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Actual Problems of Russian Law

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Vol 17, No 7 (2022)
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PAGES OF HISTORY

11-23 350
Abstract

The paper is devoted to the study of the features of consolidation of property rights in customs and in law. The authors are shadowing the genesis and evolution of family crests among the Finno-Ugric peoples as one of the ways of of property rights objectification and drawing a parallel with ex-libris endowed with traditional customary and legal characteristics and securing the ownership of books. The choice of the research topic is not accidental, as it is predetermined by the absence of contemporary research works devoted to the problems of customary law of various peoples and research papers covering the features of the customary legal objectification of property rights among the Finno-Ugric peoples, as well as the legal nature of the ex libris. Under the conditions of the positivist legal doctrine prevalence, the Soviet science was convinced in disappearing and rudimentary nature of customary law and in the absence of the need to study the problems of ethnic law explaining the functioning of customary legal institutions. This conviction did not allow exploring various elements forming the essence of ethnic law that «emerged from the people», determining characteristic features of their functioning and carrying out research on social relations in a traditional society. The paper reveals similar and distinctive features in the consolidation of property rights in customs and law using family crests and ex-libris applied exclusively to books as property objects.

THEORY OF LAW

24-37 583
Abstract

Deepening of legal reflection in the field of theoretical generalizations enforces the need to search for new theoretical and methodological approaches. In this regard, in the legal field, the use of concepts adopted from the philosophy of science (paradigm, style of thinking, scientific picture of the world, research program, etc.) is becoming more and more frequent. When studying trends in the development of law, it will no longer be possible to do without using an epistemological potential of the concept of «style of legal thinking». The purpose of the study is to form a scientific understanding of the style of legal thinking as a legal metaphenomenon in the context of legal epistemology. To achieve this goal, the author analyzes the place of the concept of «style of legal thinking» in the theory of legal metaphenomena and gives his own definition of the term under consideration. The paper explains essential features, proposes a classification and outlines the prospects for using knowledge about the style of legal thinking. The concept of «style of legal thinking» is considered as an element of the theory of metaphenomena in law. The author draws a distinction between related concepts of «legal paradigm», «legal picture of the world», «legal tradition». The paper deals with prognostic and interpretative potential of knowledge about the style of legal thinking. Conclusions are drawn that the main criterion for distinguishing styles in jurisprudence is the change of epochs; the style of legal thinking accompanies the established legal order, contributes to its formation; legal and technical guidelines of the dominant style of thinking allow «preserving» the content and elemental composition of legal regulators of a certain era in law; epochs and corresponding styles of thinking not only replace each other, but also coexist; the question of the style of legal thinking of the era of artificial intelligence is natural, etc.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

38-48 441
Abstract

The paper discusses the main scientific and theoretical approaches to the concept and content of proving in the legal process and disciplinary proceedings in the civil service system of the Russian Federation. The analysis allows us to conclude that the proving process is complex, multi-layered, and discussions continue in legal science concerning characteristics of the content of evidence in the administrative process. Specialists consider proving in the administrative process both as a procedural activity and a procedural form of cognition. It constitutes the content of procedural activity, it is one of the legal means of establishing circumstances of a specific case. Referring to the content of proving that includes collecting, examining, avaluating and using of evidence, the author substantiates the conclusion that in disciplinary proceedings in the public service system, despite separation of functions for collecting and verifying evidence from their examination and evaluation, procedural proving as a form of logical and procedural cognition is carried out continuously. Evidentiary activity, despite its different content and subject composition, is unified and it is carried out at all procedural stages of the court proceedings. With regard to the structure and content of the procedural form of law enforcement administrative proceedings, proving acts as a legal law enforcement technology and procedural tool used to achieve (cognize) objective truth. On the basis of the identified evidentiary features in disciplinary proceedings, the author gives his own definition, determines the structure of the subject of proving and shows possible directions for improving evidentiary activities.

49-58 612
Abstract

Today, the absolute majority of appeals are submitted by citizens via the Internet information and telecommunications network. Their share among all appeals reaches 95%. A rapid growth in the number of citizens’ appeals submitted in the form of electronic documents, caused primarily by the development of information technology and the ease of filing such appeals, makes it necessary to talk about the urgent need for legal regulation of the procedure for processing electronic appeals, primarily at the federal level. The system needs continuous improvement of work with these appeals in authorities and organizations at all levels. Citizens should understand uniform rules for submitting such appeals. Citizens’ appeals in the form of electronic documents are of the greatest interest to researchers due to their prevalence, lack of regulation and peculiarities. However, no comprehensive studies of this type of appeals have been conducted. The author analyzes judicial practice, regulatory legal acts and practice of various bodies and organizations working with appeals in the form of electronic documents, identifies legal gaps, initiatives and practices that need legal regulation at the level of federal legislation, makes specific proposals for legislative amendments. The publication was prepared on the basis of the general scientific dialectical method. The special methods used in the preparation of the publication are: system-structural, formallegal, logical and comparative-legal methods. The paper refers to the appeals of citizens, associations of citizens and legal entities as citizens’ appeals.

BANKING SYSTEM AND BANKING ACTIVITY

59-70 715
Abstract

The paper examines peculiarities of manifestation of unfair behavior by the banks as specific subjects of an offense. The author concludes that at the present stage banking activities are being transformed due to the emergence of banking ecosystems, digitalization of banking activities, concentration of big customer data inbanks and a high-risk nature of banking activities for customers. In this regard, new practices of unfair behavior are emerging. The paper substantiates that creation of other legal entities by credit organizations, the main activity of which should be trading, insurance and production activities prohibited for banks, should be qualified as a kind of unfair behavior. Based on the conducted research, the author came to the conclusion that the emergence of banking ecosystems, the sale of services by banks to non-credit financial organizations and new technologies predetermine the need to improve the liability of banks for unfair behavior.

BUSINESS AND CORPORATE LAW

71-79 845
Abstract

The paper examines some aspects of the impact of the «green» economy on transformation of environmental legislation and «green» taxation. At the present stage of economic development in the countries of the European Union, economic models aimed at creating wealth and ensuring economic growth without harming the environment, i.e., the transition to a «green» economy, are being increasingly improved. Modern strategic measures of «green» growth of the European Union countries are directly implemented by the instruments of law and have an impact on the development of entrepreneurship. The author considers the system of «green» taxation existing abroad as an instrument of legal influence on business entities in terms of their compliance with environmental norms and standards. The author examines the types of «green» taxes and their purpose, describes classification criteria that include a purpose of introduction, an object of taxation, a scope of application and a type of economic activity. Special attention is paid to the carbon tax because of increased attention to the amount of carbon dioxide emissions into the atmosphere and an agenda to reduce the carbon footprint. The paper dwells on specific examples of tax regulation abroad and makes proposals for its development. The author highlights the importance of maintaining a balance of interests between the state, society and entrepreneurs when introducing «green» taxation, the need to encourage companies to introduce advanced eco-friendly technologies by providing tax preferences.

80-90 342
Abstract

Legislative regulation, establishing the forms of relations between persons, in case of non-compliance with the proposed model of behavior, provides for either the application of sanctions or the qualification of actual relations in accordance with established legal forms. In the latter case, signs that may have nothing to do with reality are often imputed to such relationships. Thus, for example, the author proposes to consider a group of persons as a collective community pursuing a single goal put out of brackets, and to look for a certain standard of prudent conduct in the actions of business entities that is not established in any norm, but that exists, in the opinion of the tax authority. At the same time, the entities that decided to conceal their real relationships by manipulating or distorting the legal form, act due to the specific reasons and conditions recognized by these entities as regulating their behavior. The latter allow an interested person to hide behind the formal identity of the holder of assets or corporate instruments and at the same time give the controlled person mandatory, although not formal, instructions. In the paper, using the example of a controlled holder, the author suggests an approach according to which, for the purposes of reclassifying the relations hiding behind the screen of the legal form, it is necessary to identify the real factual substrate of the relations and give them legal meaning.

LABOR RELATIONS AND SOCIAL SECURITY

91-98 869
Abstract

The paper deals with the problem of the influence of digital technologies on labor. Main directions of the impact of digitalization on the labor function include improvement of the ways of its implementation and the change of its content in connection with the emergence of new types of activities related to the use of electronic devices and technologies. With regard to the use of digital technologies as new ways of performing a labor function and along with their advantages, the paper evaluates possible risks of large-scale replacement of traditional methods with digital ones, and determines the ways to minimize such risks. The influence of digital technologies on the content of the labor function depends on the way in which the labor function was originally defined in the employment contract, as well as on how significantly the labor function changes under the influence of digital technologies and whether its essential content changes. In addition, as an impact of digital technologies on the labor function the author raises the issue concerning reduction of employees’ functionality leading to redundancies. Examining the impact of digitalization on the labor function, the paper describes how the labor function’s change may affect other terms of an employment contract that depends on the terms of the labor function.

99-108 370
Abstract

In 2020–2021 due to the COVID-19 pandemic, the issue of termination of an employment contract at the initiative of the employer became more relevant, as the number of layoffs and related labor disputes increased significantly. The doctrine of labor law has not yet studied the concept of a notice of termination of employment developed in different countries. The paper provides a classification of a notice of termination of employment based on the ILO Convention No. 158, Recommendation No. 166, as well as the European Social Charter. The paper is devoted to a comparative legal analysis of a notice of termination of employment at the employer’s initiative in such countries as Australia, Belarus, Great Britain, Germany, Spain, China, the Russian Federation, the United States of America, France. The paper concludes that most countries adhere to the approach according to which the fundamental criterion for determining the period of notice of termination at the initiative of the employer is the length of service.

CRIMINAL LAW

109-120 602
Abstract

Federal Law No. 352‑FZ of October 27, 2020, supplemented the domestic Criminal Code with Art. 200.7, which established liability for bribing an arbitrator (adjudicator). In this regard, it became necessary to give a criminal legal description of the newly introduced corpus delicti and consider Art. 200.7 of the Criminal Code of the Russian Federation through the prism of its shortcomings. The study examines: 1) public danger and validity of criminalization of bribing an arbitrator; 2) objects (generic, specific and direct) of the crime provided for by Art. 200.7 of the Criminal Code of the Russian Federation, as well as its subject matter; 3) the objective side of the crime provided for in Art. 200.7 of the Criminal Code of the Russian Federation, the moment the crime ends; 4) the subjective side of the crime under Art. 200.7 of the Criminal Code of the Russian Federation; 5) subjects of active and passive bribing of an arbitrator. The author provides his own standpoint on «bribery» crimes, makes proposals for their unification, for bringing the terminology of the criminal law in line with the general terminology — it is proposed to abandon the term «bribe» (vzyatka), replacing it with the term «bribery» (podkup)). The author also sets out his position on criminalization of mediation in bribery and petty bribery in relation to to «bribery» crimes provided for in Art. 184, 200.5 and 200.7 of the Criminal Code of the Russian Federation, as well as other proposals aimed at improving the criminal legislation of the Russian Federation.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

121-135 642
Abstract

The paper deals with the issues of law enforcement of methods (techniques) of mathematical modeling within the framework of forensic fire technical examinations in the study of the dynamics of fire hazards. The normative documents in the field of technical regulation, containing calculation methods and techniques, and their application in modern conditions in the framework of the production of forensic fire technical examinations are analyzed. The issue of admissibility, degree of accuracy and the scope of techniques (methods), as well as the use of probabilistic calculation results in the production of forensic examinations is considered. To eliminate doubts and controversial issues regarding the use of typical initial data and the correct choice of mathematical models, it is proposed to conduct an extended comparative study on various fires, taking into account the analysis of reliable data obtained during the investigation of fire cases. The paper discusses the issues of validation of the methodology for determining the dangerous factors of a fire and calculating the probability of evacuation of people within the framework of a forensic fire-technical examination.

136-142 397
Abstract

The paper considers a separate type of information threats that take place in the part of the information space formed by the intersection of the media environment and the digital environment. Such information threats have specificity, due to the peculiarities of this modified information space and implying a high degree of public danger of acts through which such threats are translated into reality. This study is relevant due to the needs of expert practice, which requires theoretical analysis and generalization, methodological recommendations development given the features of a new reality that is a consequence of the digitalization of public life and consists in the widespread dissemination of electronic means of communication. The practical purpose of this work is to bring into the system and analyze the variety of media security threats that occur in the digital environment, for the further development of standard models for the use of special speech knowledge to ensure media security in the digital environment.

INTERNATIONAL LAW

143-149 3189
Abstract

The paper considers the problems of legal regulation of sanctions relations. It is noted that the legal framework in the field of sanctions restrictions is necessary to achieve a balance of rights and legitimate interests of subjects of law in different states involved in the sanctions process, as well as to deter widespread and unreasonable violation and restriction of the rights of subjects in the context of sanctions measures. The author defines sanctions law as a system of norms governing relations related to restrictions on the rights of foreign states, citizens and legal entities, introduced in order to change the political course of unfriendly states, including as a response, as well as relations to overcome the legal consequences of sanctions restrictions, imposed on the state, its citizens and legal entities. Relations on the introduction, execution, compliance, cancellation, overcoming the consequences of sanctions and counter-sanctions restrictions form sanctions relations that are the subject of sanctions law. It is noted that if the imposition of sanctions affects the rights of private entities, then the development of the mechanism of retortions seems to be the best way of retaliatory restrictions on the property and personal non-property rights of citizens and legal entities of those states that have special restrictions on the property and personal nonproperty rights of their own citizens and legal entities of the state receiving retortion. The author has developed the terminological basis of sanctions law, defined its methodology and regulatory framework. The legal nature is revealed and the principles for the introduction of sanctions and counter-sanctions restrictions are formulated.

150-157 580
Abstract

Dual and/ multiple citizenship (bipatrism and polypatrism), which creates a large number of problems for states in various fields, makes it necessary to study traditional and modern trends in the legal regulation of these complex social phenomena. The objectives of the paper are determined by the need to identify the main directions of international and domestic practice regarding the content, legal features of regulation, as well as the political and legal consequences of bi- and polypatrism. In the course of the analysis, attempts are made to compare, generalize the similarities and differences between the elements of the concepts of «dual» and «multiple» citizenship, as well as their differentiation. The paper discusses domestic and international legal regulation cases in the field of dual and multiple citizenship, as well as the practice of states in resolving the problems generated by these phenomena. The author makes a conclusion about the difficulties of an objective order in relation to the development of uniform approaches to measures to regulate dual and multiple citizenship on a wide international scale. This happens due to the presence in the law of various states of individual features of an ethnohistorical, sociocultural, religious and other nature that affect the current state of legal reality in this matter. Besides, there is a complex interweaving of negative and positive elements that make them up, and the corresponding general and particular consequences.

INTEGRATION LAW

158-167 458
Abstract

The paper is devoted to the study of the Court of Justice of the European Union practice on cases related to cultural heritage. The author highlights important aspects connected with the judicial institution jurisdiction in this area and the European Union as whole, names the issues on which it is possible to apply to the Court of Justice of the European Union to ensure the protection of cultural heritage. The author also outlines the thematic focus of cases related to cultural heritage considered by this judicial institution, highlights the roles of cultural heritage reflected in the practice of the Court of Justice of the European Union. The author dwells upon the issues of conflict before the judicial institution under consideration of economic interests (in particular, the interests of freedom of movement of goods) and cultural considerations, including the protection of cultural heritage. An attempt is made to interpret certain provisions of Art. 36 of the Treaty on the Functioning of the European Union, which is central in this context. Case studies from the Court of Justice of the European Union illustrate its long-standing skepticism about culturally based derogations from the single market, which has not changed much in the wake of the cultural innovations of the 1992 Maastricht Treaty and the 1997 Treaty of Amsterdam. The author concludes that in the event of a confrontation before the Court of the European Union between national considerations for the protection of cultural heritage and the interests of the single market of the European Union, in particular the freedom of movement of goods, this judicial institution tends to give priority to the considered economic interests of this integration association.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

168-176 471
Abstract

The essence of the phenomenon of «environmental terrorism» is investigated. Environmental terrorism is a specific deliberate action aimed indirectly, through the environment, to the deterioration of its quality characteristics, which creates a threat to human security and the environment itself. It is shown that domestic environmental terrorism has now found its application as an instrument of civil war. In its confrontation with the republics, Ukraine at the state level widely uses terrorist acts, the purpose of which is to create environmental threats for the citizens of these republics. The paper presents the facts of environmental terrorism by the state of Ukraine, as a result of which the fundamental right of citizens of the Donetsk People’s Republic and the Luhansk People’s Republic to a healthy environment and sustainable development is violated. It is shown that almost no environmental terrorist acts carried out against citizens of the republics have found adequate condemnation at the international level, which indicates the inefficiency of the system for protecting fundamental human rights.

177-186 478
Abstract

In modern conditions of climate and other global changes, topical issues are the reduction of the anthropogenic load on the environment with an increase in agricultural production, as well as the adaptation of agriculture to climate change. The paper examines the legal experience of building a model of sustainable («green») agriculture of the two BRICS countries — Russia and India. The current state of agriculture, environmental problems caused by climate change are considered. The regulatory legal acts and documents of strategic planning in the field of agriculture in Russia and India, international documents of the UN and FAO aimed at adapting agriculture to climate change are analyzed. The author substantiates that digitalization and organic production of agricultural products can act as tools for adapting agriculture in Russia and India to climate change. The directions of legal regulation of sustainable development of agriculture are formulated based on the conceptual model of legal regulation of sustainable («green») development of agriculture.



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