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Actual Problems of Russian Law

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No 5 (2019)
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PAGES OF HISTORY

11-23 626
Abstract

The article is devoted to the analysis of theoretical provisions of the main schools of German jurisprudence in the 19th — the first half of the 20th century in the context of legal consciousness and interpretation of law. The article determines the main theoretical premises of such important academic areas as: the Historical School of Law, Jurisprudence of Concepts, Jurisprudence of Interests, the School of Free Law, Legal Positivism and Neo-Cantianism. The author considers scientific works of the main representatives of these schools. The development of concepts of law and interpretation of law in the German legal doctrine demonstrates the connection of the doctrine of interpretation with the idea of law and real legal life. The historical period under consideration witnessed the work of many outstanding lawyers whose teachings had an impact not only on the legal science of many countries of Europe and Russia, but also on the legal doctrine of individual States belonging to the Anglo-Saxon legal family. Despite the different nature of their teachings, there is a link between the idea of law and their approach to the interpretation of legal provisions. This interaction is also inverse, many scholars have solved the problem of the essence of law by resorting to interpretive procedures. Tendencies similar to the tendencies typical for the German legal doctrine have found support both in the judicial practice of German courts and in the practice of the higher courts of the European Union. The article concludes that further development of the doctrine of interpretation of law requires not only the development of the methodology of interpretation of law, but also further developmentss in the philosophy of law.

PHILOSOPHY AND ETHICS OF LAW

24-33 535
Abstract

The problem of interaction of the semantic field of law, politics and morality has not been thoroughly dealt with in modern humanitarian literature despite the fact that the concept of the semantic field is known to humanitarians for a long time, and in separate disciplines (linguistics, cultural studies, psychology) it has been thoroughly elaborated in the process of development of the subject of the sciences in question. The purpose of the article is to identify the meaning and scope of the use of the concept of the semantic field in law, politics and moral sphere of the society, as well as to identify the problem of interaction of these fields, to propose ways of resolving the main problems encountered during the analysis. The research methodology applied by the authors represents a complex combination of ideas of dialectics, synergetics, hermeneutics, phenomenology, communication, as well as a normative-axiological approach to law. Sources on philosophy, politics, psychology, morality and law have been used. The main results of the research are as follows: the analysis of the concept of the semantic field in each of the proposed areas of social knowledge requires a meaningful reinterpretation of the conceptual apparatus and filling its elements with the meaning that corresponds to the goals, objectives and nature of the subject of the science in question, which also affects the peculiarities of the applied methods of cognition.

34-43 622
Abstract

On the basis of the analysis of the teachings of German canonists and theologians of the 19th century, a famous Russian jurist Mikhail A. Reisner elaborated his own system of views regarding the interrelationship between law and morality from the point of view of their existence in the Christian state. At the beginning of his academic life Mikhail A. Reisner was far from sharing socialist ideas and closer to the ideals of the rule-of-law State. Under the conditions of this type of the State «the moral law» acts as the predetermining social regulator; the concept of «personality altruism» is formed as the theoretical foundation for understanding of the civil society; law is explained through its properties of moral and conciliatory power; the «natural state» of the person is interpreted in the context of impossibility of influence of Christian dogmas on the subjective side of the human will. Despite the fact that Prof. Reisner considered unattainable the existence of a Christian State within the framework of the rule-of-law State, the scholar identified the issues of their joint jurisdiction. Conclusions drawn on the basis of the study of the works written by Prof. Reisner using his individual views concerning the philosophical and legal thought of other representatives of Russian law schools (B. A. Kistyakovsky, P. I. Novgorodtsev) allows the authors to reveal the commonality and relevance of their moral ideas for the modern period of time.

STATE POWER AND LOCAL SELF-GOVERNMENT

44-50 468
Abstract

In recent years, territorial public self-government has been used in various regions as an effective means of independent resolution of issues of local importance within a certain territory. This situation is preconditioned by the increasing State interference, including legal relations associated with the solution of issues of local importance, the development of management companies gradually expanding the range of their services, the existence and functioning of homeowners’ associations with varying degrees of effectiveness. In terms of creation and functioning of territorial public governments, the federal city Sevastopol has become a unique place in Russia. Prior to the accession of the region in question to the Russian Federation, the population actively participated in the solution of public issues, including issues of local importance, using the legal structures that were established under the Ukrainian legislation. It, in turn, granted quite a large amount of democratic freedoms to the residents of the city to which they are accustomed. With the beginning of the integration of Sevastopol into the Russian legal environment, some conditions for the implementation of direct democracy at the municipal level have changed taking into account the status of the region — the federal city with traditionally greater governmental influence on many issues due to the goal of preserving the unity of the urban economy. Another relevant aspect is that decision-making, including concerning the issues of local importance, in Sevastopol is carried out by officials, mostly from other regions, who lived in compliance with the Russian laws since the foundation of the Russian State and who bring their own understanding of local problems. As a result, a conflict arises between citizens seeking to implement forms of direct democracy and representatives of public authorities. The correctness of each of the parties in individual cases can be evaluated differently. The paper is devoted to considering one of them in legal practice.

51-59 1963
Abstract

The article is devoted to the analysis of types of municipal service and their classification. Based on the analysis of the legislation and legal doctrine, the author concludes that the list of principles of municipal service, enshrined in the legislation, is not exhaustive. It is proposed to allocate general legal, sectoral and institutional principles of municipal service that differ in the scope of action. He suggested that the general legal principles should include: the principles of priority of human and civil rights and freedoms; legality; equality; sectoral principles should include: the principles of unity of basic requirements to municipal service taking into account historical and other local traditions during municipal service; independence of local self-government bodies when regulating municipal service; differentiation of legal regulation depending on the type of municipality; combination of private and public principles in the regulation of municipal service; stability; openness; institutional (special) principles should include: professionalism and competences, nonpartisanism, liability of municipal employees for failure or improper performance of their official duties, interrelationships between municipal service and public civil service.

60-68 745
Abstract

The article highlights the activities of the constitutional (charter) courts of the constituent entities of the Russian Federation concerning the protection of social rights of citizens and their role in the mechanism of protection of these rights. The author provides examples from judicial practice on the issues of their respect, implementation and interpretation. Attention is paid to extra-procedural activities of constitutional (charter) courts and their contribution to the development and improvement of the theory of social rights, social norms of law, including through published and declared messages. The author focuses on their positive role in strengthening the constitutional legality and the principles of the Social State. The paper contains the statistical data concerning the consideration of cases, namely the ratio between court decisions on issues of social rights and the total number of final court acts (on the example of the constitutional courts the Volga Federal District). A number of key problems of regional constitutional proceedings are highlighted, including implementation (enforceability) of decisions of constitutional (charter) courts affecting social rights of citizens.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

69-77 862
Abstract

The article considers topical issues related to the implementation of the Concept of Construction and Development of Hardware-Software Complex «Safe City», approved by RF Government of December 3, 2014, № 2446-р, the main purpose of which is integration of information-analytical systems of public safety and security of the human environment into a single information space (monitoring, forecasting, alerts). The article investigates the process of implementation of the Concept, the organizational problems, highlights the insufficiency of legal regulation and methodical support of the issues of creation and development of agro-industrial complex «Safe city». In the process of research, general scientific and private scientific methods of cognition were applied: analytical, logical, structural-functional, comparative legal.
The main conclusion, drawn on the basis of the results of the study, is that in order to optimize the activities concerning creation and development of AIC «Safe City» in the territory of the Russian Federation it is required to introduce significant adjustments to the Russian legislation, to develop sufficient organizational and methodical basis, to develop mechanisms for creating a complex on the example of a pilot constituent entity of the Russian Federation .
The main contribution made by the author in this article is the conclusion about the need to develop legislation in the field of complex security, formulated theoretical and applied proposals for carrying out organizational and legal measures in the field of development of AIC «Safe City». The results of the study can be applied by authorized legislative and executive bodies in their practical activities.

FINANCIAL LAW

78-85 515
Abstract

The article deals with topical issues arising in law enforcement practice in connection with payment of dividends by Russian organizations to their foreign participants. At the beginning of the article, the author, relying on the current legislation, elucidates the concept of dividends in civil law and fiscal law contexts, on the basis of which he concludes that these concepts do not coincide completely. This discrepancy is caused by the fact that the concept of dividends in the contexts of civil and fiscal law includes, in addition to the distribution of profits, other payments to foreign organizations made in order to meet the fiscal interests of the State. Then, on the basis of a brief analysis of specific court cases, the author dwells on the content of the main controversial tax issues arising in practice regarding the payment of dividends by Russian organizations towards their foreign participants. Based on the results of the analysis, the author draws conclusions on possible amendments to the Russian legislation in order to avoid such disputes between tax agents and tax authorities in the future.

86-92 1228
Abstract

The article is devoted to the study of theoretical and legal aspects of counteraction to legalization (laundering) of proceeds of crime and financing of terrorism (CLP/FT) as a type of financial control. The article analyzes the place of CLP/FT in the system of financial law, identifies the characteristic features that allow us to separate CLP/FT into an independent type of financial control, highlights the main directions of CLP/FT as a type of financial control. The author comes to the conclusion that CLP/FT is a special type of financial control that has such characteristic features as complex character, a wide range of authorized control and supervision subjects, its own tools of control and supervision activities.

BANKING SYSTEM AND BANKING ACTIVITY

93-97 556
Abstract

The article considers the interrelation between the borrower-pays principle and the principle of good faith in lending to borrowers on the example of interest payment by borrowers and other payments under the loan agreement. The author analyzes the specificity of the principle of good faith when establishing, changing and collecting interest for the use of the loan and other payments under the loan agreement. The article concludes that the law does not contain special rules regulating the behavior of the creditor in the establishment and change of interest for the use of the loan and other payments, in this connection the provisions of the Civil Code of the Russian Federation on inadmissibility of unfair conduct of the parties should be applied. Taking into account that the provisions of the Civil Code of the Russian Federation concerning good faith of the parties are evaluative in nature, the author on the basis of court jurisprudence identified cases of bad faith behavior of the creditor when establishing or changing the interest charged for the use of the loan and other payments.
The article also defines the influence of the ratio between the borrower-pays principle payment and good faith concerning the forms and methods of protection of the rights of the borrower and improvement of the legislation on payment of interest and other payments.

LEGAL REGULATION IN THE INFORMATION SPHERE

98-110 651
Abstract

The principles of emerging legislation devoted to the processing of genetic information take their place among the informal legal phenomena. The identification of these principles is the task of the legal science and, in particular, of data protection law.
From the point of view of data protection law, the article presents a new author’s approach to the construction of the system of principles of the legal regulation of genetic information. These principles include: the principle of responsibility to future generations; the principle of freedom of scientific research; the principle of protection of human dignity; the principle of privacy.
Genome protection is aimed not only at preserving the life and health of a particular person, but also at preserving the genome of his or her descendants. This makes it possible to consider the genome as a heritage of mankind.
Freedom of scientific research in the field of genetics implies the freedom to study genetic information, but not the freedom to use it. With regard to scientific research of genetic information of representatives of a particular population, in addition to individual consent to the processing of such information, allowance is made for the consent expressed through the legitimate representatives of the groups or peoples concerned.
The ideas of extended and open consent of the person to the processing of genetic information are analyzed. The conclusion is made about the necessity of fixing the system of principles of legal regulation in the field of genetic information processing in a special law «On genetic information.»

CIVIL AND FAMILY LAW

111-119 2325
Abstract

The paper is devoted to the study of the new object of civil rights — the token (digital law). The question of the legal nature, civil law regime of digital rights is explored. The norms of the law on the concept and content of digital rights are analyzed. Consideration of a token as a digital method of fixing property rights makes it possible to consider it as a certain property value, the legal regime of which is similar to the «valuable rights» (Wertrechte) distinguished in the European continental law of the German type. It is concluded that the token performs several functions in the information system: 1) recognition of the authorized person; 2) a digital unit of the price of the share of a person’s participation in a business project, in construction investment; 3) a digital unit of the asset balance of the property of a legal entity; 4) digital equivalent of non-documentary securities; 5) the fulfillment of monetary obligations in digital form; 6) digital means of payment. Existing in the form of a digital entry in the register on the blockchain platform and performing various functions, the token as a fairly flexible digital (primarily financial) tool allows digital civilian turnover participants to perform digital «transactions» in cyberspace. The question of the possibility of qualifying the actions of users of the information system for making tokens as civil law transactions is analyzed.

120-128 728
Abstract

The paper deals with the problems of applying the conflict method of regulating relations connected with the introduction into the Russian Federation of digital assets that have become particularly relevant in recent times. A number of legislative initiatives aimed at regulating relations on the creation and / or exchange of digital financial assets are analyzed. The author defines digital rights — digital codes or designations that exist in the decentralized information system, they certify the rights of the holder of unique access to them to other («real») objects of civil rights, with the exception of intangible benefits. The author proposes to legislatively fix the rules that determine the location of an auction, competition or exchange location on the Internet by the location of the party organizing such an auction, competition or exchange. If that is not possible, the location is determined based on information on their location or location on the corresponding website, or by the domain name that provides the holding of such an auction, competition or access to an electronic exchange.

BUSINESS AND CORPORATE LAW

129-136 891
Abstract

The paper discusses two main concepts of corporate governance (European and American), the separation of which is due to the different attitude to the consideration of the interests of persons interested in the activities of legal entities (stakeholders). Despite the persistence of conservative approaches to corporate governance in some states (for example, the United States), this paper reveals the global trend of development and dissemination of stakeholder (European) concept, which recognizes the need to take into account the interests of various stakeholders — employees, creditors, public legal entities, etc. The author describes the approaches of Russian scientists to the role of stakeholders in corporate governance and on the basis of developing legal regulation and emerging judicial practice, concludes that domestic corporate governance is becoming closer to the European concept. It seems that the study of a legal entity through the prism of the stakeholder concept fundamentally changes the traditional design of this legal entity and makes it possible to systematically solve problems related to corporate social responsibility of legal entities.

137-143 704
Abstract

The paper examines the legal nature and features of escrow agreements (escrow) under Russian and foreign law, as well as the procedure for conducting mergers and acquisitions (M&A — mergers and acquisitions) under anglo-saxon and continental law. It is noted that both Russian entrepreneurs and foreign investors in such contracts prefer foreign law to Russian law due to the uncertainty of legal institutions. The authors analyze the possibility of using the escrow mechanism not only for cash, as it used to be before, but also for other property, in particular, uncertified securities. The paper analyzes amendments to the Civil Code of the Russian Federation which have recently entered into force, introducing chapter 47.1 into the Code. On its basis, the potential possibility of applying an escrow contract to mergers and acquisitions of companies is considered. The authors generally evaluate the effect of the new regulation as positive, but also draw attention to the lack of regulation of the institutions studied in the Russian legal order.

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

144-151 601
Abstract

Is a budget institution in the field of science and education independently entitled without the consent of the founder to dispose of the exclusive rights to the results of intellectual activity belonging to it? The status of the institution as a «holder» of the founder’s property makes one think about the need to apply, by analogy of the law, the provisions governing the right of operational management to relations regarding the disposal of the institution with its exclusive rights. Given the fact that the prerequisites for introducing the consent of the founder as a necessary condition for disposing of the valuable property the institution are equally applicable both to objects of real rights and exclusive rights to the results of intellectual activity. However, the author justifies the inadmissibility of the application by analogy of the law of the provisions of the Civil Code of the Russian Federation limiting the powers of the budget institution to dispose of the property assigned to it on the right of operational management, indicating that there is no regulation gap that would require replenishment. In this regard, the author comes to the conclusion that, as a general rule, a budget institution has the right to independently manage its exclusive rights to the results of intellectual activity without the founder’s consent.

CRIMINAL PROCEDURE

152-158 732
Abstract

The article reveals the essence of the «grounds» for conducting investigative activities — the most important guarantor of ensuring the constitutional rights of citizens involved in the field of such activities. Taking into account the analysis of legal literature, the most acceptable approach to the division of the grounds for conducting investigative activities into «actual» and «formal» (legal) grounds is highlighted. It is noted that in some cases, investigative activities can be carried out only if there are factual grounds, but with the mandatory registration of legal grounds in the future, after the implementation of such activities. The position is substantiated that certain circumstances that have been revealed experimentally — by operational and investigative practice — and are typical circumstances preceding, accompanying, or following a crime, can be considered as grounds for conducting investigative measures. The author’s position on what should be understood by the «grounds» for conducting investigative activities is highlighted.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

159-168 1047
Abstract

The author considers the conceptual issues of distinguishing the principles of criminology. Analyzing the opinions of various scholars on the issue under consideration, the author disputes the need to use the principles of the criminal process only in forensic science. The proposed three-tier system of principles of this science is proposed, including: 1) general (general scientific) principles natural for both the other sciences and practical activities; 2) private, natural for all forensic science in general. These are actually forensic principles that characterize its basis, directions of activity, and prospects for development. It is within this group of principles that we can distinguish a theoretical and practical aspect; 3) special principles of criminology: principles characteristic only of individual parts of criminology. Without going into the discussion about the system of criminology, let us highlight the principles of the general theory of criminology; principles of forensic technology; principles of investigation and tactics of investigative actions; principles of forensic techniques. The development of an optimal system of principles of criminology makes it possible to increase the efficiency of scientific and practical developments.

INTERNATIONAL LAW

169-182 1459
Abstract

The process of globalization, the development of information and communication technologies, networking are changing society dramatically and, as a result, its superstructure — law. International private law, by virtue of its own subject matter and special methodology, is at the forefront of the corresponding changes.
The paper examines the problems of defining the concept of territorial sovereignty in the non-territorial information space that are of serious importance in relation to private international law. Its principles are the general principle of the sovereign equality of states, acting as a general principle for private international law, and a special principle of the sovereign equality of national law of states. The problem of the realization of the territorial nature of the conflict of attachment formulas and the grounds of international jurisdiction in relation to a certain segment of the extra-territorial information space is posed. The issue of conditionality of the adaptation of the principles and methodology of legal regulation of public relations in the conditions of digital technologies by the need to understand the conditions and boundaries of the implementation of sovereignty, the jurisdiction of the state in the information and communication space is investigated. The processes comprehended within the framework of the science of international private law are to some extent relevant for other branches of law. This paper analyzes such indicators of current changes in the legal paradigm as the impact of information and telecommunication technologies on the development of private international law, the place and increasing importance of non-state regulation in the process of streamlining cross-border private law relations, and the development of non-state systems for resolving cross-border disputes. The authors touch upon the problems of the use of blockchain technologies and the protection of intellectual property in cross-border private law relations; private adhocracy rulemaking, the formation of various social phenomena in the key lex mercatoria, the influence of international commercial arbitration, online platforms on the formation of current trends in the field of resolution of crossborder disputes, etc.

INTEGRATION LAW

183-192 593
Abstract

This paper is devoted to the consideration of certain aspects of legal cooperation in civil matters related to the determination of jurisdiction, recognition and execution of court decisions, as well as the definition of law to be applied when considering cross-border cases within the EU. At the EU level, an entire system of unified legal norms has been created governing the procedure for handling cross-border disputes in civil matters within the Union. At the same time, the EU’s goal is not to replace national procedural legislation with Allied acts, but to facilitate access to justice in civil cases of a cross-border nature in the context of close economic integration. The author analyzes the concept of «legal cooperation in civil matters», and also reveals its key elements. The paper highlights and examines in detail the four modes of consideration of cross-border cases within the EU, notes their features, as well as analyzes judicial practice.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

193-204 716
Abstract

The paper is devoted to identifying the specifics of rule-making in the field of land, city-planning and natural resource law, including the main innovations in the field of normative legal regulation of land, city-planning and nature-resource relations, trends in the development of state policy in this area, the impact of state strategic planning documents on law-making in the field of land, urban planning and natural resource relations, as well as general trends and prospects for the development of modern Russian land urban planning and natural resources legislation. According to the results of the study, the authors come to the conclusion that it is necessary to adopt a basic document, which will lay the conceptual basis for the formation of an integral, consistent, systemic, institutional environment for the ecological (including natural resource), land and town planning legislation. Creating «development institutions» of rule-making, based on specific, achievable, long-term goals, objectives, means and methods, is perhaps the most difficult, but necessary stage of transition to the new characteristics of rule-making in the field of land, city-planning and nature resource law.

LEGAL EDUCATION AND SCIENCE

205-213 600
Abstract

International scientific projects aimed at the creation and operation of megasiens class facilities and, accordingly, at obtaining breakthrough, innovative scientific results of global significance are called megascience class projects. Currently, there are several large-scale megasiens projects in the world, each of which is aimed at addressing the global challenge facing humanity. The next qualitative stage in the development of civilization is impossible without the elimination of bottlenecks that prevent such a progressive movement. One of the most pressing global problems is to increase energy efficiency and develop technologies for obtaining and using alternative renewable sources of electric and thermal energy, as well as gaining new knowledge about the structure of matter and the evolution of the Universe from the Big Bang to the present. The megascience projects of ITER and FAIR are called to solve these problems, an important role in the financing and technical implementation of which is played by the Russian Federation.



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