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Vol 76, No 12 (2023)
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PRIVATE LAW / JUS PRIVATUM

9-20 432
Abstract

The paper provides for classification of trends of private law according to the reasons of appearance, scope of application, period of implementation. Individual trends in the exercise and protection of personal non property rights are interrelated with general trends in civil law, while other trends are distinctive and have no analogues. The author substantiates the following modern trends in implementation and protection of personal non-property rights: 1) restrictions on the exercise and protection of certain personal non-property rights under sanctions imposed by unfriendly atates, the European Union, international organizations; 2) transformation of the exercise and protection of personal non-property rights in the conditions of digitalization of society and the economy; 3) search for the qualification of personal data as an object of rights, differentiation of personal data and their legal regulation, commercialization of personal data turnover; 4) recognition of differentiation of personal non-property rights, the emergence of regulatory norms applied to personal non-property relations by the law-maker and the judiciary; 5) increasing number of actions undertaken by copyright holders regarding disposal of individual powers of personal non-property rights; 6) increasing proportion of intentional violations of personal non-property rights that have a shocking nature; 7) the development of several (sometimes strictly tied) methods of protection aimed at suppressing the actions of the violator or suppressing the threat of violation, or at the moral satisfaction of the victim, or at informing others about the fact and essence of the violation. The author proposes measures to solve emerging problems, in particular, to develop rules for admission to the virtual world and regulating participation of minors and persons with certain diseases in the metaverse; to consolidate the rules governing placement, storage and security of personal data, depending on their type; to provide justification for introduction of prohibitions of certain behavior of the violator of personal non-property rights as a civil law method of protection under certain conditions.

21-31 346
Abstract

The paper examines the standard of conduct for a trustee and makes an attempt to determine the content of the highest standard of conduct in civil law by the example of an entrusted management agreement (an entrusted management agreement is not an absolute analogue of a common-law trust (or fiduciary) agreement). The paper examines the contradiction between requiring the trustee to exercise the highest standard of behavior and giving him the opportunity to attract third parties to perform his duties. Different legal systems qualify the legal relationship for the management of other people’s property in different ways, depending on the elaboration of such a category as fiduciary duty. In Russian law, this category is not developed, which is also typical for other countries of continental law.

The author attempts to establish a pattern: the standard of behavior of the manager — the responsibility of the manager for the breach of the duty — the possibility of substitution — responsibility for the third party involved. The author comes to the conclusion that the highest standard of conduct is imposed by imposing risk, and not by constructing a special form of fault. The tendency of the development of the doctrine of fault means to reduce the forms of fault, not to increase them. In this regard, the allocation of such a form of fault as culpa levissima is unjustified. The attempt to single out additional forms of fault represents a setback from the results of the discussion of the pandectists of the 19th century, as a result of which the position was taken on the need to single out only two forms of fault (an intent and negligence).

The paper also examines the contradiction between the law of continental countries and common law countries regarding the imposition of the duty on the trustee for the third parties involved by him. Common law countries proceed from the assumption that the involvement of third parties removes the trustee from responsibility for the harm caused by them in the absence of mistakes made in the selection of third parties. Common law countries are following the path of formulating a stricter standard of conduct through the construction of such a category as fiduciary duty. The countries of continental law use the criterion of poor choice of a third person to a lesser extent. The conclusions are based on the study of the experience of the countries of continental law.

32-40 448
Abstract

Forensic examination is an important procedural safeguard for the protection of infringed intellectual rights in cases where the use of special knowledge is necessary to resolve a dispute, and at the same time it should not be considered as a procedural safeguard and a means of protection in cases where special knowledge is not required to establish the fact of the use of an object of intellectual rights. At the legislative level, there is no legal regulation of the issue of the need for special knowledge to establish the fact of the use of an object of intellectual rights in disputes about their infringement, it is not complete at the level of clarifications of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation, in some aspects it differs from the long-established Rospatent approaches and, therefore, it needs clarification. Due to the similar legal nature of industrial designs, trademarks (service marks) and copyright objects of a visual nature, the paper proposes to clarify and apply uniformly an approach by virtue of which special knowledge is not required but the perception of a narrow circle of buyers/users of the relevant goods/services may be used to assess their identity or similarity, general visual impression and derivative. In such cases, both the conclusion of a forensic examination and non-judicial expert opinions should not be treated as admissible evidence. In other cases, when special knowledge is necessary, it is proposed to consider only those conclusions of forensic examination and extra-judicial examinations that were carried out by persons qualified not only in the field of protection, examination and evaluation of intellectual property rights, but also in the field to which the object under study belongs. Such examinations can also be of a complex nature.

 

PUBLIC LAW / JUS PUBLICUM

41-51 344
Abstract

The author refers to the foreign experience of constitutional and legal regulation in the field of ecology and the urgent problem of human rights protection in the conditions of climate change. A comparative analysis of the texts of the constitutions testifies to the recognition of the relationship of human rights with the environment; «a favorable environment» is declared as a constitutional goal. The author determines two main constitutional models. Within the framework of the first model, the right to the environment («favorable», «healthy», «balanced») is enshrined as an separate human right. The second model declares the right to life, health and other rights of the individual in an environment that meets the requirements of «favorable». The climate agenda as an urgent requirement of modern international law is reflected in the national law of States. Over the past 30 years, there has been a steady trend in the growth of individuals’ claims and their associations to executive authorities in connection with the onset of adverse effects from climate change. The analysis of judicial practice indicates the formation of two types of «climate» cases. The first group concerns protection of specific human rights (the right to life, the right to health, the right to property) violated due to ineffective measures of state bodies in combating the negative consequences associated with climate change. The second type of «climate» cases includes cases challenging regulatory and other acts (for example, permits for the construction of facilities whose operation will increase greenhouse gas emissions). The causes of action concern the need to change (cancel) acts in order to establish stricter limits on greenhouse gas emissions or in the adoption of special programs to combat climate change. The author draws the conclusion about a more successful practice of protecting rights within this type of «climate» cases.

52-60 1377
Abstract

In the doctrine of constitutional law, there are various approaches to understanding and defining the concept of a «principle of constitutional law». The paper examines the positions and conceptual standings at various stages of the development of domestic legal science (general theory of law and constitutional law), elucidating the features of the principles of law and constitutional law. The author concludes that the understanding of the principle is based on various ideological approaches. This approach is especially clearly manifested in the Soviet theory of law, where principles are defined as principles predetermined by the economic system (formation). At the same time, there is a tendency in Soviet theory to objectify principles. The modern science of constitutional law provides for a variety of points of view and approaches aimed at revealing the nature, legal characteristics, purpose and practical role of the principles of constitutional law. The paper substantiates the special purpose of the constitutional principles. They are not rules of law in the classical sense. The principles of constitutional law, being an independent type of regulatory prescriptions, play the most significant role in regulating relations. They determine the content of constitutional and effective law as a whole. The legal quality of constitutional principles consists in a high degree of generalization of the theory and practice of public relations. The principles of constitutional law possess the quality of objectivity. They reflect the prevailing view expressed in the Constitution of the Russian Federation about the proper legal impact. Constitutional principles represent a concentrated expression («driving ideas») of the development of public relations.

INTERNATIONAL LAW / JUS GENTIUM

61-70 188
Abstract

The paper analyzes the impact of the Agreement on the Application of Sanitary and Phytosanitary Measures on the food legislation of the Russian Federation. The author investigated the main provisions of this Agreement, and then analyzed how the member States of the World Trade Organization use the rules under consideration in law enforcement activities. The implementation of this international act is aimed, on the one hand, at the ability of States to take measures to protect humans and animals, and on the other hand, to ensure uniform market requirements. The approaches of States to the implementation of international law rules may be different and may depend on many factors, for example, whether countries are importers or exporters of food. The difference in approaches is also observed between developed and developing countries, which is manifested in different opportunities to defend the interests of the state in the framework of WTO disputes. The analysis of legislation and judicial practice allowed the author to conclude that the agreement for the member States may have both limiting and generating positive consequences. At the same time, the European Union and the Russian Federation are going in opposite directions. The EU actively protects its markets both by developing food legislation and by participating in disputes under the WTO mechanisms, while Russia does not show proper activity in law-making and law enforcement. The provisions of the Agreement related to the academic substantiation of decisions taken by States, as well as the use of a risk-based approach in public administration of the food sector are also implemented in different ways. The EU is building a system of food legislation based on risk-based decision-making by Member States, as well as taking into account the updating of scientific data. Russian legislation presents an unsystematic set of regulatory legal acts that fix the minimum requirements for food products.

71-79 287
Abstract

Compulsory licensing in intellectual property presents an institution of restriction of exclusive rights to the results of intellectual activity, which has a fairly long history of formation and development. Compulsory licensing replaced such a «rigid» mechanism for limiting the exclusive rights of the copyright holder as the rules on localization of patented objects, which were applied in the USA and European countries in the 19th — early 20th century. Compulsory licensing at the time of its origin was considered a «soft», «sparing» mechanism for limiting the exclusive rights of the copyright holder, which by the end of the 20th century acquired the features of a complex institution. This institution entails negative consequences, most often in the form of a decrease in foreign financing to an industry that has been subjected to acts of compulsory licensing, changes in the business climate, etc. Examining the genesis of the norms on compulsory licensing in universal international legal acts in the field of intellectual property, one can see that the international community in many acts has consolidated to some extent the institution of limitation of the exclusive right, which is an irrefutable proof of the value of compulsory licensing. The analysis of the institution of compulsory licensing both in Russian law and in a number of foreign countries allows us to come to the conclusion that the «negative concept» of compulsory licensing prevails.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

80-91 946
Abstract

The fight against tax crimes is carried out through cooperation of tax authorities with operational units of internal affairs bodies. In cooperation with tax authorities the operational units of internal affairs bodies (OVD) generally ensure the implementation of tax authorities powers to control and supervise compliance with legislation on taxes and fees. OVD are in fact participants in tax legal relations. At the same time, the insufficient development of legislation regulating these activities leads to legal uncertainty. In this regard, the authors propose to supplement Article 9 of the Tax Code of the Russian Federation with a clause fixing the status of internal affairs bodies as participants in relations regulated by the legislation on taxes and fees. At the same time, it is proposed to introduce some provisions into Articles 89–100 of the Tax Code of the Russian Federation regulating the powers and restrictions of an internal affairs body officer as a participant in an on-site tax audit. Changes in criminal, criminal procedure and tax legislation, which entered into force in 2022–2023, had a significant impact on the way economic security and anti-corruption units cooperate with tax authorities and preliminary investigation bodies in identifying tax crimes and initiating such criminal cases. Amid the changes in Federal legislation, the existing interdepartmental regulatory framework generally remains relevant, although it needs to be changed and updated. These measures are currently either unregulated or partially regulated in disparate departmental regulations of different legal force, which creates an objective need for the development and adoption of a single regulatory document. An acceptable orm of interdepartmental regulatory act may be a trilateral agreement on cooperation between the Investigative Committee of the Russian Federation, the Ministry of Internal Affairs of Russia and the Federal Tax Service of Russia. There is also a need to amend the Tax Code of the Russian Federation. It is important to eliminate the inconsistency of the current version of paragraph 3 of Article 32 of the Tax Code of the Russian Federation, which does not contain a complete list of decisions made by tax authorities to be sent so that to make a decision on initiating a criminal case. This results in a possibility of different interpretations of the relevant duty of tax authorities.

92-100 235
Abstract

In the context of this study, ‘violent crimes committed by officials’ denotes the unlawful use of violence when law enforcement officials exercise their powers. From the criminal law standpoint, certain types of crimes are included here: abuse of power with the use of violence, torture, including negligently caused death of the victim or causing serious harm to their health (Part 3-5 of Article 286 of the Criminal Code of the Russian Federation); coercion to testify by violence, bullying or torture, including negligently caused death of the victim or causing serious harm to their health (Part 2-4 of Article 302 of the Criminal Code of the Russian Federation). Methods: analysis, formal legal, comparative legal. The relevance of the topic is can be seen it that the role of law enforcement agencies is to also protect society from the criminal behavior of officials of such bodies, who, using violence during the commission of the crimes in question, themselves encroach on the rights and freedoms of the individual, overstep the law and universal norms of morality. The established practice and scientific research prove that all the facts of non-reaction to illegal acts of a violent nature on the part of law enforcement officials lead to impunity, contribute to the formation of illegal methods of their activities using physical force. Based on law enforcement practice, investigative actions are carried out directly during the investigation of violent crimes committed by officials. Attention is drawn to the fact that the initial stage of the investigation of violent crimes committed by public officials is characterized by the production of such investigative actions as: inspection of the scene, inspection of official documents, examination, interrogations of victims, witnesses, confrontations, presentation for identification. Based on the above, in law enforcement practice, the importance for preventive work of such investigative actions as inspection of the scene of the incident, inspection of documents, investigative experiment, interrogations of witnesses in other categories of criminal cases is often underestimated. Results: using the example of an inspection of the scene of the incident, an investigative experiment, interrogation of the accused, victims and witnesses, the need for these investigative actions is determined directly in the context of preventing the commission of official violent crimes.

CYBERSPACE / CYBERSPACE

101-112 297
Abstract

The study aims to develop the instrument of administrative and legal regulation of digital technologies application in the field of migration processes public management, the implementation of the state migration policy of the Russian Federation and the prospects for the development of Russian migration legislation caused by digital transformations in the economy, management and social sphere. The paper proves the objective need for digitalization of public management as to territorial mobility of the population, reflects the positive aspects of this process, notes and highlights the types of digital technologies necessary for use in the field of public management of population migration in modern Russia. According to the authors such technologies include the following: artificial intelligence; distributed registry systems; big data analysis technologies; wireless communication technologies; cloud services; social networks; digital identification and authentication technologies, including those based on biometric personal data. The effective use of digital technologies in public management of migration processes is possible only if there is a legislative basis for their implementation in the daily activities of public authorities implementing state migration policy. The authors believe that consistent administrative and legal regulation of the digital profile of a citizen of the Russian Federation and a digital profile of a migrant; identity documents with an electronic data carrier (biometric documents); registration and migration records of migrants (citizens of the Russian Federation, foreign citizens and stateless persons); monitoring of migration processes; identification and authentication of migrants in the implementation of federal state migration supervision and the implementation of the law enforcement function in order to ensure the national security of the state will allow the introduction and effective use of digital technologies in the process of public management of migration processes.

113-123 301
Abstract

Recognizing positive possibilities of artificial intelligence technologies in healthcare, as well as current ways to use them, the author identifies the main forms of implementation of digital innovation: physical form in the form of a medical robot and intellectual form in the form of software, registered as medical devices. It is stated that the legal issues related to bringing to justice for actions related to the use of intelligent systems in healthcare, which led to negative consequences, including harm to the life and health of patients, have yet to be resolved. According to the current legal regulation in Russia it is a medical organization and a medical professional using artificial intelligence systems or medical robotics equipped with digital technologies who are held liable for the harm caused to the life and (or) health of citizens while providing them with medical care. In turn, system developers, as well as those who train a system based on artificial intelligence (developers of artificial intelligence systems), are not held liable. The problems of classification of crimes committed by medical professionals using artificial intelligence technologies in healthcare are considered. A medical worker providing medical care using artificial intelligence may be the subject of a crime under Part 2 of Article 109 and part 2 of Article 118 of the Criminal Code of the Russian Federation, but not under Article 238 of the Criminal Code of the Russian Federation. In addition, the rules for the classification of crimes committed by other entities (the operator of information systems) using artificial intelligence technologies are formulated.

GENOME / GENOME

124-133 347
Abstract

The results of complex and interdisciplinary research conducted at the intersection of legal and medical sciences allow us to create new points of support for the development of innovative technologies. One of the controversial ways to treat neurological pathology is neurohacking. Experimental intervention in the human brain can not only be of a positive therapeutic nature, but also harm the triad of human—society—state security. The main purpose of the paper is to highlight the latest achievements of neuroscience, focusing on the insufficiency of legal regulation of medical experiment in the Russian Federation. Justification of the need for medical research on the higher nervous system is possible only after a thorough analysis of the clinical situation, taking measures to prevent harm to the health of a particular patient, eliminating the impact on an unspecified group of people, as well as motivating the exclusivity of the task, assessing all legal and biological risks. The paper presents the stages of the origin and development of neuroethics in the country, substantiates the close relationship of neuroscience with the bioethical component, proposes the author’s classification of neurohacking, identifies the legal threats of criminal influence on the human body, and provides an argument for the likelihood of using bioengineering technologies to create bioweapons. The conclusions drawn in the work can be further used in the process of formulating normative legal acts regulating the issues of biomedical experiment and the Provisions on the expert council on bio (neuro) ethics.

134-144 267
Abstract

Due to the intensive development of genetic research, the availability of genetic testing is increasing, including those based on genome-wide sequencing offered by private and public laboratories. Genetic testing can be used to identify the cause of the disease in patients with suspected hereditary (orphan) diseases and as a screening tool for healthy people, for example, if expectant parents planning to have children are carriers of hereditary diseases, to identify the risks of hereditary oncological diseases and multifactorial diseases, for pharmacogenetic testing, as well as for non-medical purposes, for example to determine the «ethnic origin». In addition, genetic research can be used to identify individuals, including in criminology and for genomic registration, determination of paternity and other kinship. This review paper analyzes some issues of terminology in the field of genetic research, including their results, as well as the legal basis for the genetic certification of the population of the Russian Federation, the use of the terms «genetic passport», «genetic profile» and «genomic passport», «genomic profile» and provides recommendations for improving the use of relevant terms such as standardizing the requirements for the preparation of a report/conclusion on the results of a genetic study and resolving the issue of the medical nature of the full-genome sequencing process. In addition, the practice of using the term «genetic passport» in federal acts, as well as domestic and foreign literature and media publications, is analyzed. Not only does the paper reveal the concept of complete genome sequencing, but also provides cases of mandatory medical and biological examination, including complete genome sequencing.

PHILOSOPHY OF LAW / PHILOSOPHIA LEX

145-161 315
Abstract

The paper presents the author’s understanding of the unity of the logical and historical connection between the processes of formation of the institution of human rights and the formation of the idea of human rights in philosophical and legal concepts. The idea of human rights has historically been formed and put into practice as a result of several mutually dependent processes: firstly, the confrontation of social actors, the human struggle for the normative establishment of acceptable, decent standards and quality of life; secondly, the formation of the concept of «social justice» in the public consciousness on ethical and moral grounds that have developed in society; thirdly, the conceptualization of the worldview, philosophical, theoretical, ideological justification of human rights based on their understanding as natural, inalienable; fourthly, the international institutionalization of human rights; fifthly, the recognition of the institution of human rights in national legal systems. The significance of the social conflict that existed throughout the history of mankind as a source and driving force for the emergence of the idea of human rights is shown. The genesis of philosophical and legal ideas, starting from the period of Ancient Greece, expressing various aspects of the concepts of «justice», «freedom», «equality», «law», is investigated. The impossibility of formation is shown the formalized concepts of human rights before the formation of the theory of natural law. It is noted that the decisive factor in the beginning of the formation of the institution of human rights was the formation of natural law, the assertion of its influence on public consciousness. The importance of the bourgeois revolutions in Europe, which led to the formation of the Declaration of the Rights of Man and of the Citizen in 1789, is emphasized. The paper shows the fundamental difference between the socialist understanding of rights and freedoms from their understanding, which developed in the depths of bourgeois societies; the historical conditionality of the adoption of the Universal Declaration of Human Rights in 1948 after the Second World War is shown. The importance of the ideological foundations of human rights, the philosophical and legal explanation of the need for this institution is emphasized. A clash of worldviews in the understanding of human rights in the context of modern geopolitical reality is stated and an assumption is made about the possibility of forming a new concept (model of human rights).



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