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Actual Problems of Russian Law

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Vol 18, No 9 (2023)
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PHILOSOPHY AND ETHICS OF LAW

11-20 239
Abstract

The paper is devoted to the interaction between philosophical, legal, biological and medical knowledge in the context of development of bioethics. Special attention is paid to the evolution of philosophical foundations of bioethics in the context of human rights. The process of drafting the text of the Universal Declaration of Human Rights posed a number of new philosophical problems to the international community, generalization of the experience of the philosophical development of the civilization becoming one of the most important. This generalization would be impossible without overcoming the multiplicity of philosophical schools, trends and approaches that accompany philosophy throughout its development. Relying on the humanistic ideals of the Renaissance and the mottos of the Enlightenment, the philosophers of the 20th century formulated the universalist model of human rights that was criticized from the standpoint of philosophical pluralism and cultural relativism. The way out was found by appealing to the philosophy of existentialism, the ideas and categorical apparatus of which formed the basis for the Universal Declaration on Bioethics and Human Rights. All this made it possible to form an effective body of legal regulation of therapeutic and cognitive practices — the ethics committee that contrary to the objections of some theorists, can be considered as a permanent philosophical seminar.

STATE POWER AND LOCAL SELF-GOVERNMENT

21-37 219
Abstract

Today, the issues of involving citizens in decision-making process of public authorities have become the main vector determining development of democratic countries of the world. Most of all, this trend is felt at the level of the power closest to the population — at the level of local self-government that often uses the institute of territorial public self-government (TPSG) in Russia. The paper defines the state of the legal institution under consideration in Russia using the Siberian Federal District as the case study. Based on the results of the analysis of legislation, the collected material on TPSG (concerning the number, forms of TPSG work, forms of interaction between TPSG and public authorities, etc.), identified TPSG‘s organizational and operational problems, the author concludes that in the state conditions have been created that promote TPSG formation. Consistent resolution of the tasks will allow us to move to a new level of engaging the population in participation in local government.

38-46 475
Abstract

The paper deals with the issue of the formal grounds for restricting human rights and freedoms. Using the cases from the practice of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, the author confirms that judges’ creativity in the form of judicial decisions can restrict rights and freedoms, which means that it can be a formal basis for their restriction. The classic list of formal grounds, containing normative acts of various levels (from the federal constitutional law and the decree of the President of the Russian Federation to the resolution of the highest official of the constituent entity), is supplemented by judicial decisions. Decisions of the Constitutional Court of the Russian Federation and the legal standings of the Supreme Court of the Russian Federation, including reviews of judicial practice, can separately be considered as formal grounds for restrictions of rights and freedoms, whereas the decisions of arbitrazh courts and courts of general jurisdiction separately do not act as formal grounds for restrictions, since they act in a targeted manner. They become formal grounds when judges make many decisions with the same interpretation (reading) of a legal norm that goes beyond its literal interpretation and restricts the rights and freedoms of the man and citizen. The established judicial practice concerning restriction of rights and freedoms must meet the same criteria as other formal grounds for restrictions, i.e., impose proportionate restrictions corresponding to the objectives set out in the Constitution of the Russian Federation.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

47-58 646
Abstract

The theory of administrative law contains general conditions (prerequisites) and special legal methods (control, supervision, appeal) and means (legal responsibility) to ensure legality. And if much attention is paid to the latter in the scientific literature, then the study of the general conditions (prerequisites) for ensuring legality in relation to modern realities has not yet been widely disseminated. At the same time, as practice shows, in modern conditions, it is not always possible to ensure legality in the activities of the apparatus of public authorities by special legal methods and means. The paper argues that it is the general conditions (prerequisites), being external factors, that have a significant positive or negative impact on the state of legality both in the country as a whole and in certain areas of public administration. Therefore, their understanding is especially important not only for the theory of administrative law, but also for the public power carrying out practical work. In relation to the current situation, the paper analyses such general conditions (prerequisites) for ensuring legality in public administration as ideological, political, legal, socio-economic, organizational conditions. The author substantiates the conclusion concerning complex influence of these conditions (prerequisites) both on the general level of legality, and on the use of special legal methods and means of ensuring legality in public administration.

59-68 769
Abstract

The paper explains the relationship between unreliable data presented by military leaders on command in accounting documents and organizational harm in the field of military administration. Without reliable, truthful information about the state of affairs in a subordinate organization, it is impossible to make an effective administrative decision or adjust control to the real state of affairs. The author analyses the criminal law structure of such acts as submitting false reports to higher-level managers, explains their relationship with causing harm to the state and military administration. The author differentiates the responsibility of the drafter of the document containing false information and its signatory. The author concludes that it is impossible to qualify such actions under Article 292 of the Criminal Code of the Russian Federation (forgery in office) due to the non-attribution of accounting documents to the subject of this crime. Based on the identified reasons and conditions that contribute to the concealment of truthful information in the reports, proposals are made to improve legislation.

CIVIL AND FAMILY LAW

69-78 342
Abstract

The paper deals with a specific group of obligations arising in connection with the termination of lease agreements, commercial rental of residential premises and commercial concessions. This group of obligations is qualified as post-contractual obligations. The authors examine peculiarities of the origin and content of such obligations, their separation from warranty obligations, obligations arising from a preliminary contract, conditional contract. The paper elucidates debatable issues of the exercise of preferential rights by lessees, tenants and users to conclude relevant contracts for a new term. The conditions for the exercise of preferential rights and their protection in case of violation are investigated. The paper challenges the position of researchers, according to which the terms of the exercise of the pre-emptive right are suppressive, and the conclusion is justified that this term is the term of its implementation. The paper analyses the features of responsibility of landlords, lessors, and right holders in case of violation of the preferential rights of authorized persons. The authors substantiate the conclusion about the faultless nature of the responsibility of these subjects.

79-94 355
Abstract

The paper examines the totality of objects of legal relations as a system that has a certain hierarchy, i.e. a system of one level is considered as an element of a system of a higher level. This is the interrelation between the concepts of a "system of objects of civil rights," "system of legal relations," and "digital ruble" and "money." There are three main categories that characterize the system of objects of civil rights: property, things and property rights. At the same time, the category of "property" is the broadest concept in terms of scope, including both things and property rights. Digital property can also be considered within this category. The digital ruble will be a digital form of the national currency, it will have all the necessary properties to perform the functions of money and it will be issued by the central bank (Bank of Russia) in digital form. The digital ruble is considered as an element of the generic concept of "money" and a variety of one of the forms of money — non-cash funds.

95-102 324
Abstract

 The need to improve legislation in the field of regulating relations involving public associations has been overdue for a long time. The solution of problematic issues will contribute to a more effective and unhindered exercise of the right to association. Currently, social movements and public organizations do not belong to the same organizational and legal form of non-profit organizations. Nevertheless, there is no consensus in the doctrine of civil law as to how justified this approach is. The objectives of the creation are named as the peculiarities of the social movement, as well as the fact that, unlike the public organization, the participants of the social movement do not acquire the right of membership. They just support the objectives of its creation and operation. At the same time, the analysis of the charters of many social movements shows that their participants, as a rule, fix their participation in the social movement by submitting individual applications, going through the registration and accounting procedures, which eliminates the difference with the status of members in a public organization. In addition, the concepts of participation and membership in civil legislation are usually identified, while in the legislation on public associations their status differs depending on whether there is a procedure for formalizing participation or not. It seems that the lack of certainty in the legal status of social movements as legal entities is connected not only with the revealed contradictions in the laws that regulate it, but also with the fact that the civil law doctrine has not developed a unified approach to determining the category of organizational and legal form of legal entities. The issue concerning sufficiency of highlighting the specifics of the creation objectives for the formation of certain types of legal entities still needs resolution.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

103-111 534
Abstract

Abuse of procedural rights is a widespread phenomenon that has a negative impact on the judicial system as a whole. It causes unfounded appeals to the court contrary to their purpose and creates obstacles in the exercise of the right to judicial protection, works against the correct and timely consideration and resolution of cases, creates a disdainful attitude towards law and court. According to the legislator, the main mechanism for countering procedural abuses in civil proceedings is the potential institution of compensation for actual loss of time, which has a long history of development. However, its fragmented and laconic legal regulation, different interpretations and lack of unity of judicial practice have turned compensation for actual loss of time into a rarely used and ineffective — almost never with a positive result — way of imposing negative consequences on persons involved in the case and who commit procedural abuses. The paper analyzes the features of the legal regulation of compensation for actual loss of time and the corresponding judicial practice and examines the above problems, the reasons why they occur and suggests ways to resolve them.

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

112-118 483
Abstract

Currently, a large number of creative works are produced with the use of computer technologies. These can be complex works consisting of several heterogeneous objects that are combined into one complex object. Since the law does not provide for a concept of a complex intellectual property object but new complex objects appear, the author examines new works created with computer technologies, as well as NFTs, and provides an analysis of Russian judicial practice aiming to possibly classify such results as complex objects. The paper analyzes the types of complex intellectual property objects that are not named in Art. 1240 of the Civil Code of the Russian Federation but refer to multimedia products, audiovisual works. In addition, cases developed in judicial practice regarding the varieties of multimedia products, audiovisual works are considered. Examples of foreign regulation of the issues discussed in the article are also given.

CRIMINAL PROCEDURE

119-130 284
Abstract

The need to ensure access to justice for victims of intentional or negligent crimes causing harm or the death of the patient (iatrogenic crimes) committed by medical and (or) pharmaceutical industry workers is conditioned by the following. Crime report check and preliminary investigation take excessively long time and then result in orders to dismiss a criminal complaint, prosecution and a criminal case due to statutes of limitations on the prosecution of an offense. The authors substantiate a number of proposals aimed at improving legislation and law enforcement practice in iatrogenic crimes cases: amendments to the Criminal Code of the Russian Federation in order to proportionally increase the statute of limitations in these cases; supplement into clause 5, part 1, art. 198 of the Code of Criminal Procedure of the Russian Federation provides for the right of the suspect, accused, his defense attorney, victim, representative to be present with the permission of the investigator at the forensic examination, to give explanations to the expert via video conferencing systems if technically possible. The proposal expressed in the procedural literature on the production of forensic examinations in cases of iatrogenic crimes not in the expert institutions of those departments that conduct a preliminary investigation, but in «independent» expert institutions, is subjected to critical analysis. It is shown that the absence of expert methods in itself does not entail the inadmissibility of the expert’s conclusion.

131-140 588
Abstract

A court of appeal has the right to dismiss a criminal case (criminal prosecution) and exempt the person from criminal liability. The legislator has not taken into account the peculiarities of applying alternative grounds for exemption from criminal liability, which are based on the possibility of assessing the positive post-criminal behavior of persons subject to criminal prosecution. The possibility of a court of appeal to overturn a conviction that has not entered into legal force, dismiss a criminal case and exempt a person from criminal liability on alternative grounds is influenced by a number of legally significant circumstances. These are as follows: the imperative or discretionary basis is subject to application; whether the court of appeal considers the issue of exemption from criminal liability for the first time or not; whether the appeal has established significant violations of the law that entail the reversal of the conviction. Courts of second instance should not ignore the discretionary nature that predetermines the special legal nature of the remaining alternative grounds. If the grounds for overturning a conviction are established, the court of second instance is entitled to consider the issue of exemption from criminal liability on alternative discretionary grounds; by contrast, in the absence of such grounds, the appellate court does not have the right to overestimate the circumstances of the criminal case. If the issue of exemption from criminal liability is first raised at the stage of appealing against a guilty verdict that has not entered into legal force, the courts need to find out the reasons why this issue was not resolved during the consideration of the criminal case by the court of first instance.

THE JUDICIARY AND COURT SYSTEM

141-156 403
Abstract

The article reveals the approach to legislative consolidation of the power of the Constitutional Court adopted in Art. 3 of the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation”. Based on the results of a study of the relationship between the name, structure and content of this article, it was concluded that its name and content are not fully consistent with each other. In addition, taking into account the development trends in the practice of the Constitutional Court, a number of problematic elements of its competence that require in-depth study have been identified. These include, in particular, the concept of a normative legal act as an object of judicial constitutional control; types of laws to be reviewed; powers in the sphere of implementation of specific constitutional regulatory control. It is particularly difficult to determine the limits of constitutional-judicial justiciability, which is normatively expressed in the principle that allows the Constitutional Court to resolve only the issues of law. Finally, the issue of the subject of legal regulation of the Rules of the Constitutional Court has not received a consistent legislative solution. It is noted that the development of the powers of the Constitutional Court is significantly influenced by the practice of constitutional justice. On the one hand, certain defects in the normative regulation of the powers of the Constitutional Court can be quite successfully overcome by it by interpreting the Constitution and the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”. On the other hand, the application of these powers reveals such directions for their further development that can be fully disclosed and implemented only through legislative or even constitutional changes. Thus, the power of the Constitutional Court -- despite the fact that it has been functioning for three decades – remains a dynamically developing legal structure.

INTERNATIONAL LAW

157-165 219
Abstract

The paper attempts to analyze scientific approaches to the periodization of international legal regulation of food security and to develop principles of normative regulation of food security at the present stage. The analysis of scientific approaches showed that the presented periodization requires updating taking into account modern geopolitical and legal realities. Attention is drawn to the fact that the period of regulation from 2008 to the present has not yet become the object of special study in the works of international lawyers. The author, taking into account the analysis carried out, proposes to identify two new stages of international legal regulation of food security: the period of implementation of the Agenda for Sustainable Development and the current stage, which began in 2020. The paper formulates the principles on which, in the author’s opinion, the development of international legal regulation of food security in modern conditions should be based.

COMPARATIVE LAW

166-174 237
Abstract

Ten years ago, the United Kingdom was faced with a challenge related to issues of territorial integrity of the state. The paper analyzes the constitutional and legal practice related to holding referendums on selfdetermination of peoples in the Falkland Islands, Scotland and the referendum on the withdrawal of Great Britain from the European Union (Brexit). Comparative legal analysis of the referendums under consideration consists in comparing such criteria as: the prerequisites for a referendum on self-determination, the organizational and legal regulation of the referendum, political and legal consequences of the referendum. It is noted that the role of the institution of referendum in the constitutional and legal mechanism for the implementation of democracy in Great Britain occupies a special place. The use by the British Government of the institution of a referendum to legitimize the decisions on self-determination of the Falkland Islands, Scotland and on secession from the European Union made it possible to achieve the set goals, namely: the Falkland Islands and Scotland remained part of the United Kingdom; the exit from the European Union took place. Based on a binary analysis of the internal and external aspects of the right of peoples to self-determination, which implies taking into account international legal and domestic consequences in the event of the realization of this right, the most noticeable trends are highlighted.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

175-191 357
Abstract

The paper is structured by grouping environmental issues common to various World Heritage sites, including Belovezhskaya Forest and Lake Baikal. The paper highlights the problems of defining the boundaries of World Heritage Site (WHS); the WHS management practice; methods used in protection of the Belovezhskaya Forest to ensure the participation of the local population in the conservation of the WHS; issues of management and conservation of biodiversity on the territory of the WHS. In conclusion, the authors formulate proposals aimed at improving the conservation of Lake Baikal World Heritage site. In particular, it is concluded that among the immediate interests of the local population of the central ecological zone of the Baikal natural territory (especially those involved in the organization of the tourism business) is the popularization of the World Heritage protection regime, along with obstruction of the implementation of proposals to reduce the boundaries of the World Heritage site (including through the erroneous differentiation of the concepts «site» and «region» of the World Heritage). The prospects for using legal methods of interaction between public institutions and government authorities are indicated, including making proposals in accordance with the procedure established by law to improve the management of a World Heritage Site, as well as through the creation of advisory councils of local populations and indigenous peoples.



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