Vol 15, No 4 (2020)
View or download the full issue
PDF (Russian)
PHILOSOPHY AND ETHICS OF LAW
11-19 489
Abstract
The paper analyzes the possibility to predict and even retrospectively trace all socio-historical consequences of scientific discoveries, as well as their impact on the deep layers of human existence. On the example of the studies that led to the discovery of antibiotics, the boundaries and capabilities of those who claim to be experts in the field of futurology are demonstrated. The paper elucidates the role of social institutions and practices through which the control is exercised over the processes of using the latest achievements of science and insufficient level of competence in managing the development of technical systems. The author highlights the intuition of philosophers and representatives of the humanitarian intelligentsia regarding such significant effects of modernity as “cultural and ethnic redistribution” and other similar results of the development of the scientific thought. The paper provides for the outlines of axiological uncertainty in which Russian legislators find themselves seeking to rely in their activities on the Russian tradition, which includes pre-revolutionary, revolutionary and post-revolutionary periods. These periods are very different from the axiological point of view. At the same time, value gaps arose, were smoothed and overcome, and the whole system of values is in the process of searching for their own identity. The author has investigated the conceptual possibilities of presentation in the content area of the legal thought of the phenomenon of somatic human rights in the context of their legislative protection. Discussions among lawyers of integrity of the individual and means of its legal protection are analyzed. The paper deals with the correlation of individual and collective goal-setting in the Society of Knowledge and within the framework of the modern system of social relations. The current principles of bioethics as the basis of legal regulation and as implication of the system of humanitarian values and human rights are subject to philosophical and critical reflection.
20-31 578
Abstract
On the basis of the finding of an obvious lack of morality in professional fields, where the threat is posed to the person himself and, consequently, to the society as a whole, the author justifies that it is moral philosophy that is destined to serve as a methodological basis and a value guide for the professional ethics in law at the center of which there is a person as a person rather than any external object as a formal value.The paper demonstrates the approach according to which training of modern lawyers assumes strengthening of morality in law by the forces of professional philosophers, primarily representing ethics, who are able to give knowledge about the origin and essence of morality, about the history of ethical teachings, about the content of categories and values; to carry out rather deep moral and philosophical examination of various ancillary problems, bearing in mind their intrinsic interconnection. All these make it possible to understand that a kind of a core in the professional activity of a lawyer is represented by the motivation to perform the necessary work important for the common cause necessary for preservation and improvement of the society towards the social ideal. Thus, the philosophical and legal club “Moral Dimension of Law” that has successfully operated under the auspices of the Department of Philosophy and Sociology for 18 years relies in its work on the concepts mentioned above. The combination of educational and research activities has serious educational significance, which in a certain sense, is redeeming for modern education as a whole.
PAGES OF HISTORY
32-41 720
Abstract
An adversarial process includes a “trial,” namely, a stage where the parties become aware of the claims of the plaintiff and the explanations of the defendant, the determination of the evidence in the case takes place, and the “investigation” — examination of evidence -is held. The court and the parties are the subjects of proving. The burden of proof laid on the parties. Collection of evidence at the initiative of the court in the second half of the 17th century was not allowed. Reception of evidence by the court of law and the extension of their meaning to both parties depended on the consent of the litigants. By the beginning of the 18th century providing evidence as a process becomes more and more public. The law-maker sought to limit the number of evidence in the case and to determine a sequence of its use. The evolution of the adversarial process was accompaniedwith the release from the remnants of the ancient inquisitorial process, the restriction of the rights of the parties and the strengthening of the public character of the proceedings. However, the merger or transformation of the adversarial process into investigatory one did not occur. Throughout the process, the active role of the parties, their equality and the ability to influence the course of the case and the procedural decisions taken by the court remained.
THEORY OF LAW
42-55 5214
Abstract
The paper deals with the problem of limits of legal regulation, analyzes the factors that determine the degree of influence of law on social relations, discusses the issues of dependence of understanding of the limits of legal regulation upon the type of legal consciousness. Special attention is paid to the classification of limits of the legal regulation. In the domestic and foreign legal science the problem of limits of legal regulation has not received an unequivocal resolution. There are many definitions of “limits of legal regulation.” In the most general form, the limits of legal regulation can be considered as a measure of permissible, necessary and sufficient influence of law on social relations exercised due to the presence of objective and subjective factors and carried out by means of specific legal instruments. First of all, understanding of the limits of legal regulation depends on what type of legal consciousness is applied to investigate the problem under consideration. In addition to the analysis of the limits of legal regulation in the framework of the theory of legal positivism, the paper also considers other approaches to this problem: the limits of legal regulation are investigated in the light of sociological, anthropological, discursive (R. Alexi), integral (R. Dvorkin), procedural (L. Fuller) theories of law. Special attention is paid to the classification of limits of the legal regulation. In addition to the traditionally allocated classification criteria on volitional basis and on the basis of direction of interests, it is proposed to classify the limits of legal regulation depending on modality and the extent of the relationship governed by law. In conclusion, the importance of limits of legal regulation is revealed.
STATE POWER AND LOCAL SELF-GOVERNMENT
56-52 961
Abstract
The diversity of relations covered by the general concept of “relations in the field of education” requires
the application of different methods of legal regulation and examination of the characteristics of the relations. As a process of teaching and upbringing, education contributes to the development of an individual and at the same time satisfies the need of a person to be professionally qualified. The paper attempts to show the variety of approaches to the definition of the essence of education. In the context of theoretical and doctrinal poly-variety of the definition of the content of the concept “education,” the study of the legal aspect of an educational policy acquires a special meaning. The analysis of educational legislation makes it possible to observe the use of the narrow meaning of the term “service” primarily in the meaning of a paid educational service. The data provided in the paper demonstrate an increase in demand for paid educational services provided by state and municipal educational organizations. However, education as a social institution implies a policy of accessibility and free-ofcharge character of education. Analysis of theoretical and legal resources allowed to define education as a socially significant benefit exercised as a service. The author investigates the changes in the status of the educational organization as a result of the reform of the budgetary sector. The paper defines the range of normative legal acts regulating the provision of state (municipal) services in the field of education.
the application of different methods of legal regulation and examination of the characteristics of the relations. As a process of teaching and upbringing, education contributes to the development of an individual and at the same time satisfies the need of a person to be professionally qualified. The paper attempts to show the variety of approaches to the definition of the essence of education. In the context of theoretical and doctrinal poly-variety of the definition of the content of the concept “education,” the study of the legal aspect of an educational policy acquires a special meaning. The analysis of educational legislation makes it possible to observe the use of the narrow meaning of the term “service” primarily in the meaning of a paid educational service. The data provided in the paper demonstrate an increase in demand for paid educational services provided by state and municipal educational organizations. However, education as a social institution implies a policy of accessibility and free-ofcharge character of education. Analysis of theoretical and legal resources allowed to define education as a socially significant benefit exercised as a service. The author investigates the changes in the status of the educational organization as a result of the reform of the budgetary sector. The paper defines the range of normative legal acts regulating the provision of state (municipal) services in the field of education.
CIVIL AND FAMILY LAW
63-73 600
Abstract
The paper analyzes the issues of court interpretation and application of certain provisions of Art. 35, 39, 45 of the Family Code of the Russian Federation. The author describes the norms devoted to the regulation of property relations in the family and responsibility of spouses for obligations. The paper also provides for the details of differnt types of obligations. The paper analyzes the concept of debt and the necessity of its inclusion in the family legislation. Particular attention is paid to the interpretation of the rules aimed at regulating the procedure for the implementation of transactions where the common property of spouses is involved, the procedure for the recovery of debts of spouses. Common features on the implementation of transactions with the common property of spouses and on transactions that can lead to the emergence of common debt obligations are elucidated. The paper carries out examination of the jurisprudence of the Supreme Court of the Russian Federation with regard to the issues under consideration. The author focuses on practical problems in the field of application of these norms of law, as well as contradictions in approaches of the law-maker and courts to the regulation of homogeneous property relations in family law. The author gives suggestions on improvement of legislation.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
74-82 3199
Abstract
The factual basis of the claim consists of facts substantiating the plaintiff’s cause of action. The cause of action may include various facts of legal significance. These facts are classified into legal (right-initiating), rightobtrusive, right-changing and right-terminating. Some authors, as an independent type of facts that may be included in the cause of action, highlight the facts of violation or challenge of the right or legitimate interest. The paper substantiates the attribution of these facts to the right-creating ones. The paper subjects to criticism the views that claim that legal facts and the ability of the plaintiff to substantiate the cause of action by any facts including those of only informative significance are wrong. The author also expresses a negative attitude to the widespread division of the grounds of the cause of action into active and passive. Right-infringing factors included into the passive cause of action — often referred to as facts causing the action — are in fact right-generating factors. Thus, they must be referred to as the active cause of action. Distinguishing the facts of active and passive legitimation from the other facts superfluously and artificially complicates the structure of the cause of action. In procedural theory, it was suggested that the cause of action was not necessarily based on what the plaintiff had pointed out.
In this case, however, it is permissible to mix the concepts of “cause of action” and “cause of satisfaction”, and, therefore, this view cannot be considered correct. Thus, the doctrine on the actual basis of the cause of action contains a significant number of shortcomings that need to be eliminated.
In this case, however, it is permissible to mix the concepts of “cause of action” and “cause of satisfaction”, and, therefore, this view cannot be considered correct. Thus, the doctrine on the actual basis of the cause of action contains a significant number of shortcomings that need to be eliminated.
LEGAL PROTECTION OF INTELLECTUAL PROPERTY
83-90 3168
Abstract
Stady of blockchain technology is one of the most topical issues among scholars and among specialists of different fields, which is due to the consolidation of blockchain as one of the digital technologies of the National Program. The purpose of the study is to substantiate the expediency of using blockchain technology as a tool for copyright protection. The paper uses a systematic approach, dialectical method, methods of analogy, generalization, induction. Analysis of theoretical and doctrinal foundations and practice of blockchain technology application allowed the author to come to the conclusion about the significant potential of its use in the field of intellectual property in Russia. The author focuses on the advantages and main problems of this technology as a tool of copyright protection at the present stage. Although there is no statutory need to register works, in practice authors often have to prove their authorship, which is not always easy. In the era of the Internet and the development of the digital economy, it is getting more difficult to control the use of works and the payment of royalties and remuniration. The introduction of blockchain in the field of intellectual property will allow the authors to confirm the authorship, to dispose of copyright and control its use, to receive remuneration for the use of works. A reliable and secure technology enables authors, rights holders and consumers to interact openly, transparently, without intermediaries, to minimize time and financial costs, to protect copyright. One of the most significant problems is the lack of legislative consolidation of blockchain technology in Russia. The author comes to the conclusion that the blockchain technology creates a new and simpler tool for confirmation of authorship, management and control over the use of works, which does not replace the existing system of copyright protection, but complements it.
LABOR RELATIONS AND SOCIAL SECURITY
91-98 1470
Abstract
The paper is devoted the problem of the procedure of termination of an employment contract, explains significant differences between the reason and procedure of termination of the employment contract in unilateral and consensual ways. It is suggested that these procedures should be separated terminologically in order to avoid confusion. The actual termination of the employment contract must be differentiated from the unilateral suspension of the contract’s performance. Considerable attention is paid to the study of the content of the term “termination of the employment contract,” identification of significant characteristics of the procedure and disputable issues in the formulation of a legislative norm. On the basis of key characteristics, the author explains meanings of the concept of termination of the employment contract, which the law-maker invests in the current legal norms of employment laws, the author puts forward a proposal on improvement of domestic employment legislation in order to apply this procedure to a number of cases in which today an employment contract is subject to termination due to circumstances beyond the control of the parties.
CRIMINAL PROCEDURE
99-109 544
Abstract
The paper deals with the topical issue of increasing the effectiveness of guarantees of notification in criminal proceedings at the pre-trial stages, including notification by means of introduction of new procedural means used to notify participants of criminal proceedings using information technologies. Notification in criminal proceedings does not fulfill the function of ensuring the effective implementation of the rights and legitimate interests of participants who are not notified of all necessary proceedings and their opportunities, or are notified formally, or contrary to the law, are not notified at all. One of the reasons for this is the weakness of the guarantees of notification in criminal proceedings and the very narrow understanding of the nature of such proceedings. The system of methods of scientific cognition is used to reach the objectives set in this study. The author relied on the method of materialistic dialectics (the problem of notification is investigated as the one taking into account the general procedural problems, the purpose of criminal proceedings, its principles, rights and obligations of participants of criminal proceedings, procedural guarantees), general scientific methods: historical, logical, sociological, as well as private scientific methods of research: formal-legal, systematic-legal, logical-legal.
CRIMINAL LAW
110-117 1908
Abstract
The choice of the subject of research — the field of scientific knowledge related equally to both criminal law and the limitless world of art — is determined by the goal of finding out the content of modern criminal law policy in the field of art in Russia. In the paper, the author considers the main elements of art crimes existing in the national criminal law through the prism of the specifics of the art sphere, and reveals some shortcomings of legislative structures establishing responsibility for the corresponding crimes. The author expresses her position regarding the possibility and necessity of considering art as an independent and separate object of criminal law protection in criminal law, which is justified, among other things, by the close attention required by modern legislative and law enforcement bodies to the phenomenon of art crimes.
118-127 799
Abstract
Cryptocurrency and the problems of its legal regulation have recently become the subject of numerous studies. Legal science, including criminal law, does not stand aside. The contradictory nature of the legal nature of cryptocurrencies, the inability to accurately determine their species affiliation, a fairly large number of questions from the law enforcer led to an extensive doctrinal discussion. In author’s opinion, one of the most urgent questions is the definition of cryptocurrency relations as an object of crime and how errors in the perception of these relations and, most importantly, their subject matter, affect the enforcement and subsequent qualification of crimes. The paper discusses in detail the main points of view on the essence of cryptocurrency, the position of scientists on this issue. The author explains why cryptocurrency cannot be attributed to the types of securities, currencies or currency values known to modern law, and offers her own approach to the definition of cryptocurrency and cryptocurrency relations, and indicates how this affects the application of the criminal law.
128-133 497
Abstract
The paper discusses current issues of criminal liability for unjustified refusal to hire or unfair dismissal of persons who have reached pre-retirement age. In connection with the increase in the age giving the right to receive an insurance old-age insurance, the Criminal Code of the Russian Federation was supplemented by Art. 144.1 on responsibilty for these acts. Based on the analysis of the current criminal law, as well as the practice of its application, the author justifies the point that the new criminal law norm has significant shortcomings and is generally not entirely suitable for effective counteracting the discrimination that occurs when hiring or dismissing workers of this age category. The findings are based on a comparative study of the elements of crime under Art. 136, 144.1 and 145 of the Criminal Code of the Russian Federation. The author suggests changing the wording of Art. 144.1 of the Criminal Code of the Russian Federation, in particular, clarifying the characteristics of the subject of the crime, as well as providing for more stringent types and sizes of punishment. According to the author, the solution to the problem lies also in the plane of economic relations. The successful development of the economy, the growth of entrepreneurial activity, the organization of new industries should lead to the appearance of the required number of jobs and vacancies. This will entail demand for specialists who have reached pre-retirement age, and issues of discrimination on this basis themselves will fade into the background, and will lose their relevance.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
134-141 472
Abstract
The paper draws attention to the development of computerized car systems and the expansion of their functionality. However, according to the author, the use of information recorded in these devices for the criminalistic purposes in crimes investigation is clearly not receiving enough attention in science and in practice. The paper discusses the main range of systems that allow you to obtain forensic information, as well as the possibility for practical application of electronic information from computerized car systems. The author draws the conclusion on the possibility of a forensic investigation of computerized car systems using forensic developments in the field of electronic traces and electronic evidence. A correctly conducted study can allow you to get a dynamic threedimensional model of a criminally committed traffic accident, as well as other criminal events recorded by car sensors. The paper also examines the prospects for the study of so-called smart cars. An increase in the effectiveness of expertise in the production of integrated computer-aided technical research is noted.
INTERNATIONAL LAW
142-154 552
Abstract
The paper explores the specifics of conflict regulation of consumer relations in a digital environment. To this end, the author analyzes the criteria for the direction of the professional activities to the consumer’s residence country, which enshrined in the law of the Russian Federation and the European Union. Its presence determines the use of special conflict protection in respect of both the consumer and the professional party, endowed with the ability to foresee the use of these protective conflict mechanisms. The author formulates proposals to clarify the content and scope of this criterion. On the one hand, its purpose is to protect the consumer from the state applying an unfavorable right to him, on the other, to establish a reasonable degree of predictability with respect to the professional party applying the right of consumer’s residence and the establishment of judicial jurisdiction.
155-163 534
Abstract
In the paper, the author considers the correlation and mutual influence of international investment and environmental law following the example of one of the most effective mechanisms for protecting investor rights — the standard of fair and equal treatment. As part of the study on the application of the standard in investment disputes related to environmental protection, the content of the standard for fair and equal treatment in the form of obligations of the recipient state of the investment is considered. The most significant guarantees of fair and equal treatment in the context of ‘environmental investment’ disputes are highlighted: compliance with due procedure, protection of legitimate (reasonable) expectations and access to justice. The features of their application in ‘environmental-investment’ disputes by analyzing the practice of investment tribunals are studied. The author considers cases when the investor is not entitled to refer to a violation by the state — recipient of the investment of the standard of fair and equal treatment. It is concluded that the application of the standard should help to find a balance of interests between public and private interests.
INTEGRATION LAW
164-175 665
Abstract
To date, the European Union has formed a regime to counteract against legalization (laundering) of proceeds from crime and financing of terrorism. During the first years of its development (from 1991 to 2005), the legal regulation of the European Union in the field of counteracting the legalization (laundering) of proceeds from crime has proved to be effective in achieving its goals. It was due to the comprehensive nature of regulation and compliance with world achievements in AML / CFT, primarily the recommendations of the Group for the Development of Financial Measures against Money Laundering (FATF). For this reason, the European AML / CFT regime served as a guideline in the development of “anti-laundering” measures for many states that are not members of the European Union, including the Russian Federation. This paper provides a historical overview of the content of EU legal regulation in the field of combating money laundering in the early stages of its evolution, when the European legislator, based on the 1990 Convention on the Laundering, Detection, Seizure and Confiscation of the Proceeds of Crime and the FATF Recommendations, made the first independent attempt to regulate AML / CFT.
COMPARATIVE LAW
176-186 560
Abstract
The paper is devoted to the consideration of mediation procedures regulation by the norms of the legislation of the CIS countries, the application of which depends on the will of the parties and entails a change in the general procedure for criminal proceedings. Their undoubted practical advantages are noted. Based on the comparative legal analysis, the norms of the legislation of all the CIS countries are examined, which regulate mediation procedures in criminal proceedings. Some features, advantages and disadvantages of such regulation are revealed. The author makes a conclusion on the importance given to mediation procedures, which have become an integral part of the legal system of the CIS countries, as well as on the similarity of many basic provisions regarding their regulation. It is noted that the legislation of all CIS countries contains mediation procedures based on the reconciliation of the parties and the active repentance of the person who committed the crime (with the exception of the Kyrgyzstan legislation). At the same time, similar conditions are provided for a decision on the release of a person from criminal liability, namely: the category of crime clearly defined by law, the consent of the suspect (accused) and compensation for the harm caused by the crime. It is noted that Kazakhstan, Belarus, and Kyrgyzstan have gained experience in successfully using mediation as a way to resolve conflicts in pre-trial order. According to the authors, such experience is appropriate and necessary to study and use in the process of improving domestic legislation.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
187-194 1124
Abstract
The paper is devoted to the study of modern theoretical and legal issues of ensuring biological safety in the context of the discussion of the draft Federal law No. 850485-7 “On the biological safety of the Russian Federation”. According to the results of a critical assessment of the draft law, in addition to the direct threats and risks analysis, the authors highlight the features (specifics) of biological safety problems from the organizational and legal point of view and from the theoretical positions of environmental law. The conclusion is proved that, in the proposed edition, the draft law has insufficient effectiveness in terms of a real, practical, immediate and effective reaction to solving a set of problems of ensuring biological safety, response to a biological threat. The authors propose a number of theoretical conclusions and practical recommendations aimed at optimizing the draft law, including the need to take into account potential challenges that are probabilistic in connection with new biotechnologies, terrorist threats, environmental problems, climate change, in strategic planning documents and the law on biological safety. There is the need to expand and specify measures to identify possible threats, their classification, attribution, and the response procedure and applied activities.
PERSONA
195-201 504
Abstract
In the anniversary year of the Great Victory of our people in the Great Patriotic War, I would like to commemorate one of the participants in this war, a person, who found strength and showed the will not only to live after a severe wound, but also to achieve tremendous success when working in the prosecution, later in the science of prosecutorial supervision. The paper is dedicated to the memory of Doctor of Law, Professor, Honorary Worker of the Prosecutor’s Office, Member of the International Academy of Ecology and Life Safety Sciences, Honorary Professor of St. Petersburg University of the State Fire Service of the Ministry of Emergencies of Russia Viktor Ivanovich Rokhlin. The paper presents the memories of Professor V.I. Rokhlin’s students and colleagues: Dr. Sci. (Law), Professor T. I. Otcheskaya, Head of the Department of Court, Prosecutorial and Investigative Activities of Kutafin Moscow State Law University (MSAL); Cand. Sci. (Law) T.G. Voevodina, Associate Professor of the Department of Court, Prosecutorial and Investigative Activities of Kutafin Moscow State Law University (MSAL); A.A. Koloskov, Judge of the highest qualification, Honorary Worker of the judicial system, Honored Lawyer of the Russian Federation; Dr. Sci. (Law), Professor B.B. Cossack, Head of the Department of Human Rights, Law Enforcement, Criminal Law and Procedure of Pskov State University and others.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)