PAGES OF HISTORY
One of the innovations of the Criminal Code of 1903 was that it provided for the possibility to consider an object that did not exist or was unsuitable for achieving the desired criminal result as a circumstance entailing the non-criminality of the act. The paper explains theoretical and practical prerequisites for this innovation. The paper analyzes the practice of the Governing Senate (the Supreme Court of the Russian Empire) regarding encroachments on an imaginary or unusable object (object) of a crime during the period of validity of the Code on Criminal and Correctional Punishments – the predecessor of the Criminal Code of 1903. The author argues that the studied judicial practice was inconsistent and it was not necessary for law enforcement officers of that time for clear and reasonable criteria on this issue. The author analyzed the ideas and intent of the drafters of the Criminal Code of 1903 regarding the circumstance in question, as well as the corresponding provision of the law. It is concluded that the ideas and judgments expressed during the development and evaluation of the relevant normative regulation may be in demand when improving the Criminal Code of the Russian Federation, which does not directly regulate liability for an attempt on an unusable object.
THEORY OF LAW
The idea of automating law and legal activity has become increasingly popular in the scientific legal environment in recent years. One of the ways of such automation is to transform legislation into a machine-readable form. This could provide the possibility of automatic application of the law, increase legal certainty, and make the law accessible to the user. The adoption in 2021 of the Concept for the Development of Machine-Readable Law Technologies became one of important steps towards the introduction of machine-readable law in Russia. It seems that for the successful development of this area, we need a comprehensive theoretical and legal understanding of a new phenomenon for the domestic legal theory, namely: machine-readable law. Using formal logical methods, the author gives a definition of machine-readable law based on the essential and necessary features of the phenomenon under consideration. The paper provides a list of mandatory and optional features of machine-readable law. Special attention is paid to the issues of algorithmization of law and the use of legal ontologies. The paper highlights the main consequences of machine-readable law relating both to the law-making stage and to the stage of using machine-readable law. Such consequences include various types of testability of machine-readable law, the possibility of automatic interpretation, enforcement and direct implementation of machine-readable legal regulations. The author provides the concept of machine-readable law in the broadest sense of the word, covering not only legal regulations, but also the content of smart contracts, machine-readable powers of attorney. The paper also deals with the issues of machine-executable law and the related transition from legal normativity to technological normativity. This work contributes to the theoretical and legal understanding of machine-readable law and can contribute to its successful development in Russia.
STATE POWER AND LOCAL SELF-GOVERNMENT
The paper provides an overview of digital resources used during election campaigns, highlighting their positive and negative sides supported by cases from practice. Electronic democracy is considered as a logical consequence of introduction of information technologies to the life of society. The paper analyzes remote electronic voting as a subsidiary way of implementing active suffrage in the Russian Federation; The author considers a "Mobile Voter" as an alternative to absentee ballots that meets the requirements of the time; digital services provided through the federal state information system "Unified Portal of State and Municipal Services", as well as the possibilities of artificial intelligence in the framework of elections. It is pointed to the promotion of digital resources for the implementation of not only active but passive suffrage, which is expressed in the possibility of collecting signatures by candidates online. We witness an increase in the importance of AI technologies during election campaigns, as well as the need for legislative regulation of the limits of their use due to the risks of spreading fake information that can influence the opinion of voters about running candidates and, as a result, the election results. Since artificial intelligence technologies are new, there are gaps in the legal regulation of the issue under consideration in the Russian Federation. Thus, the paper indicates the impossibility of solving the identified problem by the point adoption of certain norms and, using the example of foreign experience, emphasizes the need for a systematic approach to the development of an appropriate regulatory legal act and highlights the possibility of forming a new branch of law (a digital branch) due to the announcement of the adoption of the digital code.
The paper draws attention to the lack of a holistic theory of encouraging municipal entities, which makes it difficult to develop an effective incentive policy in relation to them. The paper examines doctrinal approaches to understanding legal stimulation, and expresses the author’s position on this issue. The difficulty of creating a unified theory of legal encouragement is noted due to the presence of incentive norms in legislation with different industry affiliation. Attention is paid to incentive legal relations, which made it possible to consider municipalities as their participants. The paper describes the features of the public-incentive relationship, gives the characteristic of municipalities as a subject of public-incentive legal relations. It is noted that the object of incentive relations with the participation of municipalities is based on public relations aimed to stimulate municipalities, represented by their bodies, and the local community to effective managerial activities. For this purpose, funds are to be allocated through inter-budgetary transfers and grants. The basis for encouraging municipalities is formed by the performance indicators of their activities, expressed in quantitative and qualitative characteristics. The content of the legal structure "municipal entities stimulation" is defined as the activity of authorized entities aimed at establishing conditions and criteria for encouraging municipalities and stimulating them to effective management activities through the use of incentive measures.
FINANCIAL LAW
The paper examines the issues of legal regulation of a digital ruble platform, which is considered as an element of the national payment system, information system, and a set of financial technologies. The author analyzes the legal nature of the information platform as a general concept for varieties of digital platforms. The conclusion is made about the need to consolidate the legislative definition of the information platform. The paper also examines the legal status of the platform operator, platform participant and platform users. It is concluded that the platform operator has a special functional function, since he is solely responsible for any processes related to the operation of the digital ruble platform. The author also focuses on the problem of blocking remote banking services due to non-compliance with legislation on combating money laundering and terrorist financing (AML/CFT). It is assumed that the judicial practice concerning challenging the blocking of remote banking services will not change due to the introduction of the digital form of the national currency. It is pointed out that there are no agreements on interaction between the Bank of Russia and Rosfinmonitoring in terms of control measures under AML/CFT in the circulation of the digital form of the national currency, since the relevant risks have not been examined. It is concluded that cross-border money transfers in the form of digital national currencies are promising, but the author determines a number of problems related to the technical feasibility and legal regulation of the processes of opening accounts for non-residents and transferring funds.
LEGAL REGULATION IN THE INFORMATION SPHERE
The impact of the phenomenon of digital platforms on public relations can be explained, inter alia, by the fact that platform operators are beginning to compete with states for the right to set rules for users, which include almost all participants in civil turnover, inventive and creative industries, consumers of content, etc. Conditional privatization of the regulatory impact on public relations, based on the example of analyzing the rules of generative artificial intelligence platforms for creating various kinds of content, urges the State to respond. With regard to the legal regulation of digital platforms, it seems possible to build such a multi-level system of regulation of public relations that can be based on both general principles of law and codified norms. The developing discussion around the concept of the digital code of the Russian Federation allows us to formulate approaches to identify those areas of relations in the digital environment that are subject to state regulation in regulatory legal acts, as well as those that can be regulated at the level of "soft law" and within the framework of contracts between platform operators and users.
CIVIL AND FAMILY LAW
Based on the civil law methodology, the author analyzed the concept, the legal nature, as well as the legal regime for the provision of services using artificial intelligence (AI) technologies. The legal regime of AI technologies used for the provision of paid services has been defined. The subject of the study includes: legal doctrine; norms of Russian legislation; norms of subordinate normative legal acts; law enforcement practice. The purpose of the study is to provide a doctrinal justification of the legal nature and legal regime of the provision of services using artificial intelligence technologies. Comparative legal, systemic and structural methods of scientific cognition, as well as the modeling method were used in the preparation of the paper. The methodological feature of this study is the combination of theoretical and empirical levels of cognition. The use of the above-mentioned set of methods made it possible to consider the issues of legal qualification and the legal regime for the provision of services using artificial intelligence technologies and artificial intelligence technologies in the light of ambiguous doctrinal and practical approaches to their solution.
The paper is devoted to the problem of legal separation of the testator’s property from the property of the heirs. The legal separation of property is understood as giving it a specific legal regime, including the division of property into different pools of assets owed to different creditors. In the comparative legal aspect, the author examines the practical advantages and disadvantages of various models of legal separation of inherited property or the absence of separation. The paper analyzes the problems of Russian regulation of the liability of heirs: the legislative certainty of the liability model; the perception of this model by judicial practice and doctrine; the fairness of the current distribution of risks of insolvency and destruction of inherited property between creditors of the heir and the testator; features of bankruptcy of the estate. Using the case of inherited property, general conclusions are formulated concerning the phenomenon of detached property as an independent phenomenon of civil law, different from the institution of limited liability and the phenomenon of a legal entity.
LEGAL PROTECTION OF INTELLECTUAL PROPERTY
The paper examines the concept of “artificial intelligence”. It is proposed that when building a definition of this concept we proceed from the “black box” principle, which, according to the author, will make such definition universal and independent of the level of current technological development.
The author investigates the question of whether a work generated by artificial intelligence without the creative participation of an individual can be equated with works protected by copyright. Based on the concept of recognition of copyright on works of science, literature or art based on the creative result proposed in the legal doctrine, the author concluded that AI-generated works are comparable to the results of human intellectual activity.
The main approaches to determining the legal regime of AI-generated works in domestic legal doctrine and foreign legislation are considered. The author proposes an approach to regulating copyright on the works in question, similar to the legal regime for the protection of works of science, literature or art after the death of the author.
BUSINESS AND CORPORATE LAW
The paper examines the relationship between the principles of property isolation of a legal entity and limited liability with the institution of material consolidation in cases of bankruptcy of corporate groups. The purpose of the paper is to formulate grounds for derogation from the basic principles of corporate law in the bankruptcy of a group of companies, based on the arguments of opponents of the application of the doctrine of material consolidation. The paper concludes that for the Russian legal system, the application of the material consolidation regime is permissible only in exceptional cases. Such include cases when there is an obvious abuse of rights on the part of the debtor, controlling persons and affiliated creditors as well as free movement of assets within the business group, the transit nature of the movement of funds through the accounts of persons included in the corporate group, the complexity of intra-group relations resulting in that it is almost impossible to understand which legal entity owns the assets.
CRIMINAL LAW
Public danger, being largely objective in nature, is the most important feature of a crime, underlying the decision to criminalize some act. However, there is no knowledge on how to verify whether it exists in each specific case of criminal legal prohibition, since the theory of verification of public danger in Russia has yet to be formed. The paper proposes approaches to solving this problem. In a number of cases, it should be recognized that public danger is a presumption (in particular, for those criminal acts that involve causing harm to life or health, using coercion, some forms of deception, etc.). The presumption is based here on such a method of verification as protocol statements, and, in fact, does not require other methods. In all other cases, when verifying a public danger, the author suggests relying on the method of expert assessments, proof by contradiction, and looking for new ways to verify the true nature of the public danger. In this case, verification of public danger is mandatory and should ideally be carried out at the stage of drafting the bill.
Russian legislation that regulates legal relations of confidential cooperation of lawyers with intelligence bodies is characterized by inconsistencies that can be overcome optimally within the framework of law-making activities. The conducted analysis makes it possible to conclude that the most acceptable way of legal regulation of the relations in question is the ban on the establishment of legal relations of confidential cooperation. It is due to the specifics of advocacy and the special status of the legal privilege as an institution of civil society that performs significant functions in protecting the rights and legitimate interests of individuals and legal entities. At the same time, the author believes it is permissible to make an exception as to legal privileges of intelligence character by recognizing the establishment of legal relations of confidential cooperation between the relevant entities when competent authorities are in need of the assistance of persons of the specified category involved in any form in the activities of criminal groups, organizations or communities provided that such confidential cooperation is used to suppress the functioning of these destructive associations.
The paper, based on a systematic analysis of Russian legislation, provides an interpretation of the act known as “retail sale” as a mandatory feature of the objective side of the crime provided for in Article 171.4 of the Criminal Code of the Russian Federation. The problems generated by the current wording of the disposition of the norm in question are identified. The specific characteristics of the sale are emphasized and its retail nature is described in accordance with the provisions of industry legislation. Based on existing points of view and personal vision, the author proposed an adjusted definition of the term “retail sale” in relation to Note 1 to Article 171.4 of the Criminal Code of the Russian Federation. In order to bring to criminal liability persons who have committed the “wholesale sale” of alcoholic and alcohol-containing food products, it is proposed to expand the scope of the analyzed norm by amending the disposition of the article and the note to it, formulating the act as “sale”. It is indicated that it is necessary to recognize a transaction as fictitious in cases where the sale of alcoholic and alcohol-containing food products is disguised as a gift transaction.
INTERNATIONAL LAW
The turn of the 19th and 20th centuries was marked by the emergence of individual international acts that established certain restrictions on one of the traditional rights of states – the right to war. The need for their comprehensive study is obvious, since it was these acts that created a kind of foundation for the development of interstate cooperation in the direction of developing such legal norms that would serve as a reliable barrier against the outbreak of wars of conquest in the future. In this context, of primary importance is the 1919 Covenant of the League of Nations, whose articles, among other things, set out procedural requirements, the fulfilment of which was a necessary condition preceding the resort to armed force.
The subject of the study is also the Paris Pact of 1928, which for the first time at the universal level states recorded a provision prohibiting the unleashing of aggressive wars. At the same time, the legal and grammatical interpretation of the provisions of this treaty source allowed the author to conclude that, in reality, the established prohibition was not absolute in nature, since not all situations related to the resort of states to armed force in their international relations can be classified as war. This state of affairs, where states had a real opportunity to circumvent the treaty-established prohibition, became an important prerequisite for continuing work to agree on an international definition of aggression.
Other international acts that played a certain role in establishing a general prohibition of the use of force in international relations also became the subject of analysis in this paper.
INTEGRATION LAW
The paper examines Russia’s retaliatory measures in regulating foreign trade in goods. Specific examples of the introduction of increased rates of import customs duties and the suspension of tariff preferences are analyzed. The grounds for denial of most-favored-nation treatment declared by the Russian side in accordance with the provisions of the World Trade Organization law are examined. A comparison is made of the countermeasures under the legislation of the Russian Federation on foreign trade activities with the countermeasures under the law of the Eurasian Economic Union. The competence of the Eurasian Economic Commission in the area of taking countermeasures under individual international treaties is disclosed. Contradictions and inconsistencies in the regulation of countermeasures by the Treaty on the Union are demonstrated. Conclusions are formulated about the similarity of countermeasures with Russian special economic measures and measures of influence (counteraction), about the practical advantages of the reasons and grounds for introducing countermeasures under Russian legislation over the referral norms of the law of the Eurasian Economic Union. A reasonable division of retaliatory measures into supranational ones, provided for by international trade agreements, and retaliatory measures introduced in accordance with Russian legislation is proposed.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
The paper examines the problems of the relationship between private law and public law principles in energy legislation. Based on an analysis of the historical development of Russian and foreign energy legislation, it is concluded that, at its core, energy law is private law. The features of the subject and method of energy law are analyzed, and the criteria for identifying the subject of energy law are outlined. In order to determine the essence of energy law, the author proposes a concept of areas of law, which include energy law. The paper examines the features of organizational and regulatory structures (institutions) in energy legislation, which are the most important structural elements of energy law. Examples of the mutual influence of norms and institutions of private and public law in the energy sector are considered, and the specifics of the functions and objectives of contractual regulation in the energy sector are indicated. The key practical problems of the energy sector are identified, the scientific study of which is a priority for legal science in this area.
ISSN 2782-1862 (Online)