STATE POWER AND LOCAL SELF-GOVERNMENT
The paper elucidates the problems related to various aspects of counter-terrorism activities in Russia. This activity involves the use of a set of political, socio-economic, information and propaganda, legal, special and other measures, the possibility of introducing a legal regime for a counter-terrorism operation, as well as ensuring the restoration of the rights of persons affected by the actions of terrorists. The author examines the content of the legal standing of the Constitutional Court of the Russian Federation concerning the forms and methods of antiterrorist activities, including the criteria for evaluating the legal restrictions applied in this case, their admissibility and proportionality. Special attention is paid to constitutionally significant aspects of the consideration of criminal cases on terrorism, problems of anti-terrorist protection of transport and other infrastructure facilities, issues of social protection of military personnel, law enforcement officers and other persons engaged in countering terrorism. The author explains the significance of the legal standings defined by the Constitutional Court of the Russian Federation, the nature of their impact on law-making and law enforcement activities in the area under consideration.
FINANCIAL LAW
The paper presents a comprehensive study of the importance of the principle of general (aggregate) cost coverage for the formation of the Russian budget system, formation of budget and tax legislation, implementation of modern budget policy and development of law enforcement practice. Special attention is paid not only to the doctrinal and theoretical understanding of this principle, but also to the systematization and research of various introduced practices of linking budget expenditures with specific sources of revenues (primarily mandatory public payments) or financing budget deficits. The paper presents various legislative proposals for the introduction of exceptions to the prohibition of linking budget expenditures and certain budget revenues, which were rejected due to their contradiction to the principle of total (aggregate) cost coverage. The study allowed the author to make proposals based on the constitutional principle of mutual trust between the State and society. By introducing a mandatory public payment, the payment of which is conditioned by the purpose of carrying out special expenses of public authorities, the state must create a guaranteed target mechanism for financing such expenses using special mechanisms for accumulating budget revenues.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
A private ruling as a procedural institution aimed at eliminating identified violations of the rule of law in the course of justice and preventing their recurrence is well known to civil proceedings and is actively used by courts of general jurisdiction. At the same time, there has always been an ambiguous attitude in the legal community towards private rulings in the arbitrazh process, which found their legislative consolidation back in the Arbitrazh Procedure Code of the Russian Federation in 1992, due to the divergence of views on their purpose and legal essence, fragmented legal regulation, as well as multidirectionally developing judicial practice. In addition, for a fairly long period of time, the institution of private rulings was generally excluded from the arbitrazh process, which negatively affected its importance and relevance on the part of the judicial system. Currently, private rulings form an important procedural tool used by arbitrazh courts both to strengthen the rule of law and to prevent offenses in the field of entrepreneurial and other economic activities also for the purpose of informing the bodies of inquiry or preliminary investigation about the signs of a crime discovered while dealing with the case. However, the differences in the legal regulation of private rulings in the arbitrazh process compared with regulation in civil or administrative proceedings, significant features and significantly different approaches in the practice of their application by arbitrazh courts represent private rulings as a contradictory and conflicting legal institution, which leads to a decrease in its effectiveness and applicability in the work of courts.
The paper examines the problem of legal uncertainty that arises when courts resolve the issue of the law applicable to the procedure for notifying a party to a court proceeding on the territory of a foreign state. The author identifies and considers two procedural stages at which the court is obliged either to determine in what order to notify the party, or to assess compliance with the notification procedure by another court. Based on the analysis of doctrine and law enforcement practice, the author identifies regulatory problems inherent in each procedural stage. The author concludes that, regardless of the procedural stage, there is no uncertainty about the applicable law if there is an international agreement between the States. The lack of an agreement makes law enforcement agencies look for alternative approaches that vary in practice. Based on a comparative analysis of approaches used in international practice, the author suggests ways available to the Russian regulator to overcome these problems in relation to each procedural stage.
LEGAL PROTECTION OF INTELLECTUAL PROPERTY
The paper deals with the boundaries of legal and illegal use of a video game as a complex object when streaming a video game. The author proposes to reconsider the trend towards broad legal protection of copyright holders in the context of a global information and digital society. The article presents an amended doctrine of fair use in order to establish the fact of fair and unfair use of a video game by a streamer, which will allow determining in the stream whether there are grounds for recognizing it as a case of free use, that is, recognizing the stream as fair or unfair. Thus, the use of this modified doctrine will allow the establishment and application of the institute of fair use for video game streaming. The paper also suggests a procedure for resolving disputes between the copyright holder and the streamer.
LABOR RELATIONS AND SOCIAL SECURITY
The paper provides a comprehensive analysis of the issues of employees’ participation in administration of an organization within the framework of the Eurasian Economic Union. The author begins the research with the history of the emergence of the right of employees to participate in the management of the organization, moving on to the analysis of current trends in corporate governance, where he pays special attention to the role of employees in making key decisions. It is emphasized that the active involvement of employees in the management of the organization not only contributes to the democratization of labor relations, but also directly correlates with increased labor productivity, improved corporate culture and overall job satisfaction. Through a historical review, the development of the idea of employees’ participation in management is shown: starting from the period of the birth of labor law in medieval Europe to modern practices in the member states of the Eurasian Economic Union. A separate section is devoted to the theoretical foundations of employees’ participation in management. The main part of the study focuses on the analysis of general trends and national characteristics of employees’ participation in the management of organizations in each of the EAEU member States. In conclusion, recommendations are presented concerning optimizing the mechanisms of employees’ participation in management at the level of the Eurasian Economic Union. Attention is focused on the need to take into account both common approaches and national characteristics. The author describes key problems and challenges that need to be overcome for the effective implementation of employees’ participation practices in management.
BUSINESS AND CORPORATE LAW
The protection of rights and legal interests can be carried out by the corporation in the person of its participants, as well as members of management bodies. In the legal literature, claims brought by members of a corporation in defense of its rights and legal interests are traditionally referred to as indirect (derivative). At the same time, indirect suits are initially not typical of the Russian legal order. They originated in Anglo-Saxon law, where there is a dichotomous division into direct suits of participants (direct suits), the possibility of which is an exception to the general rule and is associated with the inability to achieve the goals of legal protection by suing the corporation itself in the person of the participant (derivative suit). It does not seem entirely correct to call the suits brought by a corporation, if they are brought by a participant, indirect, since the corporation is an independent subject of law, and Russian corporate law at the present stage of development does not provide for the possibility of direct claims by the participants of the corporation, bypassing the corporation itself. Taking into account the above, there is no need to separate an indirect claim into a separate category, since this claim is aimed at protecting the rights and legal interests of the direct subject of a disputed substantive legal relationship.
CRIMINAL LAW
The paper analyzes the current state and features of the implementation of the mechanism for ensuring the safety of the older adults by the means of criminal law. The purpose of the study is to develop theoretical provisions aimed at improving the institution of criminal law protection of the rights of the older adults. The paper draws attention to the causes of the public danger of crimes against this social group, as well as the problems of legislative consolidation and practical implementation of this institution at the present stage. Methodologically, the study is based on the dialectical method of cognition, as well as a set of general scientific (analysis, synthesis, induction, abstraction), private scientific (statistical) and special legal (formal legal, method of interpretation of legal norms, historical and legal) methods. The author concludes that the level of public danger of crimes committed against the older adults cannot be determined unambiguously due to the individual characteristics of the victims. Qualifying a criminal act against an older adult person is considered fair in connection with the indication of the signs of «helpless» or «defenseless» state, which determines that there is no need to change the criminal law. Taking into account the ambiguity of judicial practice, the author defines criteria that contribute to the substantiation of the presented features in order to differentiate criminal liability for crimes against vulnerable elderly people.
CRIMINAL PROCEDURE
Development in 1960–1990 of departmental procedural control as the theory of criminal procedure understand it now would have been impossible without the tribunal justice in 1917–1922. The use of the historical legal method made it possible to analyze the dynamics of the functions of revolutionary tribunals with general competence, to study their relationships with emergency commissions and other bodies of inquiry and preliminary investigation. The results of the study showed that in 1917–1922 the tribunals not only administered justice for the most serious crimes, but also performed the function of identifying investigative errors, for which they were endowed with the appropriate procedural powers. The author draws conclusions about the degree of effectiveness of the implementation of these powers in the conditions of permanent reform of tribunal justice based on a study of statistical data from the mentioned period. An analysis of the normative legal acts that regulated the activities of revolutionary tribunals allows us to say that in 1917–1922 departmental procedural control was not differentiated and its development was inseparable from the evolution of judicial and departmental control, and later — prosecutorial supervision.
THE BAR AND NOTARY PUBLIC SERVICE
Based on regulatory sources, materials from the judicial and disciplinary practice of regional bar chambers, and bar instruments, the paper analyzes certain aspects of double protection, when a court appointed attorney participates in the case along with an arranged lawyer. In particular, the paper studies issues on the priority of legally protected values when deciding on the admissibility of ‘double protection’; on the degree of completeness and consistency of legal regulation of relevant legal relations in their legal and professional ethical context; on the validity of expanding the legal grounds for the participation of a court-appointed attorney; on the effect of the rule of Part 3 of Art. 50 of the Code of Criminal Procedure of the Russian Federation on the failure of a defense lawyer to appear within 5 days in relation to a court-appointed lawyer; on the possibility of challenging the courtappointed attorney due to their «low qualifications.» Given the incompleteness and inconsistency of regulation of this sphere, which is significant both legally and professionally and ethically, and taking into account the different tasks in the implementation of the functions of criminal proceedings by the bodies of inquiry and investigation, as well as the state prosecution — on the one hand, and the defense — on the other, it is important to find there is a certain regulatory balance in this area. It should also be taken into account that the institution of «double protection» in one way or another touches on the issue of conflict of public and private interests. According to the author, it is necessary to eliminate the incompleteness and inconsistency of the normative regulation of the institution of «double protection», develop unified approaches to the implementation of this institution by lawyers, ensure consistent corporate disciplinary practice in matters of bringing a lawyer to disciplinary liability, promote the unity of law enforcement practice in this matter by the bodies of inquiry and investigation and courts.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
The paper discusses issues related to the certification of forensic fire experts in forensic institutions of the federal fire service of the Ministry of the Russian Federation for Civil Defence, Emergencies and Elimination of Consequences of Natural Disasters (EMERCOM of Russia). Particular attention is given to the staffing and balance of experts who have the right to carry out expert examination under competencies approved by the EMERCOM of Russia. It is shown that in many expert departments there are no experts in most of the fields of forensic fire examination approved by the EMERCOM of Russia. The authors draw attention to the need to unify the specializations of forensic fire examinations with other expert institutions and organizations. The number of specializations in forensic fire examination and the improvement of training of fire experts are discussed. It is proposed to reduce the number of specializations in forensic fire examination approved as the competence requirements for employees of the federal fire service of the EMERCOM of Russia for «Forensic fire examination» specialization. In order to increase the efficiency of forensic expert activities, the authors recommend creating and consistently maintaining a database of forensic fire experts in Russia.
Predictive activities in the field of forensic science are one of the most relevant practice-oriented areas of research within the framework of forensic science. Predicting development trends of any subject, process, and system based on existing information about them and the achieved level of science allows us to obtain advanced knowledge that is relevant given the high speed of emergence, processing and use of information in modern society. The digitalization process causes the emergence of new objects and new tasks of expert research, changes in their methods and methodology, which significantly affects the formation and development of new types of forensic examinations. The theory of forensic forecasting should become the foundation for scientifically based forecasts in this area. The work scrutinizes the genesis of this theory, its close connection with scientific forecasting in other sciences of the criminal legal cycle. Particular attention is given to its connection with forensic forecasting. The paper states the relatively low level of development of the theory of forensic forecasting, and identifies factors that complicate forecasting in the field of forensic activity. The relevance of further developments in this area is noted. It is indicated that the timely organization of methodological developments, updating of professional and educational requirements for experts and other practically significant activities require theoretical predictive information for their planning.
INTERNATIONAL LAW
The paper deals with the conflict between the concepts of self-determination stated by V.I. Lenin and V. Wilson, which determined the formation of a new world order from the beginning of the 20th century until the end of the Second World War, which is based on the political and legal idea of self-determination.
In 1914, Vladimir Lenin put forward the concept of self-determination in the article «On the right of nations to self-determination», which was dedicated to the confrontation between the «oppressive» and «oppressed» nation with the right to secede the latter and «form a national state». This concept was taken up by American President Woodrow Wilson. He used it as a basis for the «Fourteen Points» when addressing the US Congress in 1917 as a political formula and legal justification for the US entry into the First World War, the fragmentation of Europe into nation states and the increase in political influence.
The author concludes that the principle of self-determination, developed by Lenin and further developed by Wilson, was based on various ideological premises and initially had a diametrically opposite meaning. Whereas in Lenin’s work the emphasis was on the creation of a sovereign state up to the point of secession and/or annexation to another state, but under the protection of international law, then for Wilson self-determination was almost identical to «government of the people» or «government by consent», with the possibility of exerting political influence on a self-determined nation and justifying military conflicts with the participation of the United States in Latin America.
Exploring the conceptual component of ideas, foreign policy documents of Soviet and American diplomacy, the author, based on an analysis of the world order that emerged after the First World War and the rapid process of national liberation movements and decolonization, concludes about the stunning influence of the Leninist formula on the emergence of new states in Europe, Asia, and others regions of the world, as well as for the return of the national outskirts of the former Russian Empire lost as a result of the Brest-Litovsk Treaty.
The purpose of the paper is to determine the main international standards and positions of international intergovernmental and non-governmental organizations regarding the use of genomic technologies in medicine, which are reflected in their documents. At the universal level, there is no international treaty containing uniform rules in this area, but there are many documents of international organizations (such as WHO, UNESCO) that set out the relevant standards. At the regional level, the experience of the Council of Europe in the field of legal regulation of genomic medicine plays a significant role. National approaches to the legal regulation of genomic medicine vary. In such conditions, the practice of international non-governmental organizations in the field of biomedicine and genetic technologies plays a significant role. They set standards and represent the positions of the biomedical community.
Based on the analysis of international acts, it can be concluded that the general position of the international biomedical community is that genome editing technologies can be widely used for therapeutic and scientific purposes, provided that there is no criterion for transmitting genes to descendants. Genome editing should be carried out in accordance with international professional and ethical standards, including the principles of benefit over harm and informed consent. Discussions about the admissibility of hereditary genome editing continue. The prevailing approach of international organizations is that there are currently no reasonable standards for the safety and effectiveness of this technology, while research itself is encouraged.
The concepts of «positive obligations» and «negative obligations» have come into usage in interstate bodies for the protection of human rights. An analysis of international documents shows that a number of obligations contain features of both positive and negative obligations. The classification, which is based on the distinction between state non-intervention and its taking measures, has a number of shortcomings, which are pointed out by researchers who propose their own, more complex types of classification of obligations based on other criteria. The study revealed a number of contradictions between the classifications and interpretation of the content of obligations by treaty bodies, which explains the inappropriateness of using these classifications as a tool to provide guidance to states in choosing the most effective ways to fulfill their obligations under international human rights treaties. Based on a systematic and comparative legal analysis of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as related acts of treaty bodies, the author concludes that obligations to protect human rights may have mixed ( or complex) nature.
ISSN 2782-1862 (Online)