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Actual Problems of Russian Law

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Vol 18, No 4 (2023)
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THEORY OF LAW

11-20 759
Abstract

In legal science, there are different points of view regarding the ability of judicial authorities to specify the principles and rules of law. The author of the paper believes that concretizing work carried out by judicial bodies has a great potential for improving legislation aimed at reducing abstractive nature of law rules, eliminating gaps in law, forming certainty and unity of law enforcement. However, to date, judicial specification has not received sufficient theoretical and legal justification. The purpose of the study is to identify the specifics of the concretization of the principles and rules of law by judicial authorities and to define the general concept of judicial concretization. To achieve this goal, the author analyzes approaches to the category «concretization,» examines elements and relevant examples of the rules’ concretization by higher judicial authorities and explains the features of the legal category under examination. The semantic understanding of judicial concretization is twofold — as an individualization of the rule of law applied to the specific case under consideration and as a detailing and clarification of the rule. Conclusions are drawn that specification of the principles and rules of law (judicial specification) is an independent category of law, not legally consolidated, but actually existing in practice; it is an objectively legitimate and necessary legal activity of judicial bodies that involves clarifying, detailing, expanding the content of the principles and rules of law in the process of law enforcement as applied to a specific case (sphere of legal relations) that results in developed judicial legal position of concretization consolidated in the judicial act.

STATE POWER AND LOCAL SELF-GOVERNMENT

21-30 308
Abstract

The abolition of constitutional (statutory) courts led to the emergence of new bodies of constitutional control (supervision) in the constituent entities of the Russian Federation — constitutional (statutory) councils operating under the legislative bodies of constituent entities of the Russian Federation. But at the same time, federal legislation only allows for the possibility of the formation of these bodies, without specifying their status in any way. The paper provides a comparative legal analysis of the legislation regulating functioning of constitutional councils of three constituent entities of the Russian Federation, namely, the Republics of Adygea, Sakha (Yakutia) and Bashkortostan where these bodies have already been formed. The main models of the legal status of the constitutional council used by the legislator of the constituent entities under consideration are as follows: they act as an expert advisory body (Adygea), as an institution primarily providing legislative activity in the constituent entity of the Russian Federation, but also empowered in the field of subsequent regulatory control, implemented in connection with citizens’ complaints (Bashkortostan), and as a body carrying out both preliminary and subsequent regulatory control in connection with the appeals of state bodies and officials (Sakha (Yakutia)). The author explains the main problems of the relevant legislative regulation and its implementation. It is concluded that the predominantly advisory nature of the powers of constitutional (statutory) councils, the absence in federal legislation of norms ensuring implementation of their decisions, significantly reduce the effectiveness of these bodies in the field of legal protection of constitutions (charters) of constituent entities of the Russian Federation.

31-40 836
Abstract

The paper is devoted to the analysis of amendments to the Constitution of the Russian Federation passe in 2020 concerning protection of the family, motherhood, fatherhood and childhood as a subject of joint jurisdiction of the Russian Federation and constituent entities of the Russian Federation. It is proved that this legal norm does not relate to the declarative norms of the Constitution of the Russian Federation. It defines only the joint jurisdiction issue between the Russian Federation and constituent entities of the Russian Federation that is subject to differentiation between federal and regional state authorities. The purpose of the adopted amendment to the Constitution of the Russian Federation was to raise to the constitutional level protection of traditional family values — family, motherhood, fatherhood, childhood, parental care. Amendments to the Constitution of the Russian Federation regarding protection of the family have an impact on other branches of law concerning family relations and traditional values. The paper analyzes the latest versions of constitutions and charters of constituent entities of the Russian Federation regarding the protection of the family. It is concluded that by amendments to the Constitution of the Russian Federation, the State sought to build a comprehensive system of family protection in the Russian Federation and make it a priority in state policy engaging all levels of public authority in this process. Our country has not concentrated family policy issues at the federal level, centralizing the entire social sphere here, but has transferred it to the joint jurisdiction of the federal center and the regions.

FINANCIAL LAW

41-60 463
Abstract

The paper is devoted to the issues of monetary emission in general and the emission of digital money in particular. The author examines various approaches to the currency issuance and their security. The author enters into a discussion with supporters of the return of the gold-backing of the monetary issue and supports the position concerning the natural loss for gold of such a designation. The exclusive right of the state represented by the Central Bank to issue money, including the digital ruble, is defended as a manifestation of monetary (currency) sovereignty. It is proved that the appearance of the Central Bank’s digital currency (the digital ruble) does not change the nature and essence of money. The author disagrees with the proposal to transfer the emission function to another public authority and claims it to be as completely groundless. The nature of the Central Bank’s emission obligation is defined as public law nature, since the Central Bank’s obligation does not lie in the plane of private law relations, but in the public law sphere and its content is to ensure the stability of the ruble, which means ensuring the overall financial stability of the state.

61-68 516
Abstract

The paper analyzes the legal nature of the Financial Ombudsman. The conclusion is made about its multi-component nature. the paper examines both the components of the legal nature of this institution that are laid down by the normative regulation of the activities of the Financial Ombudsman in the Russian Federation and the historically inherent functions of this institution. In particular, the author dwells on the content of such functions of the Financial Ombudsman as protection of the rights of consumers of financial services, resolution of disputes between financial organizations and consumers of their services, participation in the adjustment of the process of interaction between financial organizations and consumers of their services, as well as information interaction with the Bank of Russia and other government agencies aimed at improving the current legal regulation of protection issues, explains the implementation procedure for the rights of consumers of financial services. The paper claims the necessity of preserving the multi-component legal nature of the institute in the course of its further development.

LEGAL REGULATION IN THE INFORMATION SPHERE

69-85 359
Abstract

The paper defines the role played by the human-readable, namely Russian, language in the technologies of machine reading of law and statutes. The author analyzes the complexity factor of interpretation according to the rules of formal logic of conceptual units and terminology of law and statutes, which may be an obstacle to the processes of machine-reading of law, as well as the formation of machine-readable law. The author draws a number of conclusions regarding the methodology of machine-reading technologies and machine-drafting technologies, in particular that these processes should be formed and implemented in a single legal-ideological, legal-aesthetic, ethical, stylistic, methodological, technological, etc. paradigm and in the context of processes common to law and statutes: «the formation of law — lawmaking — implementation of law.» If, in the presence of all critical assessments of the «quantum theory of consciousness», we assume that there are features of quantum laws in the human psyche, then it should be stated that human thinking, world perception, and therefore legal perception are not limited to formal logical, computational frameworks, but include some «non-computational,» irrational mechanisms. Anyway, it seems obvious that the activity of human consciousness goes beyond purely algorithmic actions. Trying to «fit» the mechanisms of human perception of law and statutes into some logically consistent schemes means a priori incorrect reflection of law and statutes in such «schemes.» Among other things, the author comes to the conclusion that machine-reading processes should be carried out on the basis of the widest possible semiotic paradigm and based on the super-task of constructing a holographic, «quantum-like» model of law. At the same time, the Russian language, as the language of the synthetic system, is quite acceptable for use in machine-reading technologies and, perhaps, even more preferable than the analytical languages.

CIVIL AND FAMILY LAW

86-92 464
Abstract

Artificial intelligence technologies are widely used in digital medicine, in particular, they are used to process personal data of patients and their legal representatives. Personal data refers to the Big Data information. Certain gaps have been identified in the regulation of relations related to personal data. The following problems do not have an unambiguous solution in the doctrine and law enforcement practice: the legal nature of personal data, the legal qualification of consent to the provision and processing of personal data, the content of such consent, the minimum age for its independent expression. The paper examines these problems and suggests ways to solve them. In particular, it is substantiated that consent to the provision and processing of personal data is a civil transaction, the minimum age for expressing such consent is the age of acquiring full legal capacity (18 years). When writing the article, the author relied on the current legislation, civil doctrine, and law enforcement practice.

MEDICAL LAW

93-104 1053
Abstract

The paper is devoted to the study of the main problems of legal regulation of medical activity in modern conditions. The author explains problematic aspects of organizational, legal, and doctrinal nature. The author highlights that medical activity as a separate group of economic relations can and should become a starting category for regulating close, but not identical, groups of legal relations in healthcare. The author proposes the main outlines of a possible concept of legal regulation of medical activity. The author elucidates his standing concerning the complex system of legal regulation of medical activity, its irreducibility to the subject field of medical services or medical care. The legitimization of medical activity involves the development of general, specific, as well as special (extraordinary) legal regimes for its implementation. The approach to the legal regulation of medical activity as a separate branch (field) of the economy (based on the totality of its economic, social and other effects), in the author’s opinion, allows us to form a consistent system of legislation regulating medical practice and healthcare legal relations in general.

CRIMINAL LAW

105-114 331
Abstract

One of the urgent problems in the Russian labor market is discrimination against job applicants and employees. In order to deal with this phenomenon, the state establishes various liability measures for employers, including criminal ones, for unreasonable refusal to hire or dismissal because a person has reached retirement age, a woman is pregnant or has children under the age of three years. A key role for the criminal legal classification of these crimes belongs to the specific motive of the employer, which is difficult to establish in practice, encouraging them to violate the equality of the right of a person and a citizen to work, depending on their age, pregnancy or children under the age of three years that a woman has. The paper aims to сonsider problematic issues related to the establishment of the motives of the subjects of crimes provided for in Articles 144.1 and 145 of the Criminal Code of the Russian Federation, and to give recommendations as to solve them. The tasks are to investigate the motive as a crime-forming sign of the offenses provided for in Articles 144.1 and 145 of the Criminal Code of the Russian Federation, and to identify the problems of its establishment in law enforcement practice using the methods of description, analysis and synthesis, generalization, comparison, system-structural and formal logical. The study notes that the difficulties in establishing the discriminatory motives of employers to commit crimes under Articles 144.1 and 145 of the Criminal Code of the Russian Federation are due to the veiling of those under legal motives, the easy concealment of evidence of one’s guilt, as well as a defect in the legislative description. The author proposes recommendations for effective establishment and substantiation of the discriminatory motives of subjects in the offenses provided for in Articles 144.1 and 145 of the Criminal Code of the Russian Federation, as well as eliminating a legislative defect in their description.

CRIMINAL PROCEDURE

115-123 357
Abstract

The paper is devoted to the digital transformation in the Russian prosecution authorities and the transition to high-tech supervision of the prosecutor amid the development of digital relations, which will lead to an increase in the prosecutors’ efficiency in ensuring the legality of the proceedings of the preliminary investigation and inquiry bodies. The results of the study reflect current trends in the development of digital relations, confirm the need for digital transformation of the prosecutor’s office and determine its vector, aimed at the transition of work from paper to a single interdepartmental digital online platform. The future optimization of the activities of the prosecutor in criminal proceedings is associated with the widespread use of digital technologies, which requires a comprehensive study of the issues of the possibility of using specific technological solutions and their security. In general, the improvement of the prosecutor’s supervision is impossible without its integration with information technologies. Otherwise, ignoring technological progress and not using modern digital achievements in the criminal process is fraught with its stagnation and archaism, which is unacceptable for law.

124-132 408
Abstract

The paper analyses a defense lawyer’s status shaping and differentiates its main stages, determining the moment of the emergence of the status of a defense lawyer, as well as the significance of the formalizing procedural actions necessary for this. The paper pays attention to the emergence of the protection function, the acceptance of an order and the entry of a lawyer into a criminal case as procedurally significant events that do not coincide with the moment the defense lawyer’s status arises, although it occupies a certain place in the process of its formation. The author substantiates the impossibility of a simultaneous acquisition of a defense lawyer powers. This is due to the need to implement some of them to ensure the right of a criminally prosecuted person to defense and a lawyer’s task to find out circumstances that prevent the acceptance of an order for defense or exclude his participation in criminal proceedings. It is shown that it is inexpedient to establish the emergence of the status of a defense lawyer, as well as to word a conclusion on the observance of the right to defense only on the basis of a formal sign of the provision by a lawyer of a certificate and a warrant, provided for in part 4 of Art. 49 Code of Criminal Procedure of the Russian Federation. The significance of the actual implementation by a lawyer of protection from accusatory activity as an external procedural manifestation of the emergence of the status of a defense lawyer is determined.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

133-145 319
Abstract

The current circumstances and the prerequisites formed on their basis predetermined the need for an adequate degree of protection, including forensic economic expertise achievements, of athletes and coaches as the relationships in professional sports impaired by economic specifics could violate and affect their rights and interests. The paper substantiates both an independent system and structure for the application of special economic knowledge in cases related to disputes, in which the rights and interests of athletes and coaches are directly or indirectly affected, and a qualitative addition and enrichment of the theory of the class of forensic economic examinations. Based on law enforcement practice, which formed the empirical basis of scientific research on the subject of work, the fundamental directions for potential economic research were identified in the form of «typical» expert tasks. The author formulates the subject of forensic economic expertise in cases of protecting the rights and interests of athletes and coaches taking into account the above-mentioned tasks and special knowledge necessary to solve them.

146-153 391
Abstract

The paper substantiates the need to develop a new private theory of forensic expertology: the theory of digitalization of forensic activities, within which the problem of complexity deserves special attention. For these purposes, the author studies one of the forms of integration, known in forensic expertology as «a comprehensive study within the framework of one examination (mono-expertise)». The author draws attention to the epistemological essence of such a study, focuses on its distinctive features. The forensic phonoscopic examination case is an example of the problems of forensic examination of digital traces analysis. The author highlights the factors that contribute to the successful evolution of forensic phonoscopic examination in the context of digitalization (creation of a system for training expert phonoscopists, improvement of methodological support and an automated workplace for an expert), a list of expert situations that require the appointment of a comprehensive forensic phonoscopic and computer-technical examination.

INTERNATIONAL LAW

154-163 367
Abstract

In the paper, the author attempted to reveal the influence of the idea of self-determination on the emerging (in the historical and legal context) world order, taking into account the rapidly developing political and legal processes in the 18th-21st centuries. Attention is given to the use of the relevant law by certain states in their national interests, which, in the conditions of instability of the international system, makes self-determination an object of numerous influences, interpretations and restrictions. Considering cases from international practice and documents, the author concludes that over the centuries the concept of self-determination has undergone many transformations and was considered as a tool for redrawing the borders of Europe in the early and middle of the 19th century, after the end of the First World War and before the collapse of the USSR and Yugoslavia. As a mechanism of decolonization, and at the turn of the 20th–21st centuries — as a tool for fragmenting the political map of the world using the ethnic factor as a basis. Quite interesting are the conclusions about the impact of the institution of human rights, remedial secession, external and internal forms of self-determination, globalization processes on the development of the relevant law. The paper, along with other examples, examines the impact of real politics and the existence of double standards when considering issues of international legal recognition of Kosovo in the event of secession from Serbia and the annexation of Crimea to the Russian Federation.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

164-171 364
Abstract

The paper is devoted to the current state of legal regulation of environmental protection when using renewable energy sources. Attention is given to the problems of the negative impact of renewable energy sources that need legal regulation on the environment in general and its individual components in particular. The author considers the classification of objects that have a negative impact on the environment in the context of the development of technologies for obtaining energy from renewable sources, the general requirements imposed by environmental legislation on such objects. The direction of development of regional legislation on renewable energy sources is analyzed. The positive experience of legal regulation of environmental protection in the use of renewable energy sources in the EU member states is studied. Directions for improving environmental legislation in the creation and use of renewable energy sources are proposed.

172-183 1017
Abstract

The paper deals with the concept of premises used by public branches of law from the point of view of urban planning law. The study is original in that that in literature premises are studied primarily considering the possibility to act as the subject of civil law transactions. This paper reveals the meaning invested by the legislator in the concept of premises from the point of view of administrative, urban planning, criminal legislation, norms on safety of buildings and structures, sanitary norms and rules. Can there be premises as part of non-permanent structures? How does this relate to the real estate regime? Can there be one-room premises? It depends, for example, whether a trade pavilion needs to be equipped with a fire alarm, whether it is possible to smoke on the summer veranda of a public catering facility, whether it is necessary to equip the pavilion with air recirculation systems, and much more. How to understand what is in front of us: a separate premises or part of other premises? The possibility of cadastral registration and the technical equipment of the premises depend on this. Can the premises be non-isolated, but passable? This issue has long been faced by the practice of law enforcement in terms of cadastral registration of non-residential premises. The author considers what role the purpose of the premises has: firstly, the possibility of independent use, and secondly, the presence of a functional purpose. So, as an illustration, the question is being investigated, what will happen if you place a nightclub in a warehouse, and a medical facility in a former shop? The paper also compares the legal regime of premises as an object of civil law with the legal regime of premises as an object of public law. The general legal features of non-residential premises, characteristic of many branches of public law, are revealed.



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