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BRICS Law Journal

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Vol 9, No 4 (2022)
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https://doi.org/10.21684/2412-2343-2022-9-4

ARTICLES 

4-20 321
Abstract

As humanity improves its use of technologies that can replace parts of a biological organism with ones containing mechanical or electronic components, it raises important legal and political issues. For example, the successful implantation of devices in human bodies could lead to the emergence of new cognitive and motor abilities, thereby resulting in the creation of a new class of people. Undoubtedly, this new class of people with extraordinary abilities would require a legal and governmental response. However, the question that arises is what legal rights might be given to these people, considering that they are more similar to machines than to men or women. The following legal aspects are of the utmost importance: the legal rights and responsibilities of cyborgs; the regulation of access to neuroprosthetic devices by third parties; and the limitation of the illegal use of the damaging capabilities of cyborgs. This article examines a number of laws and regulations from various jurisdictions in the United States, the European Union, South Korea and China that apply to cyborg technologies, with a particular focus on a legal doctrine that applies to neuroprostheses.

21-40 274
Abstract

Constructing an assessment index system of law-based governance of a city provides a data basis and an empirical basis for China’s urban construction of the rule of law and highlights its characteristics in the era of big data. A thorough understanding of the theory of the rule of law is required in order to establish this index system. The establishment of the index system needs to be based on a deep understanding of the theory of the rule of law. In particular, it is important to understand the relationship between the core content of the rule of law and the law-based governance of a city, and then to determine the connotation of law-based governance of a city. This serves as the starting point for constructing the index system. At the same time, it is necessary to have a solid grasp of the index theory, adhere to the method of index setting, break down the concept of law-based governance of a city into different levels of indicators according to the types and attributes of the indicators and continue to visualize and operationalize them until the content can be measured. As a whole, this forms a complete assessment index system. Of course, the content of the index system is not fixed and needs to be constantly tested and adjusted in practice.

41-63 302
Abstract

The digitalisation of the economy has created a number of complex problems in the area of taxation. A majority of these problems relate to the issue of the distribution of taxing rights between states in the context of taxing income received as a result of crossborder activities. This article discusses the initiatives of the Organisation for Economic Cooperation and Development (OECD) regarding the taxation of international groups of companies in the era of the digital economy. It considers methodological approaches to taxation of the digital economy and highlights the features of the digitalisation of the economy that play an important role in tax policy. The study undertaken is based on a comparative legal method that allows for the examination of similar legal problems found in legislation and international treaties, as well as the identification of optimal ways to solve them. The following main problem with taxation of the digital economy is highlighted: tax systems laid down in the 1920s traditionally take into account the principles of the source of income and residency. In the new world of globalization and the digital economy, these principles have become significant obstacles to international trade. It is on this ground that the issues of the new nexus as well as the new model of allocation of taxing rights should be established. The article provides an analysis of the OECD’s two-pillar approach to these issues. Pillar 1 deals with the reallocation of profits of multinational enterprises to market jurisdictions. Pillar 2 deals with the issue of a global minimum tax. Additionally, the article discusses the various ways in which the new OECD concept could potentially be implemented in Russia.

64-80 257
Abstract

This article discusses key areas of harmonization of administrative legislation and administrative responsibility between the Russian Federation and the Eurasian Economic Union (EAEU) countries. The most important issue in modern law is understanding that the uniform practical application of consistent administrative liability will enable the creation of a customs, tax, technological, and environmental space in the EAEU and BRICS. The author, on the basis of the findings of other researchers, gives an original definition of legal and administrative liability, which can be used in the harmonization of Russian legislation with the legislation of other BRICS and EAEU countries. The author also determines the regulation of the administrative process and the difference between administrative liability and other types of legal liability in accordance with modern Russian legislation.

81-107 570
Abstract

The paper attempts to trace the evolution of the concept of Corporate Social Responsibility (CSR) and seeks to gather how it turned out to be a boon for the developing nations of the world, particularly countries like India. By the path-breaking promulgation of the Companies Act, 2013, CSR was made mandatory in India, for companies meeting the financial thresholds mentioned in Section 135 of the Act. The author seeks to study the journey of CSR in India, the present law, and the latest amendments made to the same in recent times. The paper evaluates the rationale behind the mandatory CSR law and how it can be a game-changer in India Inc.’s commitment to social causes. The author has also suggested how the mandatory CSR regime in India can be further strengthened to contribute meaningfully, particularly in the fields of education and healthcare, through better project identification, stronger execution linkages, an overhaul of the board committees, flexible and pragmatic government rules, and synchronization of the corporate CSR activities with the lead programmes of the Government of India. These reinforcements can go a long way in making the CSR approach much more effective and value accretive.

108-133 261
Abstract

The rights of indigenous peoples have become an important issue of international law and policy over the past three decades as a result of movements led by indigenous peoples, civil society, international mechanisms and states at the domestic, regional and international levels. Indigenous peoples are widely recognized as being among the world’s most vulnerable, disadvantaged and marginalized peoples. In order to identify, recognize and protect the rights of indigenous peoples, it is necessary to have a clear understanding of who the indigenous people are. Moreover, the definition that is derived cannot be static, but must change with the times and from place to place as well as adapt to the changing circumstances and environments. This paper analyses the statutory definitions of indigenous peoples and their rights as provided under the United Nations legal framework and other regional frameworks. Furthermore, it examines the unique perspectives on health held by indigenous peoples as well as their vulnerability to the COVID-19 pandemic. The question that was posed in this paper, however, was whether the right to health extends to indigenous peoples, thereby making it binding on a far greater number of actors. And what are the issues that pertain to the human rights of indigenous peoples. Nevertheless, this paper noted that the United Nations Human Rights System, as well as its mechanisms, laws and policies have been at the heart of these developments. This paper takes an analytical and qualitative approach to its research and builds its argument on existing literature, which is achieved through a synthesis of ideas. The paper concludes that the rights of indigenous peoples are increasingly being formally incorporated into the domestic legal systems of various countries.

31
Abstract
From the very beginning, it was assumed that the new regulation – Law on Higher Education would mark the implementation of a ground-breaking, comprehensive reform of the higher education system introduced by the Polish government under the motto of “Constitution for Science”. It was emphasised that the project constituted the most extensive reform implemented within the framework adopted by the European Commission as the model for all large-scale systemic changes since 1989. The Constitution for Science replaced a number of earlier laws related to higher education and comprehensively encompassed the organisation of the academic system and science in Poland. The goal of the regulation was to establish optimum conditions to facilitate scientific and didactic excellence, ensure sustainable development of academic centres throughout Poland, and provide universities with effective management tools. Unfortunately, the efforts made to date by the Minister of Finance and Minister of Science and Higher Education in the face of the many difficulties emerging at the meeting point between copyright, tax and education laws have to be deemed ineffective. Unfortunately, the currently employed solutions are characterised by considerable complexity and lack of consistency. As it has been shown in the article, the goals pointed are globally recognised in many countries. It is unfortunately difficult to avoid the conclusion that although the idea of preferential treatment of researchers (taxpayers) is highly laudable as such, the manner in which it is being introduced contradicts the very purpose of the implemented reform.
41
Abstract

The paper attempts to explore the evolution of the concept of Corporate Social Responsibility (CSR) and seeks to gather how it turned out to be a boon for the developing nations of the world, particularly countries like India. By the path-breaking promulgation of the Companies Act, 2013, CSR was made mandatory in India, for companies meeting the financial thresholds mentioned in Section 135 of the Act. The author seeks to trace the journey of CSR in India, the present law and the latest amendments made to the same in recent times. The paper evaluates the rationale behind the mandatory CSR law and how it can be a game-changer in India Inc’s quest for contributing to social causes. The author has then presented her views on how the CSR regime in India can further be strengthened in the fields of education and healthcare through better project identification, securing crucial linkages, an overhaul of the board committee, flexible and pragmatic government rules, and synchronization of the corporate CSR activities with the lead programmes of the Government of India. Such attempts are aimed at strengthening the CSR approach to make them more effective. A brief mention is made about the extraordinary thrust provided by the CSR activities of the various companies to the Government’s fight against the Covid-19 pandemic.

35
Abstract

The rights of indigenous people have over the past three decades become an important issue of international law and policy as a result of movement driven by indigenous peoples, civil society, international mechanisms and states at the domestic, regional and international levels. Indigenous peoples are recognized as being among the world’s most vulnerable, disadvantaged and marginalized peoples. In order to identify, recognized and protect indigenous people rights, it is necessary to know who are indigenous people? The definition cannot be static, but must change with times and from place to place. This paper analyses the statutory definitions of indigenous peoples, and their rights as provided under the United Nations legal framework and other regional frameworks. This paper examines the Indigenous Peoples distinctive concepts of health and their vulnerability to COVID-19 Pandemic. This paper however asked: whether the Rights to Health Covers the indigenous people, thereby making it binding on a far greater number of actors? And what are Indigenous Peoples Human Rights issues? However, this paper noted that the United Nations Human Rights System, its mechanism, laws and policies have been at the heart of these developments. This paper adopts analytical and qualitative approach and builds its argument on existing literatures, which is achieved by a synthesis of ideas. This paper has drawn the conclusion that the rights of indigenous peoples are also increasingly being formally incorporated into domestic legal systems.

34
Abstract

As humanity improves their use of technologies that replace parts of a biological organism with ones containing mechanical or electronic components, it leads to a rise in important issues in law and politics. For example, devices implanted in the body create a new class of people with improved motor and computational abilities. How should law and policy respond when the capabilities of such people exceed those of the general population? Equally important is the following question: what legal rights should be granted to people armed with such technology as they appear more and more like machines and less than a person from a biological point of view? The following legal aspects are of utmost importance: legal rights and responsibilities of cyborgs, regulation of access to neuroprosthetic devices of third parties; limiting the illegal use of the damaging capabilities of cyborgs. This article examines a number of laws and regulations from several US jurisdictions that apply to cyborg technologies with a particular focus on a legal doctrine that applies to neuroprostheses.

37
Abstract

The article discusses the initiatives of the Organization for Economic Cooperation and Development (hereinafter – the OECD) in the area of taxation of international groups of companies in the era of the digital economy. Methodological approaches to taxation of the digital economy are considered, the features of digitalization of the economy that play an important role for tax policy are highlighted. The digitalization of economy has caused a number of complex problems in the area of taxation, mainly related to the issue of distribution of taxing rights between states in the context of taxing income received as a result of cross-border activities.

The study is based on a comparative legal method that allows comparing similar legal problems existing in legislation and international treaties, as well as identifying optimal ways to resolve them. The following main problem of taxation of digital economy is highlighted: tax systems laid down in the 1920s traditionally took into account the principles of the source of income and residency. In the new world of globalization and the digital economy, these principles become significant obstacles to international trade. On this ground the issues of the new nexus as well as the new model of allocation of taxing rights should be established.

The analysis of the OECD two-pillar approach is brought into light. Pillar 1 deals with the reallocation of profit of multinational enterprises to market jurisdictions. Pillar 2 deals with a Global Minimum Tax.

The possible ways of implementation of the new OECD concept in Russia are also discussed in the article.

COMMENTS 

134-161 241
Abstract

From the very beginning, it was assumed that the new regulation – Law on Higher Education and Science (LHES) would mark the implementation of a ground-breaking, comprehensive reform – “Constitution for Science.” It was emphasised that the project constituted the most extensive reform implemented within the framework adopted by the EC as the model for all large-scale systemic changes since the last thirty years. Unfortunately, the efforts made to date by the Minister of Finance and Minister of Science and Higher Education in the face of the many difficulties emerging at the meeting point between copyright, tax and education laws have to be deemed ineffective. Against the background of the analysed solutions in BRICS countries, the Polish solutions are the most far-reaching in terms of protecting the interests of academic teachers. They lead to a reduction of the tax burden (by applying 50% tax deductible costs) by exactly half. While the very idea adopted on the grounds of Polish legal solutions deserves a high assessment and may constitute an interesting model to be copied in the BRICS countries (as far-reaching benefits for university researchers), the manner of its introduction deserves criticism. The adopted legal basis, as shown in the study, is not internally coherent at the junction of tax law, copyright law and higher education law. In fact, they are even mutually exclusive. For this reason, the manner of proceeding with this legitimate regulation cannot be recommended in the BRICS countries.



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ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)
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