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Actual Problems of Russian Law

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Vol 16, No 6 (2021)
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PAGES OF HISTORY

11-20 765
Abstract

Methodology of any science is designed to optimize the cognitive process, for which it has special tools that correspond to the specifics of the object under study. That is why the methods of different sciences, even the closest ones, differ. The methodology of civil law was formed due to the continuous work of many generations of legal scholars who managed not only to find suitable methods and means of comprehending legal reality for their own research, but also to firmly introduce them into scholarly and research life. The paper examines the features of the civil law methodology at different stages of its development, which is generally characterized by outside influence and unique tendencies, a change in fundamental guidelines and continuity, as well as a strong connection with socio-political phenomena. At present, both general scientific and special methods of cognition are widely used in civil law. The latter include formal legal, comparative legal, historical legal, intersectoral methods

PHILOSOPHY AND ETHICS OF LAW

21-30 688
Abstract

The paper examines activity as the most important component of human life. The author elucidates the features of activity from the standpoint of various fields of knowledge: philosophy, psychology, sociology. The preference is given to the activity approach, which is based on the category of “substantive activity.” It is substantive in nature and does not simply define the activity as human interaction with the outside world, but reflects the changes that constitute the result of human activity. Various aspects of theoretical and practical activity are touched upon on the example of legal activity, which is of a complex intellectual nature. Legal activity is often characterized through legal practice — one of the varieties of social practices. Some similarities of these categories are reflected, as well as differences between them. The paper gives the author’s definition of legal activity focused on professional legal activity. The definition cannot claim to be universal due to various types of professional legal activity. Nevertheless, it is specified that professional legal activity is always an activity carried out on the basis of law, in legal forms; it is aimed at achieving the goals determined by law. The author demonstrates the impact of digital technologies on various types of legal activities. Especially in the conditions of the pandemic when traditional forms of communication have given way to virtual ones. It is noted that this influence is of a dual nature, that is, on the one hand, it increases the efficiency of communications, and, on the other hand, it leads to some risks and problems, in particular, against the background of the fact that a significant part of our population still does not have access to modern information and communication systems.

STATE POWER AND LOCAL SELF-GOVERNMENT

31-47 471
Abstract

One of the basic human values is freedom as the basis of human existence, the concept of which is one of the most complex and multifaceted. The concept of the general freedom of the individual includes economic freedom, which is an interdisciplinary category. Modern scientific thought is characterized by a significant variety of substantive explanations of different aspects of economic freedom, in connection with which issues related to understanding the essence of this category remain controversial. The paper attempts to comprehend the formation of theoretical ideas about the economic freedom of the individual with due regard to the historical aspect, ideological trends, economic theories, types of economic systems, positions of philosophy, economics, science of constitutional law, concepts of human rights. The analysis of the views of various authors on the concept of "economic freedom", its normative implementation in early constitutional acts is important for understanding evolution, further development of scientific ideas and ideas about this category, constitutionalization of the value of "economic freedom of the individual" in Russia.

46-57 522
Abstract

The paper is devoted to the study of the institution of constitutional and legal responsibility of the Government before the Parliament in Russia at the present time. In connection with the implementation of the Constitutional Reform in 2020, the author notes that the legislator has taken the path of strengthening the role and importance of the Parliament in terms of monitoring the activities of the Government. Nevertheless, the main drawback of the current legislation is still the lack of real sanctions that the Russian Parliament can apply independently in relation to the Russian Government or its individual members. Therefore, the author proposes a number of new sanctions, as well as a number of measures aimed at improving the existing mechanisms for applying sanctions of constitutional responsibility. In particular, it is proposed to introduce the right of the State Duma of the Russian Federation to present its own nominees for vacant positions in the Government, the approval of which is under the authority of the State Duma of the Russian Federation, to enable the State Duma to independently release individual members of the Government from positions approved by it. In addition, it is proposed to improve the procedure for expressing a vote of no confidence in the Government by the State Duma, namely, to introduce the obligation of the President of the Russian Federation to dismiss the Government of the Russian Federation in the event that the State Duma re-expresses no confidence in the Government within three months. It is also proposed to increase the role of the Council of Federation of the Russian Federation by introducing the power of this body not only to consult with the President of the Russian Federation, but to approve the corresponding candidacies of federal ministers proposed to this body by the President of the Russian Federation. The author notes that the proposed improvement measures will increase the effectiveness of the implementation of a number of federal laws regulating the parliamentary responsibility of the Government of the Russian Federation.

FINANCIAL LAW

58-76 993
Abstract

The paper examines issues related to the origin of money and the transformation of its forms, the economic and legal nature of money, provides characteristics of "cryptocurrency" and digital currencies of central banks, including the digital ruble. The author makes an attempt to define money based on its obligatory nature. As the author emphasizes, remaining in captivity of traditional approaches (money is a thing, there is full-fledged money and inferior ones, cash is money, but along with this there is “money” that is not money), we will not get an adequate reflection of the phenomenon “money” in national legislation, and we will not achieve effective regulation of money circulation in the country. It seems that the definition of money should be based on its obligatory nature. Money is a universal right of claim, expressing the value of any goods, works, services, recognized in thesociety, supported and provided by the state (central bank). The paper also emphasizes that the digital ruble will require a serious reform of both private law and public law legislation to properly reflect the existing and actually emerging system of monetary circulation. Changes in legislation cannot be limited to legal and technical amendments with the use of the term "digital ruble" and the establishment of some features of its circulation.

LEGAL REGULATION IN THE INFORMATION SPHERE

77-87 540
Abstract

The paper is devoted to the problem of creating a flexible regulatory system that allows testing and limited use of artificial intelligence, guaranteeing the safety of the population and aimed at stimulating the development of artificial intelligence, robots and robotics objects. It is substantiated that the use of the regulatory platform is an effective mechanism for the development of a regulatory system in this area. The author determines and analyzes the essential components of the structure of the regulatory platform that include the regulation of information exchange, the introduction of mandatory conditions for participation, including the introduction of administrative and legal regimes for regulating economic activity, the regulation of monitoring the activities of the regulatory platform subject, a system for leveling risks for both subjects and participants of the regulatory platform, the formation of a mandatory system of protection against the negative consequences of the use of artificial intelligence, robots and robotics objects. The paper describes the main approaches to establishing civil liability for the use of artificial intelligence, robots and robotics objects that include: civil liability of the developer (creator) for the use of artificial intelligence, robot and robotics objects and the civil liability of the user ( owner, proprietor or person making a profit) for using artificial intelligence, robots and robotics objects.

CIVIL AND FAMILY LAW

88-101 610
Abstract

The paper is devoted to the analysis of the institution of force buyout of animals provided for under Art. 241 of the Civil Code of the Russian Federation. The practical application of the buyout under consideration is associated with a number of difficulties, in particular, with the lack of a normatively fixed concept of a humane attitude towards animals and with the difficulty of determining the balance between inhuman attitude and cruelty. To analyze these concepts, the author turns to the Russian doctrine, judicial practice and European regulation, studies the concept of welfare and the fundamental five freedoms of animals. The paper also examines the relationship between the two elements of the institute of forced buyout named in the provisions of the Civil Code of the Russian Federation as the establishment of a violation by the owner of regulatory requirements in the field of handling pets and inhuman treatment. A separate issue, raised in the paper, is the procedure for determining the value of the repurchased animal by the court that must take into account all the applicant’s costs associated with the treatment of the animal after the buyout.

102-113 545
Abstract

The paper substantiates that the reason for the collision between the legal form and the economic content of the contract is the discrepancy between the real economic goals of the parties to a particular contract and the goals that the legislator had in mind when constructing the legal structure of the corresponding contract, for example, a lease payment in a buyout lease agreement includes not only payment for the use of the property, as it should be for the lease, but also the redemption value of the property. The author identifies and analyzes three ways to resolve this conflict: re-qualification of the contract as a whole or its individual conditions according to the rules on sham transactions, direct application of the general legal principle of justice and the priority of revealing the actual common will of the parties over the literal interpretation of the contract. It is substantiated that the parties to the contract have the right to use certain contractual structures to achieve uncharacteristic economic goals, if such goals are not illegal.

114-122 960
Abstract

The paper discusses the issue of the use of custom in the regulation of property relations. The author analyzes the possibility of determining the content of subjective property rights by customary legal norms, namely, such powers as the use and disposal. Attention is focused on the influence of customs on the formation of the owner’s discretion in the exercise of his subjective rights, in particular, the following questions are investigated: on what or on whom does this “discretion” depend? Is it possible that customs influence the formation of the discretion of a particular owner? Special attention is paid to the establishment of limits for the exercise of property rights under customary legal norms. According to the author, applying custom in the regulation of public relations, the owner of a property right does not go beyond the legal field, since custom is a source of law, and in this case one should speak of “discretion within the current legislation” and “discretion beyond it.” The paper concludes that customs can determine the content of subjective property rights, methods of protecting property rights, in particular self-defense issues, and are more often used in the regulation of real legal relations based on private ownership, while customs cannot contradict the peremptory norms. It is emphasized that a special role in the regulation of property relations is assigned to local customs.

BUSINESS AND CORPORATE LAW

123-132 458
Abstract

The paper discusses the terms of the contract for the delivery of goods to retail chains, the inclusion and execution of which, according to the author, is associated with ensuring the protection of consumer rights. The author analyzes provisions of the legislation on trade activities, technical regulation, digital marking. Liability for violation of the relevant requirements is considered, conclusions are drawn about the need for the correlation of information systems. The author considers the practice of formation by retailers of the terms of the contract for the delivery of goods to retail chains related to ensuring the protection of consumer rights. In support of the conclusions contained in the paper, the author refers to current jurisprudence. On the basis of a critical analysis of the norms of the legislation on trade in conjunction with the legislation on consumer protection, recommendations were made regarding inclusion of appropriate conditions into the delivery agreement, including the conditions for conducting an audit of product manufacturing. In addition, the article proposes to expand the list of goods for the delivery of which to retail chains a special regulatory regime should be applied.

CRIMINAL PROCEDURE

133-139 999
Abstract

The paper deals with the problems that are the subject of longstanding scientific discussion, conducted in relation to the prospects of the stage of initiation of a criminal case as an independent stage of criminal procedural activity. Being a supporter of the principled elimination of the stage of initiating a criminal case, the author nevertheless believes that such a decision cannot be made in isolation from understanding the real reasons that prompted Soviet scientists to develop these mechanisms, and the legislator — to introduce them into the system of criminal procedural regulation. Based on the results of his previous research on the problems of pre-trial proceedings, the author believes that the emergence of the stage of initiation of a criminal case is directly related to the one that has been formed since the 1920s. The original Russian system of pre-trial proceedings that has survived to this day, expressed in the integration of the functions of the "police" and "justice" and in the vesting of the "power" ministries and departments with procedural powers of a judicial and investigative nature. In this regard, the author concludes that the question of the further fate of the stage of initiation of a criminal case can be finally resolved only in the context of a clear understanding of the prospects for the development of the entire system of Russian pre-trial proceedings.

INTERNATIONAL LAW

140-148 634
Abstract

The fine line is explored between the application of the closest connection principle as a general gap-filling conflict of laws rule and the solution the related issue based on conflict of laws rules contained in the customs recognized in the Russian Federation. In the absence of a custom, unambiguously recognized in accordance with paragraph 1 of Art. 1186 of the Civil Code of the Russian Federation, the author offers to refer to the closest connection principle in accordance with paragraph 2 of the same article. This proposal is justified by the complexity of the formation of a conflict of laws rule in the form of a custom, since it is not actually implemented in regulatory legal relations. The author reveals a vicious circle in which, in strict accordance with paragraph 1 of Art. 1186 of the Civil Code of the Russian Federation, the condition for the application of a conflict of laws rule in the form of custom is its recognition in the Russian Federation, which it cannot receive in the absence of application. At the same time, when determining the closest connection, special attention is given to the admissibility of reliance on territorial ties recognized in international documents (recommendatory acts and international treaties not ratified by the Russian Federation, including those that have not entered into force), if they correspond to the specifics of a particular relationship.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

149-157 736
Abstract

The paper is devoted to the study of theoretical and legal aspects of the implementation of state policy and strategizing in the field of production and circulation of GMOs. Based on the results of the analysis of the state strategic planning documents, the authors prove that a new system of strategizing in the field of production and circulation of GMOs is being actively formed in the Russian Federation. This system is based on the assessment of potential and long-term risks of GMOs on the environment and human health. This system includes a modern strategic, legislative, subordinate regulatory legal and methodological base. In order to improve state policy and strategizing in the field of production and circulation of GMOs, it is proposed to develop a concept for the development of genetic engineering activities as part of the country’s socio-economic development, taking into account biological, food, and environmental safety. The paper also provides a comprehensive analysis of the current state of the legislation of the Russian Federation in the field of GMO handling. Based on the results of an assessment of the legal support of the current security system of the Russian Federation in the field of genetic engineering, its effectiveness is proved. At the same time, the authors highlight potential risks of the appearance of second and third generation GMOs, which may remain unidentified within the framework of control over the GMO turnover.

ENFORCEMENT OF PENALTIES

158-166 383
Abstract

The paper is devoted to the problematic issues that arise when using the results of investigative activities (IA) at the stage of execution of the sentence. The authors draw attention to the importance of the procedure for proving the facts of concealment of a convicted person from control by the criminal executive inspectorate in cases of submission of submissions to the court on toughening punishments. The information obtained in the course of the IA has a greater informational value for substantiating decisions on issues to be considered by the courts during the execution of a sentence, and their application would make it possible to better motivate the representations of the relevant institutions in the process of proving the need to change penalties and measures of a criminal legal nature that are not related with isolation from society, towards tightening. The paper focuses on the need for an integrated approach to the development of the norms of the current legislation in order to regulate in detail the procedure for conducting IA in relation to persons evading criminal punishment, and measures of legal influence, as well as using the results obtained to substantiate the submissions submitted by criminal executive inspectorates to the court.

LAW ENFORCEMENT

167-170 727
Abstract

The paper is devoted to one of the most pressing topics of domestic legal science. Within the framework of this work, the author analyzes modern methods of countering terrorism and extremism. It is emphasized that in modern conditions it is necessary to clearly coordinate the efforts of all structures countering extremism and terrorism, actively suppress recruitment activities by international terrorist organizations and eliminate their financial support. The paper touches upon the issues of information counteraction to terrorism and extremism. There is also a proposal to introduce criminal liability for illegal circulation of digital currency and violation of the rules for making transactions with it. The leading role of the media in the prevention of terrorism and extremism is noted. Speeches by leaders of various levels, scientists, writers, publicists, sociologists, political scientists, experts, their comments and assessments contribute to the education of citizens’ sense of justice, a spirit of respect for the law.

CONFERENCES

171-177 359
Abstract

The paper provides a brief overview of the conference with international participation, held on December 3, 2020, "Countering Information and Ideological Threats in the Internet Environment Using Special Knowledge", jointly organized by the Department of Forensic Science of Kutafin Moscow State Law University (MSAL), the Russian Federal Center for Forensic Science under the Ministry of Justice of the Russian Federation and the Center for Academic Development and Educational Innovation of Kutafin Moscow State Law University (MSAL). Due to the current sanitary and epidemiological situation, the conference was held in an online format using the Zoom platform, and this factor positively contributed to the quality of the discussion. During active discussions at the conference, general theoretical and applied problems of ensuring information and ideological security in the Internet environment were considered, including the problems of countering extremism, bullying, trolling, propaganda of suicide, prison culture, the cult of violence and cruelty, sexting, grooming, fake news, defamation, etc. Special attention was given to the forensic problems of using special knowledge in the study of malicious computer programs, counterfeit and undocumented information and computer products. The conference was held with the financial support of the Russian Foundation for Basic Research within the framework of research projects No. 20-011-00190, 18-29-16003.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

178-193 662
Abstract

The paper examines topical issues of countering extremist and terrorist crimes. An analysis of terrorist activity was carried out in accordance with the available statistics for the past five years. It was noted that it is necessary to intensify preventive work to identify recruiters and accomplices of terrorists, to cut off the channels for the supply of weapons and money, to suppress the propaganda activities of radicals and extremists on the Internet. A brief forensic characteristic of extremist crimes committed using the Internet is given. Some features of the disclosure and investigation of such criminal acts are highlighted, a number of examples from the practice of the Investigative Committee of the Russian Federation are given. The types of forensic examinations that can be assigned for these categories of cases were considered, the main of which are computer (computer-technical), linguistic examinations. It is emphasized that an effective investigation of extremist crimes committed using the Internet is unthinkable without the implementation of the possibilities of using special knowledge during the investigation.

194-201 373
Abstract

The paper examines topical issues of countering the most dangerous information and ideological threats both for all mankind and for the Russian Federation, namely extremism and terrorism. The authors present the experience of integrating the fundamental scientific developments of representatives of the school of forensic situational science into the practical activities of the Educational and Methodological Center for the Prevention of Terrorism of Immanuel Kant Baltic Federal University. The authors identify the most typical problems associated with the organization of an effective system of anti-terrorist prevention in the educational environment, and suggest ways to solve them. It is concluded that early detection, prevention and suppression of extremist (terrorist) crimes committed on the Internet contributes to the timely prevention of the spread of the ideology of extremism (terrorism), as well as the involvement of citizens in informal extremist communities. The most important task is to create, on the basis of educational and methodological centers, which are found in all federal universities of the country, the so-called cyber squads from among law students. Combining the efforts of volunteers with certain knowledge in the field of criminal law and forensics will allow us to timely and, most importantly, systematically identify suspicious content in the digital space and signal this to the competent law enforcement agencies.

202-210 994
Abstract

The social network as one of the digital technologies has not only creates a platform for communications, especially relevant during a pandemic, but also provokes the emergence of various types of deviant behavior, primarily due to the fact that many communicate on the Internet under fictitious names; it liberates a person, creates a feeling of impunity, control over the situation, etc. Recently, trash streams have become popular on the Web, but not funny and silly, but associated with violence, insult, humiliation of human dignity, causing a feeling of disgust and contrary to public morality. In December 2020, during such a live broadcast, another victim died, which launched a process in society to discuss the need to introduce criminal liability for such acts. The paper assesses the draft criminal law, as well as initiatives to supplement the list of aggravating circumstances and some corpus delicti with an appropriate qualifying feature, and formulates the author’s draft criminal law on responsibility for organizing, conducting, facilitating and participating in direct air in trash streams.



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