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Vol 77, No 4 (2024)
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PRIVATE LAW / JUS PRIVATUM

9-23 681
Abstract

The objective of this paper is to define the models of responsibility for intelligent systems in situations when harm is caused (in the form of any wrongdoings, including crimes). For this purpose, the paper examines the current state of artificial intelligence technologies from the standpoint of moral, volitional and intellectual autonomy for modeling approaches to their legal personality. Such autonomy can be expressed only through the software element of a technological system, that is, even in the case of robots (cyberphysical systems), their legal assessment requires an analysis of how operations are carried out in order to evaluate incoming information rather than the physical characteristics of such a system. The author analyzes approaches according to which intelligent systems can be compared with legal entities, individuals, animals, and meta-directional structures in terms of the volume and nature of their legal capacity. The conclusion is made about the need for an independent legal assessment of artificial intelligence systems beyond their comparison with the existing legal categories. The need to train a system using a limited dataset, that is, without additional training in a real environment, adversarial attacks and internal errors of intelligent systems are considered as examples of technical limitations of technology that do not allow to raise the question of its subjectivity at the moment. The author highlights that in order to determine responsibility for the harm caused by an intelligent system, it is necessary to establish a circle of persons between whom it is distrubuted: an intelligent system itself, its developer and the operator (user). Thus, the author defines 10 models of responsibility distribution between them.

24-34 334
Abstract

The norms governing the institution of representation are still not clearly defined in the science of civil law: the concepts of representation and authority, which are the central categories of this institution, remain controversial. In the case of representation, the legal capacity of the representative is joined to the legal capacity of the represented, which is confirmed by the relevant powers. Thus, both the representative and the represented person must have legal personality.

At the same time, the legal status of civil law associations that are not recognized as subjects of civil law relations but are able to make decisions with legal consequences remains uncertain. How can the interests of such an association be represented in relations with third parties? Are the provisions of the institution of representation applicable to the regulation of these relations? The paper concludes that in some cases, the provisions of the institution of representation can be applied to relations involving civil law associations, when the circle of their participants is specifically defined and their interests coincide — a representative can act on behalf of and in the interests of each of the participants of such a community.

However, the possibility of collective representation of the common interests of persons whose circle is not precisely defined needs to be clarified. The issue of applying the provisions regulating direct representation requires special attention in cases where the general interests of the civil law community do not correspond to the private interests of an individual participant. In this sense, it seems that when specifying the circle of community members, the application of the provisions on representation is possible by virtue of the indication of the law and the decision of the meeting. However, the category of common interests of the represented persons needs to be clarified.

35-53 380
Abstract

The paper examines the qualifying features and elements of a marriage contract under the provisions of the Civil and Family Codes of the Russian Federation, as well as the specifics of legal regulation of relations arising in connection with its conclusion. The author critically investigates limitations of freedom of the marriage contract provided for by the mandatory norms of the Family Code of the Russian Federation and the definition of the marriage contract. The author justifies admissibility of determining the shares in the right to the common property of spouses or specific property belonging to them in the event of death or bankruptcy of one or both spouses. At the same time, special attention is paid to incompatibility of the marriage contract with involuntary creditors and creditors to whom its terms were not disclosed, as well as ex post control of the fairness of the terms of the marriage contract. According to the author, the regulatory potential of a marriage contract should not be limited mainly to the disposal of the spouses’ property belonging to them. The author brings up for discussion the possibility of using a marriage contract not only as an administrative, but also as an obligatory transaction, through which it is possible to regulate all property and personal non-property relations arising between spouses, including spouses with common children, in connection with marriage, in marriage and in the event of its termination. The paper highlights that a marriage contract may contain the terms of a corporate agreement defining the procedure for one of the spouses to exercise corporate rights. The author comes to the conclusion that it is necessary to develop dispositive (discretionary) principles regulating relations arising from a marriage contract and defining it as an agreement to family creation and functioning as a non-subjective entity, which would allow considering a marriage contract as a kind of a simple partnership agreement.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

54-64 197
Abstract

The paper is devoted to the study of ensuring ecocriminological security in the field of using the potential of the institute of exemption from criminal liability of persons who have committed environmental crimes. The author’s conclusions are based on statistical data concerning the grounds for criminal cases dismissals for the period from 2018 to 2022 and judicial practice concerning application of different types of exemption from criminal liability to persons who have committed environmental crimes. The paper examines the features of the application of certain types of exemption from liability. The author examines a shift in emphasis in law enforcement to the use of a judicial fine as opposed to the current trend towards the restrictive use of a fine in the form of punishment against the persons in question due to their personality characteristics that prevent the restriction of their property sphere. The author highlights the existence of ambiguous approaches of courts to establishing the grounds for the application of exemptions from criminal liability of persons who have committed environmental crimes. The tendency to absorb active repentance by a judicial fine has been revealed. It is concluded that there are no grounds for stating reconciliation with the victim in relation to environmental crimes. The author focuses on the established model for redistributing the frequency of use of certain types of exemption while maintaining the average annual number of discharged persons. The established practice of applying the institution of exemption from criminal liability of persons who have committed environmental crimes lacks uniformity in the interpretation of the grounds for its application. The problem of practical use of the humanistic approach of securing a safe environment from criminal influence requires in-depth theoretical understanding and development of a strategy for the development of this approach. Expansion and improvement of the practice of using non-repressive methods of influence is acknowledged as a promising direction for ensuring ecocriminological safety, if the effectiveness of law enforcement practice in this area is increased.

65-75 356
Abstract

Public relations, developing in the process of judicial decisions reviewing in criminal cases on appeal, arise on the basis of criminal procedure law rules with great socio-projective potential, which means activities aimed to create specific images of the future and certain details of programs and plans being developed that often result in a new or modernized social object with an original mechanism and unique means of regulation of public relations. The institution of criminal appellate proceedings has been formed in the process of a long evolution, during which many options for reviewing court decisions were tested and rejected. It also acts as an object of social design, which will help ensure the effectiveness of law enforcement and implementation of the objective of criminal proceedings, enshrined in Article 6 of the Code of Criminal Procedure of the Russian Federation. As the result of designing appeal proceedings in criminal cases, a set of scientifically grounded functional proposals can be developed. They can have a positive impact on the review in the court of appeal, since the latter should be able to satisfy the social interest (need) of interested parties, meaning not the satisfaction of the appeal, but the administration of justice in the full sense of the word.

PUBLIC LAW / JUS PUBLICUM

76-84 820
Abstract

The paper considers specifics of narrow and broad approaches to public administration that existed in the USSR and the Russian Federation, as well as the modern concept of public administration related to the exercise of public power. The causes and periods of the emergence of these concepts are determined. Since public power unites state bodies and local self-government bodies, it is proposed to understand the term «public administration» integrally — as joint, coordinated managerial actions of state and municipal bodies. It is argued that, despite the differences in these concepts, the directions of development of the public administration system are determined by the same trends. Based on the analysis of the mechanism of development of this system, three similar trends are identified. It is shown that the first trend causes a permanent increase in the number of governing bodies (subjects) included in the public administration system. It is determined that at the same time, information communications in the public administration system are growing. Given this circumstance, it is concluded that the second trend in the development of the system is the complication of the architectonics of information communication channels during the transition from one system of public administration to the next generation system, which makes it possible to increase the efficiency of management in new socio-economic conditions. It is argued that public administration is carried out through the simultaneous implementation of different management approaches, in particular, centralization and decentralization of management, the use of cybernetic and synergetic tools. In this regard, the third trend in the development of the system under consideration is the transition to a new ideology of convergence of various management mechanisms.

86-97 220
Abstract

The local self-government reform in Russia in recent decades has gradually diverted this institution from the essence of its creation, embedding it in the vertical of state power under the image of public power. The 2020 constitutional amendments have only accelerated this process. The paper attempts to substantiate the need to preserve municipal power in the form that it was originally inherent in, being a prototype of the theory of a free community or at least dualism. The paper is based on the theoretical advances of scientists and the author’s insights, as well as on a number of issues of local importance, including land, tax, urban planning and other public relations. The author has attempted to show the need for local self-government at the present time, if the necessary vector of development is given to it by organizational and legal means. The increasingly expanding practice of delegating state powers and the introduction of a single-level system of territorial organization of municipalities plays a negative role in the issue under consideration. In order to overcome problematic trends, it is proposed to implement the existing institutions of municipal law in a new way, which will give positive results and for which there is a real demand from the population. Thus, people are reluctant to participate in various events related to mandatory face-to-face attendance, but actively vote for options for improving public space, do not want to be deputies of rural settlements, but help each other in difficult situations and go out on clean-up days, etc. The subsequent transformation of local self-government should be based on the needs of citizens, not the state.

98-108 297
Abstract

An important milestone in the development of the institute of human rights is the adoption in 1948 of the Universal Declaration of Human Rights, which for the first time in history comprehensively enshrined the basic human rights and freedoms, taking into account the natural, political and social needs and interests of the person (individual). The adoption of this very document declared the man, his fundamental rights and freedoms to be the main value. The international community sought to cover all possible spheres of public relations (public and private) that are necessary for a person to function normally, consolidating basic rights and freedoms. It is impossible to deny the importance of this international legal act for the «human family» and each individual. At the same time, we may state that this document was adopted three quarters of a century ago and it does not fully reflect reality, does not take into account the dynamics of the development of public relations, in particular, does not define human rights in the emerging information society, in particular the digital space. After all, even the approach to individualization and identification of the person himself is changing, digital profiles of citizens appear, digital passports and other identification documents are issued, moreover, «cybermen» appear   — individuals with subcutaneously implanted microchips (capsules) with NFC technologies (Near Field Communication), containing information, in particular, about personal and banking data.

COMPARATIVE STUDIES / COMPARATIVE STUDIES

109-123 188
Abstract

The paper is devoted to the issues of legal regulation of litigation funding by persons not directly involved in the case. The study is based on the case law of the British Commonwealth and the Russian Federation. The historical aspects of the formation of the institute and the champerty doctrine are considered, in which such financing is disclosed in two aspects: a)  support and encouragement of the process itself, when in its negative connotation control or support of the dispute or the parties leads to a violation of common law; b)  a percentage of the price of the claim without material interest in the dispute.

The paper examines the issues of reimbursement of court costs in Russia, England and Ireland, and, considering the case of the United States, starts a discussion about the possibility and necessity of disclosing information about the sources of litigation funding. The question is raised about the need to extend the financial confidentiality regime to relations on litigation funding without any exceptions. Following the cases of court practice in England and Ireland, the author raises questions about the legal status and interest of the procedural sponsor. It is argued that the rhetoric about the role of the court may be lofty, but the reasoning does not reach such heights if access to justice is blocked due to lack of funds. Litigation funding and the assignment of rights allow low-income parties to achieve a certain degree of justice; it can be recognized that justice is imperfect, but better than none at all.

INTERNATIONAL LAW / JUS GENTIUM

124-137 271
Abstract

Since 1996 the International Swaps and Derivatives Association (ISDA) has been extremely successful in preparing and promoting model acts that have been implemented in more than 80 jurisdictions, including the Russian Federation. This circumstance is unique because ISDA, unlike intergovernmental organizations in the field of harmonization and unification of private law, does not have the status of an international organization, being a non-profit corporation. Nevertheless, its model laws, being in demand by legislators from different countries, put ISDA’s activities in the field of harmonization of private law on a par with such international organizations as Unidroit and UNCITRAL. The paper provides a brief description of the basics of the activities of this association. Special attention is given to the preparation of standard framework agreements and terms of contracts. The evolution of its model legislation is traced in detail, including the model laws of 1996, 2002, 2006 and 2018. It is noted that up to 2018, there was a tendency to expand privileges for derivative transactions, including in terms of their types and degree of protection. However, after the collapse of the leading investment bank Lehman Brothers and the subsequent global financial crisis, regulatory approaches to derivatives privileges changed, which was reflected in the latest ISDA model Act.

138-149 207
Abstract

The paper is devoted to the legal regulation of economic activity in the Arctic. It is shown how rulemaking is designed to consolidate the maximum rights to use natural resources. Differentiation of approaches and the use of completely different methods of measuring them are inevitable then. One of them is the interpretation of such a category as sovereignty. It is considered to what extent it meets the constitutive criteria of jurisdiction, the choice in favor of one or another domestic legal system. The relativity of the recognition of conflict-of-laws principles of field availability is noted. The right to develop mineral resources is associated with jurisdictional activities in accordance with acts of national legislation, as well as with the fullness of legal norms  — the obvious universalization of jurisdictions. At the same time, quantitative indicators of sovereignty, if possible, can be established only in relation to the degree of influence of interstate organizations. The legal systems of the Arctic countries then minimize the risks of implementing the decisions taken. In this plane, they draw the desired watershed. Qualitative signs of sovereignty are much more important. This is a visible ability to remain a subject of international relations against the background of current crises, but also an explicit delimitation of jurisdictions first for international law enforcement institutions. Subsequently, it affects national civil rights protection systems.



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