Vol. 98 No. 1 (2024): State and Law

Along with several positive results, the development of genetic engineering raises many legal and ethical questions among lawyers, scientists conducting research in the field of genetic engineering, and the general public, and the lack of a clear legal position on them indicates that modern law is not ready for the changes being implemented. Due to the complexity of the problem, there are currently no clear and universal legal approaches regarding the limits and possibilities of human gene interventions. The debate over human genetic modification centers on one certain question: whether the intentional modification of human genes is considered a morally and legally prohibited intervention in human life.

In this case, the boundaries of permissible and prohibited interventions are highly controversial, and it is not clear what principles we should use to determine when acceptable interventions are carried out and when these boundaries are crossed.

This work aims to analyze the types of genetic interventions aimed at changing human genes and their possible impact on human rights to outline the permissible limits of interventions within which the rights of current and future generations will be ensured.

Based on the study of international and domestic experience, we have presented the types of genetic interventions in the work, specified their consequences and singled out only those interventions that are acceptable for us. We have discussed the possible impact of interventions on human reproductive cells on the scope of rights and opportunities of the future generation and defined certain principles of balancing the rights and interests of parents and future children in this area.

The philosophical-legal concepts of "legal possibility" and "legal reality" manifest themselves in specific ways in the existing structures of the functioning of one of the key categories of the general theory of law — legal personality, as well as in its components of legal capacity and legal capacity to act. In the process of identifying these manifestations and analyzing various types of legal possibilities, especially general (abstract) legal possibility, the author places the philosophical-legal category of "possibility" at the core of the concept of "legal personality".

From this perspective, separately are considered legal capacity and legal capacity to act as general (abstract) legal possibilities, subjective rights as real legal possibilities, as well as the relationship between these categories is analyzed, highlighting their main differences and the necessity of differentiation. The author also draws special attention to the question of legal capacity (or legal personality) as a general (abstract) legal possibility of legal entities that are subjects of the law.

According to the conclusion presented in the article, the analysis of legal personality as a general (abstract) legal possibility has important methodological significance, as it examines and identifies the legal prerequisites that enable a deep understanding of the structure of the effective realization of law and legislation, which is particularly important for lawmaking activities and law implementation practice.

The article is devoted to the analysis of the features of management under the legal regime of the state of emergency. In particular, within the framework of the article, the essence and importance of coordination from management methods in the case of declaring a legal regime of emergency were discussed from the point of view of ensuring the coordinated activity of state and local self-government bodies and officials, which as a final result leads to overcoming the situation as quickly and efficiently as possible. In the framework of this article, the author also discussed the expediency of forming a body with special powers, its legal status and the content of its functions in the event of declaring a state of emergency and other regimes equivalent to it. The international practice of forming such bodies has been lifted, especially during the spread of the coronavirus pandemic.

As a result of the analysis, the author came to the conclusion that in the case of a state of emergency or other equivalent management regime, the horizontal coordination of the activities of state and local self-government bodies is of primary importance. In order to carry out such a function more effectively, it is acceptable to form a certain body provided by law and on a temporary basis, but the created body should not replace other bodies and take over the implementation of their powers. The task of such a body should be the operative collection and analysis of the existing information due to the situation, the presentation of recommendations on the necessary measures to be applied, and the support for the implementation of already made decisions. Moreover, it is important that the implemented coordination is carried out on a horizontal and not a vertical basis, contributing to the higher responsibility towards the decisions made by the officials.

Considering coordination as a type of management in subordinate relations is not justified, because in the case of vertical management, coordination is, in fact, not a method of management, but a goal, in particular, in the end result of management, it is necessary to ensure coordinated activities within the framework of vertical management.

One of the most serious problems facing the legal system in modern times is the detection of illicit income and the implementation of confiscation mechanisms of the property acquired with it. The need to introduce the institution of confiscation of assets without a conviction stems from the considerations of more effective implementation of the fight against corruption. In order to implement this toolkit, the Armenian legal system provided for the implementation of the legal possibility of confiscation of property of illicit origin, the main purpose of which is the confiscation of property not justified by legal income as an effective means of fighting corruption. Meanwhile, in this matter, it is important not only to provide appropriate legislative regulations, but also to guarantee the constitutionality of these regulations. In the context of this report, within the framework of this study, such legal issues as the certainty and clarity of the legal regulations established by the RA Law "On confiscation of property of illicit origin", as well as the issues of interference with the constitutionally guaranteed property rights, were discussed. Within the framework of the study, the need to implement the institution of confiscation of illegally-sourced property as an effective means of combating corruption was highlighted, on the other hand, it was noted the need to implement the possibility of implementing this measure exclusively by taking into account the constitutional principles of legal certainty, prohibition of discrimination and proportionality.

In the article entitled "Some problems of realization of the right of non-governmental organizations to appeal to administrative court", the issues of mechanisms of filing a lawsuit by non-governmental organizations within the framework of the institute of protection of others' interests are discussed, based on the principles of accessibility of justice. The paper considers the role of non-governmental organizations in general and in particular in the field of initiating a lawsuit to protect the rights of others, presents the scientific and practical bases of the institute of protecting the rights of others in civil and administrative proceedings, the peculiarities of administrative justice, the norms of domestic legal norms, including the special procedure of considering the cases initiated by non-governmental organizations in accordance with Chapter 29.3 of the RA Code of Administrative Procedure.

          The scientific work is based on both theoretical and practical research; the problems of the institute of filing a lawsuit by non-governmental organizations to protect the rights of others are presented by studying the opinions of various authors, current legal norms, international and judicial bodies, experience of other countries; the author brings forward the need for their solution, reviews the existing legal norms, proposes ways to improve the legislation.

Effective protection of consumers’ interests traditionally requires special attention from the state because they are “the weak party” in contractual relations with manufacturers and intermediaries. On the other hand, in the modern world, consumer protection challenges often transcend national borders, especially given the current tendencies in the growth of global e-commerce.

This necessitates that states implement and continuously develop internationally recognized high standards for consumer protection. From this perspective, a cornerstone for the Republic of Armenia is the Comprehensive and Enhanced Partnership Agreement signed in 2017 with the European Union. Through this agreement, Armenia committed to aligning its consumer protection system with EU standards. At the same time, a significant role is assigned to the Competition Protection Commission in this context.

Drawing from theoretical sources, national and foreign legislation, and judicial practice, this work briefly presents the history of consumer protection. It defines the concept of “consumer” within the context of competition law in the Republic of Armenia, explains the relationship between consumer interests and the competitive environment, analyzes the peculiarities of consumer protection by the Competition Protection Commission, identifies existing problems of the sphere and proposes solutions to overcome them.

In the article, the authors present several scientific and practical conclusions that may be crucial for the further development of legislation and law enforcement practices.

Սույն աշխատության մեջ անդրադարձ է կատարվել փոխնակ մայրության պայմանագրի առանձնահատկություններին և իրավական բնույթին, մասնավորապես անդրադարձ է կատարվել փոխնակ մայրության պայմանագրին՝ որպես պայմանագրի առանձին տեսակ, պայմանագրի էական պայմաններին, ներպետական իրավական կարգավորումներին, առկա բացերին և վտագներին:

Հոդվածը նվիրված է ՀՀ օրենսդրությամբ ներդրված համեմատաբար նոր ինստիտուտի համալիր ուսումնասիրությանն ու վերլուծությանը և դրանով պայմանավորված նաև բացակայում է հայալեզու գրականությունն ու խորը իրավական վերլուծությունները: Այդ առումով, հոդվածի արդիականնությունն ապահովված է:

Հոդվածի նպատակն է իրազեկել հասարակությանը ներկայումս այդքան տարածված և օր օրի տարածվող ինստիտուտի հնարավոր իրավական խնդիրների և դրանց լուծումների մասին: Հոդվածը նաև օգտակար կլինի պրակտիկ իրավաբանների և գործընթացն իրականացնող  բժիշկների համար, որոնք հաճախ կիրառում են օրենքը առանց իրապես պատկերացնելու հնարավոր ռիսկերը:

Հոդվածի մեջ ներկայացվել են կոնկրետ առաջարկություններ իրավական բացերի հաղթահարման և օրենսդրության կատարելագործման ուղղությամբ:

The article analyzes the borders, problems and characteristics of the ratio of labor and corporate disputes in the case of the termination of the authority of the director of the organization (resolving the employment contract). As a result of the study, the special status of the director of the organization was emphasized due to the agent-principal relationship between the director of the organization and the organization as a subject of corporate law. The work also touched upon the features by which the labor dispute differs from other civil law disputes. The solution proposed as a result of the study will lead to the elimination of the contradictions in the judicial practice (including domestic case law) formed in the cases of termination of the authority of the director of the organization.

The Article analyzes the issues of criminal liability for discrimination, reveals the objective and subjective features of the crime, as well as highlights the gaps and shortcomings of the regulation, which may cause certain problems in practice in relation to the qualification of the crime. The research is especially relevant given the adoption of the new Criminal Code of the Republic of Armenia, which is in force since July 1, 2022. It has radicaly amended the crime of discrimination. Thus, the article analyzes in detail such mandatory features of the objective side of the crime of discrimination as the difference in treatment in a similar situation, and the circumstances justifying it.

At the same time, based on the research done, it is suggested to define discrimination as a material crime, which will allow to clearly distinguish the criminal responsibility for discrimination from other types of legal responsibility.

The Article is widely based on the case-law of the European Court of Human Rights regarding discrimination, as well as the recommendations, reports made and research done by international bodies. The main approaches in doctrinal sources on discrimination are also analyzed. As a result, relevant recommendations aimed at effectively overcoming existing gaps and shortcomings are made.

The provocation of a crime, which does not have a separate codified definition in the legislation of both a number of countries and the Republic of Armenia, is manifested in the legal norms concerning the elements of crimes related to bribery or commercial bribery.

The RA Criminal Code, adopted on May 5, 2021, provided for a number of new provisions concerning the provocation of a crime by national legislation, which, from the point of view of the goals and objectives of the Criminal Code, create the need to study trends in the development of provocation of a crime within the framework of the already formed rich national and especially foreign experience.

These innovations themselves are the basis for drawing parallels between the phenomenon that is the subject of research and a number of other criminal law norms and, as a result, to identify various problems that determine the relevance of the chosen topic.

Based on the experience of national and foreign countries, the positions expressed by the European Court of Human Rights and the Court of Cassation of the Republic of Armenia in case law, as well as various theoretical doctrines, the subject of the study was the nature of illegality and the danger of provocation of a crime, a number of issues related to the possibility of criminal legal counteraction to this phenomenon in accordance with current norms, and were also To a certain extent, further developments of the provocation of the crime in national legislation are indicated.

According to the new RA Criminal Code (adopted on 05.05.2021) the institution of voluntary refusal from a crime received a new content, new regulations different from the previous ones are envisaged, specifically regarding the Exemption from criminal liability of accomplices as a result of voluntary refusal from a crime. Based on the mentioned issue, researches on the subject are of current interest, will contribute to the formation of common approaches to interpretation and will facilitate the practical application of the new regulations.

The aim of the study was revealing the current problems of exemption from criminal liability of accomplices as a result of voluntary refusal from a crime, submitting proposals aimed at improving criminal legislation and law enforcement practice.

As a result of research, the author touched upon the available problems of legal regulations of voluntary refusal and presented his approaches for their solution.  Specifically special arrangements regarding the voluntary refusal from a crime in relation to certain manifestations of assistance in the author's opinion are incomplete and need some improvement. Besides, the author, referring to the expediency of providing a special regulation regarding the refusal of the co-perpetrator from a crime, found that the legal regulation on the voluntary refusal from a crime by the co-perpetrator could have been foreseen within the framework of legal regulation providing conditions for voluntary refusal from a crime of other accomplices -the organizer, the abettor or the assistant taking into account that they are completely identical.

The author also referred to the peculiarities of the voluntary refusal from a crime by the co-perpetrator, provided comments on existing regulations which can be useful in practice in correctly interpreting and applying the institution of voluntary refusal.

This article explores the issue of determining the “moment of committing a criminal offense”, which is a substantial part of the principle of the operation of criminal law over time. This notion holds significant theoretical and practical importance, often giving rise to abundant legal disputes. The problem of the time of the commission of the criminal offence remains highly relevant and up-to-date, because the new Criminal and Criminal Procedure Codes of RA came into force on July 1, 2022, and the exact determination of the law to be applied to persons who committed a criminal act before that time is of crucial importance.

Furthermore, the author concludes that in case of formal crimes, when the execution of the act itself is a completed crime, or in the case of material crimes, when between the criminal act and the occurrence of a dangerous consequence there is no time gap or it is trivial, then the time of the crime is the moment of the act itself. Nevertheless, when there is a time gap between the criminal offense and the occurrence of a dangerous consequence, and the person who committed the criminal act (action or inaction) upholds effective control over the occurrence of a dangerous consequence and can prevent it, then the time of committing the crime should be considered the moment of the occurrence of the dangerous consequence.

This thesis explores the legality of unilateral economic sanctions in international law․ Here, the legal discussion junctures into two main strands. More specifically, the argument revolves around the perception of this area of contemporary international law as containing no outright prohibition – neither in treaty nor custom – for states to freely alter its economic relations, including by imposing economic sanctions against other States or actors. non-forcible sanctions imposed by the UN Security Council in accordance with Chapter VII of the UN Charter, are lawful. The same can be said of sanctions imposed by individual states iն accordance with UNSC authorization, given that the authorization in question is in line with the provisions of Chapter VII of the UN Charter․ However, for both direct and indirect UNSC economic sanctions, this lawfulness is dependent on adhering to both the principle of proportionality and to human rights regulation.

On the other hand, the case is made that unilateral economic sanctions are illegal in their capacity of coercive measures. This argument largely revolves around the prohibitions of such measures laid out in UNGA resolutions, primarily the Friendly Relations Declaration of 1970. The primary grounds for illegality of economic sanctions in this resolution is rooted in the principles of State sovereignty and of non-intervention. This position is also supported by a significant majority of UN member States, continually and consistently voting in favour of denouncements of unilateral coercive measures in yearly UNGA resolutions

Since the establishment of the Eurasian Economic Union, questions related to the activity of the court of this Union have gained great importance and there has been a need to research them, even though there are very few scientific works related to this international court in our domestic legal literature.

This article talks about the judicial activity of the Court of the EAEU and the decisions made by it, which are not the source of the Union law, comparing them with the functions of the Court of the European Union. With the help of the method of comparative legal analysis, in this article, a discussion was made about some issues of the provision of advisory opinions by the EAEU Court and the EU Court, the European Court of Human Rights, and the International Court of Justice.

In this context, a comparative legal analysis of EAEU and EU courts, including other international courts, will allow to identification of legal issues related to the status and activity of the EAEU court and offer possible options for their solutions. Moreover, such an analysis can be a guide for the contracting parties when discussing the issue of the legal status of the Court of the Union.