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Actual Problems of Russian Law

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Vol 19, No 11 (2024)
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FINANCIAL LAW

11-20 281
Abstract

The paper discusses the issues of digitalization of budgetary relations. It is noted that digitalization means organization of the fulfillment of functions and activities that were previously performed by people and organizations without the use of digital products. The author concluded that digitalization of the sphere of public administration is reflected in a change in the mechanisms of interaction between authorities and individuals and organizations; expresses the transformation of the content of the internal activities of the authorities. The paper defines the electronic budget as an information system that includes a single portal of the budget system of the Russian Federation, centralized and service subsystems that support budget planning, revenue management, expenses, public debt, financial assets, cash, purchases, as well as digitalization of other mechanisms for managing public finances. The paper compares electronic and digital budget. The latter is considered as an economic, legal and material category both from a substantive and managerial point of view.

LEGAL REGULATION IN THE INFORMATION SPHERE

21-30 251
Abstract

Data is a fundamental object for the functioning of new digital technologies, artificial intelligence and the entire digital economy. For this reason, many legal acts use the concept of «data» rather than the concept of «information.» However, Russian legislation and the doctrine have not developed any criteria for distinguishing these concepts, which leads to the existence of three different approaches to understanding and correlating these categories. As a result, errors and inaccuracies can be found in the terminological apparatus. Having analyzed various points of view, we can state that data is unstructured and chaotic; information has a certain context and holistic content, while data can be transformed into information, and information into data. Data is always primary, because by combining them, a certain context and content are built thereby forming information. Proving this statement in the framework of the regulation of personal data, the author concluded that the main object of these legal relations should be called «personal information» rather than «personal data» since the data itself does not contain personal information, but if this data can be used for identification and associated with a particular individual, then it can be argued that they are converted into personal information and are subject to regulation within the framework of personal data. In addition, in the new edition of Art. 71 of the Constitution of the Russian Federation introduced a new concept of «digital data,» which had not previously been used in Russian legal regulation. Thus, it can be argued that digital data primarily refers to data processed using information technology and available for processing in digital form, for example, open data.

CIVIL AND FAMILY LAW

31-43 122
Abstract

Registration of an international interest under the rules of the Cape Town Convention is aimed at establishing priority for such an interest in relation to all third parties, but it does not constitute the basis for the occurrence of the corresponding security obligation. The purpose of registering an international interest is to notify third parties of title or encumbrance. The debtor is a party to the relevant security agreement. If the creditor does not register his security interest (guarantee), the debtor cannot deny its existence or act without taking into account the creditor’s rights under such a guarantee. Competition on the priority of security rights in relation to the same property cannot arise between the debtor and the creditor. The debtor cannot deny that the creditor has rights under the security agreement. The study states that the rules of the Cape Town Convention on priorities are not subject to unconditional application. When considering a dispute over security rights to property, the court should be guided not only by the provisions of the Cape Town Convention on Priorities, but also by the fundamental principles and norms of national law (applicable law). Fundamental principles of civil law cannot be abrogated by Cape Town Convention rules.

44-51 147
Abstract

The paper considers the distinctive features of the terms of the lease agreement for objects of cultural heritage (OCH), as well as the procedure for its conclusion. Special attention is paid to the subject of the contract — objects of cultural heritage, security obligation, price and a term of the contract. It is noted that an essential condition of the OCH lease agreement is a security obligation, which must be incorporated into the agreement. The author explains the peculiarity of the term for the execution of the lease agreement of the OCH that means the fact that the legislator has provided for the possibility of transferring OCHs in unsatisfactory condition immediately for a maximum period of 49 years. The author notes that such a term condition allows making the contract more investment attractive to potential tenants. It is concluded that the lease agreement for cultural heritage objectshas a dual legal nature and is an atypical form of civil legal relations. The author proposes his own concept of a lease agreement for cultural heritage objects.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

52-63 283
Abstract

Based on the results of an analysis of the materials of judicial practice of ctate comercial (arbitrazh) courts and courts of general jurisdiction, the author highlights two law enforcement problems of summary proceedings related to the assessment of the claims as indisputable. The first is manifested in the difficulties of distinguishing the presence of a defect in documentary evidence of claims (lack of a submitted application), which is the basis for returning an application for a court order, from the existence of a dispute about the right that entails a refusal to accept this claim. Accordingly, these powers are misapplied by the courts, which affects the access to justice of interested persons, since the procedural and legal consequences of returning an application for a court order are not defined by law, and in practice there are different points of view on this matter. The second problem involves the lack of uniformity in the courts’ understanding of such a condition for the indisputability of claims as their recognition by the debtor. To solve the first problem, it is proposed to give the court the authority to leave the application motionless in summary proceedings and to achieve uniformity in the assessment by the courts of the claims as recognized by the debtor, to expand the relevant explanations of the Plenum of the Supreme Court of the Russian Federation.

64-72 152
Abstract

The institute of compensatory mechanisms, introduced in 2020 in constitutional proceedings, aims to compensate the applicant for complaints to the Constitutional Court of the Russian Federation for the negative consequences of violation of his rights by the use of a normative legal act recognized as unconstitutional or inconsistent with the Constitution of the Russian Federation in the interpretation given by the Constitutional Court of the Russian Federation. This legal institution is quite actively used by the Constitutional Court of the Russian Federation. However, attempts to implement it by applicants face a number of difficulties due to both the lack of legal regulation of peculiarities of the procedure for considering cases on the application of compensatory mechanisms to applicants and incorrect understanding by the courts and applicants of the legal nature of the institution of compensatory mechanisms. The paper analyzes the actual need and considers the prerequisites for the legal regulation of summary proceedings as a special type of proceedings in courts of general jurisdiction and arbitrazh courts, which has a pronounced public character and significantly differs from the claim proceedings by the mechanism for considering the case. The author raises procedural problems when the courts consider cases in summary proceedings and proposes ways to resolve them.

BUSINESS AND CORPORATE LAW

73-84 60
Abstract

The borrowing of foreign legal structures into Russian civil and business legislation also affected the institution of compensation for losses. The article analyzes the provisions of the private law institution of compensation for losses, primarily used by participants in civil and commercial turnover in contractual relations. The paper examines the possibility of using this institution when approving local acts of a corporate organization (charter, internal regulations and other internal documents), as well as when adopting legal customs in writing (for example, rules for interpreting trade terms, customs of seaports). The study covers the prospects for applying the institution of compensation for losses in the field of entrepreneurship in general. Additionally, the author examines the sphere of the military-industrial complex where the public interests of the state are clearly demonstrated. In conclusion, it is proposed to use the institution of compensation for losses in the field of local rule making and in the formulation of legal customs. As a general conclusion, it is proposed to supplement domestic civil and business legislation with a rule of law that allows including provisions on compensation for losses in the sources of law under consideration, and not only in the agreements made between the parties.

84-95 158
Abstract

The paper examines the history of the emergence of the institution of redomiculation and its development, as well as the legal reasons for its formation. The author carries out a comparative analysis of the legal institution of redomiciliation in the Russian Federation, the Republic of Cyprus and the British Virgin Islands. The paper also elucidates the experience of Great Britain in preparing for the legalization of the institution of redomiculation. The author examines the current legal features of implementation of redomiciliation in the legal field of the Russian Federation in the modern political and legal reality, analyzes the legal benefits provided to redomiciled companies, highlight the experience of Russian companies in their application. The author describes practical difficulties and current trends in the implementation of the redomiciliation procedure in the Russian Federation, taking into account external sanctions pressure. The paper provides recommendations to support redomiciliation. Proposals are formulated to improve the redomiciliation procedure in the Russian Federation. The concept of the redomiciliation procedure is described with due regard to the analysis of the above-described features of this legal institution.

CRIMINAL LAW

96-105 112
Abstract

The paper continues the topic started in issue No. 4 (2024) of the «Aktual’nye problemy rossijskogo prava» journal and deals with unexpected appearance and hasty adoption of laws on amendments and additions to the Criminal Code of the Russian Federation, «which are not discussed in the legal community and do not receive a proper expert assessment» (see: Skoblikov P.A. Criminal Liability for Assisting in the Execution of Decisions of International Organizations in which the Russian Federation does not Participate. Aktual’nye problemy rossijskogo prava. 2024;19(4):129-141).

The timeline of the appearance of Article 284.3 in the Criminal Code of the Russian Federation shown in the aforementioned publication confirms that the topic we are talking about has become even more relevant in connection with the start of a special military operation by Russia. This fact, given its scale and significance, cannot but necessitate adjustments to national legislation, including criminal legislation. However, this does not mean that there are reasons for moving towards «hasty legislation», for adopting laws in an unimaginably short time that have little in common with the drafts submitted to the State Duma for consideration or already adopted in the first reading.

The paper substantiates the possibilities of improving the procedure for introducing and considering bills on amendments and additions to the Criminal Code of the Russian Federation. One of such possibilities is to establish in the State Duma Regulations a rule that such draft laws are introduced simultaneously with the official review of the Institute of Legislation and Comparative Law under the Government of the Russian Federation and reviews of law universities that have experience of cooperation with the State Duma in terms of conducting scientific legal examination of draft laws (in particular, Kutafin Moscow State Law University (MSAL)). At the same time, reviews should also be given to draft legislation adopted in the second reading, and they should be carried out by specialized departments as the most competent scientific divisions of universities.

106-113 232
Abstract

The development of artificial intelligence technologies naturally entails the transformation of digital crime and the emergence of completely new types of crimes previously unknown to domestic criminal legislation. The use of deepfake technologies in committing fraud, as well as the so-called cyber kidnapping of a person (persuading him under deception to leave his place of residence and hide from his relatives) with the purpose of extorting a ransom for his «release» is a completely new form of cybercrime, the social danger of which is recognized at the highest legislative level. The classification of the above-mentioned acts under the current criminal law is of necessity and does not fully cover the elements of the crime, primarily its objective side. In this regard, the author proposes two ways of developing criminal legislation: the introduction of criminal liability for the use of deepfake technologies when committing encroachments on property relations in a separate provision of the law or as classifying features of existing bodies of crimes. The second option is an explanation by the Plenum of the Supreme Court of the Russian Federation as to specification of the methods of committing such crimes and actions as part of the objective side of illegal deprivation of liberty, which will make it possible to form a uniform judicial practice.

114-122 99
Abstract

The paper, relying on the comparative historical method of cognition, undertakes an analysis of the development in Russian legislation of statutory regulation of responsibility for organizing criminal activities. The aim of the study was to determine the historical prerequisites for the emergence of this institution, its formation and acquisition of certain forms in the process of its development. A retrospective review of the legislative framework of various historical periods in this aspect made it possible to determine the patterns of establishing criminal liability for organizing criminal activity depending on the historical period. Particular attention is given to the norms of criminal legislation of the pre-revolutionary and Soviet periods of Russian history, the main legal landmarks that established criminal liability for the type of criminal activity in question are studied. It is concluded that in criminal legislation, almost until the 18th century, there was no liability for organizing a criminal community; its final formation occurred only in the modern period.

INTERNATIONAL LAW

123-135 67
Abstract

The paper examines the issues of liability in the operation of maritime autonomous surface ships (MASS). Cases of liability based on an event without the need to determine fault, as well as cases of liability based on fault, are considered. Since human involvement in the management of the MASS is significantly limited or absent, it is complicated to determine fault in the event of a marine incident resulting in damage. New subjects, compared to a classic vessel, are included in the decision-making process for vessel management, which requires rethinking of the concept of legal regulation of liability for damage arising in connection with the operation of the MASS. Various scenarios are analyzed, from «change nothing» to «sole responsibility of a MASS», and a conclusion is made about the most acceptable scenario - joint and several liability of the ship owner, developers of technical equipment and software for autonomous navigation systems, as well as the organization that manages the autonomous vessel.

136-146 72
Abstract

The scientific paper is devoted to the study of issues of terminology in the field of international legal protection of cultural heritage and the periodization of the development of this protection. The author traces the history of the enshrinement of the concepts of «cultural heritage» and «cultural property» in international law. These terms are highlighted by the author as the most commonly used general concepts for designating objects of protection in international legal acts in the sphere of protection of architectural monuments, works of fine art, archaeological finds, customs, forms of expression and representation, etc. Attention is drawn to the synonymy of the two mentioned terms in practice, as well as when they are used in international legal acts. At the same time, they are distinguished from a theoretical point of view. In this regard, the reasons for the transition in international law from the term «cultural values» to the concept of «cultural heritage» are explained. The definition of cultural heritage is formulated from the point of view of international law. The periodization of the development of international legal protection of these objects and manifestations is being carried out, which is made possible, among other things, by the aforementioned changes in the terminology used. There are two broad stages in the development of this protection: from 1874 to 1954 and from 1954 to the present day. The second stage is further divided into two parts: from 1954 to 1972 and from 1972 to the present day.

147-158 82
Abstract

The paper examines various types of mechanisms for resolving interstate disputes provided for by regional trade agreements and provides a typology of them. It is noted that modern regional trade agreements are evolving towards the use of independent judicial or arbitration mechanisms that issue binding decisions on disputes, with ad hoc arbitration tribunals leading by a significant margin. In practice, however, the proliferation of regional trade agreements has not led to an increase in the number of trade disputes being dealt with under the relevant regional mechanisms. The vast majority of such mechanisms remain unused due to the fact that states parties to such agreements still prefer to consider disputes between themselves at the level of the World Trade Organization, despite the termination of the activities of the WTO Appellate Body. Regional mechanisms are used primarily to resolve disputes that concern issues outside the WTO (such as compliance with labour standards, health and safety, and the environment).

159-169 62
Abstract

The process of codifying universal criminal jurisdiction has been taking place for more than 15 years. An informal and official codification are tacitly distinguished. The unofficial principles include the Princeton and Krakow principles, which highlighted the gaps in the study and application of universal criminal jurisdiction. Formal codification includes the work of the Sixth Committee of the General Assembly of the United Nations, in which universal criminal jurisdiction is studied in more detail on the basis of positions provided by UN member states. The issues of application and codification of criminal jurisdiction require further study by the international community, which is aware of the need for universal jurisdiction in view of the particularly serious nature of certain crimes committed in the world, in which jurisdiction extending to the sovereign territory of a state often proves powerless. Universal jurisdiction is a key definition in the fight against impunity for crimes in the 21st century, requiring legal regulation for its implementation in accordance with international law. The paper examines the issues on which states must reach a consensus: the scope and coverage of universal criminal jurisdiction, the conditions of its application, the crimes falling under it and, of course, the definition of the term.

COMPARATIVE LAW

170-184 136
Abstract

The paper examines Russian and European legislation, doctrine and judicial practice devoted to the autonomy of will in cross-border torts. In Russian legislation, autonomy of will appeared due to the innovations caused by the Federal Law of September 30, 2013 No. 260‑FZ «On Amendments to Part Three of the Civil Code of the Russian Federation». This law, in turn, was based on the provisions of Regulation No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations. During the Soviet period, conflict of laws regulation of cross-border torts was limited to the application of domestic law. An analysis of more than a decade of use of autonomy of will in cross-border torts in Russia and abroad has shown a relatively low demand for the norm, which is due to legal, psychological, and classification reasons. At the same time, an appeal to the autonomy of will in cross-border torts involving private individuals may be justified if the parties want to choose, from their point of view, the optimal, modern, and easier to apply legal regulation.



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