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Vol 77, No 5 (2024)
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IIMPROVEMENT OF LEGISLATION / NOVUS LEX

9-21 512
Abstract

The paper analyzes the provisions governing conciliation procedures consolidated in the Russian procedural legislation in 2019. The author elucidates the legal nature of alternative dispute resolution in general and conciliation procedures in particular, explains their informal nature and inexpediency of giving them the same strict legal form as procedural actions. The legislative consolidation of conciliation procedures is primarily associated with the need to inform citizens about the possibility of their use and registration of their result. Based on the study of judicial data, the author concludes that, despite a number of positive legislative innovations, the use of conciliation procedures has not fundamentally changed. With this in mind, the author highlights cultural, organizational and economic obstacles that prevent a wider application of conciliation procedures. Based on the results of their analysis, the author proposes three main directions for further legislative developments. The paper pays special attention to the judicial conciliation procedure that appeared in 2019, which has great potential, but requires the creation of appropriate conditions for its application.

PRIVATE LAW / JUS PRIVATUM

22-35 275
Abstract

The paper is devoted to determining the role of energy in the system of civil rights objects. The author highlights two main theories. Representatives of the first theory recognize energy as a thing and, accordingly consider it possible to apply the property law regime in relation to it. Currently, the number of supporters of this theory has increased due to the fact that the legislator consolidated regulatory norms regarding the energy supply contract in the chapter of the Civil Code of the Russian Federation devoted to purchase-and-sale transactions. The doctrine also attempts to justify the extension of the property right to energy through the category of «disembodied things». The second theory denies the attribution of energy to things. Representatives of this theory try to substantiate the legal nature of energy based on the existing systematization of objects of civil rights. According to the author, energy is an independent object of civil rights, a special object of a physical nature, having no sign of materiality, capable of generation and, under certain conditions, transfer in economic relations of civil turnover participants, and considered as a commodity with property value and high socioeconomic importance. Thus, energy perfectly fits into the category reserved by the law-maker for similar new objects and classified as «other property». Denying the substantive qualification of energy, the author supports the position of researchers who consider energy exclusively as an object of binding rights, since, given its physical nature and the possibility of generation and transmission exclusively through technical infrastructure, energy as an independent object of civil rights can act exclusively as a subject of binding legal relations

36-47 149
Abstract

The relevance of the paper is predetermined by the study of the key problems of arbitration in the context of the specifics of public procurement at the present stage, namely, the problem of determining the appropriate criteria for the conclusion and validity of arbitration agreements. The purpose of the study is to critically evaluate the so-called non-arbitrability formula, established in contemporary court practice; to disclose the algorithm for the emergence of contractual relations as a result of competitive procurement procedures; to substantiate the legal force of arbitration clauses incorporated into contracts before arbitration rules are deposited by the arbitration institution. The author sees the objectives of the study in substantiating the fundamentally permissible arbitrability of contractual disputes in all segments of procurement relations (not only by direct order under the federal law, but also for the future, including contractual disputes in the field of state defense orders due to the variety of available transactions); in identifying factors contributing to the proper assessment of an arbitration agreement for its validity. Methodologically, the paper is based on a set of general scientific (analysis, modeling, analogy, hypothesis), private scientific (formal logical, systemic, functional) methods, and uses the formal legal method. The results of the study allowed the author to draw conclusions about sufficiency of existing legislative regulation for assessing the conclusion and validity of arbitration agreements included in draft contracts at the stage of competitive procurement procedure; about the lack of grounds for evaluating these agreements for their compliance with the principles of procurement; about
the legal force of dormant arbitration clauses necessary for business turnover in the short term. The author suggests directions for improving law enforcement practice aimed at curbing abuses in terms of challenging arbitration agreements on the grounds of their non-conclusion and (or) invalidity.

48-59 225
Abstract

The new version of Federal Law No. 290‑FZ dated 03.08.2018 «On International Companies and International Foundations» adopted in August 2023 confirms the relevance of finding ways to regulate companies incorporated in the Russian Federation. The domestic approach has no analogues because under the Russian doctrine a foreign company can move not only with its rights and obligations, but also with its corporate law. Is it possible to call the foreign law applicable in this way a personal law? Why does the law on international companies not follow the logic of the Civil Code of the Russian Federation and does not directly indicate the application of foreign law to international companies and international foundations as a personal law? Can a foreign law partially encroach on the territory of the application of personal law? Is the personal law uniform and indivisible? To answer these questions, the paper analyzes the key characteristics, as well as the novelties of the institute of personal law in relation to international companies, problems arising in this area and ways to solve them. The author concludes that with the globalization of corporate relations, the fragmentation of the scope of personal law will continue. This actualizes the problem of finding mechanisms for the «seamless» application of the norms of different states in the field of application of personal law. The author emphasizes that legislation on international companies can become a regulatory sandbox and contribute to the inclusion of the most modern and effective institutions and approaches in Russian corporate law. Proposed in the paper amendments to the Civil Code of the Russian Federation and Law No. 290‑FZ preserve the logic of current regulation and reduce the uncertainty of regulation in the field of application of the personal law of an international company, the risks of subsequent changes in legislation for participants in international companies, as well as the likelihood of conflicts in the case of reference to foreign law.

60-72 176
Abstract

Not being an object of civil rights (Article 128 of the Civil Code of the Russian Federation), information has acquired objective marketability that does not limit itself, due to its value for certain persons, to using the construction of a contract for the provision of paid services for the legal regulation of emerging legal relations. The paper examines the legal nature of information and its historical and modern regulation, examines cases of illegal access to information and its use for the benefit of an unscrupulous person and suggests the possibility of applying the institute of unjustified enrichment by analogy. It is proved that the use of actio de in rem verso as an institution of unfair enrichment is the most appropriate for regulating the legal relationship under study. It is proposed to use the named institution up to the proposed reform of civil legislation in order to give information the properties of a full-fledged object of civil rights. It is argued that the reform of civil legislation regarding the inclusion of information in the objects of civil rights is long overdue and is predetermined by the objective development of the information society. Moreover, the expansion of digitalization and digital transformation of participants in civil law relations, including the state, leaves no doubt that such changes are relevant, and the courts, as soon as such an opportunity arises, need to begin applying new legislation in this regard.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

73-82 264
Abstract

The study develops an idea of the criminal legal nature of the insignificance of the act. The author arguments in favor of the fact that such nature is due to the differentiated approach of the federal legislator to assessing the level of public danger of actions and inaction provided for by criminal law. At the same time, the high role of the law enforcement officer in determining the scale of the threat posed by a specific offense for the object of criminal law protection is stated. Studying the mitigating and aggravating circumstances of the act, the personal characteristics of the offender and the line of their behavior, the court decides on the degree of public danger of the relevant act. Its minimal value becomes the reason for raising the question of recognizing the committed action or inaction as insignificant. The paper considers issues on categories of crimes that the offense formally falls under and thus can be assessed on the grounds of insignificance. It is argued against a well-known judgment that the insignificance of the act containing structural elements of the corpus delicti serves as the basis for evaluating what was done according to the norms and provisions of another branch of Russian legislation. A mechanism for developing the insignificance category potential at the level of an individual criminal wrong, known as a criminal offense, is proposed. The study offers a set of arguments proving the inconsistency of the position of the legislator and law enforcement officer on the issue of the possibility of recognizing an administrative offense as insignificant. Their essence boils down to the fact that the formal essence of administrative offenses excludes their differentiation into groups according to the level of harmfulness. This implies the inexpediency of using the category of insignificance in the legislation on administrative offenses.

83-95 214
Abstract

Unmanned aerial vehicles, regardless of their purpose and type, are of considerable interest to a legal scientist, law enforcement officer and legislator. The number of mentions of unmanned vehicles and their types in regulatory legal acts is large; however, academic papers constantly raise the issue of multiple terms and concepts existing in the field of unmanned technologies. Moreover, many papers on criminal law regulation raise the same question. Since the issue of unmanned aerial vehicles regulation is not the first one of a kind to be discussed among legal academia, the paper attempts to consider the problem by extrapolating from existing experience. In particular, the author suggests turning to the theory of technologies and using them as a starting point to answer the question of whether it is possible to identify a single system of signs of high generality for unmanned vehicles. Accordingly, is it possible to sufficiently abstract from the particular features of products and services in order to construct a general term? Using unmanned vehicles available on the market as an example, the author shows the breadth of variation in the functions of these vehicles and how this can lead to legal conflicts and the strengthening of particular cases when trying to build a general norm. Based on the analysis, the author draws a conclusion regarding the problem posed in the title of the article.

96-106 360
Abstract

author analyzes the problematic issues of the classification of the body of the crime provided for in paragraph «b« of part 5 of Article 131 of the Criminal Code of the Russian Federation. The validity of the stipulated elements, the peculiarities of their interpretation and application (the age criteria of the victim, the orientation of the related criminal act, the category of its severity, excluding factors) are considered. The content of the category of «conjugacy», its relation to the totality of crimes is investigated. The author examines the problems of distinguishing the concepts of «other grave consequences» and «related acts» in the context under study. The analysis of the problem of interpretation of the substantive aspects included in the objective side of rape and related crimes is presented. The etymological, theoretical, legal and practical aspects of the classification of rape associated with other grave/extremely greivous crimes against the person are considered. The correlation of the analyzed composition of violent sexual crime with classified types of suicide, HIV infection, torture, human trafficking, kidnapping / illegal imprisonment has been studied. Based on the generalization of the opinions of researchers, materials of judicial practice, the position of the Supreme Court of the Russian Federation, taking into account the analysis of the rules for the classification of criminal acts and the requirements of the principles of criminal law, the author presents some recommendations for leveling/minimizing the identified problems. 

107-117 475
Abstract

A criminal case (prosecution) dismissal for reasons other than exoneration is associated with the onset of various negative consequences for a person. These may include confiscation of property belonging to them and recognized as material evidence; filing a civil claim against them for compensation for damage caused by a person subjected to criminal prosecution; recovery of procedural costs. The need to clarify consent to a criminal case (prosecution) dismissal is a guarantee of the rights to judicial protection and access to justice, and it is attributable to the need to inform the person about the negative consequences accompanying the criminal case (prosecution) dismissal. The obligation to clarify the consequences of the termination of the case should be reflected in the law. At the same time, in pre-trial proceedings, effective judicial control should act as a reliable guarantee of the property right of the person against whom the criminal case is terminated, assuming the court’s authority to independently make decisions on issues related to the termination of the criminal case (including those related to reimbursement of procedural costs and resolution of the fate of material evidence). The thesis of the Constitutional Court of the Russian Federation on the equivalence of disagreement with the seizure of property following the termination of a criminal case with disagreement with such termination in general is critically evaluated. The optimal approach seems to be in which the consent of a person to a criminal case (prosecution) dismissal is clarified after a certified written explanation of the negative legal consequences of a non-rehabilitating decision. This, however, does not exclude the possibility of appealing the decision in its part, which does not relate to the cancellation of a criminal case (prosecution) dismissal as a whole.

PUBLIC LAW / JUS PUBLICUM

118-129 265
Abstract

The current stage of development of administrative law requires an active role of public administration in resolving administrative cases. At the same time, its acts and actions must be controlled by the courts. As a result, the administration is not allowed to remain passive in the exercise of discretionary powers, since they are provided for solving managerial tasks and are implemented within the prescribed limits. In this regard, the managerial goal, for which discretion is used, and the limits of authority are presented as basic criteria that allow us to assess the legality of discretionary forms of public administration. Additional criteria must be used to verify them. The most important among them are the so-called principles of administrative procedures, primarily proportionality and protection of trust. The principles that define the procedure can also be used, they can be called technical. For example, these include avoiding excessive bureaucracy, saving money, etc. Basic and additional criteria are typical for many legal systems and are most justified in the theory of administrative procedures. It mainly characterizes the administrative law of the countries of the continental legal family, and relatively stable examples of its implementation are presented in the German and Austrian legal order. Of some interest are the new laws on procedures adopted already in our century in the countries of Central Asia (the Kazakh authorities were the last to do so). The adoption of laws on administrative procedures is a milestone in the development of the theory of administrative discretion, but it is more important that the approach to discretion is not denied by the courts. The practice of the Supreme Court of the Russian Federation is a positive step in approving the domestic version of administrative discretion and the theory of administrative procedures, which is developing in a continental way.

THEORY OF LAW / THEORIA LEX

130-143 308
Abstract

The paper examines modern controversial issues of legal relations, public relations; legal, social and individual regulators of legal relations and public relations; current national and international acts, monographs, dissertations and other scientific publications. The general scientific methodology is used — philosophy, logic, systems theory and computer science. The author has researched and taken into account the general scientific conclusions of Marx, Engels and Wiener, as well as the positions of recognized Russian experts in the field of general theory of law, primarily N. G. Alexandrova, A. S. Pigolkina and A. M. Vasilyeva. The paper draws the following conclusions: 1) actual legal relations arise objectively and are primary in relation to legal regulators; 2) legal relations and public relations are paired categories with both general and special features; 3) legal relations are «organized» by legal and individual regulators; 4) legal relations and legal regulators of legal relations are ontologically heterogeneous legal categories; 5) legal relations and legal regulators of legal relations are not homogeneous elements of a unified system of forms of law containing only ontologically homogeneous and only legal regulators.

DISCUSSION PANEL / PRO ET CONTRA

144-161 346
Abstract

The paper examines the conceptual role of the insolvency (bankruptcy) procedure and the emerging trend towards the dominance of this legal mechanism over other (basic) legal categories. Three key categories are given as examples: the institute of non-interference in private affairs, which in the opposite case is transformed into intervention; the institute of limited liability of the founder (participant) and their legal entity, which presupposes a clear separation of the property masses of these subjects; and the institute of limitation period. It is proved that the bankruptcy procedure modifies the perception of the mentioned categories. Intervention becomes acceptable, which finds expression, for example, in the admissibility of challenging transactions and analyzing the debtor’s economic activities. The boundaries of the assets of a legal entity and an individual are blurred out in the context of the institution of subsidiary liability in bankruptcy. Only the statute of limitations, due to current court practice, is still subject to fewer changes, which are nevertheless present.
The author concludes that it is unacceptable to consider the institution of bankruptcy as an instrument of unlimited suppression of other legal structures in favor of the interests of the creditor community. An attempt has been made to demonstrate that the legal essence of the institution of insolvency is much broader than is commonly believed. This, in turn, explains the inadmissibility and danger of perceiving bankruptcy proceedings as a kind of «sacred» legal phenomenon.



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