PRIVATE LAW / JUS PRIVATUM
The paper is devoted to the problem of determining compensation for the loss of the ability to labor and other gainful activities as an alternative to loss of earnings (income) compensation. The author draws attention to the legal and doctrinal conditions that ensure the recognition of the ability to gainful work as an independent property of the victim’s personality subject to economic assessment regardless of the actual decrease in the victim’s financial well-being. The paper highlights that the speculative nature of the claim of this kind is greatly exaggerated, since only the indicator of depreciation of the ability to gainful work in various forms has the property of uncertainty, and it is necessary to refer to the category of expected earnings (income) only when it is evaluated as a monetary equivalent. Based on the interpretation of the principles of reasonableness and feasibility, the the author concludes that it is critically important to use traditional calculation parameters (the degree of disability and estimated income) that allow providing an economic assessment of the totality of the lost professionally significant qualities of the victim that he could use in the field of gainful employment in different periods of life in the absence of an event of a wrongful act. The paper justifies that, with respect to certain categories of victims (minors, individual entrepreneurs, etc.), the necessary degree of reliability of such parameters can be achieved by referring to official statistical information or summary indicators prepared on its basis (average age of commencement of employment, indicators of profitability of certain types of economic activity, etc.).
PUBLIC LAW / JUS PUBLICUM
The paper analyzes the main provisions of the concept of sustainable development in relation to cities. The authors elucidate the mechanism of implementation of the goals set out by the UN in the framework of Sustainable Development Goals 11 (SDG 11 or Global Goal 11), dedicated to ensuring openness, security, resilience and environmental sustainability of cities and human settlements. The authors provide examples of legal acts aimed at solving environmental, social and economic problems in Russia within the framework of SDG 11, enumerate pending problems, explain the need to develop the Concept for the transition of the Russian Federation to sustainable development containing a step-by-step action plan in this direction
The authors prove that it will be possible to talk about implementation of goals within the framework of SDG 11 only when the country approves a plan for the transition to sustainable development (including cities), including a description of the stages of transition, financing, responsible authorities, and, which is the most important, clear indicators that allow assessing implementation of the goals within the framework of each stage. It is a common practice in Russia to develop concepts as political and legal acts. Therefore, if there is political will, it is quite possible to develop such an instrument. The authors conclude that today we can assess the state of legislation and practical problems in the process of solving the goals set by the UN within the framework of SDG 11. They highlight that implementation of the goals under consideration is haphazard, but sometimes still effective. Attention is drawn to the fact that implementation of the goals within the framework of SDG 11, along with general problems that are equally relevant for all «ordinary» cities of Russia, for a number of «unusual» cities has its own specifics. These include, for example, Arctic cities, single-industry towns (due to the employment of the city’s population at 1-2 large enterprises, which entails an imbalance of economic and social interests), science cities, closed administrative-territorial formations (military towns).
In the circumstances of the global financial and economic crisis, instability of the international financial system, imposition of economic and financial sanctions on the Russian Federation by Western countries the purpose of which is to destabilize the Russian financial system, lack of clear and consistent domestic financial legislation, it seems necessary to adapt the financial system of the Russian Federation to new realities in order to exclude a negative impact on its development. One of the priorities of government is the formation of effective means and methods of protecting the financial system of the Russian Federation from external actions and from potential internal contradictions. In the conditions of a legal vacuum, the importance of the activities of law enforcement entities in ensuring integrity and strengthening of the financial system increases. Law enforcement entities include courts, the hierarchy of which is headed by the Supreme Court of the Russian Federation. Eliminating of the lacunarity of law has a multidimensional character, since it consists in eliminating the legal errors of the courts of the lower level of the judicial system of the Russian Federation, as well as in identifying problems in the application of contradictory financial, administrative, civil, anti-corruption legislation. In turn, such definitions as «finance» and «financial system» require generalization and formation of uniform judicial legal positions in the relations under consideration and, as a consequence, their formulation in regulatory legal acts. Based on the analysis of judicial practice, taking into account the importance of the mechanism of judicial protection of the rights of participants of financial relations and using the experience of foreign countries in the creation and functioning of financial courts, the author substantiates the promising nature of borrowing positive foreign experience and the need to form a system of financial courts in the Russian Federation
The paper dwells on theoretical foundations and methodological significance of communicative constitutionalism, provides an academic basis for constitutional communication in the public legal space, shows the problems of constitutional law nature arising in the information society. Communicative constitutionalism and digital citizenship are considered as hybrid institutions in the field of public law and information space. The author draws attention to the nature and significance of the institute of public participation or the institute of public participation in the public law area, various forms of its manifestation, notes the process of institutionalization of constitutional law as the law of society and public interests based on the research of domestic and foreign scholars The paper explains the public law nature of communicative constitutionalism, the complex nature and transformation of citizenship as a public law and as an information-digital entity. As a conclusion, it is noted that there is a fragmentation and dispersion of legal regulation and institutional design of institutions of public initiatives, public discussions and the identification of public opinion concerning publicly significant issues, draft regulatory legal acts, and constitutional amendments. There is no institution of scientific expertise guaranteed by constitutional legislation along with public discussion.
In the order of legal scientific initiatives the author proposes to: 1) incorporate into the legislation the principle of scientific federalism and public participation in the development of draft amendments to the Constitution of the Russian Federation and the draft of a new Constitution; 2) consolidate at the legislative or constitutional law level the obligation of subjects of the initiative to revise the Constitution and constitutional amendments to send draft amendments submitted to the State Duma, to the leading universities of the country, research institutes of the Russian Academy of Sciences in order to conduct discussions and adopt conclusions; 3) create legislative guarantees to attract citizens through Internet technologies to discuss the content of amendments to the Constitution, the draft of a new Constitution, including the right to propose revisions of certain norms
CRIMINAL LAW SCIENCES / JUS CRIMINALE
Methodological foundations for improvement of criminological science involve the expansion of its interdisciplinary connections, including its connections with philosophy and history. This makes it possible to study crime as a certain social process taking place in the general logic of the development of society and subordinate to it. The classical philosophy of history offers several options for understanding the meaning and driving forces of the historical process that predetermine competing views on the history of crime. Theology and Marxism, fundamentally differing in their view of the mechanism of history, provide an understanding of crime as a linearly developing process that has its origins in the past, but inevitably disappears in the future as the «end of history» is reached. Cyclical concepts of the historical process allow us to look at crime as an eternal, indestructible phenomenon that changes its basic forms as historical cycles change and in accordance with the basic parameters of this cycle itself. The concepts of multifactorial historical development determine an emphatically sociological explanation of crime, within which its state can be assessed outside the context of the past and future. The postmodern challenge to universal classical historiosophical concepts has actually destroyed their explanatory significance and methodological value. At the same time, postmodernism creates favorable opportunities for understanding the process of crime as an integral part of many parallel and overlapping histories: the history of liberalism, the history of economics, the history of preserving national identity, etc. In this case, crime stories (plural) appear in place of crime history (singular). And only such a multi-layered view of the processes of crime development and its connection with social processes can provide adequate methodological support for criminological research. In this regard, the results of the study can be considered as a contribution to the development of historical criminology, which is gaining relevance.
The paper is devoted to the problems arising in the theory of criminal law and court and investigative practice when classifying a theft under paragraph «b« of Part 3 of Article 158 of the Criminal Code of the Russian Federation. According to the results of the study, the authors present their recommendations as to improvement of the classification of a theft committed from other pipelines (not normatively fixed in Article 158 of the Criminal Code of the Russian Federation). The physical essence of the object of theft and its different interpretation in the legal literature are analyzed. The paper considers mandatory elements of a theft in the form of stealing and using hydrocarbons in their favor, committed by the so-called illegal tapping. Special attention is given to the issues of differentiation of planning and attempt in the analyzed body of theft, assessment of the actions of the coauthor and accomplice in the theft from the oil pipeline, oil product pipeline and gas pipeline. The category of «place» of a criminal act, i.e., theft from pipelines of various types, including trunk pipelines, is systematized, and the classification of the deed is proposed. The author’s position on the classification of other forms of theft (in particular, robbery and plundering) committed from an oil pipeline, oil product pipeline or gas pipeline is highlighted. The law enforcement practice is analyzed, the issues of distinguishing the theft of oil, petroleum products or gas from the pipeline from causing property damage by deception or abuse of trust are touched upon. The authors conclude that theft of oil (petroleum products) and theft of gas represent two types of theft within the same body of the crime. The authors have studied over 400 court decisions (sentences, rulings, resolutions) on crimes in the form of theft of oil, petroleum products or gas from pipelines for the period from 2007 to 2022, in more than 20 regions of Russia. The results of the study are reflected in the presented conclusions.
Modern society is at the stage of a serious transformation of social relations, testing the strength of social values and institutions. External and internal threats make national security issues urgent; necessitate the construction of new social systems, chains of social interaction, effective tools to counter such threats. Crime commission has always been regarded as an internal threat to national security. The state has countered the growth of crime with an effective crime counteraction or crime prevention system. Countering crime has never been a task that can be implemented exclusively by the state. In this regard, at the present stage of the development of statehood, it is important to build up mechanisms of public private partnership. The main obstacle to the successful implementation of public private partnership in the penitentiary sphere is the lack of legal regulation. It is vital that various aspects of the interaction between society and the state be subject to detailed regulation as this creates conditions for the socially adapted persons to return to society. This will allow for creation of environment that is understandable and as comfortable as possible for all participants. In addition, such an environment should be attractive to representatives of private business, should facilitate the involvement of the maximum number of investors in projects that have, in addition to economic benefits, also a social orientation.
INTERNATIONAL LAW / JUS GENTIUM
The paper discusses the processes of creation and functioning of cluster structures. Cluster approaches are very promising today: they allow for both creating new development institutions and managing the existing ones. The economic entities included in the cluster are also participants in the investment agreement at the same time. The author shows which subjective rights, absolute duties they have when united in an industrial-type cluster. The implementation of investment projects is mediated by the renewal of fixed assets. The innovation cluster then promises self-sufficiency, self-financing, but the creation of loan capital seems to be an extremely costly procedure. The institutions of the contract system that are able to stem the risks arising in this regard are considered. Various aspects of substitution transactions, in general, the interaction of investment and management contracts are summarized. The author notes that within the cluster, its beneficiaries by their actions contribute to both the accumulation of profits and the accumulation of losses. The more chances they have to pay off accounts receivable, the sooner they will turn their assets into liquid ones at full value. The functionality of cluster objects is brought to the fore, which outlines the shortest path to monetization of their development. The development of the Arctic resource potential (due to the cluster presumption) in this regard seems significant. The interaction of legal institutions is considered according to the concept of the so-called Triple helix, as far as it simplifies the creation of property complexes.
The paper examines the experience of legal regulation of the use of mobile medical technologies (MMT, mHealth) in the largest regional integration association — the European Union (EU). It is noted that digital healthcare is a multifaceted concept that includes various aspects of public health and the digital environment surrounding it. Digitalization of healthcare covers medical processes, including software to support the work of doctors (including telemedicine technologies), tools for managing a medical institution, remote interaction with patients and monitoring such interaction; big data analytics for drug development, clinical research management, patient population studies; additional patient-oriented tools and including applications related to the determination of physical condition and the course of treatment, as well as compliance with the medication regimen. The paper provides a detailed overview of the main EU documents in the relevant field, illustrates the impact of judicial practice on the development of regulation in the field of mobile medical technologies, and analyzes the mechanisms of selfregulation in this area using the example of specific court cases. It is emphasized that while self-regulation on the part of the applications store can set developers of mobile healthcare applications in the right direction by converting the provisions of Regulation 2016/679 (GDPR) into technical requirements for preliminary approval, compliance with privacy provisions is facilitated by increased awareness of both application users and developers, as well as brokers of medical data about the risks to the observance of fundamental human rights. from the side of mobile healthcare applications. In conclusion, the authors formulated the key problems and ways to improve EU regulatory framework in the field of mobile medical technologies, recommended the use of EU best practices in the development of MMT regulatory regulation in the Russian Federation and integration associations with its participation.
IIMPROVEMENT OF LEGISLATION / NOVUS LEX
The paper is devoted to the problems of reforming the system of Russian higher education in the context of its legislative regulation and standardization. The author proceeds from the fact that the absence of its own independent concept of education in the context of the aggravation of the geopolitical situation and withdrawal from the Bologna process is one of the main threats to Russia’s national security. The author attempts to objectively assess the current state of legal regulation in the field of higher education. To this end, the paper characterizes the changes in the parameters of standardization in the field of education in the context of domestic reforms carried out in recent years and due to the entry into the Bologna process. The author argues that legislative innovations at this historical stage determined a number of systemic problems of public administration in the field of education. One of the most difficult and negatively affecting the quality of education problems is associated with the non-alternative introduction of a competence-based approach to the development of educational programs. The author concludes that the state policy in the field of higher education should be reoriented to return to the fundamental approach in higher education according to the general rule for all specialties and areas of training. At the same time, the competence approach should be implemented reasonably and only for those specialties for which such an approach is objectively more effective. The author considers it necessary to consolidate such a fundamental decision for domestic higher education as a principle of state policy in the field of education and suggests one of the possible options for the legal and technical formalization of this principle.
FUNDAMENTAL PROBLEMS OF THE LEGAL SCIENCE / PROBLEMA PRINCIPALE
Legal concepts (categories) cannot exist separately from each other, since they are present within the framework of a certain system that strives for orderliness. To systematize the conceptual and categorical apparatus various approaches are used, which, although they do not exclude each other, but weakly correlate with each other. The existence of «once and for all given» systems of ordering the conceptual and categorical apparatus of jurisprudence does not meet the needs of legal science and practice. The conceptual and categorical matrix of jurisprudence should be based on flexible approaches that take into account the peculiarities of the level of scientific knowledge used, the contextuality of the analyzed phenomenon, etc. To solve such problems, the concept of the level organization of scientific knowledge is optimal, according to which in every developed science there are several levels of scientific knowledge: empirical, theoretical and metatheoretical. The specification of the structural and substantive elements used at these levels in relation to jurisprudence should become one of the tasks of the theory of law. The level-based organization of scientific cognition makes it possible to systematize the conceptual and categorical apparatus of jurisprudence, taking into account the specifics of its use at different levels of cognitive activity, is optimal for studying the mechanism of interrelation of legal categories. The tiered approach to the cognition of the legal reality phenomena must be supplemented with elements on which inter-level relationships are carried out — the «boundaries of meanings» between the empirical and theoretical levels, as well as between the theoretical and metatheoretical levels. The disciplinary matrix of legal science has a complex multilevel structure, within which legal categories change their functionality depending on the level of scientific knowledge used. At the empirical level, the conceptual and categorical apparatus is applied, at the theoretical level it is developed, verified and updated using the metatheoretical level. The system of the conceptual and categorical apparatus of jurisprudence includes, among other things, elements that give an idea of the links and connections in the logical structure of an object (cognizable) phenomenon, reflecting its primary basis and essential dominants — legal metaphenomena. Their allocation is based on the use of the concept of the level organization of scientific knowledge.
ISSN 2686-7869 (Online)