8-19 266
Abstract

This article presents a comparative analysis of the legal regulation of agricultural credit cooperation in Russia and China. The historical and legal evolution of the formation and development of agricultural credit cooperation in these countries is revealed, current trends are outlined. Legal models of agricultural credit cooperation in Russia and China are formulated. 

20-24 235
Abstract

This article analyses the special features of the legal regime for the public sector of the economy in the People’s Republic of China. The author analyses the effectiveness of Chinese laws from the perspective of consistency with the legal regulation of the public sector of the economy. The Chinese constitution and the leading laws that regulate the public sector economy are analyzed. Concludes that a three-sector economic model is emerging in China. The advantages and disadvantages of the respective legal system are pointed out. The article provides an assessment of the effectiveness of legal regulation of state-owned businesses in China.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Прокурорский надзор. Судебная система

25-36 245
Abstract

The Personal Information Protection Law of the People’s Republic of China (hereinafter referred to as Personal Information Law) has been officially implemented on November 1, 2021. The birth of this law embodies the idea of people-centered development and provides Chinese experience and solutions for the personal information protection problems faced by international society. This article focuses on the development of Chinese personal information law and explains the legislative purpose of Personal Information Law to further show seven highlights and two characteristics of it. Also, it puts emphasis on introducing Chinese procuratorial public interest litigation on personal information protection and points out the shortcomings of this existing system with a view to perfecting and developing the system value maximally.

37-45 262
Abstract

China’s Civil Code — Succession Book is codified on the basis of the Law of Succession, with both legislative improvement and institutional innovations. The legislative improvement is reflected in various systems such as intestate succession, testate succession and testamentary gift, disposition of estates; the institutional innovations are reflected in the systems of disinheritance, succession in subrogation, the form and validity of wills, and the administrator of the estate. In order to accurately understand and apply the Civil Code — Succession Book, safeguard people’s succession rights and interests, and promptly resolve succession disputes, the Supreme People’s Court promulgated the Interpretation (I) of the Succession Book, which is significant in refining the legal norms of succession, clarifying the application situations of the legal norms of succession, judging the validity of succession, and safeguarding the rights and interests of the parties concerned.

46-52 238
Abstract

Currently, each state is interested in the development and stable state of its economy. An important role in these matters is played by the supervisory authority of both States — the Prosecutor’s Office. Taking into account the significant role of the Russian Federation and the People’s Republic of China in the international arena, the author analyzed the genesis of development and the modern aspect of the prosecutor’s participation in the consideration of economic disputes by courts in the Russian Federation and the People’s Republic of China. At the same time, both the historical aspect of this issue and the current situation in science, theory, and practice are analyzed.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Уголовное право

53-63 229
Abstract

In recent years, crimes committed in the form of a credit trap have become widespread in China. The so-called credit trap crimes refer to various illegal and criminal actions carried out under the guise of private loans, which seriously violates the financial order and social order of the country, and there is also an increased public danger. Currently, China’s economy is in a transitional stage and the optimization of the business environment is an important part of economic development in the new era, while the stability and prosperity of the private lending market is an important guarantee for the optimization of the business environment. In accordance with the general trend of economic development in the new era, as well as in the context of criminal legislation to maintain financial and social order, the suppression of credit trap crimes and the fight against mafia-criminal forces generated by them are an important task in the round of Special Struggle to eradicate Mafia-criminal Groups. In the context of this Special struggle to eradicate mafia-criminal groups, many problems have arisen in the process of combating the crime of credit trap: firstly, the concept of credit trap is vague, as well as the criteria for the qualification of criminal acts related to credit trap are heterogeneous throughout the country; secondly, the confusion of the concept of the crime credit trap with the concept of usury; thirdly, there was a phenomenon of replacing a certain corpus delicti with the concept of credit trap, it is vague, as well as the criteria for the qualification of criminal acts related to the credit trap are heterogeneous throughout the country; secondly, the confusion of the concept of the crime credit trap with the concept of usury; thirdly, there was a phenomenon of replacing a certain corpus delicti with the concept of credit trap, as well as a court decision has characteristics of a stronger subjectivity, which seriously affects the fairness of justice. Therefore, it is only by clarifying the concept of credit trap and clarifying the criminal illegality of these acts that the crimes of credit trap can be accurately qualified in order to ultimately effectively stop that kind of crime.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Противодействие терроризму

64-72 321
Abstract

The right of existence, sacred inviolable, is the basic guarantee that protect life security and living conditions including right of life, health right and the right of survival guarantee, etc. However, it has been seriously trespassed by the increasing international terrorism since 1990s. Therefore, attacking terrorism and protecting the right of existence has became an urgent issue of the international community. The international law against terrorism should be improved and effectively carried out. Nowadays, the international laws against terrorism still require development and perfection, even though the framework of them has taken shape. Furthermore, existing international laws haven’t completely turned from “rules formulated on papers” to “provisions actually followed in operational link”.

73-80 291
Abstract

Terrorist crimes and extremist crimes have created a huge threat to state security, territorial integrity, social stability, economic development and social harmony in China. Persons who commit violent terrorist crimes have the following characteristics: a low level of culture, a decrease in age, an increase in the number of female participants, a low-level profession. The organizational features of violent terrorist crimes are manifested in the following: terrorist attacks by "lone wolves", groups with a free structure and strict organization, a clear trend in the development of the transnational nature of terrorist organizations. Violent terrorist crimes in China, from the point of view of the mode of action, have the following classic features: an explicit political goal, a motive for religious heresy or national enmity, a variety of ways and cruelty of methods of carrying out terrorists of violent terrorist acts. In the terrorist attacks that took place, almost all the criminals fell under the influence of the ideas of violent terrorism before committing the terrorist attack.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Экологическое право

81-85 386
Abstract

The relationship between human society and the animal world is undergoing a qualitative renewal. It is becoming an increasingly clear and self-evident fact that many animals are intelligent and capable of feeling. Nevertheless, the path to the recognition, consolidation and protection of the natural rights of animals is thorny and meets the resistance of skeptics who perceive animals as movable things. Opponents of such a materialized attitude towards animals are becoming more and more every year. As well as legal norms designed to protect animals from abuse, and many of them from extinction. It is obvious that by itself a quantitative increase in legal norms aimed at protecting animals does not and cannot give an effective result, without a qualitative, ideological change in the attitude towards animals. It is necessary to recognize their natural legal personality and natural rights. In this humanistic field, the theoretical support is the attitude towards animals in medieval Europe, a distinctive feature of which is the recognition of legal personality and the right to life for animals. The legal nature of legal personality is a stumbling block for most lawyers both in Russia and abroad, which is exclusively associated with a person.
Nevertheless, the historical analysis of the legal regulation of relations between humans and animals suggests that animals were legal entities in previous historical epochs. The matter of recognizing the legal personality of animals becomes a challenge for caring, liberal-oriented jurists of our time. Excellent theoretical material in this case are the processes against animals in the Middle Ages.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Искусственный интеллект и право

86-92 411
Abstract

Artificial Intelligence (AI) Applications have already penetrated into people’s daily life, making the legal status of artificial intelligence an unavoidable topic nowadays. The legal personhood of AI, treated differently by scholars, is a controversial question. There are three different opinions about this, which are “Full Qualification”, “Limited Qualification” and “No Qualification”. Among them, the affirmative route equates personhood is the most thorough way to recognize the legal status of artificial intelligence. This route recognizes strong artificial intelligence as the legal personhood and is the most thorough way to recognize the legal status of artificial intelligence; The middle line upholds "Limited Qualification" and differential logic to classify it into the subject category, that is, to recognize that artificial intelligence has legal personality in essence; The negative route adheres to negative logic, and attempts to fundamentally address the legal status of artificial agents.
This negative route regards artificial intelligence as an object position in the legal rights structure, and is the most conservative research approach. At the normative level, most countries outside the region hold a supportive and open attitude towards artificial intelligence. The Legal Affairs Committee of the European Parliament took the first key step and pioneered the concept of "electronic person", drawing a picture of the legal status of strong artificial intelligence in the future. Russia and South Korea followed closely.
Russia adopted a binary characterization of artificial intelligence in the "Grischen Act", and South Korea borrowed the concept of "electronic person" from the EU in the "Basic Robot Act", and determined robot ethics and the basic principle of responsibility, at the same time, the Act clarifies the behavioral boundaries of designers, manufacturers and users of robots. On the one hand, by comparing the different theoretical routes and related legislation of the legal status of artificial intelligence, we need to face up to the impact of the times and technological development on the traditional physical system, recognize the differential order of objects, and affirmed that artificial intelligence has the status of legal subject. On the other hand, with the support of algorithmic rules, artificial intelligence can create rules and actions, and enter the core of rights elements, especially its deep learning ability, which can make it eventually surpass the "object status", and then complete the evolution from "tool" to "intelligent agents". In this sense, it is reasonable to take the form of “technical person” to identify subject qualification of AI: as for the acquisition and termination of subject qualification, it is essential to set conditions for registration and procedural requirements; as for property legal liability, weakening the relevancy between property and personality to give AI a kind of subject qualification similar to non-incorporated organizations’; in addition, in terms of non-independent subject qualification, the owner or the administrator should bear joint and several liability or bear supplementary joint and several liability for the AI’s conduct to safeguard commercial transactions.

93-103 243
Abstract

The problem of the admissibility of compensation for harm caused to the health of a person by an act committed before his birth, in particular, due to editing of the genome of human germ line cells, is investigated. It is argued that in the case of a live birth, a child acquires the right to compensation for property and moral damage caused by an act committed before his birth. It is substantiated that such an act is illegal, as violating an objective right and encroaching on an intangible good (health) protected by law. Due to the fact that the modern level of development of science and medicine allows to directly affect human health long before it is born, such an intangible good as health should begin its legal existence "in anticipation" of the subject of civil law due to its special significance for the future participant of property and personal non-property relations that constitute the subject of civil law regulation.

104-112 374
Abstract

The article examines the issues of reproductive technologies, both at the national and international level; positive and negative aspects of activities in this area. Various limitations in the field under consideration (for example, the choice of gender), factors affecting the quality, level of health and life expectancy of a person are considered. The possibility of reconfiguration of traditional kinship position sin the course of biotechnological lymediated childbearing is noted. From the authors’ point of view, possible solutions are proposed, including legislative ones that can transform the situation under consideration in a positive way.

113-120 374
Abstract

As part of the study, the author proposed the concept of a surrogacy contract — this is an agreement that is a substantive element of the contract for the provision of a comprehensive medical service aimed at overcoming the reproductive dysfunction of the parents (customer) through non-invasive replacement of unhealthy reproductive organs of the parents (customer) with healthy reproductive organs of the reproductive donor assistance of medical support of a specialized medical institution accredited to carry out the relevant procedures. Taking into account the subject of this agreement, the position is argued that its regulation should relate exclusively to the civil law plane as a kind of contract for the provision of services for compensation. The essential conditions of such an agreement are indicated: the subject matter, the irrevocable consent of the reproductive donor to record the customer as parents, as well as the amount of monetary compensation equivalent to the temporary loss of health of the reproductive donor in connection with the fulfillment of the obligations assumed under the contract. The author points out that this method of infertility treatment is a kind of donation that has certain specific features, in particular, it does not require the removal and transfer of reproductive donor organs to persons suffering from reproductive dysfunction. This also determines the essence of the role performed by the reproductive donor — the temporary provision of a healthy reproductive system for carrying an implanted embryo.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Гражданское право. Право социального обеспечения

121-127 282
Abstract

From the standpoint of the Convention on the Rights of Persons with Disabilities, the state of society and the basis of the legal status of persons with disabilities in Russia and China are considered. The existing private legal means of their socialization are revealed. 

128-140 247
Abstract

The Article 33 of the Chinese Civil Code provides written voluntary guardianship agreements and the Article 11 of the newly issued Interpretation provides arbitrary rescission rights and statutory rescission rights concerning the agreements. Some aspects related to exercising the rescission rights including fiduciary relationship, time limit, legal effects and circumstances, are interpreted in detail in this paper firstly and then rescission rights by agreement stipulated in the Article 562 of the Chinese Civil Code are discussed in terms of connotation and civil subjects. There after, the two principles including the principle of best interests and the principle of protecting self-determination rights for exercising rescission rights are examined in theory and in practice. In the end, in terms of practical application of rescission rights, it is pointed out that some problems regarding possible abuse and time limit of rescission rights remain to be solved for the future interpretation of the Chinese Civil Code.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Защита авторских прав

141-146 398
Abstract

 The article is devoted to the development of the creative industry related to art, the analysis of two main concepts of the legal protection of works of literature and art, as well as the social consequences associated with the  development of a utilitarian approach to the legal protection of works as the results of creative work. The article concludes that within the framework of the creative industries, adequate conditions for the creation of in-depth works cannot be created and adequate copyright protection can be provided to them. 

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Конкурентное право

147-155 308
Abstract

俄罗斯竞争法制始于1908年,以美国的《谢尔曼法》为基础来设计反垄断法制,并出现了 规范竞争关系的规则。俄罗斯在1965年通过加入《保护工业产权巴黎公约》,规定防止不公平竞 争的规则,但是苏联经济具有行政指挥性质,没有真正的竞争。随着戈尔巴乔夫改革,苏联国内 经济发展指导思想发生了变化,国内经济发展也带来了对竞争规制的紧迫感,并在竞争法领域得 到体现,出现了将竞争视为法律的直接目标的法规。1991年3月22日,《商品市场竞争和限制垄 断活动法》通过,成为了俄罗斯竞争法发展的重要阶段,这部法律也被认为是第一部为规范市 场行为者的活动奠定基础的法律。苏联解体后,在经济领域,俄罗斯明确提出以市场经济为取 向,迅速实行由计划经济体制向市场经济体制的转轨,这同时也导致了诸多不合法的竞争和垄 断行为的出现,也催生了新的竞争政策和法制的产生。1993年《俄罗斯联邦宪法》确立了规范竞 争的法律起点,为制定竞争法奠定了宪法基础。1994年《俄罗斯联邦民法典》的通过,竞争法的 发展进入了一个新阶段,禁止利用公民权利限制竞争和滥用市场支配地位,不公平竞争产生的义 务适用于市场受这种竞争影响。由于宪法和民法的颁布,俄罗斯联邦进一步修订《商品市场竞争 和限制垄断活动法》及相关法律,对不公平竞争的立法描述出现在《商品市场竞争和限制垄断活 动法》中,在自然垄断的情况下经营的商品市场受专门法律管辖。1998年金融危机后,俄罗斯认 识到反垄断政策既可以促进也可以阻碍经济政策的执行有效性,因此经济政策的方向和方法发生 了变化,竞争法也开始在新的监管领域发展起来。在整合《商品市场竞争及限制垄断行为法》和 《金融市场保护法》的基础上,于2006年7月26日通过了一项具有里程碑意义的联邦法律---《俄 罗斯联邦保护竞争法》,实现了对商品市场和金融市场的统一监管,并形成了以《俄罗斯联邦保 护竞争法》为核心的竞争法体系。后续通过相关法律的出台和配合,共同形成了一个较为系统和 完整的竞争法律体系,并且也在不断完善过程中进行制度的自我更新,不仅体现在完善这一领域 的法律法规、政策方面上,而且要体现在保护竞争的习惯规则方面,最终形成竞争法渊源的多元 化模式。随着国际经济形势变化、“一带一路”倡议和俄罗斯国内经济的变化,俄罗斯国内竞争 形势促使了竞争法制不断完善和更新,并在修订立法、更新制度、政策推新等方面出现了新的发 展,进一步完善持续推动俄罗斯市场经济的健康发展。

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Административное право

156-162 232
Abstract

The relevance of the article is due to the importance of the right choice of forms and methods of legal regulation to achieve the goals of administrative reform of public administration. On the basis of the study, the connection (influence) of the goals and objectives of the Russian administrative reform in the 2000s is shown. with the applied administrative and legal methods to achieve them.
A number of normative legal acts are considered, which form the basis for the application of modern forms and methods of administrative regulation to solve these problems. It is concluded that a new stage of administrative reform is currently underway, due to constitutional novels.
Suggested directions for scientific research in order to further reform Russian public law institutions.

163-174 255
Abstract

This article analyzes the theoretical and practical problems of the current legislation at the local level in China. Taking into account the principle of the rule of law, local legislation has become the most important aspect in strengthening the capacity of local self-government and stimulating local development, which causes local legislation to follow the same values and goals as municipal government. This article explains the main theories underlying the practice of local legislation in China, explores the underlying problems in the current practice of local legislation, studies how the principle of "rule of law" is combined with local resources in China, and suggests ways to develop local legislation and strengthen the rule of law. Based on the theory of socialist legislation with Chinese specifics and taking into account current trends and the material and legal resources of local government in China, the article argues that the way to implement the rule of law in local legislation and governance lies through the awareness by local legislatures of a reasonable position of power, the boundary between law and freedom, as well as the balance between rights and responsibilities. These three aspects are the core of research on the awareness of the value of the subject of the rule of law.

175-186 227
Abstract

The article examines the main problems of migration processes in foreign  countries, their history and experience. 

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Философия права

187-197 248
Abstract

The cognition of illegality is the foundation of responsivism. However the lack of standardization and clearness in the judgment of illegality cognition leads to judicial tension, which can be alleviated by the necessity of prevention. Under the hierarchical criminal system in the Civil Law System, the status of cognition possibility of illegality plays a positive role in the construction of justification, security measures and normative responsibility. In Chinese Four Elements, the possibility of illegal cognition is the element of intent. The cognition of illegality is the expression of condemnable will, which embodies the opposition or contempt to the whole legal order. The distinction between normative elements and factual elements is relative, and judgment shall be made from such dimensions as formal basis, substantive basis and policy basis. The standard of judgment for the two shall also be improved and refined.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Современные коммуникационные проблемы научного общения

198-201 305
Abstract

The article dwells on specific nature of professional dialogue of Russian and Chinese lawyers with an emphasis on sociocultural differences arising in communication within the framework of intercultural legal space. The potential of the English language as a common code of communication for members of legal profession of the two states is analyzed. The author concludes that it is necessary to take into consideration sociocultural component in teaching lawyers intercultural professional communication.

202-206 303
Abstract

"Bel and Road Initiative", which is also known as the “Silk Road Economic Belt” or the "21st Century Maritime Silk Road", is a new model of national cooperation advocated by China and is considered to be the economic cooperation zone with the widest coverage in the world today. The Russian-speaking countries along "Belt and Road Initiative" refer to the countries where "Russian" is recognized by the constitution as the national language, official language, interracial common language, or exists in the form of mother tongue, minority language, etc., thus forming a "language – state – group" with Russian as its link. Due to limited length, this paper mainly studies the "three East Slavic Countries", namely Russia, Ukraine, Belarus and the "Five Central Asian Countries", namely Kazakhstan, Kyrgyzstan, Tajikistan, Uzbekistan and Turkmenistan. Russian-speaking countries along the "Belt and Road" have complicated historical, ethnic, political, religious, linguistic and other links. This also leads to the complexity of language governance in various countries under the background of global governance and shows commonalities and differences in the basic direction of language policy in various countries. The commonalities are mainly manifested in the hierarchy of forms of language policy, the stages in history, the politics of function and the multiplicity of objectives. The differences are mainly manifested in the language abilities of countries, the degree of national language policy and the guidance of dealing with the relationship with Russian on the premise of language policy. The commonalities and differences can help us fully understand the function of language in boosting economic exchanges, the positive and negative energy contained in language, the relationship between language and national security, and the relationship between language and cultural discourse power in the context of the "Belt and Road Initiative".
The extraction of the commonalities and differences of language policy in Russian-speaking countries along the "Belt and Road "is conducive to promoting the transformation of language research from a Chinese perspective to a global perspective. The cooperation in the era of globalization is always multiple and non-unitary. In the context of the "Belt and Road Initiative", under the cooperation framework of the Shanghai Cooperation Organization and in the process of the "Belt and Road Alliance", that is, the alliance of "Belt and Road" and the "Eurasian Economic Union", these Russian-speaking countries are not only important nodes along the "Belt and Road", but also important partners of China’s cooperation and exchanges in different frameworks of exchanges.
The current prominent problems of Russian-speaking countries along the "Belt and Road" include the status of the national language and interracial common languages within the country, as well as the issues of language independence, cultural independence, and language sovereignty between countries. All these issues have essentially surpassed the basic function of language itself. In the vision of a community of shared future for mankind, the highest level of communication between sovereign countries is mutual communication and mutual learning based on mutual respect for culture. Only when we have a clear understanding of the rule of law in the countries along “the Belt and Road”, including their language policies, language plannings and language strategies, can the implementation of the "Belt and Road Initiative" be better and comprehensively supported.



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ISSN 2587-9723 (Print)