STATE POWER AND LOCAL SELF-GOVERNMENT
The paper highlights the legal gaps that have arisen in connection with the introduction of digital technologies into the electoral process, the elimination of which will improve the mechanism for protecting electoral rights of citizens of the Russian Federation, as well as restoring violated rights. The author elucidates the issue of the need to detail the legal regulation in terms of remote electronic voting (DEG), including the establishment of criteria allowing constituent entities of the Russian Federation to conduct elections using DEG, the introduction of additional administrative offenses related to violation of electronic voting procedure, the elimination of possible assumptions of violation of the secrecy of voting in the Code of the Russian Federation on Administrative Offenses. The paper raises the issue of election campaigning on the Internet, the possible limits of the use of neural networks that require legislative regulation, as well as the risks of influence from competing candidates by spreading false information with a proposal to introduce liability measures. Falsifications are pointed out as one of the significant threats to the use of artificial intelligence during election campaigns. The author also insists on the need to label content generated by neural networks, the imposition of sanctions for repeated violations of established requirements, and legislative activity initiated in this direction.
Discrimination is one of the main obstacles to the implementation of the constitutional principle of freedom of work, including by persons of pre-retirement and retirement age. At the same time, the principles of prohibition of discrimination in the field of work and freedom of work in many cases act in relation to each other as a necessary condition for the realization of the right to work. The attitude towards age as a sign of discrimination differs from the approach to other discriminatory grounds both in legislation and in law enforcement practice. The main prerequisite for such an ambiguous view of this discriminatory feature is the lack of its constitutional consolidation. Moreover, age as an element of the principle of equality was absent in the Soviet constitutional and labor legislation, and it was included in the current Labor Code of the Russian Federation only in 2006. The Constitutional Court of the Russian Federation, in essence, acknowledges that it is permissible in some cases to establish age restrictions for certain positions, and to use special legal regulation of labor relations with the participation of pensioners, i.e., in fact, on the basis of an age criterion. The paper substantiates the idea of expediency of supplementing the Constitution of the Russian Federation in the future with a provision prohibiting discrimination based on age. At the same time, even before making appropriate amendments, the Constitutional Court of the Russian Federation has all the formal grounds to adjust the age as the basis of discrimination, which would ensure the full implementation of the constitutional principle of freedom of labor in regulating labor relations involving persons of pre-retirement and retirement age.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
The paper examines the specifics of the regulatory consolidation of the procedure for establishing and implementing the high security alert regime in connection with the spread of a new coronavirus infection (2019-nCoV) in the legal acts of senior officials of more than 35 constituent entities of the Russian Federation. The authors examine some issues regarding understanding the high-alert regime in the context of theoretical and legislative aspects. In particular, the paper elucidates some features of the normative consolidation of certain elements of the legal regime of high readiness in the legal acts of senior officials of constituent entities of the Russian Federation. Academic approaches to classification of the powers of executive bodies of state power of the Russian Federation and constituent entities of the Russian Federation in conditions of high alert and emergency situations are systematized. The authors determined that the legal regulation of the activities of public administration in conditions of high alert and emergency situations is a self-sufficient element in the general system of legislative regulation of special (extraordinary) legal regimes. Some actual problems of law enforcement and issues of improving the legal regulation of the implementation of the high-alert regime are outlined. As a result of a comparative analysis of the legal acts of senior officials of constituent entities of the Russian Federation, a conclusion has been made about the use of individual legal and technical tools predetermined by normative consolidation of main elements of the legal regulation mechanism, in particular the grounds, purpose, circumstances of the introduction of a high security alert regime. The authors formulate proposals to improve certain legal acts of senior officials of constituent entities of the Russian Federation, aimed at individualizing the conditions for establishing a legal regime of high readiness and differentiating the powers of the public administration to ensure it on the territory of a constituent entity of the Russian Federation.
FINANCIAL LAW
The paper examines the correlation between public and private legal elements of the financial legal personality of credit institutions in various fields of financial activity. The author analyzes the legal status of an authorized bank in foreign exchange, tax, credit and other legal relations, and highlights the substantive difference between the categories of «authorized bank» and «agent bank» from the point of view of delegating public and private powers to them in financial law. The author makes a proposal to replace the selection of agent banks and authorized banks for various areas of financial activity with an accreditation procedure conducted by the Bank of Russia jointly with the authority exercising its power in the relevant field. Credit organizations in financial law, by the nature of the prevailing interest, should be divided into two groups: public credit organizations and private credit organizations. Ensuring the stability, smooth functioning, monitoring and risk management of significant entities of the banking system, the legislator and the Central Bank of the Russian Federation form and change their legal status, giving them public responsibilities.
CIVIL AND FAMILY LAW
The need to exclude the debtor’s property from the bankruptcy estate as a guarantee of protection of his property and non-property rights can be explained by a long-term formation of bankruptcy legislation, which influenced the ideology of measures to protect the rights and interests of the debtor, the need to rethink measures to protect the debtor’s property and non-property rights in the context of an updated economically oriented and procedural legislation. The conflict of interests of the debtor and creditors is one of the intractable problems of the institution of bankruptcy, actualizing the improvement of mechanisms for protecting the rights of the debtor. The fact that the institution of bankruptcy of citizens provides mechanisms for the protection of personal non-property (natural) rights of a citizen along with mechanisms for the protection of his property rights does not contradict the property law criteria applied in this legal institution and highlighted in civil law science. The interconnectedness of the debtor’s property rights with his personal non-property rights serves as an ideological factor justifying the need to exclude certain types of property and income of the debtor from the bankruptcy estate, which are of a social nature, since they serve the life of the debtor, his personal needs and the needs of his family members.
LEGAL PROTECTION OF INTELLECTUAL PROPERTY
Online courses have recently been increasingly created and used in various fields of knowledge. Due to the spread of online learning, there are more opportunities for development. At the same time, a large number of author’s courses created are beginning to be copied and distributed on the Internet without the consent of the authors and copyright holders. In the paper, the author examines the legal nature of online courses, issues of judicial practice, and gives examples when online courses can be recognized as complex objects of intellectual property rights. Article 1240 of the Civil Code of the Russian Federation contains a limited list of complex objects, but online courses can be classified as multimedia products, databases or audiovisual works, taking into account the existing features of such objects. The author also examines the most frequent cases of violation of the rights of authors and copyright holders to online courses and provides an analysis of judicial practice.
BUSINESS AND CORPORATE LAW
The paper examines the concept and essence of corporate identity as a legal phenomenon. The author analyzes foreign approaches to the legal protection of corporate identity. The conclusion is made about the proximity of the Russian institute of corporate identity to the European one, which involves providing legal protection to corporate identity either as an object of intellectual property or within the framework of competition law. In the field of unfair competition, corporate identity is a quasi-object of legal protection, the subjective right to which does not arise. This determines the complexity of ensuring the protection of a private interest. The author examines problematic aspects of establishing a violation of competition protection legislation related to the creation of a confusion, as well as proving losses associated with it. It is concluded that this legal institution is less effective than traditional legal regimes of recognized intellectual property rights, which can be explained by the focus of competition protection legislation on protecting public rather than private interests.
CRIMINAL LAW
Assessing the damage caused by a crime is one of the complex issues in the theory of criminal law and the practice of applying the law. The legal characteristics of lost profits as a type of damages have not yet been fully explored even in the civil law aspect, which affects the definition of the nature of material damage in criminal law and, as a consequence, damage resulting from crimes. The paper examines various approaches to the criminal law meaning of lost profits. It is concluded that the criminal law specifics of lost profits in economic crimes imply an integral component (lost profits and actual damage) of the nature and amount of damage, since the assessment of lost profits affects the qualitative and quantitative criteria of damage. The need to consider loss profits as an element of a crime in the economic sphere is evidenced by the peculiarity of the generic, direct object, the objective side in relation to a specific act. For the purposes of criminal law, it is important to establish lost profits in the form of failure to receive what is due, while the form of failure to receive what is probable is not important for classification of a crime.
Modern crime is undergoing a digital transformation, as evidenced by the nature of the crimes committed. Currently, criminals are actively using new technologies to minimize the volume of offline actions when committing a crime as to its objective part. The development of online services allows criminals to commit criminal acts through third parties acting for selfish reasons or as a result of deception, often without realizing their complicity in the crime. Modern technologies make it possible to commit non-virtual crimes completely remotely, thanks to online services. The list of such crimes is constantly expanding. Remote kidnappings of people have become a new trend, the problems of classification of which will be discussed in this paper. Ideas de lege ferenda are being formed, expressed in the change of the current structure of the offence of kidnapping and the updating of the explanations of the Supreme Court of the Russian Federation.
The paper examines the patterns of historical development of interpretation as an intellectual activity through the synergy of legal and religious knowledge. The author makes a number of important conclusions, representing a new look at the chronological framework of the emergence of interpretation and the development of its methodological apparatus, and identifies a number of patterns associated with its subsequent centuries-long development. The latter include, in particular: 1) the priority of literal interpretation over «non-literal» interpretation both in the field of theology and in normative interpretation; 2) the politicization and «teleological» nature of interpretation in the broad sense; 3) the use of analogy in the legal field as a means of expanding social regulation where it is impossible or inappropriate to resort to interpretation. To achieve the objectives of the study, the author used theoretical methods of dialectical analysis and synthesis, methods of generalization and comparative law (mainly in the retrospective (historical) aspect), and the formal legal method.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
The discussion of amendments to the Federal Law of 31.05.2001 No. 73-FZ «On State Forensic Activities in the Russian Federation» coincided with the adoption of the resolution of 20.07.2023 No. 43-P by the Constitutional Court of the Russian Federation, which for the first time enshrined the public legal status of forensic activity. The problem of granting particular professional activities a public law status has not only theoretical but also important practical significance. It is due to the fact that it is closely linked to the degree of justified state intervention (either directly, through state authorities, or through non-governmental institutions under their control in the form of self-regulatory organizations, chambers, examination committees and other quasi-regulatory bodies) in the activities of subjects of the relevant market (professional activity). The paper analyzes current issues related to the development of legislation on forensic activities.
INTERNATIONAL LAW
The Caspian region contains huge reserves of oil and gas. The complexity of implementing transboundary pipeline projects along the bottom of the Caspian Sea is associated not only with the special legal status of this body of water, but also with the different interests and political and legal positions of the Caspian and non-Caspian states. The main objective of the paper is to identify and assess the international legal mechanisms regulating the construction and operation of transboundary pipelines in the Caspian region.
The scientific novelty of the work lies in identifying gaps and problems in the application of the provisions of the 2018 Convention on the Legal Status of the Caspian Sea concerning pipelines, as well as in a comprehensive comparative legal analysis of the provisions of international treaties regulating the construction and operation of such transboundary pipelines in the Caspian region as the Baku-Tbilisi-Ceyhan and Baku-Supsa oil pipelines and the Nabucco gas pipeline. The authors revealed the importance of international law in the implementation of pipeline projects in the Caspian region, and identified mechanisms that allow for a balance of interests between the states participating in such projects, on the one hand, and the states and operating partners, on the other. The results of the study can be applied in the preparation of amendments to the 2018 Convention on the Legal Status of the Caspian Sea regarding the legal regime of pipelines in the Caspian Sea, as well as draft agreements on new energy projects in the Caspian region and the Eurasian region as a whole.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
The paper is devoted to the study of the problems of the relationship between ESG principles and such a negative phenomenon as greenwashing. It is noted that the emergence and widespread use of such potentially attractive concepts for investors and consumers as «sustainable development» and «green development» contribute to the spread of greenwashing, misleading consumers, experts, and even regulatory authorities. Currently, greenwashing has been studied in sufficient detail in modern science; its main methods, as well as ways to combat it, have been described in detail. The most comprehensive mechanism for combating greenwashing has been developed in agricultural legislation and legislation in the field of organic production. However, large companies that position themselves as environmentally responsible, declaring their commitment to ESG standards, continue to mislead consumers using the greenwashing mechanism. In order to create legal instruments to combat greenwashing, the paper analyzes the environmental ESG criterion, presented as a set of three main basic principles (the principle of conservation/prevention/avoidance, the principle of reuse/storage, the principle of substitution/compensation). Applying these principles as a standard of assessment for the environmental policies of any company producing products, performing various types of work or providing various services can sufficiently determine whether the company adheres to the ESG principles and criteria or whether it is using the greenwashing mechanism.
Legal policy in the area of climate change is one of the main ones in both international and national relations. The process was initiated within the 1992 UN Framework Convention on Climate Change. Russia supported the creation of international institutions and the development of international legal documents to combat climate change, and pursued an active international policy. However, after February 2022, the situation has changed. Sanctions imposed by Western countries have made it impossible to implement many joint climate projects, which has led to the need for Russia to review its climate policy and adjust its regulatory framework. The paper examines international legal mechanisms for regulating climate processes; the legal system of climate regulation in Russia; implementation of climate programs at the level of a constituent entity of the Russian Federation. The role of scientific organizations in the implementation of climate programs is considered. The paper presents the opinions of foreign lawyers on the problems of climatology and the conclusions of Russian scientists on the legal problems of climate conservation. At the end of October 2023 Russian President Vladimir Putin signed a decree approving the new Climate Doctrine. In accordance with this document, conditions are being created for the state to achieve carbon neutrality by 2060. Carbon capture technologies must be developed and favorable conditions must be created for the development of carbon-negative projects. Digital platforms for trading carbon units are emerging to reduce the carbon footprint of human activities. Climate change is one of the most serious challenges of the 21st century, which represents a complex problem.
FOREIGN EXPERIENCE
The paper examines the potential of one of the key participants in international relations — India — from the perspective of trust issues. It is shown that the uniqueness of India’s historical path and the influence of socio-cultural factors on social processes determine the country’s position and activity in the international arena. Through the prism of digitalization processes, the prospects and risks of transforming Indian society both internally and in the sphere of international relations are outlined. The analysis of the legal framework made it possible to identify the value of trust for the formation of the socio-political order of Indian society. Harmonization of existing contradictions and ensuring a balance of social interests on the basis of an effective legal system is the basis for the sustainability of the Indian state, whose experience can be used by BRICS partners.
In recent decades, the family rights landscape in Iraq has undergone significant changes, reflecting the country’s dynamic social development. One of the key aspects of this development is the transformation in the area of the right to marriage. The paper examines the main problems associated with the refusal of the framers of the Iraqi Constitution to include the right to marriage among the constitutional rights. As consequences of this decision, we have identified: 1) the actual consequences associated with the artificial legitimization of forced marriage and the state’s retreat from the positions of counteracting it, stated in the reports on the achievement of the Sustainable Development Goals; 2) the legal consequences associated with the Supreme Federal Court of Iraq’s reconsideration of the legal nature of the right to marriage through the prism of Sharia norms, which de facto transform it into a legal obligation. Considering that such practice is formally consistent with the provisions of the Constitution of Iraq, when resolving the problem of the diminution of the right to marriage, it is proposed to be guided by international legal norms, which, within the framework of Article 8 of the Constitution, are mandatory for the legal system, and therefore cannot be violated either by the norms of domestic legislation or by the interpretations of the highest judicial authorities. To achieve the research objectives, the author used theoretical methods of dialectical analysis and synthesis, methods of generalization and comparative law (mainly in the retrospective (historical) aspect), and the formal legal method.
ISSN 2782-1862 (Online)