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Actual Problems of Russian Law

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Vol 18, No 11 (2023)
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PAGES OF HISTORY

11-28 776
Abstract

The paper examines theoretical views concerning the role and functions of procedural terms in different periods of the development of domestic civil procedural law. The author elucidates pre-revolutionary, Soviet and modern Russian legislation and doctrine in the field of procedural time limits. By analyzing the academic approach to the problem of the balance between the duration of the trial and the principle of the truthfulness of the court decision, the author demonstrates a change in approaches to understanding the socio-legal role of the institution of time limits (procedural deadlines). The author comes to the conclusion that, under the pre-revolutionary doctrine, procedural time limits were treated as a fundamental institution, through which not only the acceleration of the process is ensured, but also legal certainty in substantive and procedural relations. The Soviet doctrine reduced the role of procedural time limits to a means of enforcing the time-frame of proceedings, their ordering and ensuring procedural discipline. The modern doctrine witnesses a revival and deepening of the classical approach to understanding the importance of this institution as a factor in ensuring legal certainty, stability of civil turnover and implementation of the rule of law principle. A correct definition of the significance of procedural time limits is critically necessary due to the fact that the legislator, when setting deadlines for a certain duration of the proceedings, should be guided by their purpose in the mechanism of legal regulation.

THEORY OF LAW

29-38 302
Abstract

The paper provides for some meanings of such an important scientific direction as the improvement of procedural and legal regulation. The authors describe this regulation as a specific way of legal regulation of public relations in general. The essence of procedural and legal regulation involves the activity of authorized entities who, with the help of procedural and legal means, provide regulation and protection in the process of ordering public relations. In the most general form, efficiency is understood as the balance between the actual result obtained and the planned goal, the achievement of which is conditioned by the solution of the corresponding tasks. In turn, the procedural and legal regulation is mediated by the relevant criteria and conditions enumerated in the paper. The authors name the improvement of procedural legislation among such conditions, since now procedural legislation has collisions, gaps, imbalances, etc. Perfect legislation means effective and high-quality legislation, which requires appropriate monitoring, unification of the tasks of judicial proceedings, intersectoral convergence, etc. The paper highlights the importance of procedural principles. The authors propose to consolidate in legislation such of them as justice, equality of everyone before the law and the court, as well as the principle of establishing objective truth. The authors propose to develop and adopt at the level of the federal constitutional law the Fundamentals of Procedural Legislation and Legislation on Judicial Proceedings in the Russian Federation and describe their structural construction.

39-46 701
Abstract

In legal science, approaches to the rule of law directly affect the identification of its nature. Until now, there has been no unified understanding of the rule of law in scholarship. The paper is devoted to the analysis and comparison of approaches to the rule of law and identification of contradictions between them. The modern rule-of-law state has been intensively studied in Russia since 1985. The concept of the rule-of-law state is presented in many monographs, textbooks and articles in academic journals. The author argues that a rule-of-law state is primarily a state. However, further opinions differ when specifying this concept. Some authors argue that the ruleof-law state is an independent type of the state. Others believe that the rule-of-law state is a form of organization of political power. There is an opinion that the rule-of-law state is a form of development of the state, its possible future. All approaches to the rule-of-law state do not fully reflect the nature of the rule-of-law state. The paper proposes an approach to the rule-of-law state as a form of organization of state power and society, which will allow flexibly building a rule-of-law state in many countries with various domestic characteristics. The rule-of-law state is only a stage in the process of State development. It is certainly in constant motion and will continue to evolve in accordance with the changing society.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

47-64 272
Abstract

The paper is devoted to the examination of the time limits established by Federal Law No. 248‑FZ of 31.07.2020 «On State Control (Supervision) and Municipal Control in the Russian Federation» and other regulatory legal acts. The author elucidates temporal principles of the control and supervisory legislation and proposes a classification of the terms of the control and supervisory procedure. The author highlights an increase in the concentration of temporality in normative regulation of control and supervisory activities, the focus of the legislator on a more detailed time limits regulation of the relevant process. The paper examines the time units, estimated and event categories used by the control and supervisory legislation in order to establish the duration of the procedural actions. The author explains uncertainty of the legal regulation of control and supervisory activities by means of the «day» time unit. The question of time management methods in the field of control and supervisory activities, depending on the state of the term, is clarified: suspension and extension (within the term) and restoration (in cases when the term has expired). There are two types of extension of the term: automatic and declarative. The list of terms that can be extended, suspended and restored is given. The set of circumstances necessary to restore the missed deadline has been determined. The question of the timing of procedural actions in the pretrial procedure is investigated. The author outlines the criteria for leaving the application without consideration due to non-compliance with the pre-trial procedure and carries out a comparative legal analysis of the timing of preventive measures.

FINANCIAL LAW

65-72 438
Abstract

The paper is devoted to the study of the budget process — its legal and doctrinal definitions, the stages of the budget process and the main changes that have occurred in the legal regulation of the budget process. The paper compares the positions of researchers — representatives of financial and legal science on these issues. According to the results of the study, it is concluded that the budget process is a multifaceted and multidimensional category of financial law in the process of constant transformation and development. It is pointed out that there is currently no legal definition of the concept of «stage of the budget process»; this gap should be eliminated by supplementing Article 6 of the Budgetary Code of the Russian Federation. In addition, it can be concluded that most authors, repeating the provisions of the budget legislation, distinguish four stages of the budget process. The concept of a four-stage budget process is the most correct and justified, since it arose as a result of a long evolution of the budget process. At the same time, each stage reflects a separate stage of the budget process, characterized by its own procedures, deadlines, participants, their powers and other essential aspects. At the same time, despite the apparent static nature, manifested in the immutability of the number and sequence of stages of the budget process, its content is constantly changing and being supplemented. The modern budget process strives for a wider application of a program-oriented approach, coupled with the simultaneous introduction of innovative digital technologies. It can be expected that digitalization will continue to have an impact on the content of the budget process in the foreseeable future.

LEGAL REGULATION IN THE INFORMATION SPHERE

73-82 447
Abstract

Recently, consideration of the issues of legal regulation of artificial intelligence has become increasingly relevant. Most legal works are devoted to the study of responsibility of a legal personality that arises or does not arise from activities involving the use of artificial intelligence. However, for developers of the relevant software, the issue of intellectual property protection, namely, exclusive rights to computer programs, is more interesting. In particular, the types of licenses under which open source software products (such as MIT, GPL, BSD, Apach), their main characteristics, disadvantages and advantages are of interest. Of particular interest is the legal regulation of such license agreements in the context of cross-border turnover of software packages, as well as the existence of the open source concept. In addition, in order to dive deeper into the subject area of the study, the paper discusses basic concepts from the theory of machine learning.

CIVIL AND FAMILY LAW

83-96 228
Abstract

The paper examines the legal regulation of medical technologies in the context of patenting inventions. The problematic issues raised in this study are of a systemic nature, in connection with which the need for a substantive analysis of the definition of «medical technology» through its components — medical method and method — is argued and the need for their consolidation in the legislation on health protection is justified. The author elucidates the concept of medical technologies in foreign legal systems and explains the absence of the need to borrow foreign experience. Based on the analysis of patents issued in the Russian Federation for methods and ways of treatment, it is concluded that the current legal regulation allows patenting medical technologies as a complex object, while making appropriate changes to the Civil Code of the Russian Federation will eliminate discrepancies existing in law enforcement practice. An integrated approach has made it possible to identify a number of systemic causes that hinder the effective implementation of innovations in practical medicine; ways to eliminate them are proposed.

BUSINESS AND CORPORATE LAW

97-110 375
Abstract

Competition is a diverse phenomenon and exists in various spheres of public life. Competition is characterized by economic, social and legal content. Its economic content consists in the activities of economic entities that comply with certain market laws, due to the existing market structure and aimed at achieving the best results for them. The social content of competition lies in the objective desire of each individual to achieve certain advantages, to obtain more comfortable living conditions. The legal content of competition is determined by the ideas that have been formed in society and have received normative consolidation about the possibility, admissibility or, conversely, inadmissibility, prohibition of certain forms and types of market behavior for business entities. Based on the constitutionally fixed provision on the need to support competition, and also taking into account that effective market competition is possible only if favorable conditions for it are created, it should be noted that the subject of competition law as a system of norms should not include only relations for the protection of competition, but also regulatory relations for ensuring the process of competition, since the purpose of protection is to restore the normal state of certain relations. In this regard, within the framework of competition law, it is advisable to talk about an independent institution for ensuring and developing competition. This institution should include both general provisions aimed at supporting competition, and provisions relating to the features of ensuring and developing competition in certain sectors of the economy. 

111-117 363
Abstract

The paper examines the digital ecosystem as a way of doing business, and highlights the elements that make up the digital ecosystem: the digital environment, subjects — participants in the ecosystem, products sold. The author analyzed Russian digital services that can be classified as digital ecosystems. It is established that it is possible to speak about business ecosystems, the functioning of which is aimed at making a profit, and ecosystems that do not have a commercial purpose. Based on the analysis, the elements of the ecosystem are determined, which include: the holding company and other companies that manage the digital ecosystem; digital platform operators; partners of digital platform operators who sell their products through digital platforms; ecosystem users who consume partner products and intermediary services of digital platform operators. The author concludes that the features of the digital ecosystem associated with its structure should determine the content of future legislative regulation of digital ecosystems, which is in its infancy.

SPORTS LAW

118-126 243
Abstract

The paper discusses some issues that arise when the employment relationship between athletes (coaches) and sports clubs is terminated in connection with the transfer of athletes (coaches) to other employers. Termination of an employment contract concluded between an athlete (coach) and a sports club is associated with the need to comply not only with the Labor Code of the Russian Federation, but also with the regulations of all-Russian sports federations, which are not identical. Termination of the employment relationship between an employee and an employer may be due to a number of reasons established in the legislation of the Russian Federation, including the expiration of the employment contract or the will of one of its parties to terminate the employment contract early. Early termination of such an employment contract generally takes place together with compensation payments subject to certain conditions (not related to «valid reasons» for termination of employment relations), the establishment of which is carried out by competent authorities in each specific case if there is a controversial situation. An alternative to early termination of the employment contract with an athlete is a temporary transfer of the employee to another employer, which provides ample opportunities for both the employee and the employer. In this sense, the suspension of an employment contract, which is also a feature of labor relations in sports, has the potential to extend to all categories of workers.

CRIMINAL LAW

127-134 484
Abstract

In the paper, the author analyzes the reasons for the negative attitude of the courts towards such evidence as expert opinions that is applied by both the defense and the investigation. However, the effectiveness of such is currently very low because during pre-trial proceedings and in court they are often recognized as inadmissible. The most common justification for refusal to include an expert opinion is the fact that the expert was not notified of criminal responsibility for giving a willfully false statement. However, this kind of caution is not provided for in the procedural code, and the expert opinion itself is not included in the disposition of Art. 307 «Willfully false statement, expert opinion, specialist or incorrect translation» of the Criminal Code of the Russian Federation, in contrast to Art. 309 «Bribery or coercion to give testimony or avoidance of giving testimony or incorrect translation» of the Criminal Code of the Russian Federation. According to the author, this is due to the inconsistency of the norms of the Code of Criminal Procedure of the Russian Federation and the Criminal Code of the Russian Federation, as a result of which the application of Art. 307 of the Criminal Code of the Russian Federation against experts for willfully false statement or opinion is virtually impossible to implement. The author proposes to make changes to the current procedural and criminal legislation in order to improve the current situation. Thus, the need to add to Art. 58 of the Code of Criminal Procedure of the Russian Federation provisions on notifying experts about criminal responsibility under Art. 307 of the Criminal Code of the Russian Federation, and in Art. 307 of the Criminal Code of the Russian Federation — expert opinions.

135-145 278
Abstract

One of the modern trends in the development of criminal legislation in Russia is manifested in an increase in the number of norms with administrative prejudicial effect. Such norms are enshrined in most chapters of the Criminal Code of the Russian Federation, which emphasizes their importance for the legislator. In these conditions, there is no doubt that for the correct application of these norms it is necessary, first, to correctly interpret the essence of administrative prejudicial effect, to understand its main purpose and characteristics. Today in criminal law there is no legal interpretation of this term, which leads to the emergence of ever new approaches to the definition of administrative prejudice in criminal law. However, they do not fully reveal its essence, but only touch on its individual features. A particularly fundamental point that emphasizes the importance of identifying the legal nature of administrative prejudicial effect is that in science there are ongoing debates regarding the admissibility of such norms in criminal law in principle. In the absence of unity in the terminology used, the legislator also proposes different ways to consolidate administrative prejudicial effect in criminal law. The logical result of such an ambiguous approach to the formulation of crimes with administrative prejudicial effect is the difficulty in interpreting the elements of such crimes. At the same time, it is obvious that these criminal law norms, due to the unity of their legal purpose, must be established uniformly. Uniformity should be manifested both in the use of uniform terminology and in the application of the same approach to the construction of such crimes. In this regard, it is relevant to search for an integrated approach to establishing the essence of administrative prejudicial effect as a special criminal legal phenomenon.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

146-153 278
Abstract

The paper emphasizes the increased relevance of the development of special purpose robotic systems that can be used in investigative activities to detect, record and seize traces and other evidence. Taking into account the acceleration of digital transformation of all areas of activity, the author proposes a new private forensic theory of forensic robotics. It is stated that this particular theory has great potential for development into a new branch of forensic technology. The paper discusses the proposed structure of a particular theory, object, subject, general and specific tasks of forensic robotics. Much attention is given to the patterns studied by this particular theory. The author develops his own interpretation of the terms «forensic robot» and «forensic robotic complex». It is stated that police robotics and forensic robotics are used in different, but sometimes overlapping areas. Moreover, the same device can act as a tool for both police and forensic robotics. Summing up the study, the author emphasizes the increased complexity of autonomous forensic robotics and states that within the framework of the proposed theory of forensic robotics, general recommendations should be developed to minimize errors and problems when using both an autonomous programmable robot and a robot equipped with artificial intelligence.

THE BAR AND NOTARY PUBLIC SERVICE

154-163 283
Abstract

The paper is devoted to the study of methods for notarial protection of digital rights of corporate participants. The work examines the concept and types of digital rights, possible transactions that can be concluded at the external corporate level with digital assets, including cryptocurrencies and tokens, and assesses the legal regulation of the circulation of NFTs. The paper examines the risks of concluding smart contracts to which organizations are parties, and also evaluates their security and warranty, and examines the prospects for attracting a third-party arbitrator in the person of a notary in order to protect the rights and legitimate interests of the parties. The notary has long established itself as an effective mechanism for extrajudicial protection and protection of the rights of citizens and legal entities, and the presence of notaries’ own electronic infrastructure and a multi-level liability insurance system allows us to consider the notarial form of protection as an effective means of maintaining a balance of interests and the legality of concluded transactions. The issue of protecting digital rights is rapidly attracting more and more attention in civil science. The implementation of smart contracts on the Internet has revealed a number of problems, such as the impossibility of making changes to the concluded agreement and the influence of vice of will on the entire chain of relationships arising in blockchain technology. In terms of corporate participation in digital transactions, there are also many questions raised regarding verifying that the representative is properly authorized to enter into a transaction and that all procedures for approving the transaction and notifying interested parties have been followed. Since digital assets are classified as property, they are subject to civil law consequences related to this category of objects of civil rights.

INTERNATIONAL LAW

164-173 426
Abstract

The paper examines the problem of recognition of Palestine in modern international law. International documents and United Nations resolutions adopted on the issue of the conflict in Palestine are analyzed. The author, based on an analysis of international documents, concludes that Palestine meets all the criteria for statehood, but the Israeli occupation prevents the creation of a viable Palestinian state. Despite various efforts being made to reach a solution to the Palestinian issue, the peace process has reached a deadlock. This is facilitated by the policy and practice of the occupying power to consolidate the de facto position of the occupied territories in violation of its legal obligations. To date, Palestine is recognized by more than 138 states and the UN General Assembly has repeatedly confirmed the right to self-determination through resolutions. The efforts of the international community must be intensified to put an end to this irreconcilable conflict, which poses a threat to international peace and security.

174-190 230
Abstract

International legal regimes are a factor in regulating relationships between subjects of international relations, constructive interaction, policy coordination and resolution of contradictions. When conflicts arise, the interaction of the legal systems of states, regional associations and international organizations can be both complementary and competitive in nature, affecting the legal qualification of the parties’ actions. Competitiveness manifests itself in the interpretation of the actions of the same entities within different jurisdictions. The conflict of interests of the parties, as confirmed by examples from the contractual legal practice of relations between the EU and the USA, Canada and a number of other countries, is quite surmountable. The cluster of contradictions characterizing the current situation on the European continent gives an existential character to the search by all parties for a rational strategy for resolving the crisis. The purpose of international law is to put contradictions into the legal plane in order to avoid escalation of tension in relations between the warring parties. An objective assessment of the positions of the world centers of power and the basic legal principles that guide them in the strategy of global presence requires taking into account the problems that gave rise to the replacement of the previous attitude towards «integration of integrations» by a direct clash of the parties. A critical analysis of the key areas of the EU’s implementation of external competencies, including sanctions (implemented with varying degrees of effectiveness in recent years), is important for understanding the strategy that Brussels is implementing. The current crisis is a serious test of the EU’s resistance to stress, and of the Union’s value system for resilience in unfavorable external conditions. The subject of this paper is the real possibilities of the European Union to offer an alternative to the confrontational scenario.



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