PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
The paper argues for the need for a systematic approach to the totality of executive bodies at different levels. The paper determines inevitability of the spread of the postulates of general systems theory, in particular the system principles of conjugation, ingression and monocentrism over them. The author analyzed the norms of Russian legislation contributing to the implementation of these principles and aimed at achieving the unity of executive bodies. Special attention is paid in the paper to the analysis of the constitutional provision that local self-government bodies and state authorities are part of a single system of public power. It is noted that this provision has led to the emergence of a new architecture of the public administration system, including an intermediate link between state bodies and territorial entities of the country and their population. It is argued that the formation of such an intermediate link — local self-government — from the standpoint of systems theory is nothing more than the implementation of system principles in the practice of public administration. The author examines the monocentrism development in public administration. It has resulted in the strengthening of trends towards the general centralization of the executive system in the Russian Federation under the leadership of the President of the Russian Federation, and it is proved that this contributes to further strengthening of the unity of executive bodies. It is concluded that the current Russian legislation as a whole ensures the achievement of a sufficient level of unity of the bodies under consideration.
The relevance of the problem under consideration is predetermined by a large number of changes in the legislation on administrative offenses, which has become one of the factors of the appearance of contradictions, negative assessments by the legal community of the state of the current legislation on administrative offenses and the ongoing process of reforming the legislation on administrative offenses. The purpose of the study is to determine the types and nature of systemic relationships between the norms of legislation on administrative offenses. The object of the study is the system of administrative offenses legislation. The subject of the study is the interrelated norms of law, the types, nature and defects of some relationships. The study used a combination of general scientific, special and private scientific methods of cognition of legal phenomena, a special role is given to the systematic approach. In the course of the study, it is noted that violations of the interrelationships of the norms of the legislation of the Russian Federation on administrative offenses (defects) generate uncertainty in the legal regulation of administrative responsibility and contribute to the appearance of errors in the practice of implementing the norms of law. The paper provides the classification of interrelations of norms and examines defects in them (collisions, unjustified competition and duplication of norms, legal gaps). The author proposes possible ways of eliminating some defects. It is concluded that the introduction of amendments (additions) to the administrative and tort legislation, the development and adoption of a new one should be analyzed and the nature of the interrelationship of its normative content should be considered.
FINANCIAL LAW
The paper discusses «green» financing and its terminology. The author analyzes the purpose and objectives of «green» projects, historical aspects of their formation and development and explains their varieties in the Russian Federation. Greening of the Russian economy and financial system is considered as one of the most important directions of the state policy until 2025. The author focuses on financial instruments of «green» finance. It is noted that in 2019 for the first time the Russian Federation was singled out among the countries that issued «green» bonds (climate bonds or sustainable bonds). The author considers «green» budgeting in the budget process and elucidates analytical documents and methodological guidelines for drawing up a «green» budget. The paper highlights the experience of the «green» budget in France. The year 2021 for France was the first year of the implementation of the «green» budget, where budget revenues and expenditures were assessed taking into account their impact on the environment. It is noted that the «green» budget in France means, in fact, a new classification of budget expenditures, which is based on the criterion of environmental impact. Also the paper provides the definition of state resources for environmental development. Several aspects of the impact on the «green» state budget are highlighted, which include the fight against climate change, prevention of natural risks, effective management of water resources, combating environmental pollution, as well as the protection of natural, forest and agricultural territories. In the Russian Federation, «green» finance is only at the stage of its formation and state support for «green» investment is needed.
The paper deals with topical issues of the development of legal regulation of the obligations for physical and legal entities to register with tax authorities due to the digital transformation of tax administration. It is noted that the main principles of providing services for registration with the tax authority in electronic form include accessibility, information openness, as well as its competitiveness. The paper highlights the need for the development of legislation on taxes and fees and ensuring the possibility for private subjects of tax law to provide services for registration with tax authorities entirely in the format of electronic interaction. The paper also focuses on the value of the formation of a digital format of relations between taxpayers and tax authorities for accounting process. Particular attention is paid to the issues of fulfilling the obligation to register self-employed persons, including those who are payers of professional income tax, using the mobile application «My Tax» for registration.
The paper is devoted to the analysis of issues related to the legal regulation of the professional income tax in Russia also often referred to as the self-employed tax. It is noted that one of the problems of the current legislation is the lack of a legally fixed concept of the self-employed. Based on the conducted research, it is concluded that the professional income tax is the only special tax regime that can be applied by individuals who are not individual entrepreneurs. The peculiarity of the professional income tax is manifested in the presence of such optional elements of the legal structure as an authorized entity (an operator of an electronic platform and (or) a credit institution), a digital subsystem (My Tax mobile application), and a special type of tax benefits — a tax bonus. In addition, within the framework of the special tax regime under consideration, the legal status of the tax authority is being transformed: part of the rights and obligations of the taxpayer is delegated to it, in particular, the right to send an order to the bank to write off and transfer funds from the taxpayer’s bank account to pay tax, as well as the right to reduce the amount of tax due by the tax bonus.
LEGAL REGULATION IN THE INFORMATION SPHERE
Artificial intelligence systems constitute the most important tool for overcoming modern challenges the society is facing, including at the international level. With the help of artificial intelligence, the solution of a number of social, economic and other problems is simplified. The systematic use of artificial intelligence in specific activities generates a number of specific legal problems. The paper examines problems of implementing various relations using artificial intelligence, including procedures ensuring the rights of citizens, creating the results of intellectual activity and NFT tokens. Particular attention is focused on the need to adopt harmonizing acts, such as the Model Convention on Robotics and Artificial Intelligence, the main purpose of which is to formulate approaches to regulating relations using artificial intelligence and subsequently adopt a single internationally unified act. The author analyzes the problems of the legal personality of artificial intelligence and the current legislation of Russia and the EU in the sphere of relations under consideration. Denying the independent legal personality of AI, the author notes that a special form of organization of AI activities can be perceived in legislation in the presence of separate property, monetary funds with the mandatory designation of persons controlling the activities of AI, in accordance with established legislation, including through the proposal of a new special organizational and legal form of a legal entity — a society organizing the activities of the artificial intelligence system or a society responsible for the activities of the artificial intelligence system.
In the information field of high-tech projects, the following speech actions can be committed that form the objective side of offenses (crimes): defamation (defamatory speech actions), faking (fake speech acts), verbal extremism (extremist speech actions). It is proved that defamatory and fake information attacks are also possible in connection with the «interpretation» of publicly available «green» information about the organization: its statements and ESG strategy, non-financial reporting, etc. — for compliance with 1) planned entities — entities reflected in non-financial statements; 2) entities reflected in statements, strategies, non-financial reporting — actual data. Due to the fact that in the emerging judicial practice of ESG disputes, the attention of courts is paid to the form of statements, when considering such disputes, it is proposed to use the tools developed within the framework of judicial linguistics to identify the meaning (content) of units of various levels, determine the meaning or form of expression of meaning and classify it to a certain class (statement, opinion, assessment, assumption), establishing the presence or absence of certain content in the text, etc. The author proves that ensuring media security is an integral part of sustainable development and proposes a definition of the media security and reputational security of an organization (project). The paper provides for the risk management model of the media security of the organization (project). It is proved that from the point of view of project management, media security risk management claims to be an independent group of processes within the framework of project management. Media security risk management relies on the tools embedded in the methodology of the law of sustainable development: on system analysis and decision-making theory.
CIVIL AND FAMILY LAW
A vindication claim is one of the classic ways to protect property rights. Since, according to the construction of the vindication claim, the property is being destroyed as a result of someone else’s illegal possession, passive legitimization of the claim is associated with possession. At the same time, the question of who is the owner of the thing is controversial for the purposes of the claim. In the legal literature, the opinion has been confirmed about the applicability of the theory of possession (possessio civilis) to possession in the institute of vindication claim, which gives grounds to believe that not only the actual owner of the thing as the direct owner of the thing, but also the person who transferred the thing into temporary possession, as an indirect owner, is passively legitimized by the claim. This approach should be criticized, since possession in the vindication claim should be understood as the actual possession of a thing, and therefore the theory of direct and indirect possession is not applicable. Passively legitimized by a vindication claim is only the actual owner of the thing, as a person who does not fulfill a subjective duty owed to the owner.
The paper is devoted to the issues of establishing signs of a weaker party in a civil legal relationship. The purpose of the study is to propose a scientifically grounded system of signs of a weaker party, taking into account modern economic and legal conditions. The author subjects to scrutiny the norms of Russian and foreign legislation, judicial practice of Russia and case law other countries. The basis of the study was the comparative legal method. At the same time, other methods were used (formal-logical, the method of building systems, etc.). The author critically analyzes the traditional notion of the category of a «weaker party» (consumer, citizen with certain characteristics, etc.). Next, the author examines the current trends in theory and judicial practice in determining the signs of a weaker party. At the end of the work, it is indicated that the definition of a weaker party is possible in two ways: direct and indirect. At the same time, the author proposes a scientifically based system of signs of a weaker party in a civil legal relationship. This system can be used in legislative activity in order to choose the most effective approach to determining the weaker party in the norms of law, as well as in judicial practice to justify the need to protect such a subject.
LEGAL PROTECTION OF INTELLECTUAL PROPERTY
Recent years have shown reasonable support (including by the author of the article) for proposals to exclude methods for diagnosing and treating people and animals from the list of results of intellectual activity in respect of which patent protection can be applied in the scientific legal literature. These proposals are based on the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), foreign experience of countries with developed legal systems and arguments about the practical inexpediency of patenting these results of intellectual activity, as well as on the moral and ethical side of the issue. In the case of legislative support for these initiatives, in order to preserve the encouragement of innovation and reflect the contribution of developers to medical science in the field of creating new and developing existing methods of diagnosis and treatment, the paper proposes to refer to the experience of the USSR in issuing copyright certificates for this type of invention and to revive such legal mechanisms in the Russian legal system.
The paper is devoted to the types and issues of non-conventional trademark protection. In order to understand the reasons for the emergence of such a category as a ‘non-conventional trademark’, the author studies the history of trademark development. The author examines the provisions of the main international treaties providing for trademark protection. The paper pays particular attention to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Singapore Treaty on the Law of Trademarks 2006, which is the first international treaty to explicitly extend its scope to non-conventional trademarks. The paper considers one of the main problems in the registration of non-conventional trademarks related to the form of their submission for registration. Finally, the author makes a conclusion about the need to improve international legal regulation in order to unify approaches to non-conventional trademarks and ensure non-conventional trademark protection in the world.
BUSINESS AND CORPORATE LAW
The relevance of the research topic is determined by the changes in the provisions of Art. 2 of the Civil Code of the Russian Federation stating that the subject of civil law regulation includes relations involving participation in corporate organizations or their governance (corporate relations). The paper is devoted to the study of the legal nature of the relations of participation in a corporate organization and its management, determining the place of these relations in the system of corporate relations. The authors conclude that the relationship between participation and governance are organizational and prerequisite relations, they are of a general regulatory nature. The content of these legal relations is a special corporate legal personality as a subjective right and the opposing obligation of other persons to recognize the authorized person as a participant in corporate relations, to take into account the special connection between the corporation and the participant. General regulatory relations of participation and governance are a prerequisite for the emergence of specific corporate relations, and determine their content and development dynamics.
The paper focuses on such an economic and legal phenomenon as a business accelerator. Despite the fact that business accelerators are widespread in Russia, little is known about their legal status and regulation. What is the legal definition of accelerator programs? What is the difference between accelerators, incubators, business angels and a collaborative environment? The relevance of the study is also influenced by the public sector’ interest of the in participating in such programs. Business accelerator programs allow you to teach a novice entrepreneur how to develop an effective business model, financially support its implementation by attracting investment funds. Current trends in the development of startups are that business accelerators will soon be available for all projects with commercial efficiency. Therefore, it is important to determine the legal status of business accelerators, their role in business development, the degree and forms of state participation in the activities of accelerators. The paper attempts to answer the above questions.
The paper analyzes the competence of the governing bodies of an autonomous non-profit organization in the stage of voluntary liquidation of the organization. Given the current legislation and judicial practice, the powers of the liquidation commission and other («pre-liquidation») management bodies of the organization are delineated. In practice, members of the collegiate supreme governing body of an autonomous non-profit organization had to face doubts about the legitimacy of making decisions on issues of the competence of this governing body provided for by the charter, with the exception of those issues, the adoption of decisions on which by the collegiate supreme governing body of an autonomous non-profit organization during the period of voluntary liquidation is expressly provided by law (for example, approval of the liquidation balance sheet). At the same time, as the basis for such doubts, the transfer of authority to manage the affairs of a legal entity to the liquidation commission from the moment of its appointment is indicated (clause 4, article 62 of the Civil Code of the Russian Federation). The author concludes that the founders and the collegiate supreme governing body of an autonomous non-profit organization, in addition to the powers provided by law to liquidate the organization, retain a significant part of their competence, enshrined in law and the charter, taking into account the scope of the organization’s legal capacity during its liquidation. The conclusions are of practical importance not only for lawyers of non-profit organizations, but also for a wide range of lawyers of business entities in terms of approach to assessing the competence of the governing bodies of a legal entity during its liquidation.
CRIMINAL PROCEDURE
The paper reveals the meaning of the term «legal owner» in relation to material evidence in the form of property obtained as a result of a crime, and income from this property. It is noted that the absence of the content of this concept in the criminal procedure law causes difficulties in its interpretation by law enforcement agencies. The essence, legal nature, the mechanism for the implementation of restitution in the Russian criminal procedural law are disclosed. Problematic situations and possible solutions to the application of criminal procedural restitution are considered, when both the victim of the crime and the conscientious purchaser of property obtained by criminal means simultaneously claim to be the «legal owner» of material evidence. The possibility of applying in the criminal procedure the norms of civil law on the prohibition of reclaiming certain objects of civil rights from bona fide purchasers is analyzed. The conclusion is substantiated that under the legal owner specified in paragraph 4 of part 3 of Art. 81 of the Code of Criminal Procedure of the Russian Federation should be understood as the owner of property lost as a result of a crime, as well as another person who legally owned it at the time of the crime.
FOREIGN EXPERIENCE
The paper describes the current regulatory provisions in the field of crowdfunding applicable in the UK; the features of the local legal regulation of this phenomenon, as well as the historical aspects of its formation and possible prospects and development trends are noted. The paper defines the regulated forms of crowdfunding, as well as the regulatory order that crowdfunding platforms must comply with; highlights the procedure for the admission of participants in crowdfunding companies to carry out activities on the basis of crowdfunding platforms; outlines the basic requirements that potential providers of crowdfunding services must meet. The paper highlights the important role of the Financial Conduct Authority (FCA) in the development of UK crowdfunding legislation, analyzes the measures taken by the Office in this direction, as well as the priority areas of the Office’s activities in the context of the development of new norms of special rules, acts and regulations.
COMPARATIVE LAW
The need to protect the rights and legitimate interests of entities affected by anti-competitive actions, to compensate for the losses caused to them, as well as to suppress illegal behavior in relation to a wide range of people, requires states to search for various measures to counteract such abuse by companies of their market power. One possible measure is class action, which is currently used in the US and UK as an effective mechanism to protect businesses and consumers from anti-competitive behavior. Taking into account the fact that the procedure of group proceedings has been developed in modern Russian legislation, the experience of implementing the relevant norms in other countries is of undoubted interest for study. The author analyzes the provisions on class actions contained in the legislation of the United States and Great Britain, the practice of their application in the field of competition protection, as well as the prospects for class proceedings in Russia. The conclusion is made about the insufficiency of legally fixed economic incentives for filing class actions, which may prevent the widespread use of this institution in Russian practice, including in antimonopoly disputes.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
In the paper, the author analyzes the subject matter of the contract for the provision of services to maintain reserve heat capacity. The author notes that the contract for the provision of services to maintain reserve heat capacity is almost the only contract in the field of heat supply, the definition of which is not in the legislation. At the same time, this problem is not covered in the legal literature. To disclose the subject of the contract under study, the author refers to such legal categories as «power», «heat capacity», «reservation (booking)", «reserve heat capacity». The paper presents the provisions of the doctrine and judicial practice on the nature of power in the energy sector, offers the author’s own point of view on the essence of reservation (reservation) as a legal category. On the basis of the study, the author formulates the definition of the contract in question, which is absent in the legislation, and determines its place in the system of civil law contracts as a non-defined contract.
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