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Actual Problems of Russian Law

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Vol 19, No 3 (2024)
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STATE POWER AND LOCAL SELF-GOVERNMENT

11-26 715
Abstract

   The paper is devoted to the issues that include academic research of constitutional values, namely, their doctrinal definition, establishment of legal forms (formal sources) and systematic generalization. The author provides arguments in favor of attributing constitutional values to the categories of the science of constitutional law. The paper consists of several blocks devoted to certain problems. In the first block, the author examines the problems of defining constitutional values, refers to various academic standings, and offers his own doctrinal definition. In the second block, using structural and logical analysis, the author comes to the conclusion that constitutional values are embodied (formed) in three types of sources: normative, normative-doctrinal, doctrinal. The third block examines the problems of classification and systematization of constitutional values, analyzes approaches to generalizing their diversity. In conclusion, the author elucidates the system of constitutional values based on axiological analysis of the Constitution of the Russian Federation.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

27-43 344
Abstract

   The paper shows that the current system of federal executive authorities, being an abstract category, is implemented only through the functioning of a specific structure of these bodies. As a set of real subjects, this structure materializes the management strategy embedded in the system of federal executive authorities, which, however, does not arise chaotically, but is formed in the process of development of the system of bodies and their corresponding structure. The paper examines the dynamics of the system and structure of the central executive bodies in the USSR and federal executive authorities in the Russian Federation. The author has analyzed the advantages and disadvantages of corresponding systems and structures that existed in post-Soviet Russia before 2004, as well as structures functioning currently. The information problems of the modern model of federal executive bodies, types and features of communication channels peculiar to the system under consideration have been analyzed. It is argued that the nature of information links between the elements of the system structure determines the degree of stability of the structure itself and, as a result, the entire mechanism of public administration, i.e., the probability of their preservation or destruction. It is concluded that the importance of the structure of federal executive authorities is explained not only in optimizing management activities, but also in forming such a configuration of information communication channels in a specific system of executive bodies that stabilizes the functioning of the entire mechanism of public administration.

44-55 214
Abstract

   The development of technologies collecting and processing large amounts of data for medical purposes, as well as the development of digital tools and the growth of medical information collected by both private and public medical institutions, determine the scientific interest in the problems discussed in this paper. One of the effective tools for collecting such data is data from real clinical practice and evidence of real clinical practice, which make it possible to collect information about the individuals’ health status, safety and effectiveness of medicines and medical devices, as well as other data. At the same time, the conceptual and categorical apparatus necessary for the formation and implementation of regulatory policy in this area started its development relatively recently. An analysis of Russian and foreign legislation and the practice of their application allows us to conclude that this element of sectoral legal regulation is in the initial stage of its formation and is characterized by the use of inconsistent terminology and different approaches to understanding the source and subject matter of such data.

FINANCIAL LAW

56-72 489
Abstract

   The paper is devoted to the study of the legal nature of a cash surrogate. It is proved that a cash surrogate is an illegal financial instrument and it cannot perform the functions of a legal means of payment. The legislative norm prohibiting the issuance of cash surrogates is unambiguous. Neither the State nor any other entity has the right to issue them. The problem of non-payments in the economy cannot be solved in an illegal way, i.e., by issuing cash surrogates, which cause significant damage to the implementation of the country’s monetary policy. Electronic money does not act as a surrogate, since it is a legal means of payment. Cryptocurrency has the characteristics of a surrogate; the fact that it is used in civil law contracts does not change its surrogate nature. The digital ruble is not a surrogate (substitute) for money, but a full-fledged Russian currency of a binding nature (mainly under public law), being the carrier of the Russian monetary unit issued and controlled by the State through the Bank of Russia, performing all the functions of money in economic, social and legal contexts.

73-80 313
Abstract

   The paper suggests promising directions for improving the financial law mechanism of functioning for payment systems, ensuring achievement of the goals of financial market development provided for by the Strategy for the Development of the Financial Market of the Russian Federation until 2030 and the goals of ensuring national security defined by the National Security Strategy of the Russian Federation in the face of unfriendly actions of foreign states. Payment systems are one of the key elements of the payment infrastructure necessary to maintain uninterrupted cash flow in order to fulfill individual civil and public obligations. Since currently unfriendly actions of foreign states are directly aimed at the functioning of payment systems in Russia, it seems important to provide financial law mechanisms that mitigate or eliminate the corresponding negative consequences. Thus, the author proposes to establish requirements for the mandatory use of national financial information transmission systems in the operation of payment systems, and justifies the expediency of creating a special regulation for settlements in case of unilateral termination of participation in the payment system. In addition, the paper proposes financial law mechanisms that take into account the ongoing digitalization of the payment sector and are necessary in this regard to maintain the smooth operation of payment systems. In particular, the paper substantiates the conclusion that it is advisable to unify the rules for assigning MCCs that determine the type of activity of the recipient of funds in order to ensure the correctness of their use when making card transfers. Ultimately, the legal mechanisms proposed in the paper are aimed at improving legislation on payment systems and documents of payment systems.

LEGAL REGULATION IN THE INFORMATION SPHERE

81-88 199
Abstract

   The paper analyzes the problems of legal regulation of the circulation of information justifying violence against person. The urgency of the problem and the need to resolve it as a matter of priority are substantiated. Special attention is paid to the conceptual apparatus used by the legislator and issues of responsibility. There is an unjustified variety of terms contained in relevant normative legal acts («appeals», «propaganda», «justification», «advocating», «incitement»), as well as the lack of a uniform understanding of violence in law enforcement practice. The author critically analyzes the sociocentrism of the legislator’s approach to responsibility for the propaganda of violence, as a result of which the security of the individual seems to the law enforcement officer to be less significant in comparison with the security of a social group. The author compares domestic and foreign regulation of the considered sphere of public relations. The conclusion is made about the need for a systematic approach to solve the problem, inter-sectoral improvement of Russian legislation. Such improvement should result in recognition of the propaganda of violence against person as no less dangerous than the propaganda of politically, ideologically and religiously motivated violence.

CIVIL AND FAMILY LAW

89-99 413
Abstract

   The use of new technologies, including blockchain and NFT, can become a tool to ensure protection of rights and legitimate interests of copyright holders and stimulate innovation in various fields. The paper considers two legal problems related to the deposit and turnover of the results of intellectual activities, including copyrighted works. The first problem is the possibility of using blockchain technology to deposit such works. The paper provides an overview of main methods of fixing the fact of existence of a copyrighted work, including options without depositing and with depositing. The author concludes that depositing an object of copyright, including blockchain, does not mean its use in the sense of civil law. The second problem is the turnover of rights to deposited objects. The author suggests the best way for the copyright holder, i. e., depositing the result of intellectual activity with subsequent transfer of the NFT to the copyright holder. This solution will make it possible to equate the transfer of NFT with the transfer of the exclusive right to the work.

100-108 271
Abstract

   The paper deals with topical issues of inheritance of movable property (including cash and documentary securities), non-cash funds and non-documentary securities deposited with a notary by the testator in favor of third parties or deposited by third parties in favor of the testator. According to the author, the inheritance of notary deposits as a hereditary succession has its own characteristics. Despite the fact that in Soviet times, notary institutions had special accounts for deposited funds, and in 1993 The Fundamentals of the Legislation of the Russian Federation on Notaries defined the procedure for accepting funds and securities for depositing until 2017, when Chapter 45 of the Civil Code of the Russian Federation was supplemented with norms on a public deposit account specifically designed for storing deposits of notaries, such notarial action was little in demand. Currently, the demand for such actions is hindered by certain problems that the author raises in the paper.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

109-119 475
Abstract

   The paper discusses scientific and theoretical issues of the procedural form, analyzes the views of scientists on the essence and features of this legal category, its significance. The position on the existence of two sides of the procedural form — external and internal — is substantiated. The external form is stable and unchanging, the internal form is flexible and adaptive, and can be subject to change under the influence of various circumstances. Considering this, the author crystallizes the external procedural form features and concludes that the flexibility and adaptability of the internal procedural form allows it to be adjusted to the needs of various spheres of society, which are often strikingly different from each other and require special protection mechanisms. As a result of differentiation of the procedural form, the efficiency of procedural activities will be ensured and the goals of legal proceedings will be achieved. Taking this into account, the need to conduct a comprehensive large-scale study of the issue of creating a specialized type of family legal proceedings and the corresponding specialized procedural form is substantiated.

120-127 392
Abstract

   The complex and multi-level nature of legal regulation determines the complexity of law enforcement in resolving cases on disputes arising from targeted training agreements. In addition to the industry attribution of the contractual structure, there are a number of interconnected problems therewith, namely determination of the limitation period, jurisdiction of the dispute, legal assessment and application of liability measures (in particular, a fine paid to the educational organization). The author supports the point of view that targeted training agreements are similar with apprenticeship agreements. At the same time, the author points out that the new model of responsibility under the targeted training agreements is, on the one hand, a prerequisite for the differentiation of these contracts, but on the other, demonstrates some features of a public law nature that are unusual for both civil and labor law. These are expressed in establishing responsibility for violation of a contractual obligation to a third party, namely an educational organization. The author also highlights the uncertainty of the legal assessment of the deadline for paying a fine in connection with failure to fulfill an employment obligation and proposes to consider it a prerequisite for the right to claim in the substantive sense.

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

128-134 266
Abstract

   The paper analyzes the balance of interests of the state and the copyright holder in the field of intellectual property for the purposes of competition protection. Having analyzed various measures of legal support by the state aimed at stable economic development through the prism of trust in the state and law, the author draws attention to «parallel imports.” The author also focuses on the possibility of limiting the protection of rights to intellectual property objects at the contract level due to the negotiating power of counterparties on whose sites production is located, which is similar to some Asian states. In the paper, the author analyzes the practice that took place before 2022 and compares it with the current state of ensuring the rights and legitimate interests of copyright holders. Summing up the study, the author believes that investment opportunities and trust for the state from both the society, representing the state, and national business and for foreign participants to international trade may be created through a solution that will allow the latter to fully realize their rights to intellectual property rights protection when resuming activities in the country.

LABOR RELATIONS AND SOCIAL SECURITY

135-149 224
Abstract

   The need to counter external threats to Russia’s national security predetermined the development of new and improvement of existing regulations in 2022. An assessment and comparative analysis of the legal means and innovations available in the field of labor confirmed that there is an objective need for comprehensive legal regulation of labor relations during emergency events. Considering the features of the organization of labor activity amid imposition of martial law and the operation of special economic measures, the author exposes conceptual uncertainty, discrepancies in the order, content and limits of impact on the sphere of labor, difficulties in applying and controversial issues of innovations were revealed, the lack of a general concept and uniformity of labor regulation in the conditions of emergency circumstances. It is proposed to streamline the regulations by focusing on the fact that countering threats to national security is the system-forming basis for the differentiation of the legal regulation of relations in the sphere of labor.

CRIMINAL PROCEDURE

150-167 290
Abstract

   The paper examines the rational foundations of law typified by criminal proceedings. In search of the origins of the rationalistic picture of law, the author, in the course of analyzing the actions of subjects (participants) of criminal proceedings in certain situations, shows the correspondence of criminal proceedings to the rationalistic system of M. Weber, which allows rationalizing in the legal plane the values dominant in society. Law, being a social institution, in the author’s opinion, should be subject to the laws of social life revealed by other disciplines, in particular sociology. Using an interdisciplinary approach to the study of the institutions of criminal justice will allow us to study them in their integrity and discover their new facets. Following this position, the author attempted to analyze the institution of a pre-trial agreement on cooperation through the prism of the theory of rational choice and the teachings of P. Sorokin about crimes and exploits, which made it possible to outline a path for further improvement of this institution, which would correspond to the laws of social development.

INTEGRATION LAW

168-179 274
Abstract

   The authors examine the trends and features of the development of legal regulation of genomic research in the context of digitalization at the level of global and regional international organizations, including integration associations. The current sources of legal regulation of the use of artificial intelligence technologies in the field of genomic research in modern international and integration law are analyzed, and the main trends in the development of global and regional regulation are identified. Attention is given to the fact that key international acts adopted both at the global and regional levels, and regulating certain aspects of genomic research, are so-called acts of soft law, which are advisory and constitute a kind of «pre-law». In conclusion, recommendations are presented for improving the relevant legal regulation within the framework of integration associations with the participation of the Russian Federation.

COMPARATIVE LAW

180-194 518
Abstract

   Due to various circumstances, not every scientist recognizes the need for constitutional and legal regulation of the foundations of civil society. Some researchers argue their position by the fact that such regulation has not become widespread in the constitutional acts of countries with developed democracies. At the same time, in one form or another, certain aspects of civil society are found in the constitutions of foreign countries, which differ from each other in the way of organizing state power, and in the form of government, and in the regime of government. The paper provides an analysis of individual provisions of the constitutions of foreign countries from different regions of the world regarding the formal consolidation of the term «civil society», as well as the existence of constitutional and legal regulation of the foundations of civil society. An analysis of the constitutions of foreign countries made it possible to identify general patterns of disclosure at the constitutional and legal level of certain aspects that were traced in the provisions of the constitutions and directly related to civil society and its individual institutions.

LAW ENFORCEMENT

195-207 342
Abstract

   The relevance of the study is determined by the role and place of the legal institution for the protection of human, civil rights, and freedoms as an attribute of the rule of law, the need for proper control and supervision
of their compliance.

   The Constitution of the Russian Federation proclaims that a person, his rights and freedoms are the highest value, and the state is obliged to recognize, respect and protect the rights and freedoms of man and citizen, judicial protection is guaranteed to everyone. This implies, on the one hand, that everyone is guaranteed to ensure the implementation of the active right to appeal in court decisions, actions or inactions of public authorities and their officials, and on the other hand, verification of compliance with the passive right, which is mainly implemented through control and supervisory procedures. At the same time, in the process of implementing certain functions of the state (in particular, law enforcement), authorized bodies are allowed to apply measures that significantly limit the fundamental constitutional rights and freedoms of a person. An important place among these types of state activities is occupied by operational investigative activities (OIA). In the field of OIA, citizens are often limited in their ability to independently defend their rights and legitimate interests, and therefore a special role in this area is given to the court and the prosecutor’s office. As part of the study, an attempt was made to comprehensively study the theoretical, legal and practical issues of organizing the activities of the prosecutor and the court to protect human and civil rights, the legitimate interests of legal entities in the production of operational investigations, analyze the relationship between prosecutorial and judicial activities, and develop an organic mechanism for their implementation, excluding «mutual substitution» and duplication of competencies.



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