PAGES OF HISTORY
The paper examines the history of the formation and development of legal regulation of the national payment system. The author highlights that, despite the fact that the concept of the national payment system at the legislative level has been consolidated quite recently, it began to form long before the relevant law was passed. The development of the national payment system is mediated by the formation of a system of financial institutions responsible for payments (settlement (clearing) chambers, credit institutions, etc.), the evolution of payment forms, as well as the introduction of technologies capable of processing mass payments. It is noted that the rapid economic growth characteristic of the beginning of the 20th century resulted in the appearance of the first forms of relatively mass non-cash payments during the pre-revolutionary period, which was also facilitated by the development of bank offices and the emergence of telegraphic communications. In the early years of the Soviet government, the payment infrastructure was nationalized, which became an important factor in strengthening the administrative and command economy. The modern period of development of the legal regulation of the national payment system is characterized by the adoption of the fundamental law regulating the relevant sphere of public relations, as well as the presence of an extensive system of subordinate regulatory legal acts, differentiation of approaches to legal regulation of various payment systems, taking into account the best foreign practices in this area, an effective system of supervision and supervision of the participants of the national payment system.
THEORY OF LAW
Freedom of conscience, by virtue of its nature, exists simultaneously in a legal and moral dimensions. The analysis of the doctrine, legislation and law enforcement practice suggests the existence of legal (formal) and moral (substantive) problems associated with it. The formal problem of freedom of conscience is associated with identification of this freedom with a much narrower freedom of religion. The analysis of approaches existing in Russian legal science regarding the concept of freedom of conscience allows us to group them in two main approaches, namely, the restrictive approach and the expanding approach. In legislation and the law enforcement practice, the restrictive approach to freedom of conscience prevails. It entails a violation of the rights and freedoms of citizens in this area. The separation of legal definitions of freedom of conscience and freedom of religion can help to solve the problem at the legislative level. In relation to the category of freedom of conscience, there is also a substantial problem based on the fact that the low level of legal culture of Russian citizens, complicating the formation of civil society, affects the perception of freedom of conscience and the permissibility of its necessary restrictions. In other words, citizens, exercising this freedom, often interpret it broadly. The solution of this problem requires an increase in the level of legal and general culture of citizens, the formation of moral principles necessary for every member of civil society, including the activities of religious associations and educational organizations.
STATE POWER AND LOCAL SELF-GOVERNMENT
In the study, the author proceeds from the fact that open state and municipal administration as a concept and practice with huge potential is systematically associated with the development of effective mechanisms of public control. A number of conclusions and proposals are suggested for discussion, including the following:
1) implementation of the formats of open state and municipal governance in combination with the evolution of control and supervisory activities, public control gives a synergetic effect and significantly increases the confidence of society, citizens, business in the system of public authorities and their activities;
2) an extremely important role in achieving positive effects and practical results is played by the comprehensive digitalization of control and supervisory activities, state and municipal management in general, which is why this trend needs to be continued, making the relevant technologies and services even more understandable, accessible and convenient;
3) the new philosophy of state and municipal management currently being formed and improved should include effective open administration and organization of control and supervisory activities based on building a full-fledged partner and service model of such activities; this new philosophy should fully embody the evolving ideas of clientcentricity and the key principles of the concept of the «State for the People.»
A number of specific proposals have been formulated, including normative ones, aimed at further development of digitalization of public control, including a proposal to study the issue of creating and developing a single portal of public control in the Russian Federation.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
The paper analyzes the shortcomings of Article 13.3 of the Federal Law «On Combating Corruption» that oblige organizations to take measures to prevent corruption. The legal design of Parts 1 and 2 of Article 13.3 of the Anti-Corruption Law are not coordinated with each other, which makes it difficult to fulfill the requirements laid down by the legislator. In fact, the imperativeness of Part 1 of the article is offset by dispositivity of Part 2, despite the fact that both parts are interrelated in meaning. At the same time, at the stage of law enforcement, both the organizations themselves and the prosecutors overseeing the implementation of anti-corruption legislation by organizations are uncertain about the necessary and sufficient set of the measures that are provided in Part 2 of Article 13.3 of the Anti-Corruption Law. The authors analyze the methods used by Russian organizations to ensure compliance with legislative requirements in the conditions of legal uncertainty of formulations. The paper gives the examples of the best practices in the field of anti-corruption applied in organizations. The authors propose the options for improving the normative and legal regulation of mechanisms for preventing corruption in organizations.
CIVIL AND FAMILY LAW
The paper is devoted to the study of civil law norms and judicial practice in relation to the regulation of the content of data arrays as one of the significant information assets in the context of the development of the digital economy. The paper reveals the legal nature of data and information, as well as the possibility of their qualification as independent materials. The conclusion is made about insufficient effectiveness of the mechanisms of legal regulation arising in connection with the circulation and protection of databases of civil legal relations due to definitive problems, namely the lack of definition of the concept of «independent materials,» as well as due to the lack of legal differentiation between data and information. In the process of a comprehensive study of the technical features of the concepts of «data» and «information» that form the basis for the formation of their legal nature, a reasonable conclusion is made about the need for a connection between the concept of «independent data» and information. The authors propose the criteria and mechanisms for distinguishing data and information.
The paper deals with the issues of the formation of the will of a legal entity with due regard to the need to establish the nature of the disposal of property for the purposes of vindication (either voluntary or involuntary). The author gives examples of various theories of a legal entity. The author highlights the difficulties of participation of legal entities in vindication disputes due to their abstract essence and the absence of a physical and tangible embodiment of a legal entity. The author concludes that the will of individuals (exercising the powers of the bodies of a legal entity) actually replaces the will of a legal entity. The paper also discusses the features of the formation of the will of a legal entity with a plurality of will-forming and/or will-exercising individuals, for example, if: 1) the decision on the alienation or transfer of property is made by a group of individuals (general meeting of participants, board of directors), or 2) the powers of the sole executive body are granted to several persons, or 3) several sole executive bodies have been formed in a legal entity. With regard to these features, the author concludes which persons’ will is considered the will of a legal entity.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
The paper deals with the issues of the prosecutor’s protection of public interest related to educational legal relations and (or) their individual elements. The dualism of private and public principles in the legal regulation of educational relations generates a number of problems in terms of protection of these rights. The issues are poorly researched in the science, but in practice they are very relevant. The problems under discussion are considered by the author on the example of civil cases initiated by the prosecutor: actions for nullity of documents on education and qualifications; actions in defense of the interests of educational organizations (directly or indirectly); actions in defense of an indefinite number of students. It is concluded that it is necessary to endow a specialized executive authority with the right to bring an action for nullity of an educational document and that it is possible to consider the issue of nullity of educational documents in administrative proceedings.
LABOR RELATIONS AND SOCIAL SECURITY
The pedagogical activity of a teacher at an educational organization is of a special social significance. The principles of continuity and professionalism of organization and conduct of the educational process have a significant impact on relations regulating conclusion, renewal and the content of an employment contract with a teacher. A turning point in law enforcement practice, as well as in the legislator’s approach to regulating the relations under consideration, took place when Resolution of the Constitutional Court of the Russian Federation No. 32‑P of 15.07.2022 was passed. A modern employment contract with a teacher is not limited to one document. The educational organization (an employer) should pay attention to the documents accompanying the employment contract with the teaching staff. Based on the analysis of current provisions of labor legislation and legislation protecting personal data, the doctrine, judicial and business practice, the author makes conclusions and recommendations regarding the solution of problems related to the conclusion, renewal and content of an employment contract with the teacher, as well as regarding the accompanying documents. The paper substantiates the composition and content of such documents, makes proposals regarding lawful processing of personal data of the teaching staff and reporting to Roskomnadzor.
CRIMINAL LAW
The paper studies the forms of interaction between criminal law and moral ethical prescriptions as two systems that regulate the behavior of subjects of public relations. The study made it possible to establish that at present there are five main forms of implementation of moral and ethical categories in the criminal law of the Russian Federation. First, the norms of morality are embodied through the institution of the principles of criminal law. Analyzing the principle of justice, the author describes in detail the relationship under study. Secondly, certain moral prescriptions have been transformed into criminal law prohibitions and are currently legitimized in the dispositions of the Criminal Code of the Russian Federation. Particular attention is given to the historical transformation of the moral and ethical norm into the norm of the criminal law. Thirdly, the criminal law directly protects public relations regarding public morality and morality, which is enshrined in Ch. 25 of the Criminal Code of the Russian Federation. Fourth, the assessment of the morality (immorality) of the behavior of victims of individual crimes affects the classification of crimes and the imposition of punishment. The materials of investigative and judicial practice are considered, in which law enforcement agencies assessed the immoral behavior of crime victims. Fifthly, the relationship between moral and ethical standards and the system of criminal law is found in the fact that almost all existing criminal law prohibitions were socially and historically determined by the requirements of morality and ethics. At the same time, it was established that there are both purely moral criminal law prohibitions, such as prohibitions on appropriation of someone else’s property or deprivation of life, and criminal law prohibitions based on morality, but significantly modified in the course of social development (crimes in the field of economic activity, computer crimes and others).
The paper reveals the specifics of the mechanism of preventive impact of criminal law norms with double prevention, which results in the definition and classification of these norms. The concept of norms with double prevention arose in Soviet criminology following the research on recidivism and measures to prevent serious crimes against a person. Despite the fact that the current Criminal Code of the Russian Federation is expanding the number of norms with a clear preventive focus (for example, Art. 173.1 «Illegal formation (creation, reorganization) of a legal entity», Art. 205.1 «Assistance to terrorist activities», Art. 205.6 «Failure to report a crime»), the theory on norms with double prevention as a means of preventing crime is not developing. Scientists mainly reproduce the provisions of the Soviet doctrine, occasionally making clarifications. Having applied the system structural analysis of the Special Part of the Criminal Code of the Russian Federation and analyzed the criminological theory of crime prevention, the author concludes that the norms prohibiting actions that act as objective and subjective criminogenic factors have a double preventive potential. Accordingly, the essence of the mechanism of the preventive impact of the norms with double prevention is to reduce and neutralize such factors by bringing to criminal responsibility or its threat. When describing the model of the preventive impact of criminal law norms with double prevention, aimed at objective criminogenic factors, the author applied the concept of situational prevention of crimes. The specifics of norms with double prevention that affect subjective criminogenic factors are explained within the framework of data on recurrent (actual) violent crime and G. Tarde’s theory of learning.
CRIMINAL PROCEDURE
Criminal procedural proof, which is the core of pre-trial proceedings, on the one hand, predetermines the justice of the final court decision in a criminal case, on the other hand, is able to protect a person from illegal and unreasonable criminal prosecution in a timely manner. The achievement of this is in direct correlation with the procedural capabilities of the defender to effectively participate in such establishment of evidence. However, the study of the opinions of academia, practitioners and generalization of the results of investigative practice, judicial statistics has led to the belief that in the course of establishment of evidence in a criminal case there exists an unreasonable discretion of the investigator and the interrogating officer over the guarantees of the individual’s right to protection enshrined in criminal procedure law. The defense counsel, despite the strengthening of these guarantees by the Federal Law of April 17, 2017 No. 73‑FZ, is not yet able to overcome the accusatory bias of the investigator, interrogator and properly defend the suspect, the accused. The author makes a proposal to solve this problem, taking into account the features of the modern form (type) of pre-trial proceedings.
The paper deals with the problem of the incompleteness of the legal regulation of remote participation of the victim in pre-trial proceedings, which entails an unreasonable restriction of his rights and legitimate interests. Addition in 2022 to Article 189.1 of the Criminal Procedure Code determined the possibility of interrogation, confrontation and identification through videoconferencing systems. However, to ensure the remote participation of the victim, this seems to be insufficient due to the peculiarities of this procedural status, which consists in the need to comply with the formal grounds for recognizing a person as a victim, which requires the issuance of an appropriate decision and the production of familiarization with it. Accordingly, in order to fully legally ensure the remote participation of the victim, legal regulation of the remote production of the said procedural action is also necessary. It is noted that legal regulation lacks a requirement to establish the possibility for an elderly victim, as well as a victim with physical disabilities to perceive sound and video image electronically transmitted through video conferencing systems, which prevents the exercise of his rights and legitimate interests. This duty of providing such an opportunity should be assigned to the investigator responsible for the criminal. Taking into account the experience of foreign regulation on remote participation, the author substantiates the need to fix in the Criminal Procedure Code of the Russian Federation the basis for a remote regime for conducting investigative actions with the participation of minor victims, aimed at increasing the guarantees of their psychological protection.
THE JUDICIARY AND COURT SYSTEM
One of the goals of the activities of the Constitutional Court of the Russian Federation is to protect the rights and freedoms of man and citizen by recognizing as unconstitutional the norms applied in a particular case. Restoration of violated rights is carried out by reviewing the relevant case. At the same time, in some cases, due to the specifics of the relevant relations, when the review of the case was impossible or could not lead to the restoration of the violated rights of the applicant, it was not possible to compensate for the negative consequences of the violation of his rights. This circumstance made it impossible to fully ensure the completeness and effectiveness of constitutional proceedings. The introduction of the institute of compensatory mechanisms was aimed at solving this problem. However, sparing legal regulation, its ambiguous interpretation and various application in practice had a negative impact not only on the effectiveness, but also on the very applicability of this legal institution. Having analyzed both the decisions of the Constitutional Court of the Russian Federation and the rulings of general jurisdiction courts, the author considers the above problems as well as the reasons for their occurrence and proposes some ways to resolve them.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
In Russia, the possibility of supplying energy to consumer property complexes through microgeneration devices has been used since 2021. The study is devoted to the problems of legal regulation of technological connection of electric power microgeneration facilities. In the process of analysis, the author considers the types and methods of connection of consumer property complexes to microgeneration facilities provided for by law. As a result of the study, a contradiction was revealed between the norms of civil legislation and the Rules for technological connection, which make connection of microgeneration facilities in buildings impossible. In addition, a number of legal inaccuracies in the connection procedures were disclosed, which interfere with the full implementation of the technological connection of microgeneration facilities. The author proposes, by clarifying the legislation, to make changes to the current organizational mechanism for energy supply of consumer property complexes by means of microgeneration devices.
LEGAL EDUCATION AND SCIENCE
The paper analyzes the experience of organizations that have the right to independently award academic degrees as to the issues of regulating the types of dissertation councils. The author provides examples of organizations that regulate the functioning of councils for the defense of individual dissertations for scientific degrees. The characteristic features of «one-time» dissertation councils are highlighted. The positive and negative aspects of the introduction of a «one-time» type of dissertation council into the state system of scientific certification are considered. The author proposes possible options for the normative fixing of individual mechanisms as to the functioning of the «one-time» type of dissertation council, as well as measures of responsibility for conducting an unfair dissertation defense. It is concluded that the integration of this type of dissertation council into the system of scientific certification will contribute to the achievement of the goal of the Strategy for Scientific and Technological Development of the Russian Federation. This will also make it possible to solve a number of tasks facing the state amid great challenges, such as ensuring the formation of Russia’s leadership in scientific and technological sphere and overcoming the concentration of research potential in certain regions of the country.
The paper deals with the possibility of presenting a candidate of science degree dissertation in the form of a scientific report prepared based on a set of works previously published by the applicant in the relevant field of science, which are of great importance for science, engineering and technology. The author considers the experience of regulating this format in relation to a doctoral dissertation, including organizations exercising the right to independently award academic degrees. The main characteristics of this format are studied, including the requirement that a wide range of specialists know the results of research and development. The possible risks and consequences of introducing the format of a candidate degree dissertation in the form of a scientific report, associated with the refusal to formalize the materials of a scientific research in accordance with the uniform rules for preparing a dissertation manuscript, are assessed. Possible changes in the normative legal acts on the publication activity of the applicant for a scientific degree, on the requirements for the structure of a scientific report are analyzed.
СРАВНИТЕЛЬНОЕ ПРАВО
The paper examines the phenomenon of the use of artificial intelligence (AI) technologies in the field of public relations in foreign countries. It also touches upon the main problems in the legal field in terms of deploying the system, concerning both ensuring the transparency of decision-making and the non-discriminatory nature of the ongoing algorithmic data processing, and its use in in relation to the supervised segment based on the principles of predictive prosecution and the provision of a proactive set of public services to citizens. The effectiveness of technology integration into the sphere of public legal relations and the accuracy of the proposed solutions in a selection of various application segments in the context of sub-branches of administrative law are considered. According to the author, in order to implement the constructions of AI integration into the public sphere proposed in the paper, it is already necessary to determine the main levels of AI access to information in the framework of control and supervisory activities. These include finding identifying features for AI developers for the purposes of authorities with the provision of extended preferences and sanctions, taking into account scale effect of legal relations, determination of experimental regimes for a number of legal relations in order to test AI in the context of granting rights and implementing a system of administrative oversight and prosecution.
ISSN 2782-1862 (Online)