THEORY OF LAW
The study of numerous cases of applying the method of synonymous comparison of words and terms in the legal literature revealed that these comparisons are often made not at the level of words and terms, but at the level of concepts and categories, which is unacceptable from the point of view of the doctrine of synonymy Using specific examples of comparing the word «interest» with phrases in which this word is also used, the author substantiates inadmissibility of such comparisons. The paper explains the prospects for more active use in jurisprudence of certain concepts from the terminological apparatus of linguistics, in particular the terms «quasisynonym» and «engionim». The paper analyzes the long-term use of the terms «legitimate interest» and «legally protected interest» by the domestic legislator. It is shown that this happens due to the need to more accurately designate the real phenomenon, and for this, it is precisely those meanings by which these words and phrases differ that are most suitable. The author suggests that the legal approach to determining the meanings of such words and phrases cannot end with «declaring» them synonyms, but should focus on finding those significant differences between them, which give grounds to the legislator to use these quasi-synonyms.
Effective counteraction to the abuse of the right in the legal process is impossible without understanding the causes and conditions of the forms of abuse of the right encountered in practice, which are the ways of its external expression. Consideration of the doctrine and judicial practice of civil, arbitration, administrative, criminal procedure through the prism of the adversarial principle, characteristic of all the types of legal process presented, contributed to the identification of general patterns that cause the abuse of procedural right. In the course of the study, the author examined the forms of abuse of the right (discretionary powers) associated with the implementation of evidentiary activities of the parties to the proceedings, excessive appeals against the actions of the parties, numerous filings of applications, motions, and challenges. The author concludes that the cause of this negative phenomenon is the desire of a person to satisfy his interests, aspirations, emotions in an illegal way. Conditions for the abuse of procedural law arising from the costs of the adversarial principle include a vulgar interpretation of the adversarial principle, a conflict of interests of the parties to the process, subjectivism of a law enforcement officer, his condoning attitude to the presence of abuse of the right. An opponent’s unintentional provocation can cause the abuse of the right in some situations.
STATE POWER AND LOCAL SELF-GOVERNMENT
The paper deals with the problems related to the legal nature, regulation and procedure for the implementation of legal restrictions in the Russian Federation under the conditions of the high alert regime aimed to prevent the spread of a new coronavirus infection (COVID-2019). The corresponding legal restrictions were introduced in spring 2020 by the regulatory legal acts of the constituent entities of the Russian Federation in the absence of rules in the federal legislation at that time regulating in detail the limits of the respective powers of regional authorities. The paper provides the content of the legal positions of the Constitutional Court of the Russian Federation concerning the issues of competence of state authorities of the constituent entities of the Russian Federation to establish such legal restrictions, constitutional criteria for assessing their admissibility and proportionality. Particular attention is paid to the analysis of restrictions imposed on the constitutional freedom of movement, which, as the Constitutional Court of the Russian Federation pointed out, are not identical with the restriction of personal freedom. The author elucidates the purpose of the introduced temporary legal restrictions, which is to ensure self-organization of the society in the event of a common threat.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
The author of the paper makes an attempt to identify the problems of development of the institution of public service in the Russian Federation on the example of the prosecution service. The purpose of the paper is to study the features of service relations in the prosecutor’s office for their compliance with modern trends in the development of the state and society that determine the need for fundamentally new personal and professional characteristics of prosecutors. The paper highlights the imperfection of the current administrative and legal regulation of individual elements of service relations. Based on the results of the study, the author puts forward proposals for the introduction of qualitatively different approaches to the selection, training, retraining and employment of the personnel aimed at improving professional qualifications and competitiveness of staff members, their compliance with high moral and ethical requirements for this category of employees, ensuring openness and transparency of prosecution offices egencies and their employees. In particular, it is proposed to enshrine in law qualification requirements for all positions in the prosecutor’s office and for candidates applying for such positions, develop and implement a system of key performance indicators for the service and rating of candidates for the personnel reserve, a national database of applicants for managerial positions, intensify work on holding patriotic events, strengthen the status and significance of the procedure of taking the oath. In order to democratize public-service relations in the prosecutor’s office, the paper focuses on the need to revise a number of legislative provisions.
The Russian state system for ensuring aviation security is based on legislation that defines the goals, objectives, principles and a legal status of participants in transport legal relations. The purpose of the study was to determine the international legal foundations and conditions that contribute to the development of Russian legislation in the field of transport security, to study international experience in the fight against terrorism in transport and the main provisions of convention decisions that establish mandatory requirements for participating countries. The paper presents the results of the analysis of international, Russian legislation and the opinions of scientists, practitioners regarding the formation of a sustainable Russian system of transport security, its integration into the international security system. It describes various convention interpretations of the concepts of «aircraft in flight», «illegal acts on board an aircraft», various approaches to determining the jurisdiction of states. Proposals have been made to supplement Art. 20.1 «Petty hooliganism» of the Code of Administrative Offenses of the Russian Federation with the part providing for liability for petty hooliganism committed on board: «Petty hooliganism, that is, a violation of public order that threatens or may threaten the safety of the aircraft.»
FINANCIAL LAW
The paper is devoted to the concept of «green» finance. Based on the analysis of the points of view available on this issue, the author concluded that «green» finance can be defined using a narrow approach (as bonds, loans and other financial instruments aimed at financing activities to ensure sustainable development of the environment) and a broad approach (as the whole complex of economic relations related to financing measures to protect the environment and combat climate change). The paper also defines the types of social relations that make up «green» finance that are included in the subject of financial law, classifies mandatory payments related to ecology and the environment, concludes which payments can be classified as «green», highlights climate risks of financial organizations and types of «green» financial instruments. The author makes proposals for further improvement of the climate risk management mechanism in the financial market.
The paper examines changes in legislation on the patent system of taxation that have taken place since January 1, 2021, and that allow raising the question of constitutionality of this special taxation regime as a whole. The legislator has excluded restrictions for regional legislative bodies that establish the maximum amount of the potential income of an individual entrepreneur, and through it the amount of tax under the patent taxation system. Thus, the federal legislator actually got rid of the real restrictions on the powers of regional legislative bodies that regulate the patent taxation system. At the same time, the Constitutional Court of the Russian Federation since the 1990s repeatedly expressed legal positions, according to which the absence of such restrictions is unacceptable. The author makes suggestions on possible ways to solve the problem. It is possible that the Constitutional Court of the Russian Federation could recognize the exclusion of restrictions by the federal legislator as unconstitutional. However, taking into account the previous experience, it is possible that there will be no reaction on the part of the interested parties to the essentially unconstitutional changes introduced into the legislation.
The paper is devoted to the consideration of the role of the principles of payment systems regulation in reducing the legal risk of their activities. The relevance of the issue under study is predetermined by the fact that amendments to the legislation on payment systems are made quite often, which increases the likelihood of legal risk. The purpose of the study is to assess the importance of the principles of regulation of payment systems for ensuring their proper functioning. The study describes a system of principles that reduce legal risk, analyzes the sources of legal risk, and proposes their classification depending on the mechanism of affecting the payment system. The application of the principles makes it possible to manage legal risk by directly and indirectly influencing the activities of the payment system and the entities that ensure its functioning. The author examines the legal model for introducing principles into the current regulation of payment systems. In particular, it is proposed to improve the monitoring mechanism through the introduction of qualitative and quantitative indicators of implementation of principles in the activities of payment systems.
CIVIL AND FAMILY LAW
The issues concerning delimitation of the grounds and conditions for the restriction and deprivation of parental rights are very relevant both at the doctrinal and practical levels. Difficulties in choosing a measure of family law protection are demonstrated by examples from judicial practice. The paper analyzes a law enforcement issue regarding the difficulty of identifying and taking into account a difficult life situation (a combination of difficult circumstances) in which a parent finds himself or herself. A difficult life situation excludes wrongful dangerous parental conduct. However, the courts cannot take it into account in the event of a claim for deprivation of parental rights, since the courts are not entitled to go beyond the stated requirements in this category of cases. The author comes to the conclusion that it is necessary to give the court the right to go beyond the claims initiated by the claimant to make a decision on the deprivation of parental rights, if a claim is filed to restrict parental rights and the court finds grounds for deprivation of parental rights. The court should also be empowered to make decisions in unasserted claims in the opposite situation, when the claimant demands to deprive the defendant of parental rights due to the danger of the child being in a parental environment, but the court has not found grounds for depriving of parental rights.
The process of formation and development of evaluation concepts in civil law has a long history and is associated with the development of law, the improvement of legislative technology due to the gradual abandonment of the casuistic method of regulating legal relations and the increase in the abstractness of legal prescriptions. This legal writing technique had already been present in the law of ancient states. The purpose of the paper is to clarify the features of the formation and development of evaluation concepts in civil law through the study of the historical experience of their use in the sources of civil law, which to a certain extent became the basis of modern Russian civil law. It is also relevant to establish the reasons for the growing trend towards the use of more flexible methods of regulating civil law relations. As a result of comparative legal research, analysis of historical sources of law and modern legislation, it was concluded that civil law norms containing evaluation concepts are known to all legal systems from the earliest stages of development of law. These legal constructions are an integral part of legal regulation. The paper analyzes and substantiates the historical conditionality of a steady upward trend in civil law in the number of norms containing evaluation concepts, the continuity of this process. The reason for this is the improvement and development of legislative techniques, the use of more flexible dispositive methods of regulating civil legal relations. At the same time, attempts by the legislator to fix the main features and content, approximate criteria for individual evaluation concepts in the rules of law are noted in order to uniformly apply them and limit the freedom of discretion of the law enforcer
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
The paper analyses legal relations that develop in writ proceedings and conciliation procedures and substantiates the idea that they are not included in the subject of civil procedural law. The author shows their qualitative difference from the industry forming relations arising in the administration of justice and the impossibility of combining them in the subject of the industry. The effectiveness of changes in civil procedural legislation aimed at reducing the judicial burden is assessed. It is pointed out that it is inadmissible to refuse procedural guarantees of justice. The author agrees with the position existing in the scientific literature on the exclusion of writ proceedings from the jurisdiction of the courts in order to optimize the workload on judges. Attention is given to the need to improve the procedure for issuing court orders, some measures are proposed for this. Due to the lack of connection between the relations that develop in conciliation procedures and the subject of the industry, the inclusion of the norms regulating them in the texts of civil procedural codes is criticized.
LEGAL PROTECTION OF INTELLECTUAL PROPERTY
Due to the development of computer technologies and the use of social networks not only for personal, but also for commercial purposes, the need for legal regulation of relations as to the use of creative work results posted in social networks, as well as issues of inheritance of these results following the death of the account author, has increased. Judicial practice has already seen cases of legal disputes regarding social networks; abroad, separate legal approaches are being developed to determine the legal nature of social media accounts and to consider the results of creative work that are posted on such accounts. In the paper, the author analyzes Russian and foreign experience and makes a conclusion about the way the inheritance of accounts is regulated in domestic and foreign judicial practice. The author analyzes the legal regulation of relations regarding social media accounts and issues of their inheritance, taking into account the creation of a new virtual reality, and reveals possible ways of legal protection of the results of creative work created using virtual and augmented reality technologies.
CRIMINAL LAW
The paper substantiates that the concept of complicity in criminal law requires adjustment: a one-sided subjective connection should be sufficient for complicity. The practice of qualifying acts committed with the participation of menyally ill persons and minors does not fully comply with the principles of criminal law and the objectives of criminal policy. Judicial practice, recognizing the possibility of qualifying the participation in a crime of a mentally ill or minor as a group of persons, has resorted to a broad interpretation of the law. As a result, there are no obstacles to understanding such participation as a group of persons by prior agreement, which, however, is not supported in the current practice. Classification as the actions of the perpetrator of the use of a mentally ill person or a minor in the commission of a crime does not solve the problem, for example, in the case of a crime committed with a special subject recognized as mentally ill. The problem requires a legislative solution. A new definition of complicity is proposed as the intentional participation of a person in the commission of an intentional crime by another person, as well as in the commission of an act prohibited by criminal law, by a person who is not subject to criminal liability due to his age, insanity or other circumstances.
INTEGRATION LAW
The paper is devoted to the problems of differentiation of the categories «personal data» and «nonpersonal data» in the law of the European Union in the context of information and communication technologies development. The definitions of these concepts, their relationship and interrelation in the context of the application of the concept of dichotomous separation of information in EU law are considered. The criteria for distinguishing between personal and non-personal data are analyzed, based on the essential characteristics and relevance of the information being processed, as well as on the characteristics of the data subject and the possibility of his identification. The place of pseudonymized and anonymized data in the classification of information is indicated. An algorithm used in the EU for determining the category of data is formulated, which has a relativistic nature and is based on the assessment of the risk of identifying an individual in combination with the concept of «reasonable probability». An approach to the legal regulation in the European Union of processing mixed data sets, which are often encountered in practice and include both personal and non-personal data, is considered.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
The paper is devoted to the identification, analysis and assessment of potential threats and risks associated with the implementation of the Federal Law of July 2, 2021 No. 296-FZ «On Limiting Greenhouse Gas Emissions». Based on the results of a study of the provisions of the Federal Law (in particular, the rules related to the implementation of climate projects, the creation of legal mechanisms and the market for trading carbon units, a monitoring system, incentives to reduce greenhouse gas emissions, etc.), the authors outline the most controversial and debatable issues and problems that can potentially affect the effectiveness of the implementation of the law in question. The role of the national climate law in ensuring the «energy transition» is also substantiated. It is proved that it is necessary to adopt a special Climate Law of the Russian Federation, as well as to introduce a number of adjusting changes into the regulatory legal acts regulating public relations in the field of ecology, economics, and technology, medicine, transport, construction, infrastructure and communications.
Based on the analysis of federal and regional legislation, the practice of their application by authorities, judicial practice, federal legislative initiatives and approaches in the scientific literature, the paper examines the issues of boundaries adjustment, transformation and liquidation of specially protected natural areas. All the considered aspects of this problem indicate the need for its legislative solution at the federal level by clearly defining these concepts, criteria and grounds for decision-making, the sequence of procedures and the timing of decisionmaking. Prior to the adoption of such a decision at the federal level, regional and municipal practice should be subject to revision. The paper concludes that when addressing the development of a network of specially protected natural areas, one should proceed from the priority of preserving natural and historical and cultural complexes and objects on the territory of specially protected natural areas over other tasks, as well as a scientifically based combination of environmental, economic and social approaches for making managerial decisions, systemic and comprehensive solution of problems in the field of organization and functioning of specially protected natural areas. Such principles can only be ensured on the basis of a comprehensive perspective view of the development of a network of such territories, which should be enshrined in the concept of development of specially protected natural areas.
The paper is devoted to the problems of public prosecutor’s supervision over the implementation of environmental legislation in air, rail, water, road and pipeline transport. The features of the legal regulation of the transportation of especially dangerous goods are analyzed following the case of heavy-duty road and water transport; legislation establishing environmental requirements for economic activities in transport; the authors list the main international agreements concluded in this area. A brief analysis of the state of legality in the field of compliance with environmental requirements in transport is given: the dynamics of environmental crime in transport and the number of violations detected by transport prosecutors are analyzed; the most priority areas of supervision, typical violations identified by prosecutors, and factors contributing to violations are noted; response measures taken by prosecutors. Measures aimed at increasing the efficiency of prosecutorial supervision in the area of supervision under consideration are proposed.
LEGAL EDUCATION AND SCIENCE
The authors studied a number of projects and concepts aimed at increasing interest in the Russian education system among foreign students, as well as the functions of state structures involved in their implementation. Analyzing existing programs, the authors pay special attention to the activities of Rossotrudnichestvo. In conclusion, a number of measures are proposed aimed at developing the coordination of the work of state structures and educational institutions to attract foreign students. In the context of globalization and the active introduction of digital technologies in all spheres of society, the institution of cooperation between educational institutions of higher education and state authorities, specialized state organizations in the field of attracting foreign citizens to study at Russian universities also depends on the features of remote work and digitalization processes. The paper analyzes the main directions of the use of individual digital technologies in these respects. The main directions for increasing the presence of Russian educational organizations in the global Internet space and increasing the effectiveness of marketing digital strategies are considered.
The paper considers biolaw as a new phenomenon. In connection with the dynamics of the development of a number of groups of social relations (in the field of science, biomedicine, biopharmaceutics, biosafety, etc.), the formation and development of which are based on modern biological and other technologies (for example, information, management), the existing ones are being modified, and new relationship appear. Their regulation is carried out on the basis of the facts, ideas, concepts accumulated by the legal doctrine, taking into account the experience of solving new problems within the framework of traditional branches of domestic law, as well as legal innovation, systemic, synergistic, intersectoral and interdisciplinary approaches. The author’s vision of biolaw is proposed, as well as a strategy for the development of this new formation in Russia. In the coming years, biolaw is able to provide the tools inherent in law for the implementation of the Biosafety Project, the Biomedical Project, and the Biological Project.
ISSN 2782-1862 (Online)