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Actual Problems of Russian Law

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Vol 19, No 5 (2024)
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FINANCIAL LAW

11-17 297
Abstract

The author of the paper has compiled the tax responsibilities classification that seems relevant in the context of digitalization of the economy. The classification was carried out in relation to the tax obligations that have undergone the most significant changes in their content and structure as a result of the introduction of digital technologies. The author justifies that during the period of digital transformation, the main tax obligation to pay taxes and fees under the criterion of the type of payment and the specifics of the payment procedure can both be performed in relation to individual taxes and fees, and represent a total tax obligation. The obligations regarding tax registration due to the nature of their implementation are divided into obligations related to the receipt by a participant of a tax relationship of some kind of a tax status and arising in connection with the payment of specific taxes. Tax reporting obligations are classified from the point of view of the source of their legal regulation into direct and indirect (having a latent character) obligations. The author substantiates the value of such a classification, assesses the adequacy of digital tools used at this stage and makes proposals for improving tax legislation and the practice of its application.

18-29 270
Abstract

The paper analyzes the activities of the Institute of the Financial Ombudsman aimed to protect the rights and legitimate interests of consumers of financial services. The paper explains that human rights protection is carried out in two forms: procedural and non-procedural. According to the author, the procedural form of the human rights protection of the Institute of the Financial Ombudsman represents public relations between the Financial Ombudsman, consumers and financial organizations in the process of considering appeals under Federal Law No. 123-FZ dated 04.06.2018 «On the Ombudsman for Consumer Rights of Financial Services» and forms consistently carried out activities of the financial ombudsman as a public entity, related to the establishment of the factual circumstances of the dispute between the consumer and the financial institution, the application of their legal norms, the definition of protective measures, the issuance of a decision and the monitoring of its execution. The paper explains such areas of human rights activities implemented in a non-procedural form as consulting and educational work, expert and analytical activities, interaction and cooperation with human rights organizations and civil society institutions, improvement of legislation, consideration of appeals in accordance with Federal Law No. 59-FZ dated 02.05.2006 «On the procedure for considering appeals from Citizens of the Russian Federation». It is concluded that the combination of procedural and non-procedural forms within the framework of the institution of the Financial Ombudsman gives human rights activities a systemic character, comprehensively ensuring protection of consumers of financial services.

CIVIL AND FAMILY LAW

30-40 819
Abstract

The paper is devoted to the search for the place of information in the system of objects of civil rights. It is noted that the issue of the independence of information as an object of civil rights and the possibility of including it in civil circulation is debatable. To date, several approaches exist to the essence of the indicated issue that are given special attention in the paper. According to the first approach, information is considered as an object of civil rights and contractual relations. Moreover, information has such a strong connection with a commodity — a thing — that it is proposed to extend all the rules applied to the objects of property law to information. Under the second approach information is classified as intellectual property. According to the third approach, information is recognized as an object of civil rights only if it is reflected (fixed) on a tangible medium. Under the forth approach, information is classified as intellectual property. According to the results of the study, the author concludes that information is an indirect object of civil rights, since by its nature information is a part (content) of the objects of civil rights directly listed in Article 128 of the Civil Code of the Russian Federation (intangible benefit or result of intellectual activity), which creates the construction of an object within an object. In this regard, it is proposed to conditionally refer to the object of civil rights specified in the law (intangible benefit or result of intellectual activity) as an object of the first order (level), and its constituent part (content) information (information) is recommended to be treated as the object of civil rights of the second order (level). Thus, the legal regime of information as an object of civil rights of the second order (level) will be determined by the object of civil rights of the first order (level), of which it is a part (content).

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

41-50 156
Abstract

In administrative cases considered under Chapter 31.1 of the Code of Administrative Procedure of the Russian Federation, there are still many issues that reduce the effectiveness of protecting the rights of minors and incapacitated people to protect life and health. These problematic aspects include definition of the medical intervention necessary to save lives, determination of the list of persons entitled to file an administrative claim, mandatory participation of the prosecutor in these cases, the evidence base in the case, correlation with the provisions of the Family Code of the Russian Federation. The stated issues are considered based on law enforcement practice and foreign experience. The author suggests ways to overcome existing problems by means of improving legislation. Amendments are proposed to a number of articles of Chapter 31.1 of the Code of Administrative Procedure of the Russian Federation and Federal Law No. 323-FZ dated 21.11.2011 «On the Basics of protecting the Health of Citizens» concerning granting the prosecutor the right to file an administrative claim, notifying the prosecutor of the guardian’s refusal of medical intervention in relation to a person under his care, fixing unacceptable motives for refusing medical intervention, mandatory participation of the prosecutor in such cases, adjustments of the subject of proving.

51-60 238
Abstract

The paper examines the use of the witness oath in Russian civil proceedings. The purpose of the paper is to theoretically substantiate the use of the witness oath in Russian civil proceedings as a way to counter deliberately false testimony of witnesses in civil cases. The author examines historical aspects of the judicial oath, as well as comparative legal aspects of the use of the witness oath in civil proceedings in some other countries, namely, the Republic of Turkey, the Republic of Uzbekistan. The first step towards eliminating the religious content of the judicial oath was taken in the modern period in Russian constitutional court proceedings. However, the normative text of the oath does not take into account a number of socio-psychological factors. It is concluded that it is advisable to introduce an oath into civil proceedings, and not an oath of a witness, since historically the judicial oath has always had a religious content. The author analyzes legally and psychologically justified approaches to the normative text of the judicial oath and proposes appropriate changes in civil procedural legislation. In part 2 of Article 177 of the Civil Procedure Code of the Russian Federation, according to the author, it is necessary to fix the obligation of a witness to pronounce an oath before interrogation in court, as well as the normative text of such an oath: «In the face of the Russian state court, I swear on my honor to tell everything I know about the case. I promise to tell the truth, the whole truth and nothing but the truth.»

LABOR RELATIONS AND SOCIAL SECURITY

61-71 169
Abstract

In the context of the digital economy development, the spread of the pandemic of the new coronavirus infection COVID-19, the special military operation and external sanctions, the problems of decent work and effective employment among the younger generation do not cease to be relevant. In this regard, the question arises of the need to legislate such provisions that would simultaneously encourage both young people and employers to enter into labor relations with each other. The author suggests discussing how appropriate it is to deepen the differentiation of labor and employment legislation in relation to such categories as «youth» and «young professionals». It is concluded that the context of these categories involves the implementation of a set of measures aimed at promoting youth employment in relation to each stage of professional development. Therefore, in relation to the youth, the leading role should be given to the legislation on employment of the population. The Labor Code of the Russian Federation should maintain a differentiated approach for the underage workers, and in terms of provisions that can be applied in connection with the fact of obtaining qualifications, it is necessary to develop a set of guarantees that do not have an age limit.

LEGAL EDUCATION AND SCIENCE

72-83 167
Abstract

The paper analyzes the development of regulation of network forms of interaction in the higher education system. The authors describe the main changes in regulatory requirements from dispositive regulation to the establishment of the priority of imperative rules. The paper defines the importance of networking as a form of cooperation and filling the shortage of resources in the higher education system. The importance of a dispositive approach to the regulation of online educational programs is substantiated. The authors propose a broader understanding of network forms of interaction beyond the implementation of educational programs, for example, in terms of creating network scientific laboratories. The paper identifies the main problems of applying new methodological recommendations to the construction of a financial model of network educational programs. It is proved that the financial mechanisms of reciprocal offsets between participants of a network educational project, fixed in the updated methodological recommendations and instructions, lead to greater uniformity in the activities of universities, but reduce the possibility of using proactive methods of building financial reciprocal offsets between network projects’ participants. It is necessary to detail the provisions of the instructional documents on «other methods provided for by law.» The authors provide their vision of the application of the legal structure of the agreement on joint activities to relations arising under network interaction in the field of education and science. The paper is based on the analysis of the results of Pskov State University Development Program and the construction of a network university model.

BUSINESS AND CORPORATE LAW

84-95 194
Abstract

Administration of common property of an apartment building by a homeowners’ association required consolidation of the rights to information not only for members of the partnership, but also for non-members of the association of homeowners in the Housing Code of the Russian Federation. The scope of information rights of members of the civil law community and the procedure for their implementation are debatable from the point of view of the purpose of granting such powers and their practical implementation. In particular, owners of premises who are not members of the partnership have equal rights, along with current members, to receive any information about the activities of the partnership. The paper analyzes the provisions of housing legislation regarding the information rights of relevant individuals. The paper determines objectives of legislative regulation and explains the specifics of implementing information rights in the context of digitalization of certain spheres of society and the economic challenges of our time. The author examines the provisions of legislation on personal data, on certain types of corporate organizations, on registration of real estate and other acts indicating the existence of restrictions and limits on the exercise of the right to information in Russian corporate organizations. Possible abuses of information rights are identified, and judicial practice on the issue under consideration is disclosed. The paper provides for the ways of housing legislation development also by means of consolidation of cases restricting the exercise of rights to receive information.

MEDICAL LAW

96-103 282
Abstract

The authors structure the regulatory legal acts underlying vaccination at the same time considering historical facts and background as prerequisites for the creation of a powerful protective preventive system of immunization of the population in the RSFSR, the USSR and Russia from 1919 to the present time. The paper analyzes the decree of the Council of People’s Commissars of 1919 «On compulsory smallpox vaccination» and subsequent historical stages in the development of immunoprophylaxis of new and returning infections in Russia. A system of planned and emergency vaccination of children and adults has been created, enshrined in the decrees of the Council of People’s Commissars, decrees and resolutions of the Council of People’s Commissars of the RSFSR, orders of the USSR Ministry of Health, orders of the Ministry of Health and Social Development of the Russian Federation, orders of the Ministry of Health of the Russian Federation, orders of the Government of the Russian Federation, federal laws. Artificial immunobiological preparations, vaccines and toxoids are used to prevent, contain and level out the social consequences of epidemics and pandemics for the purpose of sustainable development of the state and society as a whole. The Strategy for the development of immunoprophylaxis of infectious diseases for the period until 2035 highlights the national importance of the vaccine business. Vaccination not only prevents disease and premature death in immunized citizens, but also contributes to widespread advances in health, education, technological and economic development.

CRIMINAL LAW

104-112 349
Abstract

The paper is devoted to the question of whether the clarifications of the Plenum of the Supreme Court of the Russian Federation have binding force. According to the author, the obligatory conditions for their binding nature are relevance, consistency and theoretical impeccability. The paper provides examples of clarifications that have lost relevance due to changes in the criminal law, as well as clarifications that do not comply with the letter of the law (for example, on the classification of violent crimes and threats of violence against other persons during rape). The inconsistency of the legal positions of the Supreme Court of the Russian Federation is seen in the assessment of the use of defective, fake or toy weapons, on the one hand, in banditry and robbery, and on the other hand, in hooliganism, as well as in the assessment of the helpless state of the victim of murder and rape. The position of the Supreme Court of the Russian Federation on the subject of violation of labor protection rules, in the author’s opinion, does not correspond to the position of the legislator on the same issue. The clarification as to the qualification of giving and receiving a bribe in a significant, large or especially large amount as a completed crime according to the intent, if there were several stages planned for the transfer of such, but the crime was interrupted before it was finalized, seems inconsistent with the law and the doctrine of criminal law. Violation of the requirements of relevance, consistency and theoretical impeccability is incompatible with the binding clarifications of the Plenum of the Supreme Court of the Russian Federation.

113-128 297
Abstract

The paper examines the ontological aspects of understanding the fundamental nature of a crime and its characteristics in the doctrine of criminal law and in legislation. The crime is viewed through the prism of a single systemic concept and in connection with those features that fill its content. The author analyzes the main models and theoretical concepts that can be involved in legislative activity when constructing a generic concept of crime and characterizing its features. The emphasis is given to the fact that the main thing in formulating the essence of the crime should be the harm caused to social values. Crime is not an exclusively socially dangerous act. An act may be socially dangerous, but not criminal, because it does not carry a charge of causing harm. From this point of view, it is argued that an act that causes harm to protected values, committed by an individual is guilty and the elements of which are specified in the criminal law, should be recognized as a crime.

129-136 200
Abstract

The paper develops the idea that the legal significance of crime categorization is not limited exclusively to the branch of criminal law. The categorization of crimes has had a fundamental impact on the resolution of a considerable number of issues in the criminal procedure. Following the example of the institutions of competence and jurisdiction, the influence of crime classification by the level of public danger on criminal procedural law is proved. Attention is given to the fact that the categorization of crimes is one of the substantive properties that make it possible to determine the preliminary investigation (inquiry) body and the competent court. The paper not only states the importance of classifying crimes according to the level of public danger for the criminal procedure, but also draws attention to the flawed nature of some provisions that use the categorization of crimes and the closely related term «gravity of the crime.» The possibility of improving legislation by legally strengthening the position of categorization of crimes in the relevant norms is substantiated.

CRIMINAL PROCEDURE

137-143 327
Abstract

The paper documents the traditional approach to the consideration of procedural orders based on differentiation (fragmentation) of the criminal procedure. The paper differs in that the author considers procedural order as a generic concept. To do this, the author analyzes the normative and theoretical basis (relative to the specified object area) of the study, identifies essential features. In order to define the concept through genus and specific differences, the concept of «legal order» is used as a generic concept, and such characteristics as functional structure are used as specific differences, constant dynamic connection between the elements of the structure. As a specific object area, the procedure for formulating a juror questionnaire and the procedure for presenting a person for identification in a judicial investigation are used. The author concludes that the procedural order is a legal order formed by the elements of the functional structure of the procedural activity of the participants involved in it with stable dynamic connections between these elements that persist throughout the criminal procedural activity.

INTERNATIONAL LAW

144-158 301
Abstract

On October 1, 2023, the EU has introduced a Carbon Border Adjustment Mechanism (CBAM). This is one element of the European Green Deal, a large-scale program to transform the EU’s economic policy, replete with environmental rhetoric. The question arises of how EU policies relate to the provisions of the fundamental universal international treaties in the field of combating climate change. Among all the international treaties on this issue, the UN Framework Convention on Climate Change and the Paris Agreement stand out, which, according to the EU, served as the basis for the development of the CBAM. To what extent does the Green Deal comply with the principle of common but differentiated responsibilities, does it violate the principles of fairness, non-discrimination, fair competition and other maxims — these are just some of the questions that the authors will try to answer by analyzing the package of documents establishing a fundamentally new cross-border mechanism of its kind.

159-176 171
Abstract

The paper is devoted to the analysis of the approaches of various states and international consultative and advisory bodies to holding referendums on the self-determination of the people. It has been revealed that the right to self-determination can be based not only on ethnicity, but also on other characteristics, including common historical heritage, ethnic unity and language of communication. With regard to self-determination in the form of secession, the importance of establishing the boundaries of secession is noted, historical examples of referendums in various parts of the world and their consequences are examined. There are five historically established features that can be considered as a reflection of the legitimacy of the ongoing referendum on self-determination: connection with historical background, defining the boundaries of the referendum, ensuring fundamental democratic rights, establishing a legal framework and limiting external interference or pressure on referendum participants. These elements together create the conditions for obtaining legitimate results of the referendum and its subsequent meaning from the point of view of law.

177-191 449
Abstract

The paper analyzes the principles of state jurisdiction in international law and the features of their application in cyberspace. The formation of cyberspace, the uniqueness of which is expressed in its global, transborder nature, allowing users to interact across state borders, in the interconnection of information systems, in the presence of intangible components and the variability of jurisdictions, has given rise to the question of international legal regulation of relations arising when using cyberspace. The most common approach is that the rules of international law are applied in order to regulate relations related to the use of cyberspace. In this regard, the jurisdiction of states in relation to cyberspace is based on the principles of jurisdiction identified in international law: the territorial principle, including the principle of active and passive territoriality, the doctrine of consequences; national principle, including the principle of active and passive nationality; protective principle, universal principle. As a result of the analysis of doctrine and international acts, namely the reports of the Group of Governmental Experts on Advances in the Field of Information and Telecommunications in the Context of International Security in 2013, 2015, 2021, resolutions of the UN General Assembly, the Computer Crime Convention of 2001, negotiations documents for the draft international convention on combating the use of information and communication technologies for criminal purposes being developed within the UN, it was concluded that the principle of territoriality remains the main principle on the basis of which states establish jurisdiction in cyberspace. At the same time, the specific content of the principle of territoriality and other principles for establishing the jurisdiction of states in cyberspace is still being formed.



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