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Actual Problems of Russian Law

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Vol 16, No 7 (2021)
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THEORY OF LAW

11-22 423
Abstract

The paper analyzes a number of the most significant works of procedural law scholars, experts in legal process and procedural form, which made it possible to trace the evolution of the domestic procedural law science, including pre-revolutionary, Soviet and modern periods. Each of these periods is characterized in relation to the specific works of a number of authors. The domestic procedural science originates from the unity of three processes: civil, criminal and administrative, and the tendency to create a single procedural or judicial law. The main conclusion is that today the procedural science lags behind the substantive science, especially the general legal processology. Therefore, there is a need to develop a general legal theory of procedural legal regulation, which will facilitate not only further scientific development of the problem of legal regulation in general, but also will meet the practical needs.

23-31 630
Abstract

The mechanism of legal regulation of relations is considered as a system of legal means, methods and forms with the help of which social relations are regulated. The author argues about the variability of the normative element of the mechanism under consideration, since it is not always possible to include the multiplicity of parameters that form its content and essence exclusively into the content of a legal norm. It is argued that the rule of law is not the main element of the mechanism of legal regulation through which relations between members of the society are being regulated. The corresponding regulatory influence is ensured with the help of individual regulators that have a different legal nature due to their limited, personalized obligatoriness. The author proves that, along with a legal norm, an individual normative prescription acts as a legal means of ensuring the operation of the mechanism of legal regulation of social relations, and its form is represented by alter-normative regulators (contract, custom). In addition, along with normative and alter-normative regulators, super-normative (principles of law) and quasi-normative (judicial acts) are highlighted.

32-43 361
Abstract

In a modern state, in the context of the growing complexity of socio-economic relations caused by globalization, social relations are rapidly developing, which necessitates deep theoretical understanding and new approaches to the formation of a legal structure (model) “legal support for food safety”. The paper proposes the author’s approach to the construction of definitions of the category “legal support for food safety” based on the use of categorical-system methodology. In the process of constructing the definition, the author analyzes the content of the research. The author applies the general scientific universal cognitive tool, i.e. the method of twolevel triadic deciphering, defines the fundamental elements of the phenomenon of legal provision of food safety and determines the interrelationship between them. Based on this analysis, the conclusion was formulated that the category “legal support for food safety” is deciphered, at the first level, as the concept of “legal support” in general terms, which refers to the legal field, and, at the second level, in relation to a specific scope of application as “food safety.”

STATE POWER AND LOCAL SELF-GOVERNMENT

44-51 482
Abstract

The paper considers the categories “public” and “private” from the standpoint of the theory of constitutional law, identifies the main aspects of their legal nature, as well as their potential for determining the essence and correlation of other legal phenomena, the study of which is an urgent task of constitutional law. The categories “public” and “private” are studied from the standpoint of constitutional axiology and on the basis of the formal legal foundations of their consolidation in the constitutional legislation of Russia. On the basis of the indicated categories, the author examines the correlation between such concepts as “rights of the people” and “human rights,” the legal regime of “common goods,” in particular land and other natural resources, from the standpoint of “public” and “private;" people and characteristics of individual self-expression. As a result, it is concluded that the “public” and “private” can become an effective toolkit in the study of various fundamental categories of constitutional law; with their help, it is possible to determine the essence of legal phenomena, relationships between them and the setting of priorities in lawmaking and law enforcement.

PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS

52-65 403
Abstract

The paper is devoted to the study of issues related to the powers of Roszdravnadzor to identify unregistered medical devices in circulation and to take response measures to limit their further sale and use by business entities. The authors analyze the features of the implementation of these powers of Roszdravnadzor and the problems arising in law enforcement practice. An analysis of the current Russian legislation leads the authors of the article to the conclusion that the legal regulation of the powers of Roszdravnadzor to recognize the products as unregistered and to make administrative decisions to restrict their circulation on the territory of the Russian Federation is insufficient and contradictory. The lack of proper legal regulation in this area entails negative legal consequences for participants in civil turnover. On the basis of the study, the authors formulates specific proposals for improving the legal regulation of the recognition and withdrawal from circulation of unregistered medical devices using mechanisms of preliminary and subsequent administrative (extrajudicial) and judicial control.

FINANCIAL LAW

66-76 420
Abstract

In 2020, the world has faced with a global challenge – the new coronavirus infection (COVID-19) pandemic, which has had a huge impact on the policies and economies of all states. In the face of severe economic slowdown, most countries have implemented stimulus packages. The paper describes the measures of tax support introduced in the Russian Federation and the EU and highlights the stages of the introduction of these measures. At the first stage, support measures were introduced for citizens and enterprises through both cash payments and a deferral of tax collection, the introduction of temporary benefits and mitigation of the rules for the transfer of losses. The next step was to stimulate the economy, including through tax policy measures.
The paper is a continuation of the study, the results of which – an analysis of the measures of the first stage in the OECD and the EU – were published by the author in No. 10, 2020, Journal “Actual Problems of Russian Law.” This paper examines the follow-up measures introduced by national governments, as well as the measures planned to be introduced in the EU. In addition, the analysis of tax support measures developed and introduced in the Russian Federation was carried out.

77-85 1199
Abstract

The paper is devoted to the study of the essence of crowdfunding as an innovative mechanism of investment activity. The author studies the peculiarities of collective investing, analyzes the process of the formation of crowdfunding as a particular case of a broader phenomenon – crowdsourcing, examines the types of crowdfunding (crowdrewarding, crowdinvesting, crowdlending), examines statistical data characterizing the development of crowdfunding relations in Russia and abroad, highlights the risks associated with crowdfunding. According to the author, the peculiarities of crowdfunding are related to the fact that it is, on the one hand, a form of collective investment activity, and on the other hand, a form of crowdsourcing. It involves the investment of insignificant (as compared with the total required amount) funds, aimed at financing projects at the early stages of implementation (start-ups). One of the participants in the crowdfunding relationship is an intermediary between the investor and the recipient of investments – an investment platform. The purpose of investment may be togenerate income, as well as other benefits, in particular goods, priority access to an innovative product, discounts, or the achievement of a socially useful result.

LEGAL REGULATION IN THE INFORMATION SPHERE

86-94 603
Abstract

Digital technologies today have an increasing impact on the world and national economy, social, cultural and political spheres of the state’s life. Most developed countries are implementing large-scale digitalization strategies. In Russia, federal programs are being actively implemented. The purpose of federal programms is to introduce digital technologies, artificial intelligence and platform solutions in the fields of public administration, economy, education, etc. In addition to solving technical problems, it is necessary to ensure effective legal regulation of digitalization processes and the further application of innovations in all spheres of the society. The paper provides for a comparative analysis of digital and platform law of foreign countries, as well as an assessment of the need to form a corresponding direction in the legal system of the Russian Federation. Since digitalization and the use of artificial intelligence is a global process, Russian legislation regulating this area of public relations should be created taking into account foreign experience. Such an approach will help to form a system of legal norms that contributes to the accelerated development of digital innovations, platform law, artificial intelligence associated with them, which will ensure the successful application of such innovations in our country.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

95-109 716
Abstract

A supplementary decision is intended to eliminate the incompleteness of the court decision passed in  the case. It is derivative and, therefore, dependent on the decision of the court in the case, but regarding other
issues it is autonomous (independent). The author criticizes formal explanations about the possibility of making a supplementary decision exclusively by the same court panel that made the decision on the case, as well as about returning the appeal along with the case to the court of first instance for making a supplementary decision. It is proposed to give the right to raise the issue of making a supplementary decision regarding the distribution of court costs for forensic examination carried out by experts and expert organizations on an equal basis with the court and the persons involved in the case, as well as equate the period for raising this issue with the time limit for appealing the court decision. The author contends the impossibility of presenting new (additional) evidence when the court considers the issue of making a supplementary decision, as well as the impossibility of restoring the procedural period missed for the delivery of this issue. It was revealed that a supplementary decision can also be made in the case when the resolution of a particular issue by virtue of the law is mandatory for the court. The author determines alternative ways for completing the court decision on the case, if the possibility of making a supplementary decision is lost. Attention is drawn to the ambiguity of the assessment given to the supplementary decision as a mechanism for replenishing the court decision in the case due to its objectively inherent shortcomings

LEGAL PROTECTION OF INTELLECTUAL PROPERTY

110-124 521
Abstract

The paper discusses the terminological aspects of the system of legal regulation of cross-border relations in the field of industrial property. The use of the term “cross-border relations” does not in itself imply the overcoming of the territorial principle of industrial property protection. Transboundariness as a characteristic of private-law relations, which presupposes a complication of the relationship by a foreign element, means the presence of any connection between the relationship (through a subject or legal fact in the case of cross-border relations in the field of industrial property) with the legal order of several states. It is proposed to define industrial property as rights (exclusive and personal non-property) related to intellectual property in the production-technical and production-trade areas. The system of legal regulation of cross-border relations in the field of industrial property is defined by the author as a coherent group of norms consisting of interrelated and interdependent principles of protection of industrial property (universal, general object and special object), other international and national substantive legal and national conflict-of-laws norms subordinate to these principles, as well as individual norms of non-state nature, subordinate to all the specified legal norms, regulating relations complicated by a foreign element regarding the emergence, use, transfer, restriction, termination, protection of rights to industrial property. In this case, a foreign element in a legal relationship can be represented by the subject, as well as by a legal fact: the place of violation of the right to the industrial property object, the place of execution of the formalities necessary for the protection of the industrial property object, as well as the place of occurrence of the consequences of harm caused by the violation of rights to intellectual property object.

CRIMINAL LAW

125-135 598
Abstract

The use of many achievements of the scientific and technological revolution contains risks, including criminal ones. However, this circumstance cannot serve as an obstacle to progress, the instruments of which are these achievements. Obviously, criminal prosecution can only take place when reasonable and minimum requirements are not observed to prevent harm from being caused in a situation in which it should not be done. At the very least, the Criminal Code of the Russian Federation should not interfere with progress, but as a maximum should help it. The norms on unmanned vehicles proposed in the criminal law literature to supplement the Criminal Code of the Russian Federation are intended to serve this purpose. These vehicles imply any unmanned vehicles (UV), primarily autonomous vehicles (AV) and unmanned aerial vehicles (UAV), unmanned aircraft (UA). A critical analysis of these norms allows us to assert that there is no need to create our own criminal law definition of an unmanned vehicle. It is enough to use the definition that exists in the field-specific, transport legislation. The author rejects an idea to supplement the body of a crime provided for by individual articles of the Criminal Code of the Russian Federation with the classifying element “committing a crime with the use of a UAV”. The author finds reasonable to supplement article 63 of the Criminal Code of the Russian Federation with a rule granting the court the right to decide at its own discretion in what kind of crime the use of the UV (AV, UAV, UA, etc.) should be considered an aggravating circumstance.

136-144 542
Abstract

The need for Article 19 of the Criminal Code of the Russian Federation, containing “general conditions of criminal liability“, is not specifically discussed in the literature. Meanwhile, in the Criminal Code of the Russian Federation (Art. 8) there is another, more widespread concept, namely “grounds for criminal liability”. This work aims at defining the correlation between these concepts. Using linguistic, comparative legal and historical legal methods, the author concludes that these concepts are identical. At the same time, the inclusion of mandatory component elements, such as subject of a crime, in the general conditions of criminal liability is capable of leveling the importance of corpus delicti as the only and sufficient basis for criminal liability. The paper formulates a proposal to abandon the concept of “general conditions of criminal liability” and to replace it in theory and practice, as well as in the title of Art. 19 of the Criminal Code of the Russian Federation with “features of a person subject to criminal responsibility”.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

145-158 773
Abstract

In the paper, given the recent history of prosecutorial supervision, the opinions of prosecutors and scientists, and the position of the Constitutional Court of the Russian Federation, the authors analyze the legislation and court practice on cases when prosecutors engage experts. The forms of special knowledge application in the course of the prosecutor’s supervision are highlighted and specified. The authors formulate recommendations for their design and use both during the prosecutor’s investigation and for further possible legal proceedings. In case the prosecutor’s decision is taken within the framework of the powers granted by the Law on the Prosecutor’s Office, it must be made based on the results of an audit conducted with the participation of a competent person. In cases when the prosecutor’s investigation findings are subsequently result in response measures made up of legal norms in the framework of legal proceedings, the examination must be carried out in court in order to establish the circumstances requiring the use of special knowledge. Special knowledge application in the course of the prosecutor’s investigation becomes the basis for further measures of the prosecutor’s response. The authors substantiate the opinion that the integration of the institution of forensic examination into the implementation of prosecutorial supervision in its pure form is impossible. At the end of the paper, a conclusion is formulated about the forensic significance of this activity, including for an investigator, an inquiry officer at the stage of initiating a criminal case.

159-167 2046
Abstract

The paper discusses some of the features of administrative cases on the recognition of information materials posted on the Internet as extremist. An analysis of judicial practice in cases of recognition of information materials as extremist (Article 265.8 of the Administrative Procedure Code) highlighted their specifics and problematic aspects associated with expert opinions used to substantiate administrative claims. Presumably, extremist materials are detected by law enforcement agencies during the monitoring of social networks and other Internet resources and are sent for linguistic expertise. If a linguistic expert reveals any signs of extremism, the prosecutor issues a legal opinion and in the interests of the Russian Federation and an indefinite circle of persons applies to a federal court with an administrative claim to recognize information posted on Internet sites as extremist material, i.e. information, the distribution of which is prohibited in the Russian Federation. The paper concludes that to substantiate the arguments of administrative claims, the conclusions of linguistic experts are used, the quality of which determines the validity of the court decisions taken. As the main reason for expert errors, the authors cite the ambiguity of the interpretation of the concept of “extremist materials”, which entails a mixture of information calling for committing an extremist action or justifying or substantiating it, and the actual speech action of calling or justifying or justifying. It seems necessary to change the existing expert approach towards the development of a unified criterion for determining diagnostic complexes of signs necessary and sufficient to substantiate the extremist essence of information materials, taking into account the duality of their legal and linguistic assessment.

INTEGRATION LAW

168-178 606
Abstract

The paper explores the issues of export control, their regulation in the law of the European Union; considerable attention is given to differences in the status of military and dual-use goods. Approaches to the harmonization of export of weapons regulation, as well as to the unification of legal provisions on the export of dual-use goods are considered. An analysis of acts of primary and secondary law governing both the movement of military and dual-use goods within the European Union and their export to third countries is carried out. The authors conclude that the European legislator uses similar mechanisms, which allows us to speak about the formation of a unified model of legal regulation in the areas under consideration. Particular attention is given to the procedure for obtaining licenses and permits within the framework of export control to the EU. The paper scrutinizes the characteristic features of customs declaration for military and dual-use goods export, and specifically analyses the procedure and grounds for the suspension of the release of such goods. The paper also discusses the features of checking permits and licenses when exporting military and dual-use goods.

COMPARATIVE LAW

179-191 477
Abstract

Comparison of the phenomenon of property rights in two unrelated legal systems is an interesting task from the point of view of methodology. A simplifying factor is that English law in its origins was strongly influenced by Roman law, but developed apart from continental legal systems. As a result, using the same terminology in the field of property rights in the Russian Federation and Great Britain, different views have been formed on the nature of property rights to land plots. The paper analyzes the legal structures of real law in both countries and achieves the goal of clarifying the content of controversial terms and classifications existing in the real law of the Russian Federation; taking into account foreign experience the author determines the prospects for the development of domestic concepts of real and absolute rights. The admissibility of comparing property rights to land plots is predetermined by the use of similar legal techniques in both countries, as well as terminology borrowed from Roman law. The paper substantiates the thesis on the admissibility of using the analytical concept of law of W. N. Hochfeld as a comparative legal method of research. Fundamental differences in both legal systems will be in the idea of the object of property rights to land plots, the place of property rights in the classification of rights, in the structure and content of the corresponding legal relationship. Taking into account the analysis of the legal regulation of property rights to land plots in the two countries, theoretical provisions substantiate the conclusion about the need to preserve the idea of the absolute nature of property rights in domestic law.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

192-203 588
Abstract

The paper examines international documents (conventions and other treaties, declarations, resolutions of the United Nations General Assembly and other acts), which show transitional moments when and how organizational and legal measures to improve the state of the environment began to appear in the field of international cooperation on the environment. Based on their analysis, the author concludes that in the course of the formation and development of international cooperation in the field of the environment, measures to improve its condition and rational use of natural resources are increasingly recognized as one of the main ways to maintain the ecological balance. The concept of international cooperation in the field of rational environmental management has been formulated. It is proposed to understand it as a system of organizational and legal measures taken by the world community and its members to improve the state of the environment, which, among other things, includes the rational use of natural resources, improvement, restoration of the environment and other measures to enhance the sustainability of ecological systems as a whole.

CONFERENCES

204-215 314
Abstract

The paper provides an overview of the round table meeting “Organizational, Legal and Scientific Methodological Foundations of the Accelerated Development of Genetic Technologies for Medicine”, held on February 5, 2021 by the Department of Medical Law, Kutafin Moscow State Law University (MSAL) The round table was attended by representatives of the country’s leading universities, including Sechenov University, Pirogov Russian National Research Medical University, Medical and Biological University of Innovation and Continuing Education named after A. I. Burnazyan, Russian Medical Academy of Continuing Professional Education of the Ministry of Health of Russia, Kutafin Moscow State Law University (MSAL), St. Petersburg State University, Ural State Law University, A. I. Evdokimov Moscow State University of Medicine and Dentistry, North Ossetian State Medical Academy, Plekhanov Russian University of Economics, Izhevsk State Medical Academy, A. N. Bakulev Institute for Professional Training and a number of other leading educational and scientific organizations. The round table was held within the framework of the state assignment of the Ministry of Education and Science of the Russian Federation “Legal regulation of the accelerated development of genetic technologies: Scientific and methodological support” (No. 730000F.99.1.BV16AA02001) and with the support of the Russian Foundation for Basic Research.



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