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Actual Problems of Russian Law

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Vol 16, No 11 (2021)
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STATE POWER AND LOCAL SELF-GOVERNMENT

11-19 488
Abstract

The paper examines the content of municipal procedural relations, highlights their derivation from municipal  substantive legal relations. Substantive and procedural norms in municipal law and their distinctive objectives and  features of practice of their application constitute the basis for the separation of municipal procedural relations  from the system of municipal legal relations. Municipal procedural legal relations arise when their participants  carry out actions aimed at ensuring their powers to resolve issues of local importance. The author shows the  difference between substantive and procedural legal relations according to their object and grounds of occurrence  and distinguishes them according to such criteria as participants and their objective. Based on the first criterion, six  types of municipal procedural relations are distinguished, according to the objective criterion, four blocks of municipal  procedural relations are distinguished. Taking into account that in recent years a federal legislator has entrusted  more than one and a half thousand substantive powers to local self-government bodies, the author concludes that  it is necessary to intensify their law-making activities in order to develop and adopt municipal procedural acts.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

20-31 850
Abstract

The paper examines the content and structure of law enforcement in connection with the commission of  disciplinary offenses by civil servants through the implementation of procedural norms of disciplinary proceedings  that represents one of the forms of enforcing social and, as a variety of them, law rules. The author characterises  such an independent element of the legal process as the stages of procedural hearings, shows the correlation for  differentiation between their content and the main stages of law enforcement. The author analizes approaches to  determining the stage of the legal and administrative procedure, highlights their features and proposes to apply  the results of the analysis to determining the stage of hearings in disciplinary cases. The author shows the points  of view of specialists on the system and types of the main and optional stages of proceedings in disciplinary cases  brought against civil servants, substantiates the criteria underlying the selection of a certain procedural stage,  their functional role in proceedings and draws a conclusion about the types of stages of proceedings in disciplinary  cases. The paper substantiates the opinion that the revision of a disciplinary case as a separate, independent stage,  not included in the structure of this proceeding, is possible through the resolution of a public service dispute.  In conclusion, the author characterises the existing procedure (model) of proceedings for the imposition of a  disciplinary sanction that can be simplified and ordinary (complete).

32-41 548
Abstract

The paper is devoted to the study of the types of non-banking financial organizations. A classification  is an integral part of scientific knowledge, which allows us to visually demonstrate the inner content of the  category under consideration and identify the features of each element of the analyzed concept. The research  issue of the paper is predetermined by the lack of legal division between non-banking financial organizations.  The classification given in the paper, according to the author, on the one hand, most fully reflects the range of  financial services provided by non-banking financial institutions, and, on the other hand, allows differentiating the roles that separate non-banking financial institutions play in the organization and functioning of the financial  market. The latter is important for determining the specifics of legal regulation of different groups of non-banking  financial organizations, since each of them has a different meaning for ensuring the stability and sustainability of  the financial market. The paper reflects the author’s position concerning the definition of the concept of "non-banking financial organizations" and the place of individuals providing professional services in the financial market  in the system of financial organizations.

42-48 549
Abstract

To financially support the functions of the state, it is necessary to legally allocate from the budget the  funds that form expenditure obligations of a particular public-law entity. Structuring of all expenditure obligations,  including obligations in the field of social policy, takes place due to the corresponding register. It is concluded  that the register of expense obligations of the regional budget includes certain information about the obligations associated with the social policy financing: a) information about the powers of the region in the field of social  policy; b) information on regulatory legal acts, agreements establishing the region’s expenditure obligations in  the field of social policy that are subject to execution at the expense of regional funds, etc. It is determined that  the registry of expence obligation for the constituent entity of the Russian Federation is formed according to the  same rules as the rules applied to form the registry of expence obligations at the federal level, but taking into  account the specifics of the constituent entity of the Russian Federation. The significance of the study is that it  allows, from a scientific point of view, to comprehend the problems of regulating the expenditure obligations of  a constituent entity of the Russian Federation in the social area.

BANKING SYSTEM AND BANKING ACTIVITY

49-54 939
Abstract

The paper is devoted to the use of a negotiation technology and its variety—mediation—in the banking  sector. It is emphasized that in recent years we have been talking about applied competencies that practicing  lawyers are expected to possess in a certain area of their activity. In this regard, soft skills have become more  important that need to be learned in the process of building relationships in a professional environment. Soft skills  are universal socio-psychological qualities that do not depend on the professional suitability of an individual, but  directly influence our success in the business environment. Mediation procedures can also be classified as soft  skills. The case stydy of credit relations shows the positive aspects of the use of mediation in the banking sector.  It should be noted that abroad such a procedure as mediation is used in a wide range of relations. Moreover,  mediation is mandatory, i.e. it is considered as a mandatory pre-trial stage of dispute settlement.

55-64 471
Abstract

A traditional banking market has undergone significant changes caused by rapid development of digital  technologies, which has been largely facilitated by the coronavirus pandemic. At the same time, it seems that  a blockchain technology has gained great importance in the issuance of syndicated loans. This circumstance is  explained by the fact that a syndicated loan agreement, similar to the blockchain technology, traditionally brings together a large number of participants, including, in particular, borrowers, lenders, a loan manager, a mortgage  manager. The paper substantiates the advantage of using the blockchain technology in structuring relations  related to the provision of a syndicated loan to a borrower. Particular attention is paid to the legal status of a loan  manager using blockchain technology to carry out his functions of organizing and administering a syndicated loan  agreement. The paper explains the peculiarity of interaction between a credit manager and other parties to the  syndicated loan agreement when using blockchain technology. Legislative changes are proposed aimed at providing  syndicated lending participants with the opportunity to use blockchain to organize interaction between them.

LEGAL REGULATION IN THE INFORMATION SPHERE

65-73 340
Abstract

A registration space of the Kingdom of Spain that covers the legal statuses of subjects and the legal  regimes of objects, is represented by three zones: international, public and private. The state registration area can be contingently divided into four sectors: Civil Status Registry Office, Notary, commercial and fiscal sectors. The  author chooses the civil status registry office sector as a subject of research, since she believes that the registration  of acts of civil status that determines the legal status of persons, identifies and individualizes participants in legal  relations, is of primary importance in the registration space. Thus, the record of the birth of a child is the beginning  of his social life (not biological). It is the record of the birth of a child that generates a stable political and legal  relation with the state expressed in the acquisition of citizenship and it confirms the chil’s legal capacity. The author  believes that the study of foreign experience of legal regulation, especially in modern conditions of digitalization,  contributes to the improvement of their own legislation.

CIVIL AND FAMILY LAW

74-82 809
Abstract

It becomes urgent to resolve the issue of developing the institution of law of common ownership,  as well as property law in general, regarding the fact that property law needs reforming that has not yet been  implemented, due to the emergence, in the context of digitalization, of the economy of collective use of various  goods (sharing, the economy of shared consumption), changes in the culture of consumption and the fact that not  in all cases the acquisition of goods on the basis of sole ownership is economically justified. Users’ communities,  whose members jointly acquire objects for their collective use, including objects in common ownership, can be  considered as one of the forms of sharing. Peculiarities of exercising the right to common ownership in relation  to property in the context of a sharing economy make it possible to talk about the possibility of separating an  independent type of common property along with shared and joint property (for example, collective common  property) or distinguishing a variety of common shared property—by analogy with the right of ownership to the  common property of an apartment building. The peculiarities of the implementation of this type of common  property can be enshrined in civil legislation.

83-98 642
Abstract

The paper analyzes the criteria for unfair termination of negotiations as a basis for pre-contractual liability.  There are 3 components of unfair interruption of negotiations: 1) entry into negotiations without the intent to conclude an agreement and their subsequent interruption; 2) arbitrary termination of negotiations if the counterparty  has confidence in the conclusion of the contract; 3) untimely notification of the counterparty about withdrawing  from the negotiation process. The author analizes the criteria for unfair breakdown of negotiations. They include  the following: the counterparty has reasonable confidence in the conclusion of the contract and the absence of a  valid reason for terminating business contacts. These criteria are relevant only for the second composition of the  elements of unfair termination of negotiations. To be held liable for entering into negotiations without intending to  conclude an agreement and for the subsequent withdrawal from them, it is not required to establish such criteria, and  in case of untimely notification of the severance of business contacts, it is necessary to establish only one criterion,  namely, the counterparty can reasonably believe in conclusion of the agreement. As a general rule, participants in  pre-contractual relations have the right to conduct parallel negotiations with other persons. This possibility may be  limited by entering into an exclusivity agreement. At the same time, in some cases, entering into parallel negotiations  can be qualified as unfair behavior even without the conclusion of such an agreement.

BUSINESS AND CORPORATE LAW

99-106 382
Abstract

The paper analyzes regulatory legal acts governing implementation of transactions with securities, stakes,  property or rights in relation to business entities that occupy a dominant position in a certain commodity market. The paper examines the issues related to the possibility of recognizing a dominant position as a criterion for  classifying an economic society as an economic society of strategic importance for ensuring the country’s defense  and state security (hereinafter: strategic importance) using as an example legislative restrictions on implementation  of economic concentration in relation to organizations, providing communication services, port services, as well  as in relation to natural monopolies. Based on the results of the study, a conclusion is made about the validity of  modern approaches to establishing strategic importance of an economic society through the concept of a dominant  position that over time can be transformed to use the concept of a dominant position as an independent criterion  for establishing strategic importance of an economic society.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

107-116 1529
Abstract

The science of civil procedural law advances an opinion that it is necessary to distinguish between the  factual and legal basis of a claim. The latter needs to be singled out, since the specific claim always results from a  specific legal relationship, from the subjective right of the plaintiff to be protected. The main argument, according to  A. A. Dobrovolskiy, is not the presence of the relevant norm in the law but its practical necessity to recognize these  legal grounds as an integral part of a claim. However, the author here confuses two different issues: the expediency  and the obligatory existence of a legal basis for the claim, although in fact these are far from identical concepts.  The author also wrongfully identifies the concepts of "basis of a claim" and "basis of satisfaction of a claim", as  a result of which the legal basis of a claim is always included in the basis of a claim. This position is supported by  some other scientists who dealt with the problems of the claim (G. L. Osokina, O. V. Isaenkova). Meanwhile, if we  consider a claim as a legal phenomenon in general, then the legal basis is indeed a necessary component of the  general concept of “the basis of a claim”. However, if we turn to specific claims, then the legal basis of the claim  can be either optional (Code of Civil Procedure of the RSFSR 1964) or mandatory (Code of Civil Procedure of the  Russian Federation 2002). Currently, in accordance with paragraph 4, Part 2 of Art. 131 of the Civil Procedural Code  of the Russian Federation, the statement of claim must indicate what constitutes the violation or threat of violation  of the rights, freedoms or legitimate interests of the plaintiff. The paper draws attention to the shortcomings of  this norm, and thus suggests to remove it from the Civil Procedural Code of the Russian Federation. At the end of  the paper, it is suggested that with the development of civil procedural legislation, reference to the norms of law  in a statement of claim will become mandatory. However, the recognition by V. V. Yarkov of this provision as valid  by virtue of imposing the burden of proof on the parties seems to be unreasoned.

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

117-132 488
Abstract

The paper deals with the institution of compulsory licensing for dependent inventions. Currently, its  most important application is in the pharmaceutical industry. In order to launch generic drugs that are dependent  inventions pharmaceutical companies have to enter into licensing agreements with the developers of original  drugs. The law enforcement practice that began in 2018 in the Russian Federation showed that paragraph 2 of  Art. 1362 of the Civil Code of the Russian Federation, which establishes the conditions for granting a compulsory  license for the use of a dependent invention, needs to be harmonized and supplemented in order to protect and  regulate the balance of private and public interests. To solve this problem, the author analyses the wording of  the corresponding legal norm found in international agreements, in particular in the TRIPS Agreement, and in  the national legislation of different countries as well as the effectiveness of its application. Based on the results  of the study, possible clarifications are given to the conditions for granting a compulsory license for the use of a  dependent invention under paragraph 2 of Art. 1362 of the Civil Code of the Russian Federation.

LABOR RELATIONS AND SOCIAL SECURITY

133-141 1420
Abstract

Based on an analysis of the provisions of the legislation, the law enforcement acts of the courts, the  essence of the legal phenomenon of abuse, as well as the problems associated with the application of provisions on abuse of law in the field of labor legal relations, are investigated. Based on examples from judicial practice, the  paper substantiates the absence of a formally defined approach to the application of the principle of inadmissibility  of abuse, as well as its superficial understanding. The paper reveals the issues of theoretical heterogeneity of the  intersectoral concept of abuse of law in domestic science, as well as the understanding of the concept of "abuse"  and its elements existing in the science of labor law. In addition, the possibility of highlighting this type of abuse  as abuse of power (opportunities) is being considered. The expediency of the development of an integrated cross[1] sectoral system of views and legal norms in relation to abuse in law is substantiated, giving answers to questions  about the place of abuse in the system of legal behavior, its means and the system of effective measures of  responsibility.

CRIMINAL LAW

142-154 475
Abstract

The actively defended idea of the Supreme Court of the Russian Federation on the inclusion of an offencse  of criminal misconduct in the criminal legislation was reflected in the revised draft federal law submitted to the  Parliament on October 13, 2020. The purpose of the study is to determine the key changes in the content of the  institutions of criminal misconduct and other measures of a criminal law nature proposed for consolidation in the  Criminal Code of the Russian Federation, to assess the objective need of the reforms initiated by the Supreme  Court of the Russian Federation. The methodological basis is a set of methods of scientific knowledge. General  scientific (analysis and synthesis, dialectics) and specific scientific research methods (system structural, formal legal)  were used. A comparative analysis of draft laws allows us to classify the substantive content of acts constituting a  criminal misconduct as key changes and the modification of other measures of a criminal legal nature. The authors  critically assess the idea underlying the classification of acts as criminal misconduct. By laying in the criteria for  the isolation of acts that are minimal in terms of the degree of danger, not legally significant elements of corpus  delicti, but the types and amount of punishments, the lack of criminal experience, the interests of the business  community, the developers of the draft law violate the system of law, since the proposed approach excludes the  assessment of the public danger of the act based on the significance of the protected by the criminal the law of  public relations. The meaning of the differentiation of criminal liability declared by the initiator of the reforms is  lost with the proposed duplication of other measures applied both to persons who have committed a criminal  misconduct and to those guilty of committing crimes of small or medium gravity, and the proposed conditional  nature of other measures levels the idea of liberalizing the criminal law. The paper focuses on the provisions of  the project that require revision and additional comprehension.

CRIMINAL PROCEDURE

155-166 763
Abstract

The legality and validity of the decisions of the investigator, inquirer and the prosecutor on the payment  of the amounts related to procedural costs remain problematic due to the absence in the law of a mechanism  ensuring the judicial procedure for their appeal.  

In order to fill this gap, the author studies the possibilities of introducing a procedure similar to the one enshrined  in Art. 125 of the Code of Criminal Procedure of the Russian Federation. The paper analyzes the positions of the  Resolution of the Constitutional Court of the Russian Federation No. 18-P dated May 13, 2021. It concerns the  victims’ appeal against the decisions of the investigator and the head of the investigative body regarding the  reimbursement of expenses for a representative. Some examples of judicial practice for resolving other disputes  related to the reimbursement of procedural costs are also analyzed.  

It is concluded that the right of a person claiming to receive the amounts provided for in Part 2 of Art. 131 of the  Code of Criminal Procedure of the Russian Federation against a judicial appeal made at his request is universal  and does not depend either on his status in a criminal case, or on the type of the indicated amounts, or on the  body or official that made the contested decision.  

Taking into account the practice of applying other norms on appealing against decisions of the investigating  bodies, it was proposed to introduce Art. 125.2. The author formulate its content given the characteristics of the  participants in the proceedings and the powers of the court to resolve the complaint.

167-173 489
Abstract

The digital environment developing in our society is becoming a kind of platform that not only conditions  the emergence of new types of crime, but also provides new opportunities in the investigation of crimes. Therefore,  the use of information technology should not only help in the prevention, detection of crimes and the identification  of persons who committed them, but also become a reliable guarantor of ensuring the rights of persons involved  in the orbit of criminal proceedings. The author discusses not only the problems of application of information  technologies in the production of certain investigative actions and the place of electronic evidence in the list  of types of evidence, but also the transfer of criminal proceedings to electronic format, examines individual  advantages and benefits that can be obtained from digitalization of criminal proceedings. The author carries out  a comparative analysis of Russian and foreign criminal procedure legislation in the context of the development of  digital technologies. The question of the possibility of using artificial intelligence in legal proceedings, including in  criminal proceedings, is considered. These issues acquire particular relevance when the investigation is connected  with the need to interrogate persons who are at the time of the investigation of a criminal case on the territory of a  foreign state. The same applies to the production of other investigative actions. In this case, cooperation is carried  out within the framework of providing legal assistance in criminal cases. A separate problem is the differences in  the criminal procedural legislation of the states cooperating in the provision of legal assistance in criminal cases.  Indeed, some foreign laws allow for the possibility of remote interrogation and remote search. All this determines  the search for new vectors for the development of international cooperation with more detailed regulation of the  production of remote investigative actions and in terms of securing the rights and obligations of its participants  not only for simpler and faster ways of accessing electronic evidence, but also for granting and observing their  rights and establishing and observing requirements for information technology, storage and transmission of data,  as well as the use of the information received.

THE BAR AND NOTARY PUBLIC SERVICE

174-179 481
Abstract

In the paper, the author considers the work of a notary as an activity aimed not only at preventing  legal conflicts, but also at assisting in resolving conflicts in the course of a notary’s execution of an enforcement inscription. In this regard, the author analyzes the structure of a legal conflict, as well as the functional and  procedural role of a notary in the process of resolving it. In view of the fact that notaries traditionally carry out  their activities in the sphere of indisputable jurisdiction, the author makes an attempt to correlate the concepts  of "legal conflict" and "indisputability". At the same time, the order and procedural form of execution by a notary  of an enforcement inscription is being investigated. The author concludes that the activity of a notary, associated  with the execution of an enforcement inscription, provides the socio-legal orientation of counter-subjects, allowing  them to resolve the existing legal conflict as quickly and efficiently as possible with the lowest possible costs,  which requires professional knowledge from the notary not only in the field of jurisprudence, but also in the field  of conflict management.

THE JUDICIARY AND COURT SYSTEM

180-186 884
Abstract

The development of online justice has led to the emergence of the need for a reasonable assessment  of the challenges posed by information technology at the present stage. Advanced technologies make it possible  not only to ensure digital litigation in Russia, but also to give it a qualitatively new meaning and procedure for its  implementation. The paper reveals artificial intelligence technologies and products of its work that impede the  development of online justice in the absence of their proper regulation, including technological one. The rapid  and at the same time inevitable introduction into the modern justice system of "new" types of evidence — digital  evidence — can negatively affect the objectivity of the court’s conclusions and the distribution of the burden of  proof (adversarial nature) between the participants in the process. The study proposes to give a legal assessment  to deepfakes and other realistic fakes created by artificial intelligence, which can become a serious obstacle to the  development of online justice. The laws of physics, technological progress and information technologies testify, on  the one hand, to the unique capabilities of breakthrough technologies, and on the other, to a possible significant  change in the traditional institutions of the judicial process and, as a consequence, justice (“law” and “court”). The  author proposes solutions to the issues under consideration, making it possible to authenticate the participants in  the process and the reliability of electronic evidence using the appropriate technological equipment of the court.

LAW ENFORCEMENT

187-193 1787
Abstract

The paper examines the issues of introducing digital technologies into the activities of the prosecutor’s  office in the light of the adopted Concept of digital transformation of the bodies and organizations of the prosecutor’s office of the Russian Federation until 2025. The author analyzes the current problems and prospects  of organizing prosecutorial activities in modern conditions of digitalization, pays attention to such problems as the  legislative regulation of issues related to citizens’ appeals in the form of an electronic document, also highlights  the problem of introducing artificial intelligence, which causes many ethical and legal issues, and other questions.  The digitalization of the activities of prosecutors is a complex and multi-stage process, but automated programs,  electronic document management and artificial intelligence will help improve the quality and level of work of law  enforcement agencies, which will contribute to increasing the rule of law.

LEGAL EDUCATION AND SCIENCE

194-205 566
Abstract

The aim of the work is to analyze the legal status of a senior researcher academic title, some problems  of applying the current legislation in terms of equating the academic title of a senior researcher with the academic  title of an associate professor. The methodology of the work consists of the formal legal method, the method of  interpreting the norms of law, the comparative legal method and the historical and legal method. The paper shows  the identified problems of legal regulation of the position of a senior researcher, the title of which was awarded  by a scientific organization in accordance with the legislation in force at that time. Based on the study of the  genesis of domestic legal regulation of the mechanism for conferring the academic titles of senior researcher and  associate professor, analysis of the provisions of the current sources of law, which are continued in the materials  of law enforcement practice, amendments to the current legislation are proposed that equalize the rights of senior  researchers, the title of which was awarded by state bodies, and those who have been awarded an academic title  by organizations.



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ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)