Pravovedenie https://pravovedenie.spbu.ru/ <p>Founded in 1957, “Pravovedenie” (until 2018 know as “Proceedings of Higher Educational Institutions. Pravovedenie”) is one of the oldest and most authoritative academic&nbsp;peer-reviewed legal journals in Russia.</p> Санкт-Петербургский государственный университет en-US Pravovedenie 2658-6037 <p>Articles of "Pravovedenie" are open access distributed under the terms of the <a title="License Agreement" href="https://vestnik-journals.spbu.ru/s21/about/submissions#LicenseAgreement" target="_blank" rel="noopener">License Agreement</a> with Saint Petersburg State University, which permits to the authors unrestricted distribution and self-archiving free of charge.</p> Guest editors` note https://pravovedenie.spbu.ru/article/view/8758 Aleksandr E. Molotnikov Vyacheslav V. Sevalnev Elena V. Sychenko Copyright (c) 2020 Aleksandr E. Molotnikov, Vjacheslav V. Seval'nev, Elena V. Sychenko 2020-01-21 2020-01-21 63 2 206 208 The development of a regulatory accounting system in China https://pravovedenie.spbu.ru/article/view/8760 <p>The article reveals the development of a regulatory accounting system in China. National accounting standards are a system of regulations, enshrining the basic principles and rules of national accounting. The author illustrates the features of the traditional Chinese accounting system, the practice of first using Western accounting tools, the adoption of the Soviet model, the era of Maoism, reforms of Deng Xiaoping, the current state, and the difficulties of the transition to international standards. The author focuses on the factors that have shaped the national characteristics that distinguish the Chinese accounting system from others. These features should be leveled out by international accounting standards, harmonization with which China began in the 90s of the twentieth century in order to increase the transparency of financial reporting and reduce the cost of attracting foreign capital. The article emphasizes the fact that the Chinese accounting regulatory system for many centuries developed in its own way, fulfilling the tasks that were necessary for the state. The Chinese experience of borrowing elements from other legal models demonstrates the negative economic consequences that occur when China attempts to abandon their own traditional practices. The fact that reforms are led by the Ministry of Finance of the PRC, through “regulations” and “recommendations” rather than by the national professional accounting community, has a strong influence on the reform processes in China. A series of comparative tables of the main provisions of regulatory acts forms an idea of the convergence process of Chinese national standards with international ones. Particular attention is paid to how the Chinese side competently behaved in the negotiation process with the International Accounting Standards Board. Following the results of the material presented, the author concludes that the development of the Chinese accounting regulatory system is a good example of the fact that it is not possible to unify national traditional principles and regulations by adopting international standards. And with the support of the traditional economic principles that have been fixed in the regulatory system, China for several decades has managed to transform from an investment object into the world’s largest investor.</p> Marina A. Amurskaya Copyright (c) 2020 Марина Александровна Амурская 2020-01-21 2020-01-21 63 2 209 227 Amendment of the rules of qualification and purpose of punishment for corruption crimes under criminal law of the People’s Republic of China https://pravovedenie.spbu.ru/article/view/8761 <p>In this article, the authors analyze the norms of criminal law in relation to corruption behavior in China, paying attention to the fact that these norms are one of the key elements of several stages of changes in the Criminal Code of China. Thus, the Ninth Amendment to the Criminal Code of China in 2015&nbsp;marks a new level in the field of combating corruption crimes and demonstrates the countermeasures of the central government of China in this area. The publication of Joint Explanations on some issues of the application of laws in criminal cases related to corruption of the Supreme People’s Court of People’s Republic of China (PRC) and the Supreme People’s Prosecutor’s Office of China from 2016 further explained the regulations about the size of bribes, the circumstances of the case, and the mitigation of punishment for crimes related to corruption, but it also played an important role in law-enforcement practices in cases related to corruption. In particular, a clear correlation was established between the rules of qualification and sentencing for corruption crimes in relation to the circumstances of the case. The authors conclude that in addition to the death penalty, the current criminal policy of China provides for the use of life imprisonment, which constantly hangs with the “sword of Damocles” and has a preventive effect on officials who have not yet solved the moral dilemma. The authors note that in the criminal policy of the PRC there are still some rough edges and controversial approaches, in particular, the question of mitigation of punishment, its correlation with the public danger of an illegal act, etc. The article provides a content analysis of the Ninth Amendement and Joint Explanations, which proposed a number of new approaches based on the theoretical provisions of criminal law to the prevention of corruption crimes. In conclusion, the authors state that the severity of punishment in China is not an end in itself, it is subject to other value aspirations. The decline in the use of the death penalty was therefore an international trend, and the approach to the absolute use of the death penalty for corruption and bribery in China had been changed to a relative one, taking into account the circumstances of the case.</p> Liu Renwen Vyacheslav V. Sevalnev Copyright (c) 2020 Лю Жэньвэнь, Вячеслав Викторович Севальнев 2020-01-21 2020-01-21 63 2 228 239 Gender discrimination in employment in China and Russia https://pravovedenie.spbu.ru/article/view/8762 <p>The paper researches the problem of gender equality in employment in Russia and China. Starting with the review of the general attitude on the role of the woman in the society in these countries (part&nbsp;1)&nbsp;the authors proceed with the analysis of national norms and case law. They point that in spite of ratification by both countries of the main international instruments prohibiting gender discrimination in employment these norms did not fully penetrate to the legal system and to the legal culture of China and Russia. Part&nbsp;2&nbsp;focuses on the prohibition of employment of women in some occupations and the protection from gender discrimination in Russia. In the part&nbsp;3&nbsp;the relevant Chinese experience and legislation is investigated through the comparison with the Russian approach. In conclusions the main common traits of gender based discrimination in employment in both countries are formulated: even though they established anti-discrimination principles to ensure gender equality at the workplace, the lack of clarity in the definition of discrimination and the absence of a general provision on the shift of the burden of proof as well as the absence of norms protecting women who lodged a claim on discrimination against an employer from victimization. In both countries the authors evidence the lack of case law on discrimination and the difficulties in proving discrimination in the rare cases which were brought before the court. The authors also substantiate that the general attitude towards the division of roles between men and women is one of the main reasons of gender discrimination in both countries.</p> Jiaojiao Wang Elena V. Sychenko Copyright (c) 2020 Цзяоцзяо Ван, Елена Вячеславовна Сыченко 2020-01-21 2020-01-21 63 2 240 256 Setting constitutional boundaries on institutional reforms in China https://pravovedenie.spbu.ru/article/view/8763 <p>China has experienced dramatic social transformation over the past 40&nbsp;years of reform and opening up. While achieving tremendous economic achievements, China is also facing a series of challenges due to the complexity of social governance. Advancement among state institutions reform of China since 2014&nbsp;is part of the aforementioned social transformation process. The institutional reform involves changes in the powers of the legislature, executive and judicial organs, which promotes the formation of a new state organ system and directly leads to the 2018&nbsp;constitutional amendment. The issue of constitutional limits for the reform of state institutions has aroused widespread concern in academia. The Constitution contains various regulatory bases for&nbsp;institutional reforms. Some of the reforms are clearly bound by the Constitution, some are restricted by its general provisions, and some transcend the framework of power distribution defined in the Constitution. In practice, institutional reforms involve three strategies in response to the Constitution. First, compliance with the Constitution. Second, deviation from the Constitution and promotion of constitutional amendments. Third, deviation from the Constitution with avoidance of constitutional adjustment. This article holds the view that over the course of social transformation, reforms have to remain current while improving the Constitution. Nevertheless, the Constitution that provides the authoritative structure and stable expectation for the state and its citizens shall not be neglected. Any major systemic reform with regard to the Constitution must adhere to formal constitutionality as the primary foundation.</p> Ren Xirong Copyright (c) 2020 Жэнь Сижун 2020-01-21 2020-01-21 63 2 257 274 The role of law in ensuring a balance of economic and environmental interests in modern China https://pravovedenie.spbu.ru/article/view/8771 <p>Economic interests took precedence over environmental interest for a considerable period of time in China. Now, there is a change of worldview, awareness of the importance of environmental protection and the search for an appropriate balance. The interdependence of economic and environmental factors has become apparent. The authorities of the People’s Republic of China set the task of developing the environmental technology industry, which will make it possible to achieve an international competitive advantage. It is possible to single out the following reasons that make it difficult to accomplish this task: limited powers of structural units of environmental authorities at the local level; reduction of production costs due to the use of environmentally harmful technologies, as well as unjustified savings on specialists; low level of environmental and legal awareness. The article discusses the stages of the formation of the regulatory framework in the field of environmental protection. The complex of environmental problems accumulated to date is so extensive that the creation of an effective legal mechanism that provides for a balance of economic and environmental interests is considerably complicated. At the same time, in China, there is a global trend of making all spheres of society greener. With the help of legal regulation, ensuring a balance of environmental and economic interests, the Chinese authorities are currently trying to reverse the situation in the field of environmental protection, primarily related to the negative impact of industry. The most important areas in which the actions of the Chinese authorities can be assessed as quite effective are considered in the article. Also, issues related to the fulfillment of international obligations, disclosure of environmental information, tax regulation, and the mechanism for polluter liability are investigated in detail. A study of the Chinese legislation demonstrated that, in general, it complies with international environmental standards. On the one hand, environmental protection is ensured; on the other hand, sustainable economic development is guaranteed. The main difficulties in implementing an effective environmental policy in the Chinese are related to institutional problems, which are manifested in insufficient interaction with local authorities. At the provincial level, economic feasibility is given priority, even if it leads to a violation of the law and environmental harm.&nbsp;</p> Yulia A. Sluchevskaya Copyright (c) 2020 Юлия Александровна Случевская 2020-01-21 2020-01-21 63 2 275 284 Legal policy and the People’s Republic of China’s legislation of reform and opening-up period https://pravovedenie.spbu.ru/article/view/8772 <p>The article is devoted to the study of the peculiarities of the legislative policy in the sphere of regulation of economic transformations carried out by the Chinese authorities since 1978. The leaders who came to power after Mao Zedong’s death and the end of the “cultural revolution” (1976) instigated widespread reforms, which are better known as the policy of “reform and opening-up” in China. The course of “four modernizations” was proclaimed in the country, law-making activity was resumed which had been interrupted by various destructive political campaigns for two decades (1956–1976). The changes were realized without a breakup of the essential foundation of the new Chinese statehood, formed in October 1949. When China returned to the epicenter of global geopolitics, the world was shown not only a unique model of economic development, but one that differed from the West. At the same time, China followed a peculiar path of legal development. With no multiparty system, separation of powers, checks and balances, the transformation of the country into a legal state on the European model, the constitutional consolidation of the priority of international law over national, etc., China managed to achieve amazing economic results. Over the years of reforms, China has proved to the world the possibility of an alternative, in comparison to the West, and no less progressive legal regulation models of the economic sphere. Thanks to the national-oriented legal policy, which supposes the priority of protecting state interests, the Chinese reformers managed not only to attract significant investments from abroad and new Western technologies to the country, but also gained absolute control over them, including the mass registration of intellectual property rights of foreign businesses to their citizens. In the pursuit of quick profits, foreign businesses have not paid due regard to the particularities of the current Chinese legislation, which “were happy to” let allows foreigners into their territory, but prevented the free export of legitimate profits out of the country. Now, against the backdrop of an unfolding trade and economic war between China and the United States, an increasing number of foreign entrepreneurs are thinking about the transfer (return) of their production from China to other countries. It will not be easy to do and in some sectors of the economy it is no longer possible. The vagueness and non-specificity of Chinese regulations is an excellent basis for the introduction of any restrictive measures against a foreigner wishing to export his capital and material means of production. The basis of legal policy and legislation governing “reform and opening-up” were formed at the beginning of their realization. Now the West, which has been actively helping China to rise for last 40&nbsp;years, can only “reap the fruits” of its own foreign policy strategy.</p> Pavel V. Troshchinskiy Copyright (c) 2020 Павел Владимирович Трощинский 2020-01-21 2020-01-21 63 2 285 308 Features of legal regulation of the digital economy and digital technologies in China https://pravovedenie.spbu.ru/article/view/8773 <p>The article investigates the peculiarities of the legislative policy pursued by the Chinese authorities in respect to the legal regulation of the use of digital technologies. A special Chinese approach is noted in the development and adoption of relevant acts of lawmaking, which involves the priority use of an experimental procedure for the operation of regulatory legal acts and bylaws in regulating the digital economy and digital technologies. The People’s Republic of China is one of the world leaders in respect to introducing digital technologies that have penetrated practically all spheres of the national economy. The digital economy accounts for more than 1/3 of the country’s GDP, while Chinese giants Alibaba, Tencent, Baidu and others are among the 20 most developed technology companies in the world. In China, systems of social trust and facial recognition are actively used, which contribute to the establishment of total digital control over all members of Chinese society. Against the background of a rapid increase in the use of digital technologies in everyday life, the Chinese legislation governing them does not have time to respond to the changes taking place in this area. However, the underdevelopment of the regulatory framework acts in favour of the Chinese authorities: it contributes to the “manual” management of the digital space and the rapid response to emerging problems through the adoption of departmental acts, sometimes with the help of secret documents with restricted access. Considered all of the above, the sharp rise of Chinese technological corporations, which occurred primarily due to the ban on the activities of their foreign competitors in China, is not accidental. Google, YouTube, Facebook, Twitter, Flickr, and other western corporations were driven out from the Chinese digital market due to an inconsistency of the content passing through them to Chinese legislation, the provisions of which are so vague that foreign companies had no opportunity to continue their activities in China and fully comply with the laws. The lack of a clear legislative mechanism for protecting intellectual property rights also had a positive effect on the growth of Chinese national digital technologies: the rights to many foreign developments “unexpectedly” became owned by Chinese citizens. Total digital control over citizens also does not imply the adoption of legislative acts limiting state intervention in the private life of an individual. Thus, it is important for us not only to study China’s lawmaking experience in regard to the digital economy, but also to take it into account when adopting the appropriate Russian “digital legislation” as well as in building relations of cooperation with Chinese partners to successfully defend our national and personal interests.</p> Pavel V. Troshchinskiy Alexander E. Molotnikov Copyright (c) 2020 Павел Владимирович Трощинский, Александр Евгеньевич Молотников 2020-01-21 2020-01-21 63 2 309 326 The specifics of Chinese jurisprudence and its development at the present time https://pravovedenie.spbu.ru/article/view/8774 <p>The article deals with the development of the legal system of the People’s Republic of China at the present stage. Currently, China is undergoing judicial reform aimed at building democracy and the rule of law. This reform also has a significant impact upon the development of the economy and politics, as well as upon Chinese society as a whole. One of the most important concepts discussed within the framework of the new reform is the concept of the rule of law. This concept can be interpreted differently, however, the author considers the rule of law to be the official public-structural regulator of human behavior. Due to the presence of special historical and cultural reasons, the development of the Chinese state and law occurs along a special path with “Chinese characteristics”. Following the foundation of the PRC in 1949, the Soviet Union gained significant influence upon the development of the theory of state and law in China. Subsequently, in 1978, China launched a policy of reform and openness. After these significant events of the end of the 20th century, today’s globalization is another major factor which demonstrated a new stage in the development of Chinese law. The formation and development of the ideas of the rule of law in the PRC took place against the background and in the context of discussions about the relationship between modernization and the legal tradition of ancient Chinese law. The People’s Republic of China has a large territory which is populated by the representatives of 56&nbsp;nationalities. They have their own special traditions and their own attitudes towards religion and culture. 70&nbsp;years ago in China, it was almost impossible to ensure even a decent standard of living for such a multinational and large population and to satisfy all the basic needs of citizens. Therefore, the creation of a modern legal regime in the PRC is considered necessary, and at the same time a difficult task. Today, China, being a state with a rich history, has its own special legal tradition and a special direction of development along the path of Chinese communism.</p> Liu Qiucen Copyright (c) 2020 Лю Цюцэнь 2020-01-21 2020-01-21 63 2 327 339 The prohibition of unfair competition in China and Russia: Сomparative legal research https://pravovedenie.spbu.ru/article/view/8775 <p>The article presents the results of a comparative legal analysis of the prohibition of unfair competition in the People’s Republic of China and the Russian Federation. The author reviewed the history of the creation and the current provisions of the Anti-Unfair Competition Law of the People’s Republic of China of 1993, which secure the definition of the concept of unfair competition as well as a number of norms of this law on certain acts of such competition. The Chinese legislation is compared with the domestic Federal Law “On the Protection of Competition” of 2006. The Convention on the Protection of Industrial Property of 1883 is also analyzed in the relevant part. A narrower understanding of unfair competition has been established in the Federal Law “On Protection of Competition” in comparison to how it is considered in Chinese law and in the Paris Convention for the Protection of Industrial Property. It is concluded that in order to improve Russian antimonopoly legislation, a broader definition of unfair competition in the Anti-unfair Competition Law of the People’s Republic of China is valuable. In addition, it may be useful for the domestic legislator to draw attention to the relatively new provisions of the said PRC Law on prohibiting unfair competition on the Internet. In order to improve Russian law, it is proposed to transfer from Chinese law a ban for business entities to use assets or other means to bribe contractors and their representatives in search of opportunities for transactions or competitive advantages. It is also worthwhile to look at the experience of the neighboring country and to include in the Federal Law “On the Protection of Competition” relevant offenses when conducting promotional activities as a special kind of acts of unfair competition.&nbsp;</p> Andrey A. Chukreyev Copyright (c) 2020 Андрей Александрович Чукреев 2020-01-21 2020-01-21 63 2 340 351