THEORY OF LAW
The article deals with the problems associated with digitalization of the legal environment and some types of legal activities. The problems under consideration include the increase in electronic document flow, the so-called «electronic justice», electronic communication technologies in legislative and law enforcement activities. The author substantiates the premise concerning the inevitability of transformation of the legal system under the influence of information and communication technologies. The article describes the experience of some foreign countries where the technologies of the Fourth Industrial Revolution have been used for quite a long time. The problems that arise due to the use of digital technologies in the legal sphere are outlined. The author highlights the role of digital information and its importance for managerial and administrative decision-making and maps changes associated with legal forms of the activity of the State. Predictions are made regarding the development of the legal system and the system of legislation, legal profession and some types of legal activities in the short term. The author substantiates the premise that the development of technologies is almost the main factor of competitiveness of a modern State.
PHILOSOPHY AND ETHICS OF LAW
The paper analyzes the phenomenon of digitalization in modern education in the context of moral and philosophical positions on the example of a law university and in light of comprehension of the possible future (what is inherited from the past should be human, reasonable and viable). Based on the analysis of digitalization procedure and its consequences, including in the educational field of a law university, the author introduces an approach according to which teachers are called not only to give young people a certain amount of knowledge, but also to build a morally justified, promising paradigm of proper application of knowledge in terms of development and improvement of the person and society, including their individual institutions that are, inter alia, related to business activities.
FINANCIAL LAW
The article is devoted to the study of the influence of digital economy on financial law. It is determined that in the context of economy digitalization, new technologies, on the one hand, lead to the expansion of the subject of legal regulation, and, on the other hand, they represent a tool that promotes regulation, administration, financial control and supervision. The paper discusses various types of financial technologies, primarily regulatory (RegTech) and supervisory (SupTech) ones. According to the results of the study, the author concludes that the term regulatory technologies is generally inappropriate. In addition, it should be said that, in a narrow sense, financial technology provides for a set of instruments and methods used exclusively in financial markets and, in broad terms, used in all areas related to financial regulation, control and supervision.
BANKING SYSTEM AND BANKING ACTIVITY
Based on the analysis of legal risks of using smart contracts in banking activities, the author concludes that there is a need for special legal regulation of the use of digital technologies in banking, which would minimize the legal risks examined in the paper. The author believes that such legal regulation in order to minimize legal risks should define a smart contract as a way of fulfillment of obligations rather than as a design of a contract concluded in writing. Analyzing the legal risks associated with the person identity during the introduction of digital technologies in banking, the author suggests the use of blockchain technology as the basis of the system of identification of customers using exclusively the advantages of this technology in compliance with the requirements of international standards and national legislation regulating counteraction to laundering of proceeds of crime and financing of terrorism. This solution will simplify and protect the system of identification and processing of data regarding the clients of banks, but it requires effective state support and legal regulation.
CIVIL AND FAMILY LAW
Currently, relations in the digital economy are developing in the context of the Fourth Industrial Revolution, and their regulation is changing. At the same time, environmental problems and limited resources are gradually changing attitudes towards the culture of consumption: there is a tendency to shift from the consumption society to the sharing economy characterized by the collective use of goods and services. These trends are evident in various areas, including ownership and the use of immovable property, in particular dwellings. Currently there are various services, such as Airbnb, that give an opportunity to grant real estate for use and such a format as sharing office space (co-working) is developing. It is relevant to define the nature of contracts that arise between users and owners of services or directly between users to establish the rights and obligations of the parties, the extent of their responsibility, which requires a more detailed study of the problem.
The article deals with the main issues of improving the Russian civil laws concerning the form of transaction the majority of which are associated with the adoption of the Federal Law of March 18, 2019, No. 34-FZ «On Amendments to Parts I, II and Article 1124 of Part III of the Civil Code of the Russian Federation.» The adoption of amendments mentioned above was preconditioned by the implementation of the federal project «Normative Regulation of the Digital Environment» within the framework of the National Program «Digital Economy of the Russian Federation.» The author highlights similarity of approaches perceived by the Russian law-maker with the provisions of international instruments, in particular the UNCITRAL Model Law on Electronic Commerce of 1996 and the UN Convention on «The Use of Electronic Communications in International Contracts» 2005. It is concluded that, as a result of transformation of requirements for the form of contracts, 2 main variations of written form (a single document signed by the parties, and exchange of documents) and 2 basic fictions of this form (accepting by conduct of a written offer and making a transaction by electronic or other technical means) have been approved.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
The article is devoted to the study of possibilities of application of methods and means of legal forecasting for law-making, judicial law-enforcement and rendering legal assistance in the context of the development of information technology in civil proceedings. Forecasting technologies are being examined on the example of the analysis of one of draft laws in the context of civil proceedings. The article deals with the issues of formation of working groups of futurologists, data collection during examination of the forecast background using digital technologies, creation of forecast legal models in assessing legal risks with the use of computer software applications. The author emphasizes the importance of participation of academic community in legal forecasting, as well as the need to develop the foundations of legal regulation of the use of prognostic technologies and the need for the State control in this area.
BUSINESS AND CORPORATE LAW
The article reveals the content and outlines approaches to the definition of the legal nature of mining. Attention is drawn to the necessity of legal regulation of this activity, which is predetermined by the Federal Program «Digital Economy of the Russian Federation» — a project that provides for normative regulation of the digital environment. In order to support the mission to eliminate digital illiteracy, which is also envisaged in the National Program, the author elucidates the etymology and meaning of the term «mining» and considers various doctrinal interpretations of this concept. The paper presents such analogies of the blochchain technology as the public ledger, DNA, and a layer-cake for a better understanding of the blockchain technology that is associated with mining. Material-technical and organizational foundations of mining are revealed. The author demonstrates advantages and disadvantages of solo mining, pool mining, and cloud mining. The results of comparative monitoring of the attitude to the recognition of cryptocurrency as a means of payment are presented. Attention is drawn to the liberal legal regulation of blockchain technology and mining under the laws of the Republic of Belarus. The paper determines the stages of a law-making process aimed at legal support of mining in Russia. Based on the results of comparison of concepts of entrepreneurial activity and mining, it is concluded that mining represents one of new types of entrepreneurship brought to life due to the needs of digital economy. The author suggests that
mining participants be recognized as self-employed persons. It is noted that the entrepreneurial nature of mining arises questions concerning measures of its state regulation which is difficult within the framework of the existing paradigm, but should be built on the basis of a balance between private and public interests.
In order to develop the digital economy in the Russian Federation, the Program «Digital Economy of the Russian Federation» that is aimed, inter alia, at the formation of a regulatory framework for the legal regulation of new relations in the field of digital economy, was approved by the Decree of the Government of the Russian Federation No. 1632-r of July 27, 2017. Particularly relevant in this regard is the issue of cryptocurrency and bitcoin legal regulation. The article deals in detail with a special type of cryptocurrency, namely: bitcoin. The author analyzes the main problems associeted with the necessity of legal regulation of cryptocurrencies. The conclusion is made that legal regulation of cryptocurrency as a means of payment requires a complex approach and it is impossible without due regatd to the peculiarities of legal regulation of bitcoin. The paper provides for the interaction between the concept of bitcoin and other key concepts, namely: virtual currency and digital currency. The author concludes that it is necessary to create a non-governmental self-regulatory organization supported by the State in order to protect the interests of the cryptocurrency business. Since legal regulation of cryptocurrencies is global in its nature, the article examines the foreign experience of legal regulation of cryptocurrencies and their types.
LEGAL PROTECTION OF INTELLECTUAL PROPERTY
Digital technologies development has affected almost all spheres of human activity. Today, technologies of virtual and augmented reality can be referred to as the most significant results of digital transformation of the economy. The qualitative development of these technologies, as well as their active and widespread application, leads to many legal problems. One of them involves the problems concerning determination of mechanisms of protection of technologies of virtual and augmented reality, as well as products of their use under the rules of intellectual property law. The article considers peculiarities of the legal nature of virtual and augmented reality technologies, analyzes the concepts of virtuality, virtual and augmented reality in the context of various approaches found in the relevant literature. The paper scrutinizes the main objects of intellectual rights implemented in technologies of virtual and augmented reality, as well as objects generated by them. The authors draw a conclusion that it is possible to ensure protection of the results of intellectual activity and means of individualization by the main institutions of intellectual property rights protection, but the authors express concerns about the need to develop new models to protect the results of creative work in this area.
LABOR RELATIONS AND SOCIAL SECURITY
The article deals with two key challenges to the labour law associated with the digital technologies’ development: changing structure of employment in general (the shift of economy from industrial production to services’ model, emergence of the new professions accompanied with decline of the traditional ones, etc.) and transformation of employment relations because of the growing number of new types of work. The latter trend leads to the problem of erosion of the key traditional features of employment relations including the subordination and control by the employer. In the light of the first challenge, the author considers the issues of the most vulnerable group of workers — employees of the pensionary and pre-pensionary age.
The second issue of transformation of employment leads the author to the proposal to start the academic debate concerning the perspectives of establishment of legal mechanisms of the economically dependent workers irrespective of their legal status (employment or civil law relations).
CRIMINAL LAW
Any industrial revolution not only opens up new opportunities for society and the state, but also endows criminals with previously non-existing methods and tools for committing crimes. Automation and production robotization, artificial intelligence, 3D printing, the creation of new materials and technologies (biotechnologies and information technologies), etc characterize the fourth industrial revolution. One of the objects of the criminal law protection under threat of harm due to digitalization is the economy (public relations arising from ensuring the normal functioning of the economy as a single national economic complex).
At present, it is possible to distinguish such cyber threats for the economy as attacks on banks, on a broker, on a settlement system, embezzlement through Internet banking and some other actions carried out through the use of malicious programs. Their main purpose is misappropriation of other people’s property. The most common methods of embezzlement are the manual transfer of funds from the computer of the account owner through the remote access, automatic software upload, social engineering method, the use of an ransomware program, illegal use of the brand, etc.
In the conditions of digitalization, the science of criminal law faces the task of developing a model for systematic updating of domestic criminal legislation, developing general rules and clear criteria for its implementation, rather than a spontaneous response to the immediate needs of a law enforcer by designing special cybercrime compounds.
The paper describes the existing in Russia regulatory legal responsibility for causing harm by a highly automated (unmanned) vehicle (BTS). The most significant documents currently include: Convention on Road Traffic; Road Safety Strategy in the Russian Federation; «Roadmap» to improve legislation and eliminate administrative barriers in order to ensure the implementation of the National Technology Initiative for the «Avtonet». The main attention is given to the order of the Government of the Russian Federation, in which the first approaches to the regulation of the operation of highly automated vehicles are indicated, the actors responsible for the case of damage by the drone are highlighted. The principles of the functioning of the BTS and the degree of their autonomy are shown in general terms. The authors analyze the approaches in the domestic criminal law to the responsibility of persons managing BTS and the approaches developed in foreign countries in relation to the regulation of the operation of highly automated vehicles. The main approaches to the definition of a criminal law prohibition are indicated and the most important algorithms of criminalization of the considered act are highlighted. The structure of the federal law on the regulation of the use of vehicles equipped with an automatic control system in the territory of the Russian Federation is proposed.
CRIMINAL PROCEDURE
The testimony of witnesses represents the type of evidence, without which practically no criminal case can do. It is the significance of this type of evidence that determines the legislative requirements for the regulation of preparation and the procedure for the interrogation of a witness, as well as for the recording of evidence. This is of particular importance both from the standpoint of ensuring the admissibility and reliability of evidence, as well as from the point of view of ensuring the rights and legitimate interests of persons involved in criminal proceedings. The national legislation of modern states creates its own standards for the use of witness testimony in proving criminal cases. With all the variety of approaches, the importance of information technology in the collection, testing and evaluation of witness testimony can be viewed in the following main areas: as a means of fixing an investigative action, as a way of establishing the actual circumstances relevant to the case, as a means of ensuring the production of an investigative action, and as a means of transmitting information.
Based on the analysis of the criminal procedure legislation of the Russian Federation and some foreign countries, the paper examines the problems of legislative regulation of the use of digital technologies during the interrogation of witnesses, including remote interrogation and deposition of witness testimony. Special attention is given to distant interrogation at the request of foreign countries.
The paper deals with topical issues of ensuring access to justice in criminal proceedings, and substantiates the need to change the paradigm of the pre-trial proceedings. The new digital reality Industry 4.0 assumes a tremendous pace of development, profound changes in all spheres of society, including criminal proceedings. The author argues that the digital transformation of criminal proceedings in terms of ensuring access to justice is impossible unless the legislative model (algorithm) of the initial stage of criminal proceedings ensuring access to justice is changed. The key point in the transformation of the pre-trial proceedings should be the electronic interaction of the state and society (population) in the new digital reality. There are fundamentally new opportunities for participation in criminal proceedings (including remotely) and new opportunities to influence decision making and control over decision making (automatization of a crime report and the start of investigation registration, the ability to file complaints, petitions, receive notifications, copies of decisions in electronic form).
The proliferation and active use of technical means of audio and video recording in the process of identifying and proving certain types of crimes leads to the need to rethink the correlation of certain theoretical concepts. The paper analyzes similar elements and differences in the grounds for initiating a criminal case and the grounds for accusation. Attention is drawn to the convergence of the content of these concepts in the conditions of the spread of digital technologies in criminal proceedings. It is suggested that the use of audio and video recordings in a cognitive procedure has a significant effect on the inner conviction of the investigator and the inquiry officer when making procedural decisions. The possibility of initiating a criminal case is analyzed solely on the basis of audio and video. The author states his point of view on the inadmissibility of simplifying the procedure for establishment of evidence in cases of audio and video recordings, along with confessions, since in this case there is a violation of the basic foundations of cognitive activity in criminal proceedings.
THE BAR AND NOTARY PUBLIC SERVICE
The paper provides an overview of the general features of an «environmental approach» in the field of information. The relationship and interrelation of the concepts «digital ecosystem», «software ecosystem», «ecosystem of digital economy», «ecosystem of information society», «IT (digital) advocacy ecosystem» is defined. The importance of the IT (digital) ecosystem of the advocacy as a part of the ecosystem of the digital economy of Russia and the ecosystem of the information society has been determined. The author describes the structure and gives the general characteristic of the IT (digital) ecosystem of the advocacy.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
In the paper, modern blockchain technologies are called a revolutionary phenomenon, equal in importance to the ingenious invention of the 20th century — the Internet. Originally developed for Bitcoin digital currency and launching the network of the same name, the blockchain technology created a platform for the new type of the Internet, influenced the decentralization of the Network according to the distributed registry principle, and began to be used in various types and combinations for various purposes, including cybersecurity. The paper argues that the use of blockchain technology to ensure cybersecurity is infinite due to such unique properties as reliability, accessibility, high adaptability, economic efficiency, profitability. The use of blockchain technologies to combat cybercrime, including cyberterrorism, may extend to control over financial services, transportation or any other industry. However, the growth of criminal activity using the blockchain technology will also be enhanced if the law enforcement agencies are not technologically competent, can detect these developing centers, determine their actions and destroy plans at a faster pace.
The paper analyzes the results of studying the current practice of identifying, fixing, preserving and anticipating the forensic examination of the study of digital traces of crime. As a toolkit for monitoring investigative and operational investigative activities in this area, there were applied personal conversations and surveys of employees of the Investigative Committee of the Russian Federation, investigative and operational search units of the Ministry of the Interior of Russia, employees of other services and departments, students of the relevant specialization. In addition, experts in the field of computer information technologies from both the private and public sector, involved in investigative actions and operational search activities were interviewed.
The paper presents the results of this study, identifying current problems of criminal justice, faced by law enforcement officials investigating crimes involving information and computer technology, while seizing and recording computer information.
INTEGRATION LAW
Legal regulation of the use of personal data is essential in ensuring the quality of scientific research. Regulation of the European Parliament and of the Council of the European Union No. 2016/679 of April 27, 2016 «On the protection of natural persons with regard to the processing of personal data and on the free movement of such data», repealing Directive 95/46/EC, aims to unify the standards governing the protection of human rights to privacy, certain conditions beyond. This novel, introduced by the Regulation in the EU legal framework, complements and updates the acquis communautaire achieved within the framework of Directive 95/46/EC on personal data protection. The Regulation establishes both general rules applicable to any type of personal data processing and special rules applicable to the analysis of certain categories of personal data, such as information obtained during clinical trials. This paper provides an overview of new standards (in force since May 2018) that regulate aspects of personal data processing in the context of research activities (personal health data, genetic, biometric information, etc.)
THE JUDICIARY AND COURT SYSTEM
Formation technologies and cloud database architecture affect legal approaches to the processing and storage of information in digital form. Providing access to data stored in the «cloud» through the Internet made access to user’s information extraterritorial. Modern digital society uses cloud technologies due to the lack of competitive alternatives for remote and secure data storage.
In cloud storage, the owner of digital information is not aware of the specific location of the hard disk with digital data. They are stored on multiple servers distributed across the network. Data is available online anytime, anywhere. In this paper, the authors explore the problem of the formation of cloud data. The «judicial cloud» used in the activities of the Russian courts was chosen as a specific subject. This issue is essential for the digital state and business.
The paper discovers the cloud architecture and considers the characteristic of the algorithms of the cloud system. Special attention is given to the description of the principles and methods of information security, including in order to ensure the interests of the state. Some aspects of the possible use of artificial intelligence in the administration of the «judicial cloud» are also considered.
ISSN 2782-1862 (Online)