THEORY OF LAW
The paper is devoted to several problems. The author investigates the place and role of the history of political and legal doctrines in the system of legal education and science. The new nomenclature of scientific specialties refers this academic subject to theoretical and historical legal sciences, provided no changes are made to the proposed subject description. The main issue articulated in the paper involves the history of political and legal doctrines. This academic discipline is historical, political, legal and theoretical at the same time. Periodization in this case represents periodization of theoretical forms of reflection over political and legal institutions as one of the main problems for a historical discipline. The paper focuses on the fact that the chronological approach to periodization of the history of political and legal doctrines is the main one. However, this approach does not exclude other approaches that are also described in the paper. Moreover, the paper examines traditions established in the science and the student course. Conventionally, the history of political and legal doctrines is investigated chronologically, in a problematic or portrait ways. Needless to say, the author does not exclude the methodological approach to periodization of theoretical and legal forms of cognition of the State and legal institutions.
STATE POWER AND LOCAL SELF-GOVERNMENT
On the basis of the analysis of Law of the Russian Federation on Amendment to the Constitution of the Russian Federation as of March 14, 2020, No 1-FKZ “On improvement of regulation of certain issues of organization and functioning of public power,” legislation, acts and legal standings of the Constitutional Court of the Russian Federation, as well as the practice of transforming the Constitution of Russia, and Presidential directives, the author investigates some issues concerning the Constitutional Reform 2020 initiated by the Head of the State. The paper examines the issues of the new constitutional approach to the implementation of the principle of separation of powers, some additional powers of the President of Russia in the context of their expansion. The author argues her view concerning consideration of some legal phenomena rooted in the legal reality of Russia at the constitutional level on the example of the terms “public power” and “instructions of the President of the Russian Federation.” The author monitors the dynamics of formation and manifoldness of instructions of the President of the Russian Federation. The paper highlights some terms and definitions that are new for the constitutional level, some of which can be considered as goals in the development of public and state life. The paper formulates author’s assessments and conclusions, author’s opinion concerning the ongoing transformations of the Constitution of Russia and, at the same time, it is proposed to continue scientific discussions devoted to the implementation of the proposed constitutional novellas.
Based on the analysis of the provisions of the Constitution of the Russian Federation, the constitutions of foreign states and the current legislation, as well as domestic and foreign studies, the author argues that currently several kinds of secular States exist. They significantly differ from each other in the characteristics enshrined in their constitutions and legislation. Because of that, it is hard to talk about an indefinite classic secular State. Nevertheless, the author articulates the features that are characteristic of a large number of modern democratic secular States, and proposes the optimal model of the modern secular state. Particular attention is paid to the analysis of amendments made under the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation of March 14, 2020, No 1-FKZ “On improvement of the regulation of certain issues of organization and functioning of public power” related to the secular State, especially amendments that formalize the attitude towards relations between the State and religious communities existing for centuries and developed in the territory of our Fatherland. The paper demonstrates special importance of interaction between prescriptions fixed in the constitutional provisions, constitutional legislation and moral principles enshrined in religious sources.
The paper, on the basis of the analysis of legislation, the RF Constitutional Court jurisprudence, as well as practice of law-making on amendments to the Constitution of the Russian Federation, describes the process of evolution of legal properties of the law under consideration. The paper investigates such legal properties of the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation as legal force, the subject of the legal regulation, the procedure for adoption and entry into force. The author believes that any change of these legal properties has an impact on the legal properties of the Constitution of the Russian Federation, and primarily on its stability. The paper draws special attention to the Law of the Russian Federation on Amendment to the Constitution of the Russian Federation as of MArch 14, 2020, No. 1-FKZ “On improvement of regulation of certain issues of organization and functioning of public power.” According to the author, there was another transformation of the legal properties of the Law on Amendment. This transformation concerns the order of its entry into force. Provisions of the Law of the Russian Federation on Amendment to the Constitution adopted in 2020 contain both norms that amend the constitutional text and norms not intended for inclusion in the text of the Constitution of the Russian Federation that are technical and transitional in nature. In this regard, the author deals with the question whether the Law on Amendement itself may establish additional conditions for its entry into force other than those provided for by the federal legislation.
The paper explores the implementation of the power to initiate legislation by the highest judicial bodies of Russia—the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation. The author focuses on specific legislative initiatives of the higher judiciary and provides examples of judicial intrusion into the field of activities of other branches of power. The author highlights the need for additional doctrinal elaboration of draft laws initiated on behalf of the Supreme Court of the Russian Federation. The paper analyzes the reasons for the non-application of the power to initiate legislation by the Constitutional Court of the Russian Federation, in particular: involvement in political life, the principle “nobody can be a judge in their own case,” authority impairment, judges’ opinion, the use of legal standings, complexity of the mechanisms. The author argues that the RF Constitutional Court participation in political activities is mediated. The conclusion is made about the necessity of using the structural-system method of scientific cognition in the study of the reasons for non-application of the institute of legislative initiative. The author substantiates the necessity for the Constitutional Court of the Russian Federation to apply the power to initiate legislation in exceptional cases, in cases of impossibility of using other forms of participation in law-making.
FINANCIAL LAW
Under the general rule, tex incentives are provided in order to stimulate certain sectors of the economy or activities, contribute to the achievement of social and political objectives before the State. Contemporary tax laws of any country provide many tax incentives, and Russian tax laws are no exception. Meanwhile, tax incentives are in full discretion of the State and are granted at all levels of public power, with the regions having fairly broad powers in this matter. In this regard, without disputing the importance of tax incentivization, it is impossible to fail to notice that the provision of tax incentives may be unequal for the competitors operating on the same commodity market, and some of them, for some reason or other, are not subject to obtaining tax preferences. Moreover, although the tax incentives are provided by the State, the rules for granting them are not related to the procedure intended to grant state preferences under antitrust legislation. The incentives granted at the regional level that may lead to an imbalance in economic entities’ operation in various territories of the Russian Federation are of primery concern. On the example of tax incentives provided for participants of regional investment projects, the paper elucidates the issue of the balance between tax incentives under the Tax Code of the Russian Federation and preferences under antitrust laws. Comparing the essential features of the legal institutions under consideration, the author comes to the conclusion that regional tax incentives should be considered as a type of preferences, although antitrust regulation does not permit proper monitoring of the procedure of granting such preferences.
The paper is devoted to the discussion of the principle of responsibility for the efficiency of provision of state and municipal needs, procurement efficiency. The paper investigates the balance between the principle of efficiency of procurement and the principle of efficiency of the use of budgetary funds consolidated in the Budget Code of the Russian Federation. The author underlines that the former principle complements the later. The author compares the principle of efficiency of procurement set forth in Federal Law of April 5, 2013, No. 44-FZ “On the contract system in the sphere of procurement of goods, works, services to ensure state and municipal needs,” and the principle of targeted and cost-effective spending of monetary funds enshrined in the Federal Law of July 18, 2011, No. 223-FZ “On procurement of goods, works, services by certain types of legal entities.” It is pointed out that in order to evaluate the effectiveness of procurement it is necessary to identify the main objectives and specific objectives, achievement of which will enable the evaluation of procurement as “effective” and “meaningful.”
CIVIL AND FAMILY LAW
The legal regulation of the features of marriage in a minor age has a millennium history. The analysis of legal regulation of the marriage age in Russia, the Russian Empire and the RSFSR shows that the models of the legal regulation of the minimum marriage age are divided into simplified and differentiated ones (gender differentiated, nationally differentiated and socially differentiated models). The author concludes that in domestic legislation the minimum age of marriage always depended on various circumstances. Until 1926, there was a gender-differentiated model of the legal regulation of the minimum age of marriage. A nation-differentiated model existed in the prerevolutionary and Soviet era in relation to the inhabitants of Transcaucasia. Since 1926, in the territory of the RSFSR, a socio-differentiated model of the legal regulation of the minimum age of marriage was consolidated in law. According to this model the minimum age of marriage was reduced due to special social circumstances. Family laws of the Russian Federation made an unsuccessful attempt to implement the nation-differentiated model of the legal regulation of the minimum age of marriage. The modern Russian model of legal regulation of the minimum age of marriage is socio-differentiated. The paper also carries out a detailed comparison of the three socio-differentiated models of the legal regulation of the minimum age of marriage (the model under the Soviet Code of Marriage, Family and Custody of the RSFSR (1926—1968), the model under the Code of Marriage and Family of the RSFSR (1969—1995), the contemporary model); analyzes the differences and shortcomings of these models; suggests ways to eliminate them.
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
Prospects of the use of artificial intelligence (AI) in the administration of justice actualize a set of legal issues that are not only applied but also theoretical in nature, including the issue of the formation of the legal concept of “artificial intelligence” for the purposes of legal regulation. The legal academic literature describes a tendency to attribute signs of subjectivity to artificial intelligence, in connection with which the paper attempts to carry out a critical analysis of foundations of such approach. The authors explain inadmissibility of inclusion of such a characteristic as a legal capacity in the concept of “artificial intelligence.” They also argue that in jurisprudence it is useless to apply definitions of artificial intelligence based on the description of technical-technological characteristics because it has no influence on the legal regulation. The incorporation of artificial intelligence as a sociocultural phenomenon into legal reality requires either an independent term for its designation in the field of law or the filling of this concept with a specific legal content. The development of such content should be carried out within the framework of the paradigm of the legal science, since the use of categories and definitions of other branches and spheres of public life without being adopted to the legal field, is unlikely to be effective for the regulatory purposes.
LABOR RELATIONS AND SOCIAL SECURITY
The paper contains an evaluation of the measures taken by the Russian authorities to protect the population as a whole, as well as the labor and employment market participants, from economic and social harm caused by quarantine restrictions imposed in connection with the spread of coronavirus (COVID-19). The author concludes that the Government of the Russian Federation underestimates the negative economic and social consequences and that the decisions taken have some legal shortcomings. Taking into account the International Labour Organization approaches and the experience of other countries facing similar problems, the author makes the following proposals: first, with regard to more comprehensive and extensive measures protecting employment, employers and employees in order to minimize the increase in precarization of employment and unemployment; second, with regard to the extension of social protection measures over all social groups, including migrants and persons without permanent residency, employed in an informal economy and other persons; third, with regard to strengthening control over compliance with employment and labor laws and the application of the ILO Labour Inspection Conventions by Russia.
BUSINESS AND CORPORATE LAW
The paper analyses and qualifies the concept of "trading network" contained in the Federal Law of 28.12.2009 No. 381-FZ "On the basics of state regulation of trading activities in the Russian Federation" and studies the qualifying features of retail chains. The author considers these features in the context of establishment of antitrust restrictions, taking into account the industry specifics. Based on the results of the analysis of the regulatory framework, theoretical research and judicial practice, the author identifies the problems of law enforcement associated with the definition of the concept, and formulates proposals for improving legislation that can be used by the legislator in order to improve the definition of this concept. The paper analyzes the experience of legal regulation of the retailers’ activities in the Russian Federation, the Republic of Kazakhstan and the Republic of Belarus.
The paper examines the features of antimonopoly regulation of business activity in the context of regulatory framework. Based on the analysis of competition legislation and the standpoints of modern researchers in the field of antimonopoly regulation, the author identifies the mechanism for changing the structure of the commodity market, as well as the mechanism for implementing market power. Antimonopoly regulation is the main area of normative regulation of business activity, in which public interests prevail over private ones, limiting freedom of business activity, which, in turn, requires a more thorough development of the state’s position in relation to business entities. It is emphasized that a complete ban on monopolies is inappropriate, since they often act as a source of technological changes in society. In addition, within the framework of the state competition policy, public interests are realized and the development of certain sectors of the economy is supported. As a result of the study, the author concludes that the use of prohibitions per se should not become a general rule in the implementation of antitrust regulation, and it is necessary to define clear criteria for the use of these prohibitions.
Currently, in the context of information technologies development and the transition to the digital technologies application in the economy and public administration, the importance of information systems, including state information systems, is increasing. In the field of state and municipal procurement, an information infrastructure has been created, the main component of which is the state unified information system (UIS), which has significant features compared to other state information systems, the effective functioning of which is of great importance to ensure the entire procurement process. The purpose of the paper is to determine the legal nature and functions of the UIS, to study the features of interaction with other information systems and the prospects for its development in the context of the digital technologies application. This goal assumes the solution of the following tasks: analysis of regulatory legal acts that establish the rules for the functioning of the UIS; determination of common features of the UIS with other state information systems and its distinctive features; study of forms of interaction of information systems with the UIS; analysis of the effectiveness of the organization of electronic document management by means of UIS; development of proposals for improving the rules for the UIS functioning.
As a result of the study, it was concluded that the implementation of civil rights and obligations in the field of state and municipal procurement is carried out through the EIS; the features of the EIS as a multifunctional state information system are determined and a conclusion is made about its uniqueness; suggestions were made on the application of measures to improve the functioning of the ENI, and the use of digital technologies in the field of procurement.
MEDICAL LAW
Developing biotechnologies have an impact not only on technical, technological and other economic processes, but also on industries and sectors of the economy, public relations, and change the prevailing stereotypes of behavior and habits. In this regard, new sprouts of an innovative economy, and the changing social sphere, the psychology of individual groups and communities determine the need for a unified balanced biopolitics. This policy manifests itself in the provisions of the rule of law and legislation, strategic planning documents, and in law enforcement. Due to the nontriviality of technologies, their great potential opportunities, as well as challenges, risks and threats for the population, society, biopolitics is becoming an important factor in the policy pursued in general. The author proves the need for systemic and comprehensive regulation of biotechnologies allowed for use, taking into account their biological and other types of safety, contribution (positive effects) to the developing bioeconomy and development of society. In connection with the above, the concept of the four "bio" (biotechnology — biosafety — bioeconomics — biopolitics) is proposed, which requires the development of law and legislation based on modern trends in the development of technology, economy, society and the state.
CRIMINAL PROCEDURE
The paper shows that ensuring access to justice is enshrined in the constitutions of most UN member states. The specificity of the Russian constitutional norm lies in the fact that ensuring access to justice for victims of crimes is imposed on the state as its duty. In criminal proceedings, this obligation is realized through the activities of the preliminary investigation bodies, the prosecutor, and the court. The author proposes measures aimed at building pre-trial proceedings that effectively ensure access to justice: refusal from the stage of initiation of a criminal case and indicating the preliminary investigation from the moment of registration of a crime report; empowering the prosecutor to initiate criminal proceedings, direct investigations and bring charges; expansion of judicial control in pre-trial proceedings; development of effective simplified and accelerated procedures in preliminary production; supplementing the grounds for termination of a criminal case, criminal prosecution by the inexpediency of criminal prosecution. It is shown that the introduction of digital technologies in the criminal process, including the establishment of digital interaction between state bodies and the population through a single secure digital online platform, should become an independent direction for improving pre-trial proceedings; creation of a mechanism for filing a crime report through a special online service; automatic registration of applications and determination of the direction of their movement using the capabilities of artificial intelligence; introduction of an electronic criminal case; use of semantic neural networks, computer vision, data clustering, etc. in the criminal process.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
A forensic expert, as a participant in legal proceedings, carries out important activities to assist in proving the persons conducting the proceedings, as well as to persons who have a legal interest in the outcome of the case. In order to carry out his functions, he is entrusted with a number of duties, the proper fulfillment of which, in the opinion of the legislator, contributes to the high-quality, complete and objective conduct of an expert study and giving an opinion. The expert’s responsibility is established by various codified normative legal acts of the member countries of the Eurasian Economic Union. Several types of liability are envisaged depending on the severity of the consequences of failure or improper performance by an expert of his duties: criminal, administrative, procedural. Nevertheless, the normative consolidation of the expert’s responsibility today does not allow us to speak about the logic and the validity of the established types of responsibility. Analyzing the specified types of expert’s liability, it can be concluded that in some cases the use of certain negative consequences in relation to the expert is disproportionate, there is a lack of a unified approach in different types of legal proceedings to determining the type of expert’s liability.
INTERNATIONAL LAW
The paper attempts to comprehensively investigate the problems of the direct application of the provisions of international agreements for the purpose of regulating various intrastate as well as cross-border relations. It is noted that this opportunity seems to be an effective mechanism for protecting the rights of the subjects of the relevant relations. An analysis of law enforcement practice is carried out for the direct application of the provisions of international treaties when they conflict with the provisions of national legislation or regardless of the establishment of such a conflict. The paper analyzes the provisions of the Constitution, other legislation of the Russian Federation, decisions of the Constitutional Court of the Russian Federation, decisions of the Plenum of the Supreme Court of the Russian Federation, judicial practice on the application of the provisions of international treaties to various relations (corporate, customs, relations in the field of industrial property). The conclusion is made that the international agreements of the Russian Federation, being an integral part of its legal system, have an independent normative nature as a source of law. The possibility of direct (direct) application of the norms of any international treaties (including the so-called non-selfexecuting ones) is substantiated.
The paper notes that the fight against new challenges that the global energy industry has to face in modern conditions requires the use of the possibilities of multilateral cooperation within the framework of international energy associations in order to create effective mechanisms for ensuring international energy security. Ensuring international energy security is not possible without the participation of the Russian Federation as a major energy power. The most important condition for the participation of the Russian Federation in the work of international associations in the energy sector should be the realization of its national interests. The paper analyzes modern problematic aspects of the functioning of international energy associations both at the universal and regional levels in order to develop practical recommendations on the interaction of the Russian Federation with these associations. The following general and specific scientific research methods are used: formal legal, historical legal, system analysis, comparative legal, empirical, forecasting.
INTEGRATION LAW
Today, despite the known scale of European Union grant funding in support of research and innovation, the EU Commission seeks to ensure the use of alternative sources of funding, for example, venture capital financing by collective investment enterprises, including through the creation of a pan-European fund of funds, as well as using such mechanisms like crowdfunding. The paper provides an analysis of three possible promising areas of alternative financing using the current mechanisms of the financial market, which are used on an equal basis both in the EU and in other countries, including an analysis of obtaining funding for projects that received grants under the EU Horizon 2020 Framework Program. The first way is to finance scientific projects thanks to new venture funding mechanisms of the European fund VentureEU, the second is to ensure the attraction of funds through crowdfunding (collective financing), the third way is provided by enterprises entering an IPO. The use of alternative methods of financing makes it possible, on the one hand, to ensure the commercialization of research projects that allow research teams to receive additional remuneration and direct it to further work in the field of research, and on the other hand, to draw public attention to pressing problems of science and technology.
REVIEWS
The work presents the book by S. S. Lut "Corruption: a Bibliographic Reference Book (1810-2018)" (Moscow: Kontrakt, 2019). The peer-reviewed bibliographic collection contains over 13 thousand publications for more than two centuries. When forming the bibliography, the author proceeded from the definition of corruption, which is contained in the Federal Law of December 25, 2008 No. 273-FZ "On Combating Corruption". The work under review presents compendiums that in one way or another touch upon the problems of corruption and combating corruption crimes. In particular, research is given in mathematics, political science, history, sociology, economic theory, psychology, philosophy, philology and geography, i.e. works on sciences that at first glance are very far from jurisprudence. All the material is structured based on two main criteria: classification by type of work and distribution by temporal aspect. The first chapter brings together monographs, textbooks and teaching aids, separate sections of which are devoted to the problems of corruption, while the works are presented in chronological order as they are published. The second chapter contains a list of monographs and textbooks, fully or mostly devoted to the characteristics and counteraction to corruption. The third chapter integrates relevant scientific articles. The fourth chapter covers dissertations and abstracts. Of particular interest to the reader is a critical analysis of legislative acts, in one way or another, aimed at combating corruption. The analytical article broadly presents international legal acts dedicated to the problem of corruption and the development of measures to prevent it.
ISSN 2782-1862 (Online)