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Actual Problems of Russian Law

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Vol 17, No 11 (2022)

STATE POWER AND LOCAL SELF-GOVERNMENT

11-22 532
Abstract

The paper discusses theoretical approaches to understanding Russian parliamentarism. The author analyzes generic and specific features, examines variants of the doctrinal interpretation of parliamentarism. There are two main approaches that reveal the concept of «parliamentarism». First, there is an approach that considers parliamentarism within the framework of the category «a form of the State» and its structural elements. The second approach understands parliamentarism as a complex social phenomenon functioning within the framework of constitutional laws. In the Russian constitutional law doctrine, the institutional approach to defining the concept of parliamentarism is usually «incomplete», limited only to the consideration of individual elements (public relations or legal regulation). The article proves that the institutional approach makes it possible to present parliamentarism as a socio-legal institution that includes the following mandatory elements: values (goals), statutory regulation, institutional subject composition and relevant social relations.

23-30 651
Abstract

The relevance of the study is justified by the continuing need for legislative regulation of consideration of mass and duplicate petitions of the same content systematically received by state bodies, local self-government bodies, state and municipal institutions, other organizations performing publicly significant functions and their officials. The author makes proposals to improve the current legislation regarding the procedure for considering mass, duplicate and collective petitionss. The proposals for amendments to the Federal Law «On the procedure for considering petitions of citizens of the Russian Federation» are based on research and practical analysis of the materials under consideration. Methodologically, the article was prepared on the basis of the general scientific dialectical method. The special methods used in the preparation of the publication include system-structural, formal-legal, logical and comparative-legal methods. The article refers to citizens’ petitions, citizens’ associations, including legal entities.

31-42 280
Abstract

Prevention and settlement of conflicts of interest performs an important function in the anti-corruption system, since it reduces the risk of committing various acts of corruption, which are based on the illegal use of the advantages of official (service) position or public status. Despite a high preventive potential of the obligation to notify about a conflict of interests, this anti-corruption standard of conduct does not apply to such a category of subjects of the electoral process as members of election commissions with the right to vote working not permanently in the relevant commission. In order to unify anti-corruption standards, the authors substantiate the need to eliminate contradictions between provisions of Part 4.1 of Article 12.1 of the Federal Law «On Combating Corruption» and paragraphs 15.3, 15.4 of Article 29 of the Federal Law «On Basic Safeguards of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation» by extending the obligation to notify of a conflict of interest and applying it all members of election commissions with the right to vote regardless of the reason of position replacement.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

43-58 309
Abstract

The paper investgates problems of legal proceedings in civil and arbitration cases and ways of their resolution using procedural possibilities conceivable in the philosophical and legal formulation of the problem. Interests (legitimate interests) have been chosen as a very indicative and demanded category with effective instrumental properties. The study of their categorical features is included in the context of the analysis of a single concept of legal understanding. The unity of the concept of legal understanding as a common rational basis for taking into account the achievements of non-legal sciences, primarily philosophy, in the formation of a consistent view of law is opposed to the competitive «uniqueness» of traditional views on the essence of law and appropriation of a monopoly on truth. When revealing the unity of the concept in relation to the unity and generality of the approach to the philosophical and legal, general theoretical ideas of law, problems of the theory of the civil process, and their subject law enforcement imprint, special attention is paid to the analysis of the category of the ideal and transition from it to the category of the rational in the form of a comparison of personal and social experience, as well as their association with the form of judicial protection of rights and interests.

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

59-66 387
Abstract

The paper analyzes the problems of multiplication of responsibility for infringing exclusive rights to the results of intellectual activity protected under several legal regimes. Special attention is paid to the issues of collecting compensation for the violation of exclusive rights to design solutions that can be treated as copyrighted works, industrial designs, trademarks. The author examines the stances developed by the domestic doctrine and law enforcement practice, as well as foreign approaches to solving the problem of multiplication of responsibility for violation of rights to cumulatively protected results of creative work. It is noted that in Russian practice, the prevailing approach is that the exclusive right to each ideal object is subject to independent protection. It is concluded that it is necessary to introduce the rule concerning priority of the exclusive right over an industrial design in the context of protection of rights to designs

BUSINESS AND CORPORATE LAW

67-75 504
Abstract

The paper provides for statistical data characterizing family business in Russia and foreign countries. The author focuses on the role of family entrepreneurship for achieving national goals and implementing national interests. With reference to the approaches used in conducting sociological research and compiling ratings, emphasis is placed on the concepts of «family enterprise», «family entrepreneurship» and the conclusion is confirmed that it is necessary to consolidate the relevant definitions and criteria in legislation. Based on the opinion of experts, the author draws the readers’ attention to improving the efficiency of family companies named after their owners. The paper shows the importance of applied research and explains the state of the doctrine in the field of family business. The conclusion is made about legal research insufficiency in this area of public relations. The paper describes the results of the formation of the scientific school of family entrepreneurship in Kutafin Moscow State Law University (MSAL). The memorandum adopted by the professional community based on the results of the international conference has been published. The paper determines possible effects for the university, the industry, the region and society as a whole because of implementation of «Family Entrepreneurship» project

76-86 697
Abstract

There are three stages in the development of the securities market in the 20th — early 21st centuries: the paper period, the period of electronization and the period of digitalization. Electronization and digitalization of the stock market have significantly influenced the development of legislation in this area. When the Russian legislator tried to react to the electronic stock market, an internally contradictory term (legal fiction) appeared – an uncertified (book-entry) security. Its use generates a number of problems that have not been resolved to date. It is necessary to distinguish between securities in the form of an electronic document and sets of rights accounted for by account entries. Electronic charges under Russian law are defined as electronic documents, but at the same time they refer to uncertified (book-entry) securities, which is logically incorrect. Eliminating the imperfections of the legal regulation of the stock market caused by electronization, the Russian legislator, limiting itself to changes in general legal acts, did not make appropriate changes to the legislation concerning individual securities. Unlike Russia, effective legal ways of including digital assets in the legal system have been formed in Western countries. The Russian legislator is required to determine their legal nature every time. Shares issued in the form of digital financial assets constitute an unjustifiably cumbersome legal structure, since they simultaneously belong to two different types of objects of civil rights — digital rights and uncertified securities. It is advisable to introduce a special term «investment financial instrument» to designate a group of equity and similar securities, as well as similar digital financial assets.

87-99 642
Abstract

The paper explains the civil law aspects of the regulation of relations related to the use of information modeling in construction. The author analyzes the features of international and national standards for BIM implementation and highlights the problems of domestic legal regulation of relations in the field of information modeling. It is determined that the development of BIM technologies requires special contractual legal tools, providing, on the one hand, organizational and informational relations for the creation and use of a digital model within a single process of design, construction and operation, and, on the other hand, relations related to the exercise of property rights and obligations, exclusive rights to the BIM object. The author substantiates the necessity of introducing standard structures defining the use of BIM in contractual practice of design and construction. The author proposes to apply conceptual aspects that need to be reflected in the development of relevant treaties.

SPORTS LAW

100-110 435
Abstract

As sources of sports law the doctrine of sports law of the Russian Federation names the regulatory legal acts of the Russian Federation and the regulations developed by non-state sports organizations, which is referred to as lex sportiva. With regard to the regulatory legal acts of the Russian Federation, it can be stated that they are classical sources of all branches of law. The same one cannot say about lex sportiva, which is inherent exclusively in sports law. Moreover, it is customary to perceive lex sportiva as a single complex of homogeneous norms. The author suggests that this approach is not entirely correct, and proposes to reconsider it. In this regard, this study is aimed at studying the lex sportiva as a complex system consisting of the regulations of non-state sports organizations, lex ludica and lex specialis. The author attempts to introduce such categories as lex ludica and lex specialis into the doctrine of the domestic sports law, which allow us to state that there is some heterogeneity of lex sportiva. In conclusion, the author outlines the structure of lex sportiva and attempts to determine the legal nature of individual elements of lex sportiva. 

CRIMINAL LAW

111-123 1826
Abstract

The paper presents the criminal law characteristics of HIV infection with an emphasis on law enforcement problems. It has been established that article 122 of the Criminal Code of the Russian Federation, which provides for liability for HIV infection, contains three main bodies of a crime that differ in almost all the elements. The objective side of putting a person at risk of being infected with the HIV (part 1 of article 122 of the Criminal Code of the Russian Federation) consists in committing an act creating a real and immediate threat of transmitting HIV to another person, if the disease does not occur due to circumstances beyond the control of the guilty party. In this regard, the criminal liability of an HIV-positive person with an undetectable amount of the virus is impossible to arise, since such a person is not able to pass the disease on to another person. This conclusion should be taken into account when deciding on the criminal liability of a person who correctly used proven means for preventing HIV infection (condoms, pre-exposure prophylaxis). The bodies of the crimes provided for in parts 2 and 4 of Art. 122 of the Criminal Code of the Russian Federation belong to materially defined crimes, since, under the law, criminal acts must lead to the infection of another person with the HIV. These bodies differ in the substance of the acts. According to part 4, the act consists in the improper performance by a person of his professional duties, which implies the possibility of committing the specified crime through inaction. The act provided for in part 2 can only be expressed in active actions leading to transmission of the HIV to the victim. The presence of a causal relationship between such actions and the consequences may be evidenced by the results of phylogenetic analysis, which, in turn, makes it possible to judge on the presence or absence of an epidemiological relationship.

CRIMINAL PROCEDURE

124-131 709
Abstract

Modern realities require the development of normative regulation of the current criminal proceedings. It is necessary to ensure that Russian criminal procedure legislation complies with the requirements dictated by the rapid development of information technology and the digitalization of public relations. The author analyzes the provisions of Art. 189.1 of the Criminal Procedure Code of the Russian Federation as a new digital means of proof and identifies potential contentious issues related to the application of this article of the Code of Criminal Procedure of the Russian Federation in practice. Exploring the experience of using videoconferencing in the legal proceedings of foreign countries, such as the Swiss Confederation, the Republic of Kazakhstan and the Republic of Azerbaijan, the author suggests ways to solve problems associated with the use of videoconferencing in emergency situations, sending an international request for legal assistance, clarification of the procedural status of an official assisting in the performance of investigative actions. The paper presents various opinions of process scientists regarding the effectiveness of the use of videoconferencing systems in the production of investigative actions. The paper focuses on the need to enshrine the format for preserving the results of investigative actions carried out using videoconferencing in order to maintain the uniformity of criminal proceedings in the law or in an interdepartmental by-law.

132-139 288
Abstract

The paper examines the problems of the stage of initiating a criminal case in terms of the implementation of constitutional and legal guarantees for access to criminal justice. The author points out that, despite its importance, in practice, the process of establishing the events of crimes, as well as identifying and exposing the perpetrators, encounters a number of traditional problems. The issues arising at the initial stage of the criminal process occupy the leading position among these problems; the stage of criminal case initiation is also referred to as the «pre-investigation verification of a crime report» stage. Given the practice and doctrinal points of view, attention is given to the need to change the rules of domestic criminal procedural legislation in terms of transforming the stage of initiating a criminal case existing in the Criminal Procedure Code of the Russian Federation as preventing the timely detection and investigation of this type of crime, creating a negative image of public authorities. It is also important to strengthen criminal liability in relation to special subjects for evading the fulfillment of the duty of criminal prosecution

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

140-148 523
Abstract

The purpose of this paper is to highlight various types of digital traces that carry the most significant information in the investigation of crimes in the field of economic activity, and to determine the features of their study by an expert. The author sets a number of tasks: to analyze the types of economic crimes and the methods of their commission for the possibility of the formation of digital traces in the course of the implementation of these offenses; to identify different types of digital traces specific to each type of crime; to study judicial and expert practice in the production of forensic examinations, the object of which are digital traces. The author identifies some types of digital traces that have the greatest forensic significance in the investigation of the above crimes, outlines their peculiarities and main features, and considers certain aspects of the expert study of these digital traces. The author concludes that the most common digital traces in the investigation of economic crimes are electronic accounting documents; information posted on a website used in criminal activities; server data on site registration and account transactions. In this regard, it is most expedient to collect digital traces: a) by seizing a material carrier of information containing electronic accounting documents; b) by creating a screenshot of the site containing the information necessary for the investigation of the crime; c) by sending a request to the owner of the server on whose resources the website used in criminal activities is located. For an expert study of digital traces of economic content, it is necessary to conduct a complex of forensic examinations.

149-159 657
Abstract

The main purpose of the paper is to study the possibilities of forensic examination to consider the case in commercial (arbitrazh) court proceedings. The author uses general scientific and special legal methods to achieve this goal. In the course of the study, it was found that the implementation of the goals and objectives of the commercial (arbitrazh) court is implemented by various means. Their use is based on the close interaction of the general principles of constitutional and legal policy in the field of the right to judicial protection and the principles of commercial (arbitrazh) court procedure law. Forensic examination is used to obtain the necessary information, missing data, evaluate various facts from the standpoint of special knowledge. Within the framework of commercial (arbitrazh) court proceedings, various subjects carrying out expert activities, including representatives of state bodies, non-state expert organizations, and independent experts, may be involved. The possibilities of forensic examination are quite extensive, they contribute to obtaining evidence in the case under consideration, allow to establish the truth in the case and justly resolve it. Based on the analysis of special literature and law enforcement practice, certain problems are identified and ways to solve them are proposed. In particular, attention is given to the following areas: the need to improve the capabilities of forensic examination, the need for the emergence of legal foundations for assessing the reliability of an expert opinion; expanding the possibilities of expert activities — improving the legal support for the application of modern innovative solutions and technologies.

INTERNATIONAL LAW

160-168 452
Abstract

The problems of international legal regulation of the protection and preservation of the marine environment are especially acute for the coastal states of closed and semi-enclosed seas, i.e. the Black Sea, which, due to oceanographic and environmental conditions, are very sensitive to pollution entering them. The legal framework for ensuring the environmental safety of this natural object should take into account the unique hydrological features of the reservoir and be progressive. Currently, the legal regulation of the environmental safety of the Black Sea is carried out by the coastal states separately, which means that the current standards are not coordinated and sufficiently effective. This leads to local pollution, which, in turn, spreads to the entire sea. Thus, if the coastal states within the exclusive economic zone agree on a single legal mechanism for the entire Black Sea, such a multilateral agreement will be able to take into account the interests of all interested states without diminishing the sovereignty of any of the parties

169-182 539
Abstract

In today’s world, energy is one of the fundamental industries and is essential for economic development, poverty eradication and adaptation to the effects of climate change. Access to sustainable energy sources (RES) is the foundation of modern sustainable energy, and international law has a key role to play in achieving such access. The aim of the study is a theoretical consideration and generalization of the positions of modern scientists within the framework of international energy law in terms of access to RES. The genesis of access to sustainable energy sources in the writings of scholars on international energy law originates from the work of Professor A. D. Bradbrook, who considers such access primarily through the prism of international human rights law and notes the paramount task of achieving universal access to RES in order to reduce poverty. R. D. Heffron formulated the access under study as one of the basic principles of international energy law, at the same time, the main place in the author’s works in this area is given to the concept of energy justice. S. Bruce noted the high importance of the Sustainable Energy for All (SE4All) initiative, the International Renewable Energy Agency and Sustainable Development Goal No. 7 in achieving researched access, and also highlighted a number of international agreements as instruments of particular importance for access to RES.

INTEGRATION LAW

183-193 894
Abstract

The author investigates a particular issue of drug compliance arising from the lack of broad harmonization between different pharmacopoeias around the world. The absence of customs barriers, the presence of a unified system of certification of goods, a single mark of conformity seems to be a sufficient legal basis for the development of a «Eurasian» pharmacopeia. It is important to emphasize the expanded perception of the scope of the EAEU pharmacopeia, according to which active pharmaceutical substances, excipients, drugs and other materials described in pharmacopeia articles are listed as objects of standardization of requirements, and both medicine and veterinary medicine are designated as a possible scope of their application. The EAEU has rightly adopted a course towards standardization and harmonization in a broader format of good pharmaceutical practices in the field of drug circulation. The content of pharmacopoeial monographs should also be taken into account when performing a patent search in the aspect of registration of inventions related to medicines. Taking into account the great potential of the EAEU in the context of medicines created on the territory of the EAEU and the Russian Federation used in the fight against coronavirus infection and other latest infections, diseases, the EAEU pharmacopoeia as an act of harmonizing requirements for the quality of medicines and the corresponding harmonization processes within the EAEU should be flexible, subject to rapid modernization and supplementation without any special obstacles at the national legal level from the EAEU member states. It is necessary to increase the extraterritorial potential for the use of the EAEU pharmacopoeia, in particular, as a tool for the admission of medicines to the EAEU pharmaceutical market and a mechanism for ensuring a high level of quality requirements for medicines in the world.



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