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Vol 76, No 10 (2023)
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ANNIVERSARY / LIBER AMICORUM

9-22 319
Abstract

The review article is dedicated to one of the landmark events for the entire legal world and the community of constitutional law scholars: the anniversary of Doctor of Law, Professor Valerian A. Lebedev, Honored Scientist of the Russian Federation, Honored Lawyer of the Russian Federation, Honorary Worker of Higher Professional Education of the Russian Federation. Prof. Valerian A. Lebedev started his work during a difficult period of reforms initiated for the development of Russian statehood, a change in the paradigm of constitutional law development and a radical restructuring of the basic principles of ensuring and protecting fundamental rights and freedoms of the man and citizen. The paper highlights the main milestones of Prof. Valerian A. Lebedev’s scientific work related to the study of the problems of genuine democracy and sovereignty of the people, the priority of development in compliance with the Constitution of the Russian Federation and substantiation of the concept of sovereign democracy, functioning on the constitutional mechanism for the protection of individual rights, ensuring the principle of political pluralism, building a unified system of public power and a unified legislative system of the country, implementation of the constitutional reform. The paper highlights critically important role of Prof. Valerian A. Lebedev and his scientific creativity for the transitional and modern path of development of the national statehood, comprehensive, acute, problematic nature of his works, the unique scientific foresight of the scholar, who not only foresaw the constitutional reform, but also revealed its key concepts-novels, pitfalls and prospects for improving specific constitutional law institutions. The possibility of studying modern and past research works by Prof. A. Lebedev is presented as a special value for the modern science of constitutional law, since their subject of research covers the key concepts and categories of the theory of Russian constitutionalism, correct understanding of which depends on the possibility of effective implementation of the constitutional principles of the existence of the state and society.

PRIVATE LAW / JUS PRIVATUM

23-35 345
Abstract

In the article, the author examines the processes of changing legislation in Russia that reflect the general trends formed in society. The author concludes that by analyzing the trends in the development of domestic and foreign law, it is possible to predict the main directions of the development of legislation, including specific nature of the application of the principle of good faith.

The paper notes that one of the trends that have developed in foreign legal systems is the constitutionalization of private law and the strengthening of the principles of socialization of law, expressed in the evolution of the principle of good faith. Dissemination of the principle of good faith in public legal relations forms another direction in law that, according to the author, means dissemination of the principle of good faith in public legal relations, which is why this principle is applied, in particular, in tax relations.

As a result of the study, the author comes to the conclusion that in order to ensure uniformity of the constitutional law approach to the application of the principle of good faith, given that constitutional norms, principles and values should act as direct regulators of public relations within the process of socialization of law that is carried out simultaneously with the gradual blurring of the dividing line between private and public law, it is advisable to distribute civil law approaches to applying the principle of good faith as the most effective and developed, to other branches of law, which will correspond to the diversified nature of this principle.

36-44 319
Abstract

Digital technologies have become an integral part of modern life. Digital medical services is one of the forms of activity of almost any medical organization. For this reason, the problems of implementation of the work function of medical personnel are relevant. When a medical worker is performing a medical intervention using digital medical technologies, other criteria for evaluating the proper performance of their work function should be taken into account. The specifics of these criteria have an impact on the establishment of grounds for bringing a medical professional to disciplinary responsibility. The work of medical workers is of special social significance. Nowadays, almost no medical intervention is performed without the use of artificial intelligence, artificial intelligence technologies, robots, applications, bots, etc. They became widespread during the introduction of remote labor formats and lock downs, when various software tools were used for remote provision of medical services.

The labor legislation establishes general grounds for bringing medical workers to disciplinary responsibility, as well as traditional disciplinary measures. We believe that bringing medical workers to disciplinary responsibility has a strongly pronounced specificity. This is especially evident in the context of introduction of digital technologies in medical activities.

Based on the analysis of modern legislation and law enforcement practice, we have identified special grounds for bringing medical workers to disciplinary responsibility, analyzed typical cases of labor discipline violations by medical workers, and developed recommendations on the tactics of conducting a disciplinary internal investigation by an employer (medical organization). The author provides recommendations for fixing certain conditions in the explanatory note of a medical worker.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

45-55 240
Abstract

The paper examines effectiveness of legal mechanisms employed for combating corruption. The author analyzes economic benefits for the «bribe-taker» and «bribe-giver» when they are choosing different behaviors in typical situations classified according to the reason of the initiating party, the stage of implementation of a corrupt transaction, etc. The author concludes that an economic benefit for the parties in concluding a corrupt transaction, as well as in maintaining its confidentiality, causes latency of bribery. This circumstance results in introducing legal mechanisms into legislation and law enforcement practice that allow individuals and legal entities to economically encourage individuals and legal entities to refuse an offer from officials to pay a bribe, notify law enforcement agencies about the incident and participate in procedural actions aimed at detecting criminals. Remuneration may be provided in monetary form, while the amount should be significantly higher than the expected benefit from the suppressed corruption transaction, and/or in the form of providing a public service (even if there are no legal grounds for receiving it), and/or in the form of a refusal by a public authority to demand the performance of a civil duty. The author compares the mechanism indicated in the title of the paper with the voluntary refusal to commit a crime, determines its place in the system of incentive norms, compares it with other types of remuneration for assistance in uncovering a corruption crime, and analyzes foreign experience. The author proposes to supplement a number of legislative acts with provisions regulating remuneration for the expressed refusal to commit a crime.

PUBLIC LAW / JUS PUBLICUM

56-70 261
Abstract

The paper defines the author’s approach to the concept, types, characteristics of the goals of state human rights protection. In its most general form, human rights protection includes a system of actions carried out by State bodies and organizations, as well as civil society institutions and international organizations, aimed at restoring violated and creating appropriate conditions for implementation of human and citizen rights, freedoms and legitimate interests, as well as collective rights and public interests of groups of citizens, commercial and non-commercial organizations.

Researchers propose to distinguish the following types of human rights protection objectives: general and particular; basic and non-basic; final, intermediate and immediate; objectively true and objectively false; real and unreal; timely and untimely; substantive and instrumental. Indeed, the available academic developments on this issue are of great interest, but largely they characterize the human rights objectives enshrined in legislation, rather than practice of human rights protection.

The paper elucidates and describes in detail such necessary signs of a human rights protection objective as its humanism, moral validity, social conditionality and legal significance.

The classification of the types of human rights objectives is defined; it is proposed to distinguish strategic (general) and tactical (private) objectives; law enforcement, law-making and «law-enlightening» ones; positive and natural law human rights objectives.

The paper concludes that there is a need for comprehensive consideration of the goals of human rights protection in legislation and law enforcement practice. It is also indicated that a necessary characteristic of human rights protection is its implementation by specific legal methods that are subject to strict regulation by means of provisions of existing normative legal acts or, in any case, they do not contradict them, and in addition, should not go beyond ethical norms and principles.

71-81 296
Abstract

It is already possible to conduct a comprehensive assessment of parallel imports introduction into the Russian legislation, which aims at providing Russian consumers with goods that are no longer available on the national market due to the sanctions against the Russian Federation adopted in 2022 and a number of companies suspending their activities in the Russian Federation. Exhaustion of intellectual property rights has been known in the world for quite a long time as a tool aimed at ensuring a balance of interests of copyright holders, consumers and importers, as well as a tool for ensuring international competition. In a particular state, one or another regime of exhaustion is applied taking into account the economic, political foundations of the functioning of the state economy, legal and evolutionary prerequisites. In this context, the paper presents a number of conclusions and proposals aimed at optimization of the parallel imports regime in Russia. The author considers some aspects of the customs, and substantiates the expediency of direct consolidation of international exhaustion of rights in the Russian legislation and possible development trajectories of the «list» approach to parallel imports. General approaches to the protection of intellectual property under sanctions are formulated, as well as proposals for solving problems related to the use of copyright objects belonging to copyright holders who have suspended their activities in Russia following sanctions regimes. The formulated conclusions and proposals could be summarized and taken into account in the Strategy for the Development of Intellectual Property in Russia — a strategic document that is extremely necessary in order to systematize and optimize measures for the development of approaches to the protection and promotion of the creation of intellectual property in Russia.

82-94 305
Abstract

In the paper, the author proposes to divide all the circumstances entailing the termination of proceedings in a case of an administrative offense into three groups. The first unites grounds that should be regarded as irremediable procedural obstacles and in the presence of which this particular proceeding is impossible due to procedural obstacles, but at the same time, the issue of the offender’s responsibility can be resolved in another case. In the second group, the author proposes to include grounds resulting in impossibility of holding a person liable due to the lack of cause. The dismissal of the proceedings under these circumstances makes reopening of the case impossible; at the same time the innocence of the person is considered established. The third group includes grounds in the presence of which the offender, whose guilt is established, is released from the obligation to undergo punishment, while the conclusion about the illegality of his actions remains valid.

The author believes that the lack of legislative regulation of this issue generates legal disputes and may negatively affect the effectiveness of the protection of the rights of persons against whom a case on administrative liability has been unreasonably initiated.

INTERNATIONAL LAW / JUS GENTIUM

95-114 161
Abstract

The use of the criterion «best available scientific data» when establishing zonally linked management tools is a reflection of the common practice of their formation. The widespread use of this criterion in numerous regulatory acts and guidance documents is accompanied only by prescriptions for improving the quality, reliability and accessibility of scientific information, without its legal content consolidation. The purpose of the study is to identify the normative content of the criterion «the best available scientific data».

The formation of the criterion the «best scientific data available» is associated with the strengthening of environmental cooperation between states and is a reflection of the precautionary principle. When scientific evidence is insufficient and there is a risk of harm, it is necessary to act in accordance with the due care obligation and precautionary requirements.

The practice of applying the criterion under study allows us to distinguish its three essential elements: the best nature of data, the scientific nature of data and the availability (availability) of data. The best nature of data is disclosed by the national courts through a number of features: completeness of the information, its proper nature, reliability, taking into account and evaluation of various scientific data. The presence of «minor inaccuracies» does not indicate that the data are not the best. The availability of data implies that authorities should make decisions based on scientific data received by them or presented by the scientific community at the time of decision-making. The best «available» data does not mean the best «possible» data. The authorities are not obliged to produce new scientific data. The scientific nature of data implies the use of appropriate, objective, impartial, transparent, final, interpretable data obtained using appropriate research methods, reflecting any inaccuracies and risks of their use, as well as having passed an independent expert assessment.

International and national judicial authorities avoid defining scientific data and consider issues related to the assessment of scientific nature of information through the prism of scientific research requirements.

COMPARATIVE STUDIES / COMPARATIVE STUDIES

115-124 185
Abstract

In modern conditions, the main direction of the technological policy of the Russian Federation is to ensure technological sovereignty. The creation of critical and end-to-end technologies of proper development and production of goods, works and services based thereon is possible only in the conditions of integration and cooperation of research and production and technical activities. The functioning of the innovation cooperation system is impossible without the direct participation of state development institutions that perform an organizing role, ensure the creation and development of infrastructure.

The paper analyzes the activities of state development institutions in Asian countries (the People’s Republic of China, Japan, the Republic of India, the Republic of Kazakhstan and the Republic of Singapore), their functions, including ensuring the commercialization of scientific research and technology transfer. The experience of building a system of innovation cooperation of these countries is of direct interest, firstly, due to the existence of developed economic relations between the Russian Federation and a number of analyzed countries, and secondly, because it was the Asian countries that managed to make a technological breakthrough in a fairly short time.

The analysis showed that state development institutions in the analyzed countries are created as state-owned companies subordinate to government structures and perform functions for the implementation of state strategies for scientific and technological development. The activities of the institutions under consideration depend on the level of economic development and the chosen type (nature) of technological modernization. State development institutions are holdings, while there is a tendency to merge and consolidate them. However, the reforms carried out by states do not always have positive results.

CYBERSPACE / CYBERSPACE

125-134 1068
Abstract

Big data has significant potential value at the present stage, but its civil law regime remains uncertain. Today, big data technologies are inextricably linked with artificial intelligence technologies. In addition, it is impossible to determine the specifics of the legal regulation of the studied relations without solving such an aspect of the problem as the protection of personal non-property rights, since it is information about a person, their preferences, their personal data that acquires independent significance. Difficulties in identifying the features of big data as an object of civil rights are due to the fact that they include not only various types of information, but also technological solutions aimed at its collection, storage, processing and analysis. Based on the conducted research of regulatory sources, judicial practice and doctrine, it can be concluded that the exercise and protection of rights to big data is possible within the framework of relations developing over the results of intellectual activity, in connection with which the use of information included in big data and its processing can be carried out on the basis of license agreements with the copyright holder. If the information obtained as a result of the use of big data technologies is transmitted on the basis of the analysis of the information contained in them, then we can talk about the conclusion of a contract for the provision of services for the provision of information. When determining the civil law regime of big data, it is necessary to maintain a balance of public and private interests. When exercising the rights to big data, the rightholder must respect the personal non[1]property rights of persons whose information eventually forms a large amount of data, including ensuring the confidentiality of personal data, and in case of their dissemination, obtain the consent of the user in accordance with the procedure established by law.

135-145 492
Abstract

One of the directions of digitalization is the introduction of digital enforcement proceedings. The paper analyzes the specifics of digital enforcement proceedings in relation to the previous stage of legal protection — judicial and extrajudicial procedures; the problems of eliminating legal and factual errors made at the stage of confirming the right and the compatibility of the mechanism of restitution with digital enforcement proceedings. The compatibility of the current rules of enforcement proceedings with summary digital enforcement proceedings and the risks of additional budget expenditures associated with an imperfect mechanism for a writ of restitution in digital enforcement proceedings are evaluated. There are three ways to enforce proceedings in which information technologies can be involved: simplified foreclosure on funds, foreclosure on other property, foreclosure on digital assets. It is proved that the summary enforcement proceedings applied to monetary penalties should exclude the possibility of recovery through banks and the employer. Based on the analysis of statistical data, it is demonstrated that most of the penalties will require a transition from digital enforcement proceedings to ordinary enforcement proceedings, therefore, a solution is required to regulate the issues of granting a term for voluntary execution, collection of enforcement fees, seizure of property, etc. In ordinary enforcement proceedings, the use of information technology should be aimed at solving the problem of detecting the property of a non-performing debtor; this requires legislative and technological solutions for cross-analysis of information, a single database of information on debt obligations, available funds, the property of a person and their expenses, combined with a base that provides the possibility of applying typical prohibitions, deprivation of typical benefits and privileges. It is concluded that in order to promote national jurisdiction in cross-border disputes, it is necessary to develop the direction of dispute resolution in relation to digital assets, and specific measures for this development are proposed.



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ISSN 1729-5920 (Print)
ISSN 2686-7869 (Online)