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Actual Problems of Russian Law

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Vol 15, No 7 (2020)
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THEORY OF LAW

11-21 1199
Abstract
The paper analyzes approaches to understanding the essence of national interests of the modern Russian State in the context of general theoretical standings. Attention is drawn to the fact that legal science focuses only on the political or economic aspects of national interests. However, a general theoretical perspective of the essence and content of national interests remains in the background. For these purposes, the paper focuses on some scientific approaches to understanding national interests and describes certain essential characteristics and their features. In the authors’ view, the essence of national interests is manifested through the prism of studying their characteristics, which reflects the author’s understanding of the definition of national interests as a substantive element (along with threats) of the national security of the State. Characteristics of national interests include: connectivity with the interests of the State, social justice, dependance on the interests of the State and society, consistency and complexity, awareness and integration, as well as their dependence on the economic situation in the country and its spiritual and cultural sphere. Thus, the authors present their own definition of national interests.

STATE POWER AND LOCAL SELF-GOVERNMENT

22-29 533
Abstract
After describing characteristics of auxiliary government agencies, the author compares auxiliary government agencies with the institution of plenipotentiary representatives of the President of Russia in federal districts and defines the concept of “auxiliary government agencies “ (auxiliary bodies of state power). The paper demonstrates that the concept of auxiliary bodies in the Russian legal doctrine originated more than 100 years ago. It has continued in the works of prominent scholars of modern times. The author relies on the regulatory framework in his assumption claiming the primacy of the Presidential Administration of Russia over the institution of plenipotentiaries in federal districts. It is concluded that the institution of plenipotentiary representatives in federal districts, or more precisely — administrative officers of plenipotentiary representatives of the President of Russia in federal districts, not only substantially fit into the concept under consideration, but also have a genuine constitutional and legal character, since the establishment of this institution is permitted by the Constitution of the Russian Federation (reference in Chapter 4).

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

30-38 951
Abstract

Currently, the need to reform the system of statutory (normative) and legal regulation of genetic engineering is pending. It is fundamentally important to elaborate a federal law that will facilitate the development, introduction and use of genetically modified products, rather than create obstacles to them, for the purpose of economic development of the Russian Federation. One of the directions of improvement of the legislation in the field of genetic engineering and its further effective regulation includes consolidation of basic principles and their implementation as guidelines for the bodies implementing their authority in the area under consideration. The paper highlights the basic principles of regulation in the field of gene-engineering, determines their content and provides examples of implementation in a specified field. Thus, the principles of separation of powers, federalism, legitimacy, respect for human and citizen rights, transparency and responsibility have been determined as the fundamental principles of state regulation. However, these principles were not consolidated in the Federal Law of July 5, 1996 No. 86-FZ “On State Regulation in the Field of Gene-Engineering Activities". In this regard, it is proposed to improve the regulatory and legal framework and to include a number of principles as guiding ideas in the Federal Law.

BANKING SYSTEM AND BANKING ACTIVITY

39-48 497
Abstract
The paper is devoted to the analysis of the legal regulation and practice of issuing digital banking guarantees using blockchain technology in Russia and the Republic of Belarus. The author concludes that the blockchain technology allows us to reduce the time necessary to issue digital bank guarantees in comparison with other ways of issuing bank guarantees. Higher security level can be provided due to the special properties of the technology used to carry out data transfer, its reporting and storage. The paper also deals with the characteristics of blockchain technology that improve protection of participants from unscrupulous actions that can take place during such actions as data encryption, the use of encryption keys and recording in the block chain. The paper examines the experience of the National Bank of the Republic of Belarus regarding the use of blockchain technology to issue and record bank guarantees. The author investigates cases when Russian banks issued bank guarantees using the Masterchain platform and prospects of development of a digital form for guarantees. In addition, the paper concludes that maintaining a ledger working on the basis of blockchain technology for accounting digital bank guarantees will minimize unfair behavior in case of their counterfeiting.

CIVIL AND FAMILY LAW

49-59 454
Abstract
New rules for compensation to the bona fide houseowner (physical entity) for the loss of residential premises were adopted were adopted on 1 January 2020. Such compensation is not tortious in nature. It is comparable to the real damage or cadastral value of a vindicated apartment. The amount of compensation is now not limited to 1 million rubles, and the period of impossibility of enforcement proceedings against perpetrators has been reduced to 6 months. At the same time, the date of entry into legal force of the court decision concerning the residential premises vindication and the date of the claim of a bona fide citizen for compensation in relation to 1 January 2020 affect the conditions of compensation, the amount of payment, the status of the respondent and the amount of budgetary funds. Taking into account the standing of the Constitutional Court of the Russian Federation in A. N. Dubovets case, it would be fair to assign risks of imperfection of the Unified State Register of Immovable Property (EGRN) to a public legal establishment and provide individuals with absolute protection from public vindication or, at least, envisage the possibility of compensation immediately after vindication without additional court proceedings. However, from the point of view of the economic efficiency of law, the law-maker expressed a preference for a legal model of protection of the original owner in order to discourage commission of offenses in the field of civil turnover of real property. The development of a fair system of compensatory measures for property vindication becomes a general trend in the legal mechanism of protection of civil rights in Russia.
60-67 757
Abstract

Public procurement is a mainstream of today. We can observe as the scientific field of public procurement continues to expand, since academicians in law, public administration, finance, management and information technology tend to apply their knowledge to study public procurement. Progress in public procurement is equally evident in the political and economic fields, where public procurement is closely linked to problems of social integration, economic growth and environmental sustainability. This raises important questions as to how and by which methods we should research this area. Based on the results of the study, we conclude that applying existing theories to practical challenges has great potential to generate new possible ways of solving problems in the field of public procurement. At the same time the scholars’ will help generate data for the development of new ideas, concepts and even certain theories in the field of public procurement.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

68-75 712
Abstract
The paper is devoted to some issues associated with a class action. The subject matter of the study is relevant in light of a comprehensive reform of this institution in the arbitration procedure and the emergence of class actions in civil procedure. The author highlights that class action proceedings cannot be considered as an equal alternative to joinder. Thus, in the author’s view, along with quantitative criteria some other criteria should be used to distinguish class action proceedings from joinder. The author investigates the issue of competition between the class action and individual claims. This problem is resolved in procedural codes in different ways. The paper focuses on some problems associated with the grounds and order of replacement of the claimant representing parties involved. Taking into account that the law allows considering homogeneous claims in collective proceedings, the author concludes that it is necessary to elaborate more detailed rules relating to the case where the class action involves a set of individual claims brought by each participant.

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

76-90 847
Abstract
The paper is devoted to the issues associated with the use of artificial intelligence (AI) technologies in intellectual property objects, in particular vaccines, in the context of fight against a pandemic. It is emphasized that AI technologies allow us to overcome similar problems at the national and international levels and to prevent their recurrence in the future. The author highlights that the most important requirements for observance of constitutional rights and freedoms of citizens consolidated in regulatory acts and impossibility of their restriction in AI technologies must be supplemented with clear rules regulating the legal framework of artificial intelligence, including intellectual activity, and responsibility of developers and AI users. At the same time, the AI legal personality also needs to be thoroughly elaborated with the focus on providing a reasonable balance of rights, responsibilities and eligibility among developers, AI users, and other addressees entering into legal relationships involving artificial intelligence. A key aspect in the context of the legal regulation of the results of intellectual activity created entirely or partially by artificial intelligence is represented by the balance between the interests of rights holders and the public interests. Possible restrictions of rights of copyright holders as established in international instruments (Para 31 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights) should be accepted as a harmonizing basis and adopted in national legal systems. At the same time, rights holders must be provided with appropriate guarantees of respect for their rights (In particular, the non-exclusive nature of the use of intellectual rights in the context of such restrictions, payment of reasonable remuneration, etc.).

LABOR RELATIONS AND SOCIAL SECURITY

91-102 454
Abstract
The paper analyzes jurisprudence of the courts of general jurisdiction with regard to disputes claiming recovery of dismissal allowances stipulated by an employment termination agreement. The author identifies errors in the field of application of employment law rules regulating guarantees and analizes errors committed by courts due to improper understanding of the legal nature of dismissal allowances. The author substantiates arguments and criteria that can be used to determine whether dismissal allowances are adequate and proportionate, examines the problems associated with the application of the principle of protection against discrimination in the area of employment and the general legal principle of inadmissibility of abuse of the right in employment relationships. According to the author, the practice of courts’ erroneous interpretation of the norms of the Labor Code of the Russian Federation governing the issues of dismissal allowances under the employment contract encourages us to develop understandable and detailed criteria using which the courts and the parties to the employment dispute will be able to rely on in dismissal allowances’ claims. Such criteria can be developed in the form of a system of review questions, answering to which the court and the parties would be able to reach a balanced and reasoned decision.

MEDICAL LAW

103-113 1007
Abstract
Evolving genetic technologies influence various social relations: medical care, biosafety, crime control, etc. Genome registration originated as a part of forensic identification of a person and now it is actively developing. Thus, we are facing with a set of organizational, financial and legal problems that need to be resolved. The current legislation in terms of genome registration is mainly focused on solving problems of crime prevention and crime control. Therefore, its potential is almost exhausted. The authors suggest that the preocedure of voluntary genome registration should be developed, which will facilitate resolution of problems arising not only with regard to forensics, but also in biomedicine and other areas of life. In this regard, the paper argues that it is necessary to establish a universal government database of genomic data and focuses on a number of questions raised in connection with genetic passportization, namely: citizens’ rights protection and data security. According to the author, the expansion of the range of tasks that genome registration can complete will give impetus to the development of this activity. However, it is necessary to solve, in a timely manner, a set of interrelated legal, organizational, financial problems, to ensure a balance between private and public interests, biological and data security.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

114-120 477
Abstract
The issues of calculating losses caused by criminal acts of an economic nature are traditionally debatable in Russian law. This problem is especially acute in industries with specific conditions of financial and economic activity, for example, in the agricultural sector. The paper contains the author’s interpretation of the term "losses" in accordance with the specifics of agricultural production. The proposed method for calculating losses is differentiated according to the objects of criminal offense and is based on the use of primary accounting documents, accounting registers and specialized reporting forms, which have not been previously studied and described in the scientific literature. The paper proposes methods for calculating losses caused by economic crimes in the agricultural sector in conditions of neglect or lack of accounting. The author’s position regarding the inclusion of the amounts of lost profits in the assessment of damage is presented and possible conditions for its recognition are described.

THE JUDICIARY AND COURT SYSTEM

121-128 789
Abstract
The judicial reform implemented in the Russian Federation and the ongoing judicial construction remain the most important directions of state policy. The paper contains a comprehensive analysis of the organizational foundations of the judiciary, an understanding of the constitutional principles of the judicial system and its features, and includes a study of criminal procedure legislation at various stages of the formation of the Russian state. The methodological basis of the study is a combination of theoretical and empirical research methods. The combination of the analytical and comparative legal method made it possible to form an idea of the evolution of the judicial system and criminal procedure legislation, to compare the legal acts regulating the judicial system and legal proceedings, which made it possible to draw conclusions about the achievements and shortcomings of legal regulation of the area in question. In general, the authors conclude that the reform of the judiciary is positive, since it will increase the accessibility, effectiveness and transparency of justice — the triumph of justice based on the rule of law.

INTERNATIONAL LAW

129-144 1212
Abstract
The paper examines the problem of the militarization of outer space, the relevance of which has significantly increased in recent years in connection with the termination of a number of important international treaties in the field of arms reduction. The problem is aggravated by the absence of a complete ban on the placement of weapons in outer space in international treaties. The paper analyzes the norms of international space law, the norms of the 1959 Antarctic Treaty, doctrinal approaches to determining the use of outer space for peaceful purposes. The author concludes that the terms “peaceful use” and “use exclusively for peaceful purposes” in relation to outer space have different meaningful boundaries: the first reflects an interest in peaceful uses (non-military) without establishing a complete ban on the use of outer space for military purposes, the second excludes any purpose other than peaceful. In order to exclude the use of outer space for military purposes the author proposes to use the second term. The use of military means for peaceful purposes is permitted in international law; therefore, it is proposed to establish the legal limits of such use in outer space, clearly defining the prohibited activities. The author notes that at present the principle of the use of outer space for peaceful purposes is a guideline reflecting the desire of the international community to prevent the use of outer space for military purposes.

INTEGRATION LAW

145-152 542
Abstract
The paper explores the process of open science evolvement as one of the most distinct trends in scientific research in the modern world. The author notes that freedom of science has not yet received a direct confirmation in international legal sources in the field of human rights protection; still it is mentioned in the constitutions of a number of states. A comparative analysis of the issue on the European and African continents shows a significant gap. In the European Union, attempts are being made to transfer regulation to the supranational level (for example, the post of European Union Special Envoy for Open Science was established), while free access to research results in Africa is provided largely by non-governmental associations and private projects (such as SOKHA, LIREAGE, SYRAM). The history of the problems and the current state of affairs in the European Union and Africa are revealed, the features and development prospects are highlighted.
153-168 508
Abstract
Financing innovations in Europe involves the creation of various incentives to attract potential customers and suppliers due to the specifics of the procurement field and the presence of certain risks for both parties. As a rule, procurement in this area is associated with the risk of not receiving the result due to objective reasons that the parties could not identify at the stage of drawing up the documentation. The European legislation provides for a number of measures, both administrative, technical and legal, aimed at eliminating bureaucratic barriers, creating optimal conditions for the functioning of a competitive environment and further development of innovative products and technologies. This legislative and law enforcement experience of the EU and its member states can be used to improve the Russian legal framework.
169-179 504
Abstract
Currently, in the European Union, in addition to traditional money transfer systems (bank transfers, Western Union, etc.), informal (alternative) systems have spread. The most famous and widespread is hawala, which originated in South Asia many centuries ago, long before the banking system, and is still the most familiar and convenient mechanism for transferring funds in several regions of North Africa and the Middle East. Hawala operates outside the regulated banking and financial sector primarily through a complex settlement system: there is no actual transfer of funds within this system. In most countries, hawala is not regulated by law and is not subject to government supervision. All these factors contribute to the increased risk of money laundering and terrorist financing (ML/TF risk). The paper examines the key characteristics of hawala, its types, circumstances that caused its spread, the features of the system’s functioning, and overviews the main measures of the European Union aimed at reducing the risk of ML / TF, which are a characteristic of hawala.

FOREIGN EXPERIENCE

180-187 1088
Abstract
In 2019, in order to create attractive conditions for the development of the Fintech sector in Singapore, the Payment Services Law was adopted, which consolidated the definition of cryptocurrency (digital payment tokens) and the procedure for its circulation. In addition, this Law established the criteria for distinguishing payment tokens from other virtual objects — securities tokens, utility tokens, game currencies. In the paper, the authors analyze the concept of digital payment tokens as a digital representation of value, consider the rules for transactions with them. It is concluded that the use of this approach makes it possible to minimize difficulties in regulating the turnover of, for example, bitcoins. Based on the Singapore experience, recommendations for the modernization of domestic legislation are proposed. The main difficulty seems to be that the use of the digital value representation mode in relation to cryptocurrency is associated with the need to either establish an extraterritorial regime of regulation in relation to cryptocurrency exchanges, or adopt an international agreement in this area.
188-196 508
Abstract
At the present stage of development, genetic engineering is characterized by ambiguous achievements. For its further development, it seems necessary to study the legislation establishing administrative responsibility in the specified sphere of public relations. The analysis of the German legislation in the field of genetic engineering made it possible to reveal the features of administrative responsibility for committing administrative offenses. The author defines the features of the institute of administrative responsibility in the field of genetic engineering in Germany from the point of view of their development and consolidation in the legislation on administrative offenses. The main types of administrative offenses in the field of genetic engineering in Germany are considered. Particular attention is given to administrative penalties applied for violation of the legislation on genetic engineering. Based on the analysis of the regulatory regulation of administrative responsibility in the field of genetic engineering, possible areas for further improvement of administrative responsibility in Germany are identified. The variety of violations in the field of genetic engineering makes it possible to conclude that it is necessary to expand and consolidate new types of administrative offenses in the legislation on administrative responsibility.
197-206 976
Abstract
In the paper, the author analyzes the legislation of Germany and Italy, which regulates financial technologies, and highlights the official positions of the state bodies of these countries regarding digitalization and its elements. The trends in the development of legislation in the digital sphere and its prospects are identified. In addition, the German and Italian scientific doctrine is being studied, which, as noted, does not offer a unified approach to financial technologies, in particular to a smart contract, but contains conflicting positions and points of view. Based on the study, it is concluded that there is a need for legislative regulation of financial technologies not only at the national level, but also at the international level. It is emphasized that legislation must find a compromise between public interests, economic needs and technological capabilities in order to make the most effective use of digital technologies in various spheres of public life.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

207-217 596
Abstract
In recent years, the anthropogenic load on the environment has increased significantly; anomalies in the surface temperatures of the globe are noted. One of the reasons for this phenomenon is the presence of pollutants entering the environment from production facilities. One of the functions of public administration in the field of environmental protection is to empower economic entities to carry out industrial environmental control over their activities, that is, to exercise self-control. Industrial environmental control is mainly regulated by environmental and sanitary-epidemiological legislation. Since in recent years there has been an active implementation of large investment projects, it became necessary to analyze the implementation of industrial environmental control at all stages of the implementation of such projects, taking into account the latest changes in environmental legislation and requirements for industrial environmental control.

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