Vol. 99 No. 2 (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.

Within the framework of this scientific article, the author discussed the legal content of the terms “certainty of act”, “certainty of law”, “legal certainty”, “formal certainty of law”, “uncertainty of law”, “legal uncertainty”. The analysis was carried out on the basis of a comprehensive study of the works of a number of lawyer-scientists and philosophers G.F. Hegel and I. Kant.

The author touched upon the problem of certainty and uncertainty of law, certainty of law and law-making activity, as well as the relationship with other principles of law.

The author came to the conclusion that the certainty of law is.

• principle of law,
• an integral part of lawmaking process,
• a process directed to creating stable legislation,
• a means of proper implementation of law-enforcement activities,
• a guarantee directed to protecting human rights and obligations,
• a regulation directed to reviewing judicial acts, their entry into legal force, mandatory execution, uniformity and stability of judicial practice.

At the same time, in the conditions of development of law, the principle of certainty of law should be considered not as an integral part of the principle of the rule of law, but as an independent, fundamental principle of law. The author examined the correlation of lawmaking and the certainty of law from two positions. In the first case,the lawmaking process is carried out in such a way that the forming legal acts comply with the principle of legal certainty. In the second case, already existing legal acts are “subjected” to certainty: ambiguities are eliminated, provisions are clarified, etc.

The author came to the conclusion that the certainty of law in terms of the form of action can be divided into static - as a principle whose rules correspond to legal acts at the stage of formation, and dynamic - as a process as a result of which ambiguities and uncertainties in legal acts are overcome. In conclusion, the author established that the principle of certainty of law is a measure of the “flexibility” of legislation in the formation of stable legislation.

This article talks about the relationship of the National Assembly with the executive and judicial powers. The author came to the conclusion that under the parliamentary model, the functions performed by the state authorities are actually not equal in nature and differ from each other in legal force and content, that is, the activities of the legislative branch are of a legislative nature, and the judicial and executive authorities are of a sub-legislative nature. The article also emphasizes the idea that the legislative branch has so-called “functional superiority” over other branches of government, which in itself should not be considered as a violation of the constitutional balance between the legislative, executive and judicial branches of government. Because the essence of the principle of separation and balancing of powers is not to preserve equal functions for the branches of government, which, due to the nature of the functions of the branches of government, are no longer equal, but to ensure the necessary and sufficient powers of each branch of government.Addressing the issue that one of the central issues in the relationship between the branches of legislative and executive power is parliamentary control over the executive power, and emphasizing that in such conditions it is necessary to ensure effective mechanisms to curb the dominance of the executive power (Prime Minister) becomes of key importance, the author as a political guarantee of the implementation of high-quality control in relation to the executive branch, it takes into account the presence of a strong parliamentary opposition, because the main criterion for creating an opposition is not power, law, but the limitation of power by law.

Children are rights holders with a progressively evolving ability to make their own decisions. They have the right to express their views on all matters that affect them, namely in the field of health care, and to have their view properly taken into account.

Children who actively participate in individual decision-making processes concerning them are likely to be more informed, to feel better prepared, to experience less anxiety about the unknown and to feel a sense of control, resulting in increased cooperation, better adjustment and adherence to treatment.

In this context, parents (legal representatives) and healthcare professionals involved need to understand the importance of their role in supporting children in this process.

Parents (legal representatives)  should support and guide children to understand the need to seek medical care and services and to intervene in the process in accordance with the child's age, maturity and evolving capabilities.

The role of medical workers in this matter is more comprehensive, because they are obliged to ensure the awareness of parents (legal representatives) and children in this matter and to contribute to its implementation.

Other persons may be involved in the process of receiving medical care the child with the direct knowledge and consent of the parents (legal representatives) and the medical professional.

This article examines the legal definition of the term "medical confidentiality" and identifies the key scope of information considered as medical confidentiality. It argues that medical confidentiality encompasses not only data about a person’s health status but also information related to seeking and receiving medical care, which may include personal and private life details.

Health-related data involves all information regarding the patient’s past, present, or future physical or mental health condition. Additionally, data obtained during the process of seeking or receiving medical care can cover a wide range, including the patient's personal, family, professional, economic, and financial circumstances, as well as relationships with other individuals.

The article also outlines the main conditions for the lawful transfer of data considered as medical confidentiality. In terms of patient consent three prerequisites are identified for determining the presence of informed consent for medical intervention: competence, the availability of necessary information, and voluntariness. Each of these components is thoroughly analyzed within the article.

In the modern world, in parallel with the quantitative growth of marriage contracts, the risks of violating the rights of creditors, heirs, and a bona fide spouse through the conclusion of marriage contracts increases. Often, the parties conclude a marriage contract with the aim of harming the rights of third parties who are not parties to the contract, avoiding the fulfillment of existing obligations towards them. Failure by one of the spouses to notify his or her creditors of the conclusion, amendment or termination of a marriage contract may result in a violation of the rights of the other spouse. In addition, due to the absence of state registers of marriage contracts in the Republics of Uzbekistan and Armenia, there is no unified information base on the property status of spouses, which, in our opinion, very often causes the emergence of disputable situations. The purpose of the research is to study the guarantees for the protection of the rights of third parties who are not parties to the marriage contract, as well as the bona fide spouse, to identify and develop additional mechanisms, and to present relevant recommendations. As a result of a comprehensive study of the legislation, notarial and judicial practice of the Republics of Uzbekistan and Armenia, the authors managed to develop and propose guarantee solutions for the protection of rights, which can be of practical importance for notaries certifying marriage contracts, as well as serve as a basis for the future creation of registers of marriage contracts in the Republics of Armenia and Uzbekistan.

The public policy exception is one of the most important mechanisms of Private International Law that limits the application of the rules of foreign law which are chosen on the basis of conflict of laws principles, if such application may be contrary to the fundamentals of the legal order (public policy) of the Republic of Armenia. It is preferable to study the development tendencies of this mechanism, especially in the context of the Post-Soviet Countries, since its development in Armenia as a general legal concept actually began in the 1960s, when the reforms of the civil legislation of the USSR and Soviet States had launched.

Hence, within the framework of this work, a legal comparative analysis of the legislation of Armenia and the majority of Post-Soviet Countries is conducted, judicial practice is discussed and on the basis of mentioned directions for the development of the public policy clause in Armenia are determined.

Good faith in corporate legal relations is a fundamental principle that ensures transparency and fairness in the process of effective realization of the corporation's interests.

This principle is important not only for legal relations, but also for the protection of the corporation's interests.

Good faith in the corporate world includes various components: honesty, responsibility, equality and the rule of law, and the concept of good faith in corporate activities is not limited only to following laws and rules, but is also aimed at preserving corporate culture and corporate interests. By maintaining good faith, companies can avoid abuse, fraud and illegal activities.

Good faith also ensures the moral authority of the organization and brings about reforms in its work. The need to give a correct legal assessment of the behavior of entities acting in corporate legal relations has become more urgent than ever, which is currently due to the rapid development of the corporate governance culture and current trends in the development of global economic relations. Moreover, the analysis of judicial practice also indicates the need to give a correct legal qualification to corporate disputes, including unscrupulous behavior by corporate management bodies.

The article examined the provisions of the current legislation of the Republic of Armenia concerning the status of an expert, taking into account also that on June 30, 2021, the new Criminal Procedure Code of the Republic of Armenia was adopted, and from July 1, 2022, the new Criminal Procedure Code of the Republic of Armenia began to operate, which established completely new approaches and provisions concerning the procedural status of an expert, procedural actions performed by him on behalf of the body carrying out the production, the rights and obligations of the latter.

In the light of the decision of the Plenum of the Supreme Court of the Republic of Armenia, the legal positions of the Court of Cassation of the Republic of Armenia and the provisions of the current Criminal Procedure Code of the Republic of Armenia, the status of the expert, the main objectives of the activities carried out by the expert were briefly presented, and some issues arising from this were discussed.

In addition, given that currently there are no certain uniform criteria, restrictions or requirements established by the current legislation of the Republic of Armenia for an expert, the article discussed the adoption of a legal act regulating expert activity, the creation of a permanent independent qualification commission, which, in the author's opinion, are relevant, since the presence or absence of a crime is often depends on the expert’s opinion.

The importance of the adoption of the law on forensic expertise was emphasized, which in Armenia will unify all issues related to the expert sphere and the legal status of an expert, as well as define the social guarantees of an expert.

There is no unified approach to bankruptcy law as a structural element of the legal system, both in legal theory and in practice. In RA, there are no scientific researches in connection with the above-mentioned problem, so the aim of the work is to first of all give the substantive and theoretical characteristics of bankruptcy law, and then to try to clarify its place and role in the RA legal system. According to the authors, bankruptcy law is a complex, multi-layered and complex structural element of the legal system, which is not completely characterized by any of the structural elements of the legal system already known to legal theory. Therefore, it is proposed to introduce a new category defining the structural elements of the bankruptcy law or a similar legal system into the theory, which will fully correspond to their nature. Its implementation will have a significant impact on the development of law in theoretical and practical terms, because the clear definition of the structural element of the legal system and highlighting its relevance helps to avoid problems in legal practice, the formation of unified approaches and creates prospects for development.

This article analyses various approaches to the consequences of not establishing the content of foreign law by national courts during the settlement of transboundary private law disputes.

The consequences of failure to establish the content of rules of foreign law largely depend on whether foreign law is considered in court as a fact or law. In practice, recognition of foreign law as a fact even led to the denial of the claim.

It has been found that the majority of states, through the codification of private international law, have adopted the position of applying the law of the court hearing the case (lex fori) in case it is impossible to determine the content of foreign law, thus avoiding a dismissal of the lawsuit. However, in the Republic of Armenia, legislative criteria for the establishment of the content of foreign law, determination the absence of foreign law norms, and the “quantity” and “quality” of measures taken by the court to establish the content of foreign law are not explicitly outlined.

As a result, in practice, Armenian courts tend to avoid applying foreign law. This situation does not entirely align with modern trends in the development of private legal relations, international cooperation among states, and may lead to an unjust outcome in a case.

In this regard, it is proposed to establish more detailed regulations in the civil procedural legislation regarding the grounds for refusing to apply foreign law in favor of national law.

Criminal justice encompasses a multifaceted system of procedures aimed at safeguarding individual rights, maintaining procedural standards, and upholding justice. The introduction of preliminary hearings into Armenian criminal procedure marks a significant transformation in the legal landscape. These recent legislative changes are designed to streamline judicial processes, enhance the efficiency of case management, and promote fairness and transparency in court proceedings. By incorporating preliminary hearings, the Armenian legal system seeks to reduce delays and procedural bottlenecks, ensuring that cases progress more swiftly while upholding the principles of justice. This shift reflects a broader commitment to reform and the modernization of criminal justice practices to align with international standards. Overall, the preliminary hearing mechanism stands as a testament to Armenia’s dedication to reinforcing its legal framework and fostering trust in the judiciary through improved procedural integrity and equitable outcomes.

We believe that the legislator, by providing for Article 323 of the Criminal Code of the Republic of Armenia, intended to intensify the criminal-legal fight against representatives of the leadership of the thieves' world. However, some of the approaches adopted by the legislator are problematic and do not contribute to increasing the effectiveness of the criminal-legal fight against the representatives of the leadership of the thieves' world.

In this context, the aim of the paper is, as a result of a systematic study and analysis of the concept of a group with a criminal subculture (thieves‘ world), and legal regulation providing for criminal liability for its creation, to clarify the concept of thieves’ world by proposing its edited version, and to determine the need to establish criminal liability for its creation.

As a result, we have come to the conclusion that a thieves’ world is an association of persons endowed with criminal hierarchy and interpersonal hierarchical relations, which operates according to the rules of conduct based on the thieves’ code and whose purpose is to commit a crime or solve disputes (problems) related to public or private affairs or to obtain an illegal benefit or other advantage through influence in the thieves' world or through violence, threats of violence, blackmail, coercion or other illegal actions. In addition, we concluded that there is no need to criminalise the creation of the thieves’ world.

The aim of this article is to explore the concept and briefly characterize the directions of criminal-legal provision for operational-search activities.

Studying operational-search activities solely from an investigative or criminal procedural perspective is insufficient, as several issues related to these activities require regulation under criminal law. These issues include, in particular, the criminal-legal response to cases where individuals conducting operational-search activities cause harm to legally protected interests, the problem of entrapment during operational-search measures, criminal liability of the provocateur and the individual who committed a crime as a result of provocation, as well as the legal modeling (refinement and/or development) of criminal offenses aimed at ensuring the effectiveness of operational-search activities.

Based on the results of the conducted research, the Article develops the concept of criminal-legal provision of operational-search activities. Criminal-legal provision of operational-search activities is the process and outcome of legal regulation aimed at ensuring the effectiveness of operational-search activities and safeguarding them from internal and external destabilizing interference. It also encompasses the application of criminal-legal norms regulating the public relations that arise during the activities of individuals conducting operational-search activities within the scope of their powers.

From the proposed definition, it follows that criminal-legal provision of operational-search activities has both regulatory and protective directions, in accordance with the issues, methods, and means of criminal legislation. These directions are interconnected and complementary mechanisms. The first direction—regulatory—should primarily be expressed through the development of a norm that excludes criminal liability in cases where individuals conducting operational-search activities lawfully cause harm to legally protected interests. The second direction—protective—should manifest itself in the refinement or development of the criminal structures in the Special Part of the Criminal Code.

In criminal law theory, there are two types of excess: quantitative and qualitative. Qualitative excess occurs when the perpetrator commits a crime that is entirely different in nature from the planned crime or engages in a crime other than what was stipulated. The Criminal Code of the Republic of Armenia differentiates between quantitative and qualitative excess by establishing specific rules for criminal liability.

However, we believe the Criminal Code should explicitly state that if the perpetrator commits a crime different from the initial arrangement, the other accomplices must be held accountable for their complicity in the crime involved in their intent. Furthermore, in cases where the perpetrator commits a less dangerous crime instead of the agreed-upon offense—either by damaging the intended object or by causing harm to a different object—these scenarios should not be classified as excess. Instead, they fall under the concept of "failed complicity," which is already addressed in the existing regulations of the Criminal Code.

Thus, we argue that part 4 of Article 49 of the Criminal Code of the Republic of Armenia unnecessarily complicates the Code, as the provisions for criminal responsibility related to unsuccessful conspiracies are already adequate for assessing these cases.

This scientific article is devoted to some features that characterize the objective side of the organization of illegal migration – the crime provided for in the Article 470 of the New Criminal Code of the Republic of Armenia.

In particular, issues related to the procedure for entry into the territory of the Republic of Armenia, movement or residence on it, as well as transit through Armenia or leaving it were considered. In this regard, the possible, as well as the most common violations of the current legislation of the Republic of Armenia are analyzed.

As a result of the study, it is substantiated that the objective side of the discussed crime is manifested in the organization of the corresponding illegal actions. In this regard, it is emphasized that the organizer is not a direct participant in illegal migration. The subject of the crime of the crime provided for in the Article 470 of the Criminal Code of the Republic of Armenia, contributes to this process, ensures it, creating the necessary conditions.

The authority and competence of the International Court of Justice has been the subject of considerable debate in recent years, in particular on the effectiveness of the Court in enforcing its judgements. The lack of clear mechanisms for enforcing the judgements of the International Court of Justice has led to a crisis in their enforcement.

Taking into account the above, the aim of this article is to investigate the international enforcement mechanisms of the International Court of Justice, through which comprehencively have been analysed Article 94 of the United Nations Charter, as well as the competence of the General Assembly and the Secretary-General with regard to enforcement as alternative international mechanisms.

Perhaps an international mechanism for the enforcement of ICJ judgements is provided for in Article 94 of the UN Charter, but based on the wording of the said Article, it cannot be argued that only the UN Security Council has the exclusive power to enforce an ICJ judgement. According to the UN Charter, in order to enforce the judgement of the International Court of Justice, the General Assembly may establish a subsidiary body, as well as adopt resolutions aimed at implementing the judgements of the International Court of Justice. In addition, the UN Secretary General is also obliged to enforce the judgement under Articles 98 and 99 of the UN Charter. The latter is authorised to bring to the attention of the Security Council any matter which, in his opinion, may threaten international peace and security. The role of the secretary-general should not be overlooked when it comes to the enforcement of judgements of the International Court of Justice.