ANNIVERSARY OF KUTAFIN MOSCOW STATE LAW UNIVERSITY (MSAL)
STATE POWER AND LOCAL SELF-GOVERNMENT
Civic control in the Russian Federation is gradually being introduced into many fields of activity of government authorities. At the same time, public control was tested in an area not covered by the legislation on public control-in the federal election campaign. We can talk about the emergence of a new electoral institute of civic observation that has been further implemented in the electoral process of constituent entities of the Russian Federation. The paper analyzes the legislative rule allowing participation of public observers in the above-mentioned election campaigns, examines differences in the legal regulation exercised by different constituent entities. The study showed a minor role of the civic control in terms of municipal elections and the authority of the participants of civic control provided for in municipalities. Municipal civic chambers and public councils are deprived of the legal mechanism of direct participation in electoral observation. In this regard, the authors propose to improve the legislation in terms of expanding the powers of the participants of civic control of municipalities in the electoral field. The findings of the study are practical, as their implementation greatly increases civil society’s resource at the local level for providing public observation of elections.
FINANCIAL LAW
The paper is devoted to researching the mechanism of financing “megasience” class projects, as well as the development of measures to improve financing of projects under consideration. It is determined that at present the main source of financing for the “megasience” class installations is the money allocated from the budgets of the budget system of the Russian Federation, primarily from the federal budget. At the same time, extrabudgetary funds are also envisaged at the normative level for the implementation of major scientific projects under consideration. However, the authors highlight that the mechanism for attracting extrabudgetary money to finance the scientific field has not been developed at present. On the contrary, the attractiveness of private capital involvement in financing scientific research is, indeed, not obvious. In this regard, the authors make proposals to provide preferential taxation to business entities involved in co-financing of the projects. In the authors’ view, this will have a positive impact on improving financing in general.
The paper examines the influence of digitalization on the method of financial law. The recent widespread introduction of new digital technologies leads to a change in the internal essence of the processes of influencing public relations, to the expansion and transformation of ways of influencing the behavior of participants of such relationships. By supplementing traditional ways of legal regulation by technical means of ensuring their implementation, the State increases the effectiveness of the mechanism of legal regulation. Digital technologies provide law with the possibility of regulating public relations in fundamentally new ways, expanding the variability of the tools of the method of financial law. This also causes increased discretion (dispositivity) in the process of regulating financial relations. Digital technologies also contribute to the regulation of cross-border relations, in particular information exchange between different jurisdictions. The author believes that the trends discussed in the paper will only increase, leading to a change in the content of the method of financial law.
BANKING SYSTEM AND BANKING ACTIVITY
The paper is devoted to the study of the legal status of the Bank of Russia in the market of financial technologies. The author highlights that the Central Bank of the Russian Federation is consistently given powers to regulate, control and supervise the activities of operators of investment, financial platforms, digital financial asset exchange operators, as well as information platforms issuing digital financial assets. At the same time, the author concludes that measures taken for the integrated development of this industry are insufficient. In this regard, the author proposes to give the Bank of Russia powers to regulate, control and supervise activities directly associated with the issuance and circulation of cryptocurrencies (digital currencies). The study reveals the lack of the legal framework necessary for the issuance and circulation of the national digital currency that is proposed to be considered as electronic funds, with the Bank of Russia acting as an electronic funds operator. The author also concludes that there is a need to combine both general ways of financial and legal regulation of relations associated with the development of new financial technologies and specific ones providing for the application of experimental legal regimes.
CIVIL AND FAMILY LAW
The paper analyzes the possibility of using blockchain technology by economic entities in order to violate the norms of competition law, in particular the implementation of monopolistic activities. The author classifies blockchain systems into 4 main groups—public systems, limited access systems, private systems, and consolidated systems. The author considers the main types of monopolistic activity: the abuse of dominant position, coordinated actions of economic entities and anti-competitive agreements. The paper proposes a mechanism for assessing competition in commodity markets to identify the participant occupying a dominant position with due regard to the peculiarities of blockchain technology. The author evaluates some types of abuse of dominant position by using the blockchain technology. It is proposed to divide anti-competitive agreements and coordinated actions into two groups: actions undertaken against blockchain networks and actions undertaken using blockchain networks. The author concludes that the use of the public blockchain system to exchange information by competing business entities under the general rule will not constitute a violation of competition law.
LABOR RELATIONS AND SOCIAL SECURITY
Labor legislation of Russia provides for both a five-day and six-day working weeks with the same 40 working hours limit per week for two labor regimes that makes it meaningless to work six days a week. The paper summarizes the history of days off in Russia and basic international legislation regulating the days off. The author examines two structural groups of arguments, justifying the necessity of enshrining a provision on a mandatory five-day working week with two consecutive days off in labor legislation. The paper substantiates the discrepancy between the provision of labor legislation containing the rule on one day off and part 5 of Article 37 of the Constitution of the Russian Federation on days off (in plural). The author argues in detail the statement in support of the introduction of a five-day working week for teachers. The author questions the economic feasibility of maintaining the six-day labor regime. It is emphasized that, if a mandatory five-day working week is consolidated in law, the employer’s rights will not be infringed regardless of the form of ownership, because the employer is endowed with legal rules allowing him or her to engage workers to work with their voluntary consent in other schemes of the labor regime (to work overtime, in shifts, etc.). Organizations and enterprises under the current and proposed labour regime may attract workers to work 24 hours a day, 7 days a week.
BUSINESS AND CORPORATE LAW
Utility fees have been in the mainstream in recent years, with the State taking all available measures to align payments made by owners and users of individual premises in an apartment building to the constitutional principles of certainty, fairness and proportionality not only de jure but also de facto. In 2020, due to the spread of a new coronavirus infection, the state adopted a number of measures of state and social support for the population, small and medium-sized businesses, in connection with which amendments to the law were introduced. The paper provides a critical review of legislative innovations in the field of housing and utilities payments and synthesis of proposals on measures of state support for housing and utilities organizations providing municipal services. The author examines preferences for citizens and management organizations. One of the most significant trends in the current conditions involves providing support for the population. The author notes the contradictory nature of approved innovations, analyzes their further influence on judicial practice and development of scientific-theoretical thought in the field of housing and civil legislation. The paper critically evaluates the “transformation” of the legislation regulating housing and utilities (communal services) fees. The main idea of the paper is the fact that in the current difficult situation the state should provide full support to organizations connected with housing and utilities to stabilize the society and the State as a whole.
MEDICAL LAW
In the healthcare industry, and in general, in the sector of citizens’ health care of the Russian Federation, a number of problems have accumulated that require an immediate solution. Many of them cannot be solved without serious organizational, legal and other changes, significant modernization or change of the current budgetary and insurance model of the industry under consideration. The request to change the current model escalated due to the events of the first half of the 2020, namely due to the COVID-19 pandemic, the managerial, financial and other solutions that followed its development in health care and other spheres of the society. In connection with the discussion in the expert and political circles of the state model of national health care, the author discusses the question concerning possible principles (fundamentals) of the legal regulation of the health care. The author proposes the following principles: the principle of legality; the principle of sectoral planning; the principle of information openness (transparency); the principle of equality of citizens’ rights to medical care in state health-care organizations; the principle of ensuring free medical care in state health organizations; the principle of inadmissibility of charging citizens for medical care provided in State health organizations; the principle of referring public health as a factor to ensuring national security and other types of national security; the principle of ensuring access of citizens to medical care, medicines, medical devices, other means of medical use, medical technologies; the principle of continuity and phasing in the provision of medical care, and a number of other principles.
CRIMINAL LAW
Changes made to Art. 191 of the Criminal Code of the Russian Federation at the end of 2019 in order to eliminate gaps in legislation, in fact, created even more conflicts in the theory and practice of applying criminal and administrative law. The legislator has not fully calculated the risks of the new edition of Art. 191 of the Criminal Code of the Russian Federation. The elimination of these risks requires more changes to the federal legislation, the adoption of new by-laws. Within the framework of Art. 191 of the Criminal Code of the Russian Federation the legislator created a contradiction regarding the qualification of illegal circulation of unique amber formations. Russian legislation does not contain a legal definition of semi-precious stones, clarification of their difference from precious stones. The concept of precious stones does not prove to be successful, since it contains a list-based reference of a particular stone to the category of precious stones, which does not always really reflect the economic value of a particular mineral. The list of semi-precious stones at the level of the Government of Russia has yet to be approved. Taking into account the administrative prejudice as one of the conditions for criminal prosecution for illegal trafficking in semiprecious stones, it should be the same with the list of semi-precious stones established to bring an individual to administrative responsibility for similar offenses. The legislator did not pay attention to the issues of delimiting jewelry and household products and scrap of such products from the subject of crimes under Art. 191 of the Criminal Code of the Russian Federation. An even greater problem is the inconsistency between the norms of administrative and criminal legislation on liability for illegal trafficking in semi-precious stones.
The paper examines the doctrinal problems of crime as the central institution of criminal law. The essence and content of the concept of "crime" and its features are revealed from ontological positions: an act, social danger, wrongfulness, guilt and punishability. A differentiated approach to assessing the wrongfulness and social danger of an act determines the emergence of many concepts of crime and its characteristic elements (features). The legal concept of a crime is based on the fact that the act reflects and characterizes the crime and it is the act that has a set of objective and subjective features. The author outlines some trends in the development of the doctrine of crime in the context of the global instrumentalization of criminal law and the unification of modern legal systems. The main conclusion is that the concept of a crime should be formulated through the definition of social danger and unlawfulness (a crime is socially dangerous and unlawful behavior). It is the combination of public danger and wrongfulness that forms the concept of a crime and the rest of the features are derivatives. Socially dangerous behavior contains a set of objective and subjective features of wrongfulness, which are directly enshrined in the criminal law, which also provides for an element of punishment as a measure of state influence.
CRIMINAL PROCEDURE
The paper examines the legally enshrined principles of material truth (§ 244 II StPO) and free assessment of evidence (§ 261 StPO), as well as the doctrinal requirement for a comprehensive, complete and objective study of the circumstances of a criminal case from the standpoint of the legal mechanism for identifying and eliminating (eliminating) judicial errors in criminal proceedings in Germany. The meaning and functions of the named concepts for criminal proceedings have been determined. The influence of the principle of material truth (Untersuchungsgrundsatz, Aufklärungspflicht) and the principle of free evaluation of evidence on law enforcement are analyzed. Based on the analysis of the universal regulatory framework of the elimination of judicial errors and the corresponding judicial practice, comparing the current legal regulation of Germany with the Soviet criminal process, the author formulates hypotheses on the possibility of returning to the domestic criminal procedural law of truth as a special legal structure that guarantees the quality of the investigation of the circumstances of the criminal case and ensuring uniform judicial practice.
CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE
The genesis of the origin of lies in the paper is considered in two aspects: from the point of view of its socio-psychological nature (the reasons for the emergence of lies as a phenomenon of interpersonal communication in general) and from the point of view of its appearance in a criminal case (the reasons for the lies of participants in criminal proceedings). Through the prism of the historical development of a person as a biological species (phylogeny) and as a separate representative of this species (ontogeny), a lie is a person’s communication skill acquired in the process of socialization and demanded by society, a system of interactions of psychophysiological components of his body, functioning according to a certain, spontaneously formed in the process individual development patterns. The consequence of the individuality of a lie is the absence of its universal feature. The analysis of the motivating reasons for the lies of the participants in criminal proceedings was carried out on a comprehensive basis. The paper describes specific factors that determine the appearance of lies in a criminal investigation, such as the situation of interaction; peculiarities of relationships and communication between subjects of communication; the personality and activity of the person at whom the lie is directed; the personality of the subject of lies, his motivation, individual psychological, moral and other features, his assessment of the situation of interaction, etc. In a structured form, possible motives for the lies of participants in criminal proceedings are given.
ENFORCEMENT OF PENALTIES
The paper discusses the preventive measures carried out in the penitentiary institutions of foreign countries, preventing the penetration and spread of coronavirus infection. Persons serving sentences in places of detention are at increased risk of infection in the event of an outbreak of the disease. Their situation requires separate consideration in planning and responding to crises. Measures to ensure social distancing are implemented through a special legal regime, the introduction of which limits the subjective rights of convicts. The introduced legal restrictions in some states provoked the emergence of criminal emergencies, which required the optimization of criminal and penal legal relations. Due to the emergency in the healthcare sector, it seems possible to use such institutions of criminal law as release from serving a sentence, deferment from serving a sentence, replacing the unserved part of a sentence with a milder type of punishment as an exceptional measure, and developing alternative ways to maintain socially useful ties. These methods include: increasing the duration of calls in correctional facilities, conducting visits through video conferencing, organizing a prompt exchange of information on the health status of relatives and convicts using a hotline, and using secure mobile devices.
INTERNATIONAL LAW
In legal science, the topic of digital rights has become more relevant than ever. This can be explained by the adoption of new laws regulating their turnover, as well as the significant difference between regulation in Russia and regulation in similar foreign legal institutions. At the same time, in domestic legal science, insufficient attention is given to issues of private international law in this area, although any civil turnover in the digital environment is cross-border and consists of foreign elements. In this regard, the author investigated the existing conflict of laws rules and their correlation with new legal relations arising from the circulation of digital rights. Within the framework of the paper, the author singles out two types of digital rights existing in the law of the Russian Federation and considers some issues of law applicable to legal relations arising in connection with their circulation. In particular, connecting factors typical for digital utility rights and digital financial assets are considered separately. For comparison, examples of applicable law used in foreign countries are given. In addition, the author shares his reasoning about the consequences of too "dense" tying the circulation of digital rights to the Russian legal order.
Based on the analysis of arbitration practice and doctrine, the author identifies the principles of interpretation of the most-favored-nation clause in order to resolve the issue of the jurisdiction of the International Center for the Settlement of Investment Disputes (ICSID) by arbitration. The author concludes that the arbitration should be guided not only by the principle of literal interpretation of the international investment agreement and, in case of uncertainty, establish the intention of the contracting states to apply the most-favored-nation clause to the process of resolving investment disputes, but also take into account the public policy of the contracting states.
The choice of acts of non-governmental regulation as the applicable law in international commercial contracts has become a common practice. When resolving disputes between the parties, international commercial arbitration refers to non-national sources and resolves the dispute on their basis, in contrast to state courts, which excluded the application of non-state regulation as applicable law. The paper discusses the approach on the admissibility of choosing non-national sources as the applicable law in an international commercial agreement, set out in the resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.07.2019 No. 24 "On the application of the norms of private international law by the courts of the Russian Federation." The question of the validity of expanding the principle of autonomy of the will of the parties is investigated. The author analyzes the choice-of-law clauses used in the ICC Model Commercial Agency Contract and the ITC Model Contract for an International Commercial Agency. The author concludes that there is a shift in the regulation of cross-border private law relations towards the application of non-state norms and rules when resolving disputes by state courts and the possibility of the emergence of contracts that are not subject to any legal system.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
The paper reveals the content of "protection of water bodies" concept, giving particular attention to the consideration of the legal regime of water protection zones and coastal protection zones as one of the legal mechanisms for the protection of water bodies from pollution, clogging, siltation. The author analyses of the peculiarities of the legal regime of water protection zones of the Soviet and current Russian legislation. Based on the current legislation and current judicial practice, the author considers the characteristics of the legal regime of the above mentioned zones and some problems of compliance with the regime (for example, violation of the legal regime of the water protection zone due to the absence of information signs on the ground), which one has to face in practice. In this regard, the author gives special attention to the need to inform nature users and increase their level of ecological culture. The author concludes that there is some inconsistency of the current water legislation in the context of the legal regime of water protection zones and coastal protection zones with the ecosystem approach in nature management. The formally envisaged legal regulation creates only the appearance of effective mechanisms for water protection.
ISSN 2782-1862 (Online)