PHILOSOPHY AND ETHICS OF LAW
The paper is devoted to the analysis of the influence of two ethical theories that emerged in ancient Greece—the consequentialism and the ethics of debt—on contemporary institutions of the State and the law. The author presents a short historical survey concerning differences in approaches to the hierarchy of human needs in the teachings of Aristippus, Epicurus, Plato, Aristotle and other thinkers. The paper investigates some aspects of the teachings of ancient philosophers concerning the balance between realization of individual’s desires nd his political and legal life. Based on the comparison of the consequential concepts (hedonism, epicureanism, utilitarianism) and Plato and Aristotle ethical approaches, the author concludes that the latter are instrumentally significant. Their ideas of the common good and the golden middle, combined with the pursuit of such values as justice, moderation, empathy, trust in other members of society, can form the basis of a constitutional and legal system that unites general public. Today, the transformation of a legal strategy can only be functional if it is driven at a depth level by social reforms that, in turn, are based on the ethics of debt and are aimed at overcoming the essential risks of the consumption society.
STATE POWER AND LOCAL SELF-GOVERNMENT
The paper elucidates possible directions of the use of the big data technology in the framework of legislative activities. The authors determine essential characteristics of the big data technology, which act as a prerequisite for its implementation in the field of public administration. The authors describe the existing practices of implementation of this technology in the field of jurisprudence. Taking into account the well-established processes of using big data in the private sector, the authors evaluate the prospects of using this experience in the process of developing regulatory legal acts, including their correlation with specific stages of the legislative process. Particular attention is paid to the analysis of individualized regulation and granular norms, as well as to the grounds and features of the use of microdirectives as a result of the use of big data in rules of law formation. In conclusion, the authors enumerate a number of problematic aspects (the problem of legal certainty, ensuring the principle of equality), which are exacerbated by the use of the big data technology in legislative activities, and substantiate application of a number of additional requirements that help to minimize these threats.
LEGAL REGULATION IN THE INFORMATION SPHERE
The development of confidential-sensitive methods is expected to become a promising area for future research in data mining. Since the main task in retrieving data is to develop aggregated systems models, can we develop such models without access to accurate information in individual repositories? In today’s world, such an issue is becoming a key one, especially concerning the exercise of human rights on the Internet, since the very realization of such rights is related to data protection, on the one hand, and access to information, on the other hand. The need to maintain this balance is one of the key challenges law is facing in modern realities. In the article, the author reveals the importance of protection of such a right as access to geolocation and studies the influence of the right under consideration on the realization of other rights exercised by citizens on the Internet (in particular, the right to information).
The paper is devoted to the analysis of general problems of legal regulation of relations arising in the field of the use of virtual reality technology, as well as problems of technology regulation. The paper analyzes what properties of the technology radically differentiate it from other concepts and create challenges for the development of a system of legal regulation of the use of technology. The author describes the main factors complicating the application of existing mechanisms of legal regulation and does forecasts concerning future problems of regulation. The author comes to the conclusion that this technology is radically different from the existing ones, as it combines the properties of the real world and cyberspace. The virtual reality properties complicating the implementation of legal regulation of relations in the field of the use of this technolog include: high realism, full immersion in the session use and low cybersecurity of hardware and software. The author analyzes several regulatory approaches that could be applied to virtual reality and justifies that they all have significant disadvantages. The results of modern research carried out in the field of the VR safe use in education and leisure are rapidly becoming obsolete, as they do not have time for the technologies development, and can serve as the basis for developing a system of rules only with due regard to this factor.
LABOR RELATIONS AND SOCIAL SECURITY
The paper investigates the issues of a legal status of scientists, researchers and persons involved in conducting scientific research (supporting personnel), analyzes changes under the Federal Law No. 157-FZ of May 25, 2020, “On amendments to the Labour Code of the Russian Federation with regard to the establishment of the limit age for replacement of positions of heads, deputy heads of state and municipal educational organizations of higher education and scientific organizations and heads of their branches,” determines the directions of improvement in legislation associated with insufficient legal regulation of working hours of scientific workers. The author examines the issue of scientific workers’ labor norming and substantiates the necessity of implementing labor standards for scientific workers in order to exclude their overworking. In addition, the paper focuses on problems related to the introduction of researchers’ performance and efficiency indicators that have appeared due to the introduction of an “effective contract” (a performance-based contract of employment).
CRIMINAL LAW
The paper continues a multi-year author’s research devoted to topical issues of application of norms of the Criminal Code of the Russian Federation on stealing other people’s property. On the basis of the analysis of a specific criminal case, on which the author drafted a scientific advisory opinion, the author describes the deficiencies of the qualification of fraud typical for enforcement practice. Attention is paid to the stereotypes of the prosecution authorities and courts in determining the amount of damage caused by stealing, as well as errors in applying criminal law competing rules containing different definitions of fraud. It is stated that two different in nature and degree of danger acts are factitiously unified in Part 5 of Article 159 of the Criminal Code of the Russian Federation, namely: a theft of other people’s property and deliberate failure to perform contractual commitments in the field of entrepreneurship. The author regrets that the legislator missed the opportunity to transfer to Chapter 22 of the Criminal Code of the Russian Federation the norm on crime in the field of economic activity—deliberate failure to perform contractual obligations in the field of business activity—that has caused damage (significant, large or particularly large) to interests protected by law. The author draws the conclusion on inadmissibility of substituting civil legal disputes by criminal prosecution.
CRIMINAL PROCEDURE
The paper is devoted to the most general issues of theory and legislative regulation of the criminalprocedural form—the necessary attribute of proceedings in a criminal case. On the basis of a procedural understanding of the criminal-procedural form, distinguishing it from formalism as a negative phenomenon in law enforcement practice, the author concludes that the criminal-procedural form serves a high purpose predetermined by a set of legal guarantees ensuring the effectiveness and high quality of criminal case results. At the same time, the author considers the most important legal properties of the criminal-procedural form: unity, universality, obligatory nature. The author also analyzes related problems arising in lawmaking and in the activities of the preliminary investigation bodies, the prosecutor’s office, the court, the bar and other persons involved in criminal proceedings. The results of the study allowed the author to give his own definition of the criminal-procedural form, determine the main tendencies and outline the prospects for its further development in the context of finding a reasonable balance between the public interests of the society and the state, on the one hand, and the rights of an individual, on the other.
A comparative legal analysis of procedural forms of inquiry and preliminary investigation leads to a conclusion about their similarity, as well as the similarity of procedural statuses of an investigator and interrogator (a person conducting an initial inquiry). This shows that the State distributes forces and resources in the field of criminal justice irrationally. At the same time, the existence of two similar forms of investigation does not lead to an improvement in the legality and quality of criminal cases investigation. On the contrary, this contributes in some cases to their deterioration (reasonable timing of proceedings in criminal cases, compensation of damage caused by crimes to victims), as confirmed by the data provided in the paper. The consolidation of similar procedural forms of investigation in the Code of Criminal Procedure of the Russian Federation proves that the national historical experience of the organization of investigation of crimes under the 1864 Charter of Criminal Proceedings is ignored. This means an unreasonable refusal to reform criminal proceedings, the necessity and directions of which were identified by the 1991 Concept of Judicial Reform of the RSFSR . The consequences are manifested in the narrowing of procedural guarantees of the right to protection of persons whose criminal cases are investigated in the form of an inquiry; in the forced violation of the rule of law by interrogators during investigation of criminal cases when initiating a criminal case on a non-obvious crime; in delaying proceedings in criminal cases initiated and investigated initially by interrogators and then for a number of reasons referred to investigators for further investigation, etc. These problems cannot be solved by constantly improving the legal regulation of the procedural form of inquiry. The written above testifies futility of the procedural form of inquiry, justifies the necessity of its elimination from the Russian criminal proceedings as an independent form of investigation.
An adversarial nature of any trial, characteristic of justice and corresponding to its nature, is manifested in criminal proceedings not only in criminal cases, but also in cases addressing issues related to the execution of the sentence. The paper examines the peculiarities of the adversarial construction of judicial proceedings at the stage of execution of the sentence pre-conditioned by the tasks and the specific subject of judicial proceedings in a particular category of cases. The author elucidates the specifics of the conflict relationship, the essence of the legal dispute and the subject composition of procedural parties in cases where issues related to the execution of punishment are resolved. Also, the author analyzes the problems of ensuring equality of the parties and the undefined role of the prosecutor at the execution stage, suggests ways to address them at the legislative level. Finally, it is concluded that there is a need to improve the procedural form of dealing with issues related to the execution of sentences in accordance with the principles of adversarial proceedings and equality and taking into account the peculiarities of their manifestations in judicial proceedings arising during the execution of the sentence.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
During the election campaign last summer, the author of this article was engaged by the management of the Central Election Commission of the Russian Federation to verify the correctness of activities associated with the expert study of voters’ signature sheets in support of the nomination of candidates for the Moscow City Duma. This participation was caused by numerous complaints of candidates for deputies who were refused registration because of insufficient number of reliable signatures of voters. Falsification of signature sheets was revealed by handwriting experts. Moreover, there has been a wave of rallies and demonstrations in support of unregistered candidates around the country, where doubts about the correctness of the expert checks and distrust to their results have been actively proclaimed. It was declared mainly by people doing little (if anything) with judicial graphology. In the paper we decided to address this problem in order to competently analyse the current situation, as well as to develop optimal ways to overcome possible negative consequences related to checking signature sheets by expert graphologists.
The paper substantiates the position of the authors criticized by some modern domestic scientists on the need for a prosecutor to possess forensic knowledge when exercising supervision over the observance of law in the investigation of crimes. The results of an analysis of law enforcement practice, authors’ own experience in the system of advanced professional training of prosecutors and the examples of the prosecutorial examination of on-site inspection reports and expert findings for identification of not only violations of the criminal procedure law, but also errors of a criminalistic nature, support this position. This approach will allow the prosecutor to identify the existing gaps in the evidence base, determine the possibility, ways and means of filling them, and ultimately make a legal and informed decision. The authors conclude that only in the case of sufficient knowledge in the field of forensic science (recommendations for studying the materials of a criminal case on a particular type of crime, as well as the methodology for investigating this crime), the prosecutor’s decision to return the criminal case for additional investigation or other decisions provided for by the Code of Criminal Procedure of the Russian Federation, will be reasonable and motivated.
INTERNATIONAL LAW
Ensuring security in the Arctic in various areas and the need for a better understanding of the natural processes occurring in this region require intensification of scientific and technological cooperation, which opens up opportunities for closer interaction to solve other problems, for example, environmental protection, adaptation to climate change, safe maritime navigation and so on. Scientific and technological cooperation in the Arctic is carried out in various formats. The Arctic Council continues to play a peculiar coordinating role in international scientific cooperation, which has proposed various initiatives related to the development of scientific cooperation. The author emphasizes the implementation of scientific cooperation in the context of the scientific diplomacy development as an integral process in the information society, when scientific data is important for diplomatic activity, when diplomacy provides conditions for the development of international scientific cooperation, and finally, when science affects the vectors of cooperation, ensuring the solution of problems in various areas. Particular attention is given to the analysis of the 2017 Agreement on Enhancing International Arctic Scientific Cooperation, since the problems existing in the Arctic region require coordinated and carefully planned collective actions. Issues related to the types of research activities, the specifics of the spatial scope of the Agreement and access to the established geographical areas are considered. Finally, some conclusions are proposed regarding the assessment of the Agreement. The agreement improves the quality of the legal environment for all 8 Arctic states simultaneously in terms of scientific cooperation, taking into account the relevant provisions of international law, including those related to marine scientific research.
Taking into account a number of procedural and legal consequences determined both by the fact of the conclusion of an arbitration clause and by the fact that an arbitral award was made, the author raises a question of possibility to qualify the consideration of domain disputes considered by arbitration centers under the UDRP procedure as an arbitration proceeding. Along with the characteristics of dispute resolution under the UDRP that are obviously incompatible with arbitration proceedings (the absence of an arbitration agreement between the disputing parties, the inconclusiveness of the decision made, the lack of confidentiality, etc.), the author singles out a non-jurisdictional form of protection as a key factor not in favor of the general courts and centers considering disputes under the UDRP. Based on the analysis of Russian and foreign doctrine and judicial practice, the paper considers the question of the expediency of legitimizing the procedural and substantive provisions of the UDRP Policy and Rules in the Russian legal system, and also attempts to determine the legal nature of dispute resolution under the UDRP procedure.
INTEGRATION LAW
Treaties do not directly regulate the functioning of a single arms market in the post-Soviet space. However, an analysis of the provisions of the Treaty on the Eurasian Economic Union and agreements adopted within the framework of the Collective Security Treaty Organization leads to the conclusion that, in general, the existing legal framework contributes to the formation of similar (comparable) and the same type of regulatory mechanisms in this area based on market principles and application harmonized or unified legal regulations. The EAEU Treaty predominantly forms a general framework for the movement of goods and its possible restrictions, while detailed rules aimed at creating harmonized norms that exclude the need to resort to exceptions to the free movement of goods are created already at the CSTO level. In fact, the CSTO plays the role of an "agent" of the EAEU in terms of regulating economic issues of military integration, creating conditions for the opening of arms markets. The legislation of the Russian Federation uses two competing approaches to the functioning of arms markets. A restrictive one allows closing the national market for public safety reasons without any additional justification (it is used in the legislation on arms export and on state defense orders). A broad one, allows the market to be closed in exceptional cases (applies when the supply of goods is not directly related to defense and security issues).
The concept of intellectual property rights (IP) within the framework of "megascience" projects is based on common international, supranational and national norms in the field of IP. The problem of the distribution of the results of intellectual activity (IA), created within the framework of a "megascience" project, is due to the collective nature of their creation. The IA belongs to both the project participants (team) and the megascience center. Often, the norms of a specific agreement on the creation of intellectual property (IP) solve the issues of distribution of the results of a collective IA. In the case of megascience projects, the norms of the research centers themselves are important, like an agreement between individuals that form the basic principles for the distribution of IA. The form of organization of the research center also affects the distribution of IA results within the framework of megascience projects. Thus, the Institut Laue-Langevin (ILL), which is a national legal entity, makes a distinction in the division of IAs depending on the characteristics of the project and the level of access to research objects, without highlighting the concept of the underlying IP for the ILL. The European Split Source (ESS), an integrated mega-science framework, provides the core IP of the center for research. Such a primary IP can be used under the right of a non-exclusive license by a participant to the project in which the primary IP is used.
LEGAL EDUCATION AND SCIENCE
The paper attempts to comprehend the legal status of the head of a department with the identification of the most significant areas of his activities. The author considers the basics of the labor law status of the head of the department of a Russian university, and studies their correlation with the legal norms of France and Germany using a comparative approach. A review of strategic approaches to filling the position of the head of the department has been carried out. The models of organizational behavior of the head of a department, his leadership styles, methods of department management are analyzed. A model of the qualities of the head of a department of the university has been built, attention is given to professional competence, as well as the system of its constituent competencies. The characteristic of the pedagogical function of the head of a department is given, a reasoned opinion is expressed about the growth of its role in the conditions of digitalization of education. The scientific component of the manager’s functional is considered through the prism of criteria for an academic degree, academic title, membership in dissertation councils, scientific management of graduate students, undergraduates, etc. The role of the head of the department as the leader of the scientific school is shown. The author expresses an opinion about the need to increase the importance of departments in Russian universities, reduce the teaching load of heads of departments, legitimize the positions of their deputies, etc. It is concluded that the head of a department is a "universal soldier" who performs almost all functions in an educational organization, he is called upon to become an effective manager, while remaining a successful teacher and famous scientist.
FOREIGN EXPERIENCE
Genetic testing is a very attractive source of information for insurers, who often associate this opportunity with improving the risk assessment of personal insurance, as it is a key factor in determining whether insurers are willing to offer coverage to a particular individual and at what price. At the same time, statements are increasingly being made about the possibility of discrimination against policyholders and insured persons due to the expansion of the practice of using such information, which required the adoption of appropriate legislative decisions by a number of countries, although it is too early to talk about the formation of a systematic approach to solving this problem. An analysis of the legislation of a number of states revealed several approaches to solving this problem. The author highlights the countries that have established a complete ban on the use of genetic information in insurance (Austria, Norway, France), including in the context of protecting the rights to protect personal data of third parties (Spain, Portugal), as well as differentiated conditions for the use of genetic data depending on the amounts insurance coverage for life insurance, accident insurance (including at work); on the specific circumstances, determined by the legislator, and the reasons for the genetic study (Switzerland); from the participation of the insured in the program for the detection and prevention of congenital diseases (Israel).
COMPARATIVE LAW
The paper is devoted to the comparative legal aspects of the study of executive power systems in Russia and Japan. These states, despite the significant difference in both the political and legal historical path and modern forms of government and state structure, have a number of common constitutional and legal features. Both countries have chosen a legal strategy aimed at the full-fledged building of a democratic rule of law. Comparison of executive-power systems reveals both serious similarities and significant differences in the statics and dynamics of their daily functioning. If in Russia ministers perform rather an administrative and managerial function and are actually deprived of many of their own political prerogatives, in Japan the top officials of ministries are, as a rule, public politicians. The difference also lies in the procedure for appointing heads of executive departments — in Russia in this process, the primary role is assigned to the personal will of the elected head of state, in Japan — to the collective will of the elite, self-organizing and legitimized through parliamentary elections. At the same time, a number of common features correspond to the governments of these countries, both in terms of their legal nature and in terms of their functions. These circumstances indicate the need to intensify comparative legal research in this direction in order to clarify questions about the further expediency of the mutual reception of norms and institutions related to the corresponding public law orders.
ISSN 2782-1862 (Online)