PRIVATE LAW / JUS PRIVATUM
Common property as a legal category of Russian law plays an important role in property relations with the participation of many persons — owners (civil law community). The paper examines the provisions of the Russian civil legislation concerning common property, in particular the owners of immovable property, adopted in order to implement the Concept of Development of Civil Legislation in 2009. In addition, dwells on the issues of common property of members of an investment partnership, peasant (farmer) unions and other corporate associations. The paper analyzes the concept of «common property» at the present stage and defines its characteristic features. Special attention is paid to the issue of the mixed nature of ownership of common property. The author explains the rights of owners in relation to common property, including property, managerial and information rights. The author substantiates a truncated possibility of implementing the classical triad of the rights of the owner (possession, use and disposal) in relation to the property in question. The paper examines the procedure for exercising the powers of the owner of common property, disposing of objects from the common property (including their transfer and alienation to third parties), as well as the consequences of violating the rights and legitimate interests of persons arising from transactions with common property. In conclusion, the author’s concept of common property is defined by referring it to the civil law community — the collective owner. The paper proposes approaches to the legal assessment of the content of the owner’s competence, possible areas of application of the category under consideration and the functional suitability of common property.
The author refers to the initial political and legal entities on which the family law institution of the child’s origin is based. Their actualization is important to reduce an unjustifiably high level of controversy between the doctrinal and legislative understanding of this institution, as well as to overcome theoretical inaccuracies that have accumulated in the doctrinal description of the problem of the child’s origin. The author’s approach to its scientific description is based solely on the family law grounds. The conclusions reflect scientific views of the author on the problem posed, and they are as follows. The legal meaning of the norms on the origin of the child clearly reflects the priorities of the blood-biological origin. Family law is not focused on classifying the origin into types. It can only provide for individual exceptions at the stage of recognizing a person as a parent. The opportunities of reproductive medicine alone are not capable of changing the legislative and doctrinal undrstanding of how the institution of the child’s origin should be organized. Historically, it has clearly defined boundaries by law — from the act of procreation to the act of parental recognition by law. These boundaries define the meaning of the norms regulating the origin of the child under family law. At the proper level, they establish what the child’s life depends on after his birth. Inconsistency of current family law discourses describing the procedures of technological conception with this maxim has given rise to unfounded conclusions that, depending on the circumstances of conception, the origin may be different. A theoretically organized and integral family law concept of the child’s origin is able to resist these misconceptions.
The paper is devoted to topical issues of legal regulation of the work of pharmaceutical workers both at the level of international legal acts of the Eurasian Economic Union (EAEU) and at the level of national legislation of the member states. These problems include the lack of a uniform integrated approach to the regulation of the work of pharmaceutical workers in international legal acts and its fragmentation. This leads to a decrease in the effectiveness of legal regulation of these categories of subjects of labor law. The situation gives rise to two dialectically interrelated trends at the EAEU level. On the one hand, international legal acts on the drug market of this organization contain norms that regulate the work of pharmaceutical workers. On the other hand, these norms do not cover all aspects of the work of pharmaceutical workers. The solution to this problem is seen in changing the international legal acts of the EAEU on the drug market by stipulating the norms regulating the work of pharmaceutical workers, considered in a single system and in close relationship with pharmaceutical activities. This is possible through the analysis, and in the future, the use of positive legal experience in regulating the labor of pharmaceutical workers in the EAEU countries to develop separate sections of the international legal acts of the EAEU in the field of regulation of the pharmaceutical market (in the form of appendices thereto).
Constitutionalization of social and labor relations represents a manifestation of the general process of involving into the scope of constitutional law such areas of public life that are traditionally included in the subject matter of special branches of law. The reasons for the constitutionalization of these relations lie in the change in the vector of state social policy, which is gradually moving away from liberal individualist principles and strives to ensure social justice in society. The practice of the Constitutional Court of the Russian Federation can be deemed to be an external manifestation of the changed vector. The Constitutional Court in the last few years has given a deeper meaning to constitutional provisions in the field of labor, and the decisions taken reflect the connection between freedom of work and the principle of the welfare state and the novelties of the Constitution — Part 5 of Article 75 and Article 75.1. Provisions of the social and labor nature were included in all constitutions of the Soviet period, just as they are present in most constitutions of foreign countries, where they primarily act as principles of the state, and only secondarily as subjective rights and freedoms. It is concluded that the status and semantic content of these provisions in the Constitution of the Russian Federation in 1993 did not initially correspond to their social and legal significance. Freedom of labor was understood in a liberal way and was associated with the right of a citizen to choose a type of activity and profession. The 2020 amendments to the Constitution of the Russian Federation supplemented the content of the constitutional value of freedom of labor, emphasized its status as an element of the social state, linked it with such concepts as respect for labor and the person of labor, social solidarity, decent human development, which is reflected in the latest decisions of the Constitutional Court of the Russian Federation. There are grounds to assert that the subject of constitutional law has changed due to the constitutionalization of social and labor relations, on which constitutional law exerts its influence in the context of interaction between an individual, society and the state.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
The paper examines the issue of understanding and meaning of public danger within the definition of the concept of «a crime». The author focuses on ontological foundations of social danger and draws the conclusion about the futility of this concept in the perspective of the general doctrine of a crime. The author substantiates the idea that social danger is derived from the harm caused. It is harm that forms the general concept of a crime, defines its contours and characteristic features. Public danger does not represent an objective element of a criminal act, it is rather conditional and is characterized in many ways by arbitrary considerations of the legislator, which are beyond the scope of criminal law. Assessment of a particular human behavior cannot be universal, and, therefore, the category of public danger is always required today only in order to justify the need to introduce a particular prohibition under criminal law. The paper states that public danger cannot characterize a crime, because crime is always associated with harm, and public danger is a derivative of the harm caused (or harm that could have been caused to social values). It is harm that characterizes an action as either dangerous or non-dangerous. Therefore, the main emphasis in understanding the crime should be shifted to the category of harm, its significance and materiality in order to define the concept of what constitutes a crime. In this perspective, public danger is a necessary element of harm and its understanding can only make sense through a general understanding of harm as a consequence of a crime. Therefore, a crime is an act that harms protected values, committed by an individual culpably and the elements of which are indicated in the criminal law.
PUBLIC LAW / JUS PUBLICUM
The paper is part of a series of scientific articles devoted to the best management practices for Russian urban agglomerations. The authors of the paper focused on finding possible solutions to the most pressing problems given the current legislation, which explains the widespread use of empirical information in the paper. One of the key tasks of management at the level of an urban agglomeration is the formation and consistent implementation of a unified urban planning policy within the entire agglomeration. It should be based on documents of territorial planning and rules of land use and development of all municipalities, as well as some other types of urban planning documentation. For the purposes of shaping a unified urban planning policy, the documents of all municipalities must be coordinated with each other and subordinated to common goals and objectives.
Analyzing the cases of Vladivostok, Ekaterinburg and Novosibirsk urban agglomerations, the authors show some ways to ensure the consistency of urban planning documentation within the boundaries of the urban agglomeration. In order to identify the prerequisites for achieving the maximum effectiveness of each of them the authors compare the management practices used in these agglomerations. It is concluded that it is generally possible to achieve consistency of urban planning documentation within the framework of the current legislation, subject to the active position of the regional legislator.
The author analyzes the views presented in modern science and formulates the author’s concept regarding the terms and types of principles of state human rights activities. The paper draws attention to the issue of the role of the principles of state human rights activity to increase its effectiveness. In the theoretical and legal aspect, the problem of the correlation of categories of principles of law, legal principles and principles of state human rights activity is studied. The analysis of the principles of state human rights activity enshrined in legislation is carried out, and their classification is proposed. It is concluded that the principles of state human rights activity are fragmented in the Russian legislation, and that there is no unified system of these principles, which negatively affects the stability and quality of the human rights work of state bodies. Proposals have been formulated to amend the legislation of the Russian Federation regarding the requirements for state human rights activities. One should agree with the authors who believe that «the principles of human rights protection should be conceptualized beyond the limits of liberal ideology. Human rights protection needs to find moral grounds and a closer connection with the principles of real democracy.» Taking into account the current stage of development of Russian statehood and the unique domestic experience in this field, it is necessary to radically rethink the human rights axioms that have developed over the past decades and propose a fundamentally new paradigm for the development of the state system of human rights protection in the context of traditional Russian principles and values.
The paper considers approaches to understanding the subject of the science of administrative law. Based on the analysis of scientific literature, two groups of approaches to the subject of the science of administrative law are identified: narrow and wide. The first group of approaches includes administrative and legal norms and (or) administrative and legal relations in the subject of science, the group of extended approaches is associated with the assignment of administrative and legal norms, public relations regulated by them, administrative and legal categories, the practice of applying administrative and legal norms and other elements to the subject of science. The author’s understanding of the content of the subject of the science of administrative law is proposed. The author concludes that the identification of the subject of the science of administrative law with public relations in most cases is associated with a confusion of understanding of administrative law as a science and administrative law as a branch of law, which is defined as a problem of modern understanding of the subject of the science in question. Other problems in defining the subject of the science of administrative law are highlighted, which include: the property of commenting on administrative legislation; understanding the processes of scientific cognition themselves as the subject of the science of administrative law; the problem of the correlation of the subject of the science of administrative law with the subjects of other legal and non-legal sciences; mixing concepts such as the subject of science, the field of science, the system of science, the content science, the object of the science of administrative law. The conclusion is made about the constant processes of expansion and (or) narrowing of the limits of the subject of the science of administrative law, which indicates the mobility and vivacity of the science of administrative law, its connection with real administrative and legal relations, the norms of administrative law and law enforcement practice.
The shaping of a unified generally recognized concept of the administrative procedure and the definition of its structure requires clarification of the legal nature of the courts’ activities to resolve disputes based on the CAS of the Russian Federation on rights and obligations in the administrative and public sphere, the application of administrative restrictions and coercion. The author analyzes the content of the procedural activity of courts in the implementation of the norms of administrative and other substantive branches of law in order to determine its compliance with the key features of the administrative procedure in the context of comparing their subject matter, the structure of procedural activity, the features and content of administrative procedural relations, types of relations between the subject conducting the process and its participants. The conformity of the procedural forms of consideration and resolution of administrative cases based on the implementation of permits in order to protect the right or to ensure the operation of prohibitions due to the commission of offenses, legal anomalies, to the administrative and legal type of regulation, primarily ensuring the implementation of regulations, is assessed. Administrative legal proceedings are a procedural form of justice and a type of administrative procedural activity of courts for the implementation of the norms of administrative law and other material branches, and it can be considered «administrative» only with a certain degree of conditionality. In comparison with the proceedings that are part of the structure of the «traditional» administrative process, the administrative proceedings have a different legal status of its main participants (parties), the nature of the relations between them and the subject conducting the process, the ratio of procedural stages and proceedings. The substantive nature of administrative cases is not decisive for administrative proceedings, there is a partial discrepancy between the procedural (claim) form of administrative proceedings and the unified method of legal regulation.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
The paper is devoted to a comparative analysis of attempts to simulate the functions of a bill of lading issued on paper in a virtual environment. The paper emphasizes that the use of the paper form of the bill of lading constrains the potential of maritime transportation and levels the successes achieved by technological progress in maritime trade. The paper emphasizes that the use of the paper form of the bill of lading constrains the potential of maritime transportation and levels the successes achieved by technological progress in maritime trade. The author considers attempts aimed at creating a functional equivalence of the bill of lading based on the creation of so-called club systems in which the legal force of the bill of lading is backed by contractual ties: SeaDocs, Bolero, essDOCS. The reasons why none of the club systems has been able to fully simulate the functional equivalence of a bill of lading issued on paper are revealed. The author highlights attempts to introduce an electronic bill of lading based on the unification of international law. For this purpose, the author studies the Rules for Electronic Bills of Lading developed by the International Maritime Committee (CMI), the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules), as well as the Model Law on Electronic Transferable Records approved by UNCITRAL (MLETR). The possibility of giving an equivalent legal status to a bill of lading in electronic form in national legal systems is analyzed. It is noted that this possibility is not recognized by most national legal systems, which leaves open the question of recognizing an electronic bill of lading issued in other jurisdictions. The exception is the legislation of Australia, the USA and the Republic of Korea, the provisions whereof are subject to such comparative analysis.
CYBERSPACE / CYBERSPACE
The level of digitalization has increased significantly in the current century, the speed of the Internet has increased by many times, and it is now possible to access it from different parts of the world. Today, artificial intelligence occupies a special place in the digital technology market, which is already an indispensable tool in many sectors of the economy of developed countries. The purpose of the study is to identify the main urgent problems of using neural networks, as well as to form proposals for their legal regulation. The study uses the formal logical method, the comparative legal method, analysis and synthesis, methods of induction, deduction, and abstraction. It has been established that artificial intelligence cannot yet distinguish a joke from a real command or user request, respectively, further development of these technologies is impossible without the implementation of an analog function of cognitive thinking. It is concluded that self-regulation can be the best way to regulate the use of neural networks, since the legal system of continental law, to which the Russian Federation belongs, is quite rigid and often may not have time to regulate the rapidly developing field of artificial intelligence. Self-regulation is able to provide an opportunity to convey proposals on the legalization of effective rules for organizing the activities of IT market participants, to create an effective mechanism for guaranteeing the quality and safety of artificial intelligence based on the joint property liability of members of self-regulating organizations. At the same time, it requires the adoption of legal norms on liability for the illegal use of neural networks, as was done in the United States and China. In the near future, deepfakes created on the basis of neural network technologies may become a threat to national security and cause harm to thousands of citizens.
ISSN 2686-7869 (Online)