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Vol 77, No 9 (2024)
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PRIVATE LAW / JUS PRIVATUM

9-21 278
Abstract

The ecoclimate or «green» agenda, largely constituted through the concept of «sustainable development» and the system of ESG standards, has captured the world and is changing society, generating new social patterns, and ceasing business and management models. This encourages rethinking the legal superstructure, adapting new regulatory arrays to the current legal taxonomy, which is not always possible, taking into account the positivist approach to law and a significant amount of «soft» law rules and sources of non-state regulation within the framework of «green» regulation. The ecoclimate agenda has a number of dimensions in the context of law and jurisprudence, one of which is the practice of ecoclimate and ESG disputes, often of a cross-border nature. Very little attention is paid to this issue in the Russian research space, while the volume of relevant lawsuits in the world is growing rapidly. The object of the study within the framework of this work covers the risk-oriented nature of the above-mentioned issues, the licensing risks of mainly cross-border contracts, the assessment of companies’ activities in the field of sustainable development in the context of possible judicial or arbitration proceedings. The paper provides a classification of ecoclimate and ESG disputes, gives examples of judicial and arbitration practice, and makes some conclusions regarding mitigation of litigation risks generated by the companies’ activities.

22-31 216
Abstract

The paper analyzes such methods of formation of buildings, structures, as the construction and legalization of unauthorized construction. Construction as a way of forming buildings and structures is regulated by the norms of urban planning legislation. These norms establish three methods (procedures) of construction: permissive, under notification and simplified. The legal significance of the above classification of construction methods lies in the fact that each of them sets different requirements for the construction of buildings and structures as capital construction objects, and also defines its beginning and certifies completion in different ways. As the study showed, the permissive method is the only way of construction that obtained unambiguous legal regulation in the current urban planning legislation. The notification method of construction is similar to the permissive one, and the simplified method is an exception method that is established in relation to capital construction facilities of various levels of responsibility, as well as non–capital buildings and structures. It is proved that buildings and structures from the position of norms of urban planning legislation acquire the status of objects of completed construction not from the moment of obtaining permission for commissioning, as is commonly believed in the legal literature, but from the moment of the actual possibility of their operation in accordance with their functional purpose. This possibility can be verified in two ways: by obtaining a permit for commissioning or other document provided for by the current legislation of the Russian Federation; by starting the actual operation of the facility. The legalization of unauthorized construction is an exceptional way of forming objects such as buildings and structures that can be used under strict observance of certain conditions. Legalization of an unauthorized construction involves either the elimination of violations of the norms of urban planning and other legislation committed during construction, or the statement of the fact that such construction meets the established requirements. In both cases, the fact of the possibility of operating an unauthorized building in accordance with its functional purpose is confirmed in accordance with the established procedure.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

32-44 155
Abstract

For the first time, provisions on special rules for the election of a preventive measure in the form of detention of persons engaged in entrepreneurial activity appeared in domestic legislation in 2010. Since that time, the relevant regulatory provisions have repeatedly undergone minor changes, having significantly changed in 2019, when the legislative indication for the commission of a crime in the «sphere of entrepreneurial activity» was replaced by an indication of the status of a person suspected or accused of committing a crime related to his entrepreneurial or other economic activity. In pursuit of the goals of greater liberalization of criminal proceedings and protecting entrepreneurs from the unjustified use of procedural coercion measures in accordance of the public danger of crimes committed by them, in 2023 the law-maker again updated the provisions on detention, providing for regulation that at first glance could ensure their achievement. At the same time, as the analysis of judicial practice shows, the ongoing legislative changes have not solved the main problems of applying the appropriate preventive measure, since they have not clarified the content of the concept of entrepreneurial activity for the purposes of Article 108 of the Code of Criminal Procedure of the Russian Federation and have not determined the mechanism for establishing a link between this activity and the crime committed by the entrepreneur. The paper analyzes the approaches existing in the doctrine and law enforcement to solving these problems, suggests ways to resolve them that can ensure the achievement of the goals of humanization of criminal prosecution brought against entrepreneurs.

45-61 137
Abstract

A rapidly developing society determines the need to adjust well-established approaches to understanding and regulating crime prevention mechanisms. It should be noted that the modern criminal policy of the state is on the verge of systemic changes. Balance of public and private interests; authority and independence of subjects of criminal proceedings; means of combating crime and social control; public and secret methods of exposing criminals; conflict and compromise; defense and prosecution; complex and simplified procedural forms of legal proceedings; inevitability of criminal prosecution and conciliation procedures; verbal and digital technologies in legal proceedings; professional skills and technical means — these are the few systemic formations, the content of which requires a modern rethinking with dew regard to prevailing realities of the functioning of society. And here the key supporting role in the formation of effective technologies for solving the problems of modern criminal proceedings, as a mechanism of complex systemic formations operating in the context of multifactorial law enforcement practice, belongs to criminalistic science. At the same time, an important tool in understanding and modeling promising vectors of the development of a system of private forensic theories is the synergetic approach, which significantly complements the wellestablished structural and systemic method in scientific knowledge. The use of the synergetics methodology makes it possible to identify not only the intrastructural connections of the system of forensic knowledge, but also to assess how such a system as a whole is affected by external (legal, ideological, etc.) factors. And the most important thing is to ensure the harmonious (regarding the changing realities of law enforcement practice) progressive development of individual private forensic theories.

62-71 136
Abstract

Statistics on juvenile delinquency indicate that over the past decade, the level of serious and especially serious crimes committed by these individuals has remained relatively stable. In such a situation, the important tasks of law enforcement agencies are the timely detection and suppression of crimes committed by minors and their removal from the criminal environment through individual prevention. Effective solution of these tasks is impossible without the implementation of operational investigative activities. In this regard, a study was carried out regarding participation of minors in operational search relations in two main roles: as persons providing assistance to subjects of operational search activities and as objects of operational search activities. Within the framework of the first direction, legislative regulation of the conditions for the provision of assistance to minors is proposed: written consent of legal representatives and minors themselves, if they have not reached the age of 16; ensuring the safety of minors by employees of the operational unit; the introduction of additional safeguards for the assistance of minors. Within the framework of the second direction, proposals have been prepared concerning the conditions for conducting operational investigative measures against persons under the age of criminal responsibility. The issue of the need to involve legal representatives and teachers in conducting a public survey of minors was also raised for academic and practical discussion.

72-83 166
Abstract

Stating the great forensic potential of computer networks, the author differentiates computer networks into 6 types (in terms of functionality and level of service): personal (BAN), personal (PAN), local (LAN), campus (CAN), urban (MAN) and global networks (WAN). It seems that the BAN and PAN level networks can be conditionally combined into a single group — personal networks (some of its devices can be part of both one and the other network or be elements of both at the same time). It is logical to accumulate LAN and CAN networks into a group — collective networks, and megapolis (MAN) and global (WAN) networks into a group — multiuser networks. In the paper, the author focuses on collective and multiuser networks. At the same time, it is also indicated that there is a need to allocate a national level of computer networks. The author examines the criminalistically significant fundamentals of the functioning of the networks under consideration. The paper determines the specifics of the work and the main tasks of the researcher in the study of networks of various levels. It is stated that relevant information can be extracted from almost any type of network. Awareness of the type, hierarchy and level of network coverage will help optimize the investigation by increasing the speed of identifying the provider, the administrator and obtaining information about the network user from him. Based on the results of the study of network specifics, general recommendations for working with any type of network are offered.

INTERNATIONAL LAW / JUS GENTIUM

84-95 144
Abstract

International scientific and technical cooperation is critically important for making effective decisions and measures to manage Arctic biodiversity. The 2017 Agreement on Strengthening International Arctic Scientific Cooperation creates a solid legal basis for intensifying current and designing new scientific research in order to obtain the best scientific data as a basis for conservation and resource management. The basis of the international legal regime for the conservation and management of biodiversity beyond national jurisdiction in the Arctic is the 1982 UN Convention on the Law of the Sea. International legal acts on fisheries regulation have been adopted for all four areas of the high seas in the Arctic. The study of the Agreement on the Prevention of Unregulated Fishing on the High Seas in the central part of the 2018 SLA revealed significant shortcomings: when determining the spatial scope of application, an ecosystem approach is not used; a precautionary approach to fishing is not taken into account; the basis for the creation of a regional fisheries management organization is not created; the issue of fishing by third States remains open. The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity in Areas Beyond National Jurisdiction 2023 develops a number of institutions, including IOE and EIA. An analysis of its provisions indicates the inexpediency of Russia’s participation in it, taking into account the existence of the 2017 Agreement and a significant system of organizations involved in the implementation of joint marine research projects. The 2023 Agreement is not capable of having a significant positive effect on international cooperation in the conservation of Arctic biodiversity, but on the contrary will create additional obstacles to scientific research and impose financial burdens.

See the beginning: Lex russica. 2024;77(8):112-129. (In Russ.). DOI: 10.17803/1729-5920.2024.213.8.112-129.

96-106 124
Abstract

The paper analyzes international legal documents in the field of sustainable development in order to identify problems of legal regulation of collective food security and prepare proposals for its improvement. The author comes to the following conclusions. 1. International legal documents do not contain a universal regulatory definition of the concepts of «collective food security» and «sustainable development». At the global level, the currently existing definitions are part of acts that are commonly attributed to the norms of «soft» law. 2. At the level of regional international organizations, there is a reverse trend of normative consolidation of the concept of «food security», principles and approaches to achieve it on a collective basis in the context of the concept of sustainable development. 3. Unsatisfactory interim results in parts of eliminating hunger and achieving food security (SDG 2) at the global level are caused by imperfect legal regulation and an insufficiently effective international system for monitoring the achievement of the set goals. The author proposes legal measures to achieve the sustainable development goals more effectively. In particular, the need to prepare a draft international treaty on the implementation of the sustainable development goals until 2045 is justified. When preparing international legal documents in the field of sustainable development, it is recommended to take into account the provisions of acts of regional international organizations of a strategic nature, including those affecting food securities. Taking into account the successful provision it is proposed to improve the mechanism for global monitoring of the achievement of SDG 2 at the regional level by concluding framework conventions at the level of regional international organizations.

CYBERSPACE / CYBERSPACE

107-115 597
Abstract

The paper examines modern approaches of court practice in order to determine the legal nature of complex intellectual property objects, as well as creative outputs generated on social networks. The author analyzes the Judicial Review of the Supreme Court of the Russian Federation 2024 and the practice of the Intellectual Property Rights Court, devoted to topical issues of judicial protection of creative outputs on the Internet, as well as doctrinal sources, foreign experience on the issues under consideration. A legal analysis of complex intellectual property objects, ways of using them on the Internet, as well as gaps in legislative regulation in this area is carried out. The issues of the legal status of the information intermediary, the definition of the violator in social networks, especially on telegram channels, as well as the possibilities and criteria for the application of interim measures in case of violation of copyright and related rights are considered separately. In addition, cases and examples from law enforcement practice are considered when the copyright holder may, at their discretion, allow or prohibit other persons from using the result of intellectual activity or a means of individualization, since the absence of a ban is not considered consent (permission), which is a frequent violation, especially on the Internet.

116-126 500
Abstract

The transformation of public relations, taking place under the influence of the widespread introduction of digital technologies, required the formation of a new legal framework, which tends to constantly expand. In this regard, the possibility of distinguishing digital law as an independent branch is widely discussed in science, although the very possibility of using the combination of «digital law» is sometimes questioned. As an alternative to this combination, the categories of «Internet law», cyber law, etc. are periodically used. Based on an analysis of existing scientific points of view, as well as an assessment of the specifics of relations arising from the implementation of digital rights and the use of digital technologies, the author concludes that there is the possibility and expediency to divide digital law into sections. This is due to due to the specifics of the relations that make up its subject, characterized by the special subject construction, the scope of their practical implementation, the principles of building these relations. This in turn determines the peculiarities of the method of their regulation, characterized by a combination of imperative and dispositive approaches, legislative regulation while maintaining a significant role of self-regulation. At the same time, it must be recognized that building a coherent system of digital law is to some extent hindered by the process of permanent transformation of relations arising in this area.

HISTORY OF LAW / HISTORIA LEX

127-146 162
Abstract

This paper is a study on the so-called bilateral claims (actio duplex) of the Roman civil procedure in the context of their interpretation by scientists of the second half of the 19th — early 20th century. The author has scrutinized the monograph of E. Eck devoted to bilateral lawsuits. The monographs provides detailed conclusions of the scientist, who believed that as such the model of bilateral lawsuits was not typical for either the Roman or the civil procedure of his time. The paper also analyzes the current state of affairs in the theory of civil procedure in relation to these claims, and substantiates the law enforcement needs for the formation of a special approach to such phenomena. In the first part of the paper, we are talking about how ideas about bilateral claims of the Roman civil procedure developed mainly in German science by the beginning of the 20th century. In the second part of the article, the author concentrates on Eck’s monograph on the so-called bilateral lawsuits and sets out his views based on the study of Roman primary sources and their subsequent analysis. Eck’s arguments are also described in detail. This is about the non-dual nature of claims for the division of common property. The third part of the article focuses on modern Swiss civil procedure and Russian procedural realities. As a result, the author formulates a number of signs of claims related to the so-called bilateral award, which allow them to be considered as a separate legal phenomenon.



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