THEORY OF LAW
A developing system of social norms is based on such a criterion as a way of regulation or a way of ordering, normalizing and stabilizing the society. At the same time, an evolutionary key is used, i.e., the historical time of the appearance of a particular type of norms, which makes it possible to see how the relay race of social norms took place, to trace the entire path of development of social regulation. The society in its development has passed two epochs: the pre-state period (the era of the primitive system and the transition of society from anthropology gathering to production) and the state period that in turn, is divided into three stages: agrarian, industrial, post-industrial (information) society. In a pre-agrarian society, there were: 1) myths, 2) rituals, 3) ceremonies, 4) customs. The agrarian society enriched the mankind with such norms as: 5) traditions, 6) religious norms, 7) business habits. The industrial society consolidated: 8) legal norms, 9) political norms that declared themselves to the utmost. In the information society, the following norms become significant: 10) etiquette norms, 11) aesthetic norms, 12) moral standards.
The author draws the following conclusions. The system of social regulators is quite extensive. In the process of economic transformation, the humanity has been developing more and more effective ways of regulation that correspond to social reality. Social norms did not arise simultaneously, but matured gradually accumulating their potential. In the future, when more progressive norms enter the arena of human existence, the previously arisen norms will not disappear, but will recede into the background and perform a secondary role in ordering the life of the society. Law today is the main means of regulation. However, law is by no means guaranteed a leading role in the future, since norms with a more powerful regulatory potential (for example, morality) have been created.
Based on the analysis of the views available in doctrine and practice, the author explains the author’s approach to the classification of types of human rights activities. Six main classifications of human rights work are proposed and described in detail according to such criteria as their nature, object, subject, method, scope, time frame, categories of persons violating the rights. The conclusion is made about the need for a conceptual revision of the understanding of human rights protection as a human struggle against the state; the paper justifies the expediency of closer coordination of all types of human rights activities. The author highlights that improving the effectiveness of state human rights activities is directly connected with the creation of an effective mechanism for coordinating the work of all state human rights organizations in Russia, not only among themselves, but also with numerous public human rights organizations; with the formation of common understandable and transparent criteria for the effectiveness of their activities, improving its quality and accessibility for all citizens. To do this, it seems advisable to develop a strategic planning document in the field of human rights activities, in which the goals, objectives, principles and indicators of human rights work, the main stages of achieving the set human rights results and criteria for their evaluation are consolidated in detail.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
The paper attempts to theoretically substantiate a new legal institution in the system of administrative law, which requires independent scientific understanding. The author identifies the essential features of the moratorial administrative law regime, allowing to determine its place and purpose in the system of administrative law regulation. In the process of analyzing the urgent legal norms adopted in the Russian Federation in recent years, it has been established that many administrative law institutions are implemented within the framework of the moratorium regime. One of them is the Institute of expertise in the field of public administration. On the one hand, examination as a professional tool for assessing legally significant circumstances and facts necessary for making a public management decision provides an additional safeguard of compliance with the interests of the state, society and the individual in the implementation of economic or other activities. On the other hand, it acts as an administrative barrier, the overcoming of which requires additional time, labor, and financial costs from the participants of legal relations. In this regard, the establishment of moratorium measures in the implementation of the institute of expertise in the field of public administration should be recognized as justified in emergency conditions. Special attention is paid to the characteristics of the main types of the moratorium in the field of state expert activity.
FINANCIAL LAW
The paper explains the principle of citizens’ participation in the budget process in the context of the general principles of the budget system of the Russian Federation. Today, this principle is implemented in our country through the procedure of public hearings. They are held annually when the budget law is being developed, or during the period when a report on its implementation is being drafted. The author of the article points out that in the legislation there are special principles of the budget process applicable to budget-procedural activities and activities of public entities. In author’s opinion, the principle of citizens’ participation in the budget process should take a special place in the list of special principles of the budget process. In practice, in particular, the principle of citizens’ participation in the budget process is implemented through the launch of initiative budgeting programs. This is especially noticeable at the regional and municipal levels. The article traces the idea that the principle of citizens’ participation in the budget process is currently not fully implemented. Therefore, it is necessary to consolidate the legal norms providing for this principle at the legislative level.
The paper discusses the current problems of the development of legal regulation of tax administration, as well as the transformation of taxpayers’ responsibilities in the context of intensification of the use of artificial intelligence. It is noted that, given the ambiguity of the normative and doctrinal understanding of the content of the term «artificial intelligence,» it is logical to consider the chatbot of the Federal Tax Service of Russia as a prerequisite for the creation of artificial intelligence for the interaction of tax authorities with taxpayers. The author highlights the value of artificial intelligence in the development of the institute of tax monitoring, consisting in the possibility of forecasting and evaluating tax risks. The paper emphasizes the necessity of developing tax structures on the way of active implementation of artificial intelligence systems. Special attention is paid to the possibility of unifying the register of Russian equipment and software to simplify the application of tax preferences for IT organizations.
LEGAL REGULATION IN THE INFORMATION SPHERE
The paper is devoted to the analysis of such legal technology as the use of software agents in law practice. The paper substantiates the relevance of the research topic, gives the concept of a software agent, and provides their classification. Special attention is paid to intelligent software agents, their types used in the implementation of legal activities. The paper provides examples of intelligent software agents-bots used in legal practice; user agents, predictive agents and data search agents that select and analyze information in large data warehouses in order to systematize it, classify and identify trends in individual indicators. It is concluded that the use of software agents in legal practice can be considered as a kind of legal technology in the event that it entails a legally significant result and certain legal consequences. A software agent acts as one of the structural elements of legal technology — a means of carrying out legal activity, a means of achieving a legal result, and the very use of this tool in legal practice is a legal technology. This technology is assigned to certain types depending on various classification criteria. Based on the materials of domestic and foreign legal practice, the author provides specific examples of harm caused by activities carried out with the help of software agents. The author outlines the problems of using software agents in law practice that require further examination.
CIVIL AND FAMILY LAW
A negatory claim may be applied in case of violation of a subjective right. Giving the negatory claim an uncharacteristic preventive function for the purposes of protecting subjective property rights is not necessary, because the desired goal is achieved by using a different method of legal protection and in relation to another object of legal protection, namely, a legitimate interest. An owner is interested in ensuring that his subjective right is not violated. Therefore, he has an interest in third parties acting in such a way that a violation of his right would be excluded. A violation of such a legitimate interest of the owner is the commission by the debtor of actions that will inevitably lead to a violation of property rights. In view of the fact that a subjective duty does not oppose a legitimate interest, a dispute concerning protection of a legitimate interest provides for the resolution of competition between the protection of the plaintiff’s legitimate interest and the defendant’s freedom of action. The court’s duty in such a dispute is to establish a fair balance between competing legal benefits so that the legitimate interests of one or the freedom of the other are not infringed without sufficient grounds. Prevention of violation of subjective property rights can be carried out by such a general method of protection as the suppression of actions that pose a threat of violation of the right, a special case of which is a claim for the prevention of harm. A special real preventive claim brought to prevent the violation of subjective property rights is possible only if the appropriate method of protection is fixed by law. However, in the conditions of the existence of such a universal method of protection as the suppression of actions that pose a threat of violation of the law applicable to all subjective rights, there is no need to consolidate a special real preventive claim.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
The paper examines the composition of the elements of proof in one of the categories of cases of special proceedings, namely, in court cases of recognition of citizens as missing. The relevance of legal norms on missing people is determined by the increase in the number of armed conflicts, natural and technological catastrophes. The need to study this issue is explained by the fact that erroneous court decisions lead to legal uncertainty, affect civil turnover in a negative way, infringe property and other rights of citizens. The number of missing people is alarming, and search for them is not always effective. At the same time, as shown in the paper, there is an unsolved problem of forming a legally compliant composition of the subject of proof in cases of recognition of citizens as missing. In the conditions of modern mega-catastrophes, legislative filling of this gap through consolidating the general subject of proof in the Civil Procedure Code of the Russian Federation and detailing of the local subject of proof will serve timely and correct consideration of such cases.
The paper aims at studying the legal nature and procedure for applying the rules of arbitration procedural legislation, which determine the conditions for the recognition and enforcement in Russia of foreign decisions on disputes involving «sanctioned» persons. These conditions are both an additional guarantee and a means of protecting the rights of these persons. The author argues that the legislator’s admission of the issuance of an exequatur to a foreign decision taken at the suit of a «sanctioned» person is justified, since the said person himself initiated a lawsuit in a foreign jurisdiction. The objections of the «sanctioned» person against the consideration of the case by a foreign court with his participation are characterized as one of the procedural and legal means of protecting the rights of the defendant, aimed at completing the consideration of the case without making a decision on the merits. The paper concludes that the fact of filing these objections in a foreign court is assessed taking into account the procedural norms of the place where the case is heard, the obstacles in their statement due to the effect of sanctions and the applicant’s good faith.
BUSINESS AND CORPORATE LAW
There is a widespread position that Article 61.6 of the Federal Law of October 26, 2002 No. 127-FZ «On Insolvency (Bankruptcy)» is restitution. At the same time, the characteristic features of civil restitution and the consequences of the invalidity of the debtor’s transactions differ. Since no one has previously provided sufficient theoretical justification for arguing this position, the author attempts to determine the legal nature of the consequences of the invalidity of the disputed transaction of the debtor in bankruptcy. The author analyzes the provisions of the named article (as well as the practice of its application) to see if there is some correlation with bilateral and unilateral civil law restitution, measures of a confiscatory and over compensatory nature, and civil law tort. Based on the results of the comparison, the author concludes that the consequences of the invalidity of the debtor’s transaction can only be considered as a special type of legal liability of the debtor’s counterparty in the area of insolvency. A different interpretation of this norm requires serious changes in the legislation on insolvency (bankruptcy).
CRIMINAL LAW
The sanctions of the article are a reflection of the nature of criminal acts, their level of public danger. The quality of the construction of this element of criminal law prescriptions determines the fairness of the penalties imposed, the effectiveness of the application of the norms of criminal law. This causes scientific interest in the indicated problems. The paper analyzes the problems of creating constructions of sanctions, Part 2, Art. 285.1 and part 2 of Art. 285.2 of the Criminal Code of the Russian Federation (in this article, these crimes will be referred to as budget crimes). The purpose of the study is to offer legislative recommendations for their adjustment, to establish compliance with the rules and design principles developed by science. To achieve this goal, the author studied the sanctions of these norms from the point of view of their compliance with the degree of social danger of crimes, consistency, analyzed the judicial practice and the approaches existing in science to the formation of sanctions and the definition of their boundaries. Applying the evidence-based rules, the author expresses her opinion on the presence of errors in the legislative structures of sanctions for these budgetary crimes. The author supports the opinion on the preferred use of the technique of overlapping sanctions, as well as on the need to analyze the data of judicial practice in order to determine their proportionality. Based on the results of the study, it is proposed to optimize sanctions for these budgetary crimes, taking into account the introduction of a specifically classified body of a crime, changing the boundaries of sanctions.
CRIMINAL PROCEDURE
In the paper, the author touches upon the issues of the loss of a criminal case data or its individual materials. These include the problems of the lack of legal regulation of many aspects as to the restoration of materials of a criminal case, such as the terms of restoration, the limits of restoration, the procedure for the restoration of materials of a criminal case. In this regard, the author analyzes some practical difficulties related to this institution application. The author examines the moment of the emergence and development of this institution, the need for it in the light of today’s realities, analyzes, among other things, foreign experience in the use of digital document management and substantiates the anachronism of the entire procedure currently available for the restoration of a criminal case or its materials. Summing up the results of the scientific research, the author argues for the need to switch to electronic document management for the conduct of a criminal case, the use of modern technologies and processes in criminal proceedings. Important and interesting are the author’s proposals for improving the existing mechanisms.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
The paper states that the digital transformation of the investigation procedure requires new, effective tools, including those that accumulate the network capabilities of various law enforcement agencies. One of the leading tools in this area are digital platforms. However, the use of not isolated digital platforms of various bodies, but their collaboration into a full-scale digital ecosystem will have a greater synergistic effect. At the same time, it is stated that the prospective ecosystem under consideration should be composed of digital platforms of all three main types: instrumental, infrastructure and applied digital platforms. The paper discusses the essence of digital ecosystems. Within the ecosystem of the preliminary investigation, the author provides for the allocation of at least three main areas (blocks): criminal procedure, organizational (office work) and forensic. Within the framework of the organizational direction, the author considers issues related to the automation of receiving reports of crimes, solving logistical issues of sending guard services, investigative teams, as well as unmanned devices to the scene, expanding the possibilities of electronic office work, automating the selection of the required legislation and judicial practice. In the procedural direction, the use of elements of an electronic criminal case, remote investigative actions (with the use of not only video conferencing, but also other technologies) within the ecosystem is considered. Much attention is given to the use of electronic evidence. Within the framework of the forensic direction, the author considers it important to analyze open databases and Internet information using big data analysis technologies. It also seems reasonable to pair this ecosystem with the Safe City program with the obligatory use of face recognition systems. Intelligent recommender systems and decision support systems are considered. Attention is also given to the study of virtual traces.
INTERNATIONAL LAW
In its judgment in case C-135/15 dated April 20, 2016 the Court of Justice of the European Union confirmed the most important provisions of the doctrine of F.C. Savigny: 1) the public policy of the state is protected both by a general public policy clause (negative clause) and by special rules of a strictly positive, imperative nature (positive clause); 2) the application of positive and negative public policy clauses is based on considerations of public interest that are of fundamental importance for the political, social or economic structure of the country. In the constitutional law of Russia and foreign countries, the political, social and economic foundations of the country’s structure are the three fundamental foundations of the state, enshrined as provisions of the Constitution. The EU Regulation Rome I (Art. 9), the Civil Code of the Netherlands (Art. 10:7) and other modern foreign legal acts, as characteristics of super-imperative norms, fix the protection of public interests related to the three fundamental foundations of the organization of the state: political, social or economic structure (organization) of the state.
Art. 1193 of the Civil Code of the Russian Federation establishes the elements on the legal, political or economic system of the state used by the Supreme Court of the Russian Federation as a template to determine the differences in the system of the state. Therefore, they are not suitable for the characteristics of public policy and protective clauses on public policy. Enshrined in Part 3 of Art. 55 of the Constitution of the Russian Federation, public interests (constitutionally significant values) are of fundamental importance for the political, social or economic structure of the country. In accordance with the doctrine, modern legislation and practice, public policy is based on these interests within the meaning of private international law. Considerations related to the indicated public interests underlie the application of both positive (Article 1192 of the Civil Code of the Russian Federation) and negative (Article 1193 of the Civil Code of the Russian Federation) public policy clauses.
The problems of environmental protection are still one of the most pressing international legal issues. Among the causes of environmental pollution, and hence the violation of human rights and harm to public health, is the use of lead. The presence of lead in the human body increases the risk of cognitive decline, disruption of the endocrine and reproductive systems, etc. However, young children are most at risk of lead poisoning. Issues of regulating the handling of lead (individually or as part of a group of heavy metals) are the subject of special attention in international law. One of the burning issues is the limitation of the use of lead in paints, implemented through a global partnership of governmental, non-governmental and private organizations and actors. According to the author, this way of solving environmental problems involves the development of a «multi-level» international legal management in the field of handling chemicals. The paper emphasizes the need to take coordinated measures to limit the use and eliminate lead-containing paints, which implies the abandonment of voluntaristic approaches by states to the establishment of regulatory limits for the content of lead in paints. Two ways of resolving the problem are proposed: the creation of an international agreement of a binding nature (following the example of the UN Convention on Mercury), and the prolongation of the practice of global partnership. The main measure of the effectiveness of such a method should be recognized as a sufficient degree of protection of human rights and, in a broader sense, compliance with the principles of international law as a whole.
INTEGRATION LAW
The paper is devoted to the analysis of the legal grounds for the imposition of sanctions by Western jurisdictions against representatives of Russian business and their relatives, as well as current law enforcement practice. An important general trend in the development of sanctions legislation is the gradual expansion of the scope of application of the grounds for imposing sanctions with the simultaneous simplification of inclusion in the sanctions lists. Prominent examples are the expansion of sectors of the economy affected by US sanctions, and the very ability of the US and UK to impose blocking sanctions simply by virtue of the fact that a person operates in a certain sector of the economy. In the EU, to impose sanctions on a businessperson operating in a particular sector, one still has to prove the presence of a leading position, but this is also a rather vague term. This approach is also the result of a simplification: there is practically no need to prove connection with the regime due to the presumption of connection between big business and the political regime considered in this paper. The UK also simplified the procedure for imposing sanctions by extending them to family members of sanctioned persons, which eliminated the need to prove the presence of financial and economic ties with the sanctioned person. An even more important easing in the imposition of sanctions was the emergence of a simplified procedure for imposing sanctions on persons who fell under the sanctions of the UK’s allies. This procedure only allows checking the coincidence of the grounds for imposing sanctions without checking the actual circumstances that caused the inclusion of a person in the sanctions list. In fact, the only way to avoid being included in the sanctions lists is to refuse any activity that serves as a basis for inclusion in the sanctions lists. Often, such a scenario is unrealistic, which means that representatives of Russian big business will only have to take measures to minimize possible harm, since the elimination of the sanctions risk becomes almost impossible.
ISSN 2782-1862 (Online)