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Actual Problems of Russian Law

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Vol 19, No 7 (2024)
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THEORY OF LAW

11-21 277
Abstract

The purpose of the paper is to analyze the evolution of law and the emanation of law, revealing their essence, based on the concept of integrative legal understanding that synthesizes ontologically homogeneous legal regulators — principles and norms of law. The study of the stated problem was carried out based on general scientific (including systemic, historical, comparative) and private law methods of scientific cognition. The legal phenomena under study are complex and multidimensional, they are revealed as processes of development of law in terms of its content and forms of external expression. The authors come to reasoned conclusions that the evolution of law consists in the development by law-making entities on the basis of general principles of law of such legal regulators that allow society to move to a qualitatively new stage of legal regulation of legal relations. In turn, the emanation of law is a transformation of forms of law, reflecting the process of understanding and external expression, first, of general principles of law as the basis universal legal relations

22-29 233
Abstract

One of the modern trends in the development of society and the State is total urbanization, which is embodied in the withering away of the rural way of life and the concentration of population and capital in megacities and surrounding agglomerations. The paper examines the historical patterns of urbanization, investigates the place of the city in the system of humanitarian knowledge, and explains the emergence of a new interdisciplinary field of urban research, namely, legal urbanology, the subject of which is the legal space of a modern city. Historically, cities have been centers of politics, trade, and education, and the spread of urban life has become one of the integral features of the capitalist mode of production that is the dominant economic system of production and distribution at the present stage. Nevertheless, the legal regulation of urban relations is associated with a number of problems that require resolution both at the theoretical level and at the legislative level. In this regard, the paper analyzes current Russian legislation, as well as subordinate and departmental rulemaking for compliance with the requirements of the time and evaluation of the effectiveness of regulating the foundations of the legal space of the city. To resolve the identified problems, it is proposed to adopt a systematic program act, the preparation of which can take into account the experience of foreign regulation of the sphere of urban relations.

30-51 279
Abstract

The paper analyzes the main classical theories of the origin of the State: theological, patriarchal, organic, psychological, social contract, internal and external violence, class theories. The author makes an attempt to identify doctrinally reliable and mythological elements in each theory and describes the alleged causes of the occurrence of this mythological element. Based on the results obtained, the author elucidates the classification of theories of the origin of the State that, in turn, became the basis for the systematic integration of verified scientific facts about the process of state formation in order to form the primary theoretical basis of a special metatheory of politogenesis. Thus, the concept of metatheory acts as an alternative to the unsystematic integration of the state and law doctrines of the origin of the state, allowing the researcher to embark on the path of their methodologicaland structural consolidation. The main properties of the metatheory of politogenesis as a method are described, namely: universality, consistency and dynamism. The paper also provides an interpretation of this meta-theory.

FINANCIAL LAW

52-64 135
Abstract

The Republic of China was established in 1912. After the defeat in the Civil War, in December 1949, the state authorities were evacuated to the island of Taiwan that by that time had the status of a province. Conceptually, as in the case of tax law, the budget law of the Republic of China is in many ways identical to the analogues of other states, but the territory actually under the control of the authorities influenced the composition of the budget system and the tax system of the Republic of China. In 1994–1999, in the Republic of China, the local government reform was carried out, the functions of provincial governments were reduced and their level was lowered. The provinces themselves were not abolished and instructions about them are still contained in the legislation. However, the authorities of this administrative territorial unit do not accept budgets and there are no provincial taxes. The study of law of the Republic of China shows, in particular, that the provisions of the Basic Law (Constitution) of the State do not always allow us to come to reliable conclusions, for example, about the budgetary structure.

65-72 151
Abstract

The paper analyzes the process of expanding the list of objects of currency legal relations, including related to the policy pursued by the Russian Federation to counter restrictive measures imposed by the United States and unfriendly states and international organizations that have joined them. The author analyzes the category of «currency values». The author concludes that the category of currency values appeared due to legal and technical reasons: the use of the term «currency values» makes it possible to make the text of the document more concise, eliminating unnecessary enumeration of objects of currency legal relations. The author highlights that the current concept of attributing objects of currency legal relations to currency values leads to a hidden depreciation of the national currency of the Russian Federation. It is emphasized that the recognition of digital financial assets and hybrid digital rights based on them as objects of currency legal relations blurs the line between these digital rights and digital currency. At the same time, within the framework of currency relations, digital financial assets should be considered as an analogue of securities rather than as a currency. The reason why digital financial assets are recognized as an object of currency legal relations, but digital currencies are not, is that the latter do not have a person bound by them. The prognosis is made that due to the existing request and subject to the adoption of the necessary regulatory framework, digital currencies may become the object of currency legal relations and be used to a limited extent for cross-border settlements.

CIVIL AND FAMILY LAW

73-85 243
Abstract

The essential-substantive approach to the subinstitute of the lease purchase in civil law is to study the essence of this lease agreement through its features and essential conditions. The essence of the first order is the specifics of the lease agreement itself, and the essence of the second order is the consideration of lease purchase as a substitute. This methodological approach makes it possible to determine the place of the contract in question in civil circulation. It is argued that the study of the lease purchase agreement through its essence is the most effective method of studying a lease agreement in the system of civil law contracts. Using the example of judicial practice, the features of the leasing agreement and the reasons for its unpopularity in Russia are revealed. It has been established that judicial practice follows the path of equating leasing with credit and loan relations. This position of the courts is disputed by the authors. Legal relations under loam and leasing are distinguished, which, according to the authors, will avoid judicial errors in determining the legal nature of the lease purchase. It is proved that the lease purchase is a type of lease agreement, and not a loan or loan agreement. In a loan agreement, the borrower always becomes the owner of the subject of the agreement, and in a leasing agreement, the title of the owner of the property remains with the lessor until the end of the agreement. It is proved that the application of the interpretation of contra legem has a negative impact on the development of contract law, in particular leasing legal relations.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

86-100 309
Abstract

In the paper, the author concludes that it is inappropriate to regulate the procedural and legal competence of various officials of the prosecutor’s office to initiate a review of judicial acts by the courts of controlling authority. The author examines the issue of the possibility of allocating the prosecutor’s participation in the consideration of civil cases by the courts of controlling authority into an independent, third form of the prosecutor’s participation in civil (arbitrazh) proceedings in the light of both the legislative expansion of the prosecutor’s procedural powers and trends in judicial practice. The author draws attention to the need to clarify in the law the legal form by which the prosecutor’s initiative aimed at reviewing judicial acts is implemented. As a result of the analysis of judicial practice where the courts and the prosecutor assessed the need for the prosecutor’s participation in specific cases in different ways, the author concluded that the correctness of resolving the issue of involving (not involving) the prosecutor to participate in the consideration of a civil case is predetermined by an essential rather than a formal approach to the legal qualification by the court of the substantive requirements under consideration.

BUSINESS AND CORPORATE LAW

101-111 207
Abstract

Modern technologies, and above all — information technologies, do play a significant role in navigating the complex regulatory and organizational landscape of compliance with international trade rules and management in the international trade system. The technologization of international trade compliance programs, internal compliance programs, the processes of systematization and automation of work with databases should be developed and implemented in all organizations engaged in international trade as an integral part of doing business and systematization of international trade operations. Taking into account the nature of international trade operations and their even minimal connection with specific States, in addition to clearly developing programs for compliance with international standards of trade and customs operations, the author substantiates a differentiated approach to international trade compliance, involving consideration of regulatory requirements of individual States and separate monitoring of compliance with the requirements of the State with which the relationship is associated. The author also dwells on a differentiated substantive approach to compliance procedures in trade using various software tools for monitoring and ensuring compliance in the absence, in most cases, of detailed international legal regulation (based on international treaties) of export-import operations.

112-121 184
Abstract

The paper is devoted to revealing the essence of the ALARP (as low as reasonably practicable) principle and the possibility of its use as one of the special principles in investment law. To substantiate the effectiveness and necessity of applying this principle in investment law, a method of analysis from the general to the specific is used. The first part of the paper analyzes general approaches to understanding legal principles, and presents the main positions on the issue of the relationship between legal principles and legislation. Then, using the example of specific branches of law, through the implementation of a comparative approach, the features of the application of the ALARP principle in each of them are derived. The author concludes that there is currently no structural and uniform application of this principle in law, and therefore the possibility of using it within the framework of investment law is justified in connection with the specifics of the legal relationship between the investor and the investment recipient when carrying out investment activities.

MEDICAL LAW

122-137 229
Abstract

The paper examines the experience of legal regulation of the use of cell and gene therapy products, including CAR-T technologies, in the Anglo-Saxon legal system. It is noted that a significant obstacle to the development of CAR-T therapy, as well as cell and gene therapy in general, is the absence in most countries of the world of comprehensive legal regulation of the use of such innovative methods of treating diseases. Currently, this problem is relevant for the Russian Federation, where cell and gene therapy drugs are actively being developed. The paper provides a detailed overview of the main relevant documents from Australia, the United States of America and Canada, analyzes specific cases illustrating successful law enforcement practice, and examines the mechanisms of self-regulation in the area under study. In conclusion, the authors formulate the key problems and ways to improve legal regulation as to cell and gene therapy drugs application in the Russian Federation. The authors recommend that the best practices of these foreign countries be used, taking into account its critical understanding for the development of appropriate regulatory regulation in the Russian Federation and integration associations with its participation.

CRIMINAL LAW

138-146 149
Abstract

Modern Italian criminal law doctrine is dominated by the concept of equivalence of conditions as interpreted in the context of «scientific theory» developed in German theory in the 19th century. It is believed that when establishing a causal relationship, it is necessary to use the method of exclusion, focusing primarily on data from the natural sciences, then on data from other sciences and the maxims of general experience. When establishing a causal relationship, the determining factor is the probability of the occurrence of a consequence, while the question of the degree of probability remains controversial. The theories of adequate causation and human causation are rejected by Italian criminal law doctrine. The German theory of objective imputability is considered in the legal literature, it has supporters, but in practice, it is not accepted. The shortcomings of the «scientific theory» of causation are due to methodological errors. Causality is not a scientific category, but a philosophical one. Different sciences, natural and otherwise, have different criteria for establishing a causal relationship that are suitable for these sciences. In the natural sciences, repeatability, which can be assessed statistically, is of decisive importance for establishing a causal relationship. It is impossible to mechanically transfer the methodology of natural sciences to jurisprudence.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

147-159 205
Abstract

The paper identifies the main classifying characteristics of the forensic group of high-tech crimes. The problems of developing a forensic characterization of crimes included in this group are considered. The most important structural elements of the forensic characteristics under consideration are described. The determining role of the high-tech method of committing crimes has been established and its features have been analyzed. Debating points related to the object and subject of high-tech criminal encroachment are noted. With regard to the subject of the crime, the author concludes that such is a group, while the accomplices of the crime have personal characteristics that prevent the construction of a single typical portrait. The specificity of the crime situation is considered, because the main cause-and-effect relationships are formed in cyberspace. Important features of the trace pattern, manifested in the formation of electronic digital traces, are noted. It is shown that the means of committing high-tech crimes are special software, hardware and software-hardware, the peculiarity of which is their novelty. The role of counteraction to the investigation of high-tech criminal acts on the part of criminals and persons associated with them is revealed. For the first time in criminological theory, the glocalization factor is noted, and the relevance of this element of criminological characteristics for the study of high-tech crimes is shown. The cause-and-effect and correlation relationships between the elements of the forensic characteristics are analyzed.

160-173 129
Abstract

The paper examines the concept of truth in criminology as a dichotomous concept in relation to lies. The author concludes that the concept of «truth» can act as problematic knowledge, containing probable true knowledge, partly corresponding to reality, in which the person accepting it believes. This understanding of the concept should be considered as the goal and result of search and cognitive activity in a criminal case, which is a component of subsequently obtaining reliable, true forensically significant information. The truth, in the noted understanding, can also act as a factor that significantly determines the search and cognitive activity of the investigator in criminal proceedings. From the point of view of communicative interaction, truth can be considered as information, the addressee of which seeks to convey information that he evaluates as true, in order to create in the addressee a complete and true idea of some reality, taking into account his own ideas about such completeness and truth. This definition is applicable to solving problems of procedural actions in which the main method of obtaining information is questioning, as well as to minimizing errors in obtaining true information during the production of these actions. In philosophical knowledge, truth is also studied as an ideal of ethics. Considering that the concept of ethics in criminology is highly debatable, consideration of truth as an ethical ideal so far seems inconclusive. The ideas set forth in the paper may be significant in the context of a comprehensive consideration of the concept of «truth» in criminology and the development of a theory of truth as a phenomenon of criminal proceedings as opposed to lies.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

174-187 112
Abstract

The paper analyzes the strategic planning system being formed in Russia, the basic principles of which are laid down in the Federal Law of June 28, 2014 No. 172-FZ «On Strategic Planning in the Russian Federation», and also examines its impact on the institution of environmental and legal policy. Using comparative analysis, logical and systemic methods, the author examines the impact of the adopted on November 8, 2021 Decree of the President of the Russian Federation No. 633 «On approval of the Fundamentals of State Policy in the Sphere of Strategic Planning in the Russian Federation» on the formation of a new architecture and methodology for strategic planning in the country, including in the field of ensuring environmental safety. The relevance of this topic is increasing in connection with the course taken to strengthen the state sovereignty of the Russian Federation, build an independent economic and technological policy during the period of the end of «globalism» of a unipolar world on the terms of Western countries. The author’s employs his formulations on the theory and practice of strategic management in the field of environmental safety, which form the base for assessments and certain recommendations.

188-194 177
Abstract

The paper is devoted to the problem of inclusion of waste into economic turnover, which is solved within the framework of circular economy. Legal regulation of the circular economy is formed at the level of strategic planning documents and individual motives of persons in whose activities waste was generated. According to the author, for the sustainable use of substances that are currently classified as waste, the introduction of legal mechanisms for a circular economy into Russian legislation is required. Such changes, on the one hand, will reinforce the right of a person to classify a substance as a waste or by-product that has beneficial properties and is acceptable for economic circulation. On the other hand, improving legislation by establishing a presumption of safety of substances generated as a result of production, when creating conditions for their use, will create additional factors for the involvement of waste in economic circulation. Accordingly, it is necessary to build legislation on waste management in such a way that the generation of waste is associated with the possibility of their involvement in economic circulation.



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