FAMILY LAW / FAMILIA LEX
The paper dwells on the process of making ammendements to family laws and other sectoral laws, as well as trends in the formation of law enforcement practice in the context of the perception of amendments as an improvement in the mechanism of family law regulation. The author refers to the innovations of the Family Code of the Russian Federation and other federal laws, the jurisprudence of the Constitutional Court of the Russian Federation, the position of the Supreme Court of the Russian Federation when the courts consider disputes related to the exercise and protection of family rights of citizens. The author justifies the thesis that there is no consistency when making targeted changes and additions to the legislation, which not only does not improve the legislation in general and individual norms in particular, but, on the contrary, indicates the lack of an integrated approach and, as a result, the effectiveness of lawmaking. The legal regulation of family relations should be based on principles demonstrating the harmonization of private and public interests in both family and other sectoral legislation. The author believes that the legal regulation of all public relations with the participation of family members should stem from the priority of the family legal status of the person. The article also confirms the importance of the practice of the Constitutional Court of the Russian Federation, since the consequence of the consideration of the complaint may be the desired improvement of legal regulation. The special role of judicial practice in filling gaps in the legislation on the regulation of family relations is also being substantiated, which may also entail the transformation of stereotypes prevailing in the doctrine of family law.
The paper explores possible areas for improving the legal regulation of property relations of spouses engaged in entrepreneurial activity without forming a legal entity or being participants in commercial organizations. Due to changed economic conditions the presumption of common property of spouses, acting within the framework of the legal regime of property of spouses creates many problems in law enforcement. The authors studied and analyzed doctrinal views on the present and future of the institution of common property in Russia, the changes in legislation in this area that have occurred and are being developed, as well as the positions of the courts regarding application of legislation regulating property rights and obligations of spouses when considering disputes related to the implementation of business activities by spouses. Based on this, the authors make an attempt to simulate the legal regimes of some objects of common property of spouses used in business (other economic) activities, as well as the peculiarities of the division of business assets as common property of spouses.
The family as an institution is protected by the Russian state and is the object of its policy. In the background of the aggravated demographic crisis, when implementing it and developing legislation, it is necessary to take into account the essential features of the family and its functionality, the implementation of which is one of the most important factors of social dynamics. In this perspective, on the basis of the sociological, economic and legal approaches presented in academic publications, the author dwells on the problem of the social purpose of the family and its legislative definition. Since the semantic content of the sociological and legal concepts of the family are not identical, the author criticizes a legal definition proposed for legalization, which essentially fixes the legal construction of legal relations. In the current Family Code of the RF, the term «family member» is already used to determine the range of sectoral family legal relations, and the introduction of a legal feature into the definition of a family leads to a distortion of its social nature. In addition, not all relations in the family are regulated by law, which means they have the form of legal ones, and, conversely, not all relations between family members assume that they live as one family in its sociological sense. The work explains the social functions of the institution of the family: economic, demographic, cultural and informational, implemented in their relationship. Particular attention is paid to the economic function; the family is presented as a fundomental social good, an objectively necessary sociocultural factor of the national economic system, as well as its independent special structural element.
Based on the study, the authors conclude that taking into account psychological aspects is an important factor that guarantees the fair application of liability measures. In this regard, the authors contend the common point of view in the doctrine, justifying the need to abandon psychological fault and the transition to the concept of objective (objectivist) fault. Objective (objectivist) fault means that what we need to take into account is a nonmental (subjective) attitude of the person to his actions and the corresponding consequences, and the fact of improper performance of duties by the debtors whether they take (or fail to take) appropriate measures, i.e., an objective description of the debtor’s behavior. According to the authors, the fault, that is objectified in the actions of the subject, testifies to his will, testifies that before not fulfilling the obligation or fulfilling it improperly, before causing harm to the victim, including by abusing his right, the subject must form all this in consciousness, this should become the subject’s will and reflect outward as a strong-willed action. The authors conclude that civil liability is characterized not only by careless, but also intentional fault, including fault in the form of direct intent. A comparison of the psychological aspects of liability in civil and family law allows us to assert that intentional fault is more characteristic of family legal liability than of civil law due to the specifics of family relations.
The work proposes a systematic analysis of modern forms of digital violence against children. Based on its typical parameters, the author identifies key trends in the development of digital violent influence on minors (exponential growth, expansion of the technological base, habitalization, high latency and commercialization, a combination of online and offline forms, organization). Based on several legal and criminological criteria, the author provides the typology of digital violence and assesses the consistency of the author’s concept in its comparison with the approaches of international organizations and national expert centers. Considerable attention is paid to the legal assessment of individual manifestations of digital violence against children (cyberbullying, stalking, doxing, fraping, heppislapping, digital sextortion, online grooming, revenge porn, flaming, zumbombing and digital rape). The author analyzes algorithms for their qualifications and determines the degree of adaptability of criminal law to modern digital challenges and threats. Based on the principles of functional equivalence, the author applies existing models of qualification of violent crimes to the peculiarities of committing digital attacks and dwells on possible directions for the development of criminal legislation and judicial practice. The quintessence of the work is the idea of the need and timeliness of developing a universal model of criminal law and criminological prevention of digital violence against children, which would simultaneously take into account both its general criminogenic factors and prerequisites (misuse of personal data, cyberattacks and data leaks, lack of foundations of digital hygiene), and the content features of certain types of digital violence.
The paper attempts to analyze international legal acts that express approaches and principles aimed at regulating the handling of genetic and genomic data, including family data. At the international level, the processing of genetic and genomic data is regulated as part of a more general data management regulation. Meanwhile, there are documents devoted directly to the processing of genomic data. The paper analyzes specific international legal documents, including in relation to relevant acts at the level of the Russian Federation. Based on the results of the study, conclusions are drawn related to the possibility of using international legal approaches in domestic legislation. It is noted that most attempts at regulation are expressed in the norms of «soft law», which is quite consistent with the stage of development of the considered social relations. All acts aimed at regulating the processing of genetic and genomic data are aimed at finding a balance of interests between different social groups and, in any case, at finding a balance between public and private (individual) interests. Rational use of approaches formulated at the level of international organizations, taking into account the interests of the Russian Federation, will make it possible to develop proposals for improving domestic regulation in this area.
PRIVATE LAW / JUS PRIVATUM
State-run non-profit companies are created to perform certain public functions and powers, and operate exclusively in the interests of the state and society. The public purpose, the main one for legal entities of this form, determines the specifics of their civil status, the specifics of the exercise of acquired subjective civil rights, including property rights. The regulations on the basis of which state-run non-profit companies are established and operate set special rules that significantly limit their independence in the exercise of ownership rights. Among them, general limits applicable to all state-run non-profit companies can be distinguished, and individual limits related to specific companies and set depending on the nature of their public tasks and methods of solving them. At the same time, for some companies, opportunities are narrowed, permissible options are limited or the necessary options for their behavior as owners are clearly defined, for others they expand and create greater discretion. The specified limits are mobile and can be changed by the legislator depending on the transformation of public needs and external factors. The existence of special frameworks and conditions for the exercise of ownership rights does not mean that companies do not have this right, nor does the right of ownership lose its character. The granting of ownership rights to state-run non-profit companies contributes to their effective participation in property relations, and the introduction of limits on its implementation is necessary for effective public activities of companies and ensuring the stability of civil turnover.
The paper analyzes the influence of the legal positions of the courts on the development of the institution of security transactions. The conclusion is substantiated that a number of acts of judicial practice in the Russian legal system have the feature of being generally binding. In terms of the development of general provisions on security transactions, the specificity of the application of the general rule on the absence of influence of the validity of the transaction from which the main obligation arises on the validity of the additional obligation is shown: a penalty is excluded from the scope of this rule by judicial interpretation. The development in law enforcement of security transactions not named in Chapter 23 of the Civil Code of the Russian Federation is shown: foreclosure leasing, commodity penalties, the amount of compensation for unilateral withdrawal from the contract. The main approaches of current judicial practice in relation to the calculation of the penalty are systematized, seven main criteria for its reduction are identified. Conclusions are drawn about the peculiarities of the legal structure of the deposit under the preliminary agreement and the security payment. It is stated that the development of law enforcement practice in the field of enforcement of obligations occurs to a greater extent in relation to individual security transactions, the development of general provisions is carried out in fragments.
INTERNATIONAL LAW / JUS GENTIUM
The paper examines the issues of international legal protection of water resources and related infrastructure, including water management, during armed conflicts. General humanitarian obligations, as well as special norms related to the protection of the natural environment during armed conflict, are the main subject of the analysis. Although the norms of international humanitarian law (hereinafter referred to as IHL) are of key importance for the application during armed conflicts, nevertheless, the norms for the protection of water resources, established primarily by international environmental law, can enhance their effectiveness by formulating, in particular, an obligation not to cause significant damage or a general obligation to cooperate. The issues of interaction and conflicts between the norms of IHL and international environmental law are the most difficult in terms of classification and application, since the prohibitions provided for by IHL are aimed at protecting civilians and civilian objects. International environmental law ensures the protection of water resources as a natural object of independent value. In addition to the norms of international law, the norms of recommendations play a serious role in protecting water resources and related infrastructure. The potential of their usefulness is explained by the following circumstances: applicability both in international armed conflicts and non-international armed conflicts; formulation of recommendations without prejudice to international legal obligations; the ability to recommend non-state actors to take measures to protect water resources and related infrastructure; assistance in interpreting international law.
GENOME / GENOME
The paper examines the key features of the legal regulation of secrecy in relation to such a rapidly developing field as genetic research. The purpose of the study is to provide an overview of the main approaches to the legal regulation of secrecy (including medical secrecy) at the global, regional and national levels, to formulate trends in the development of regulation in the field of public relations under consideration. The paper presents a detailed analysis of the fundamental international documents, as well as domestic acts (including examples from foreign jurisdictions), which address the issue of compliance with the prohibition on disclosure of certain types of information, and the relevant exemptions are considered. As to the Russian Federation, the authors note the unconditional influence of judicial practice on the formulation of legislative approaches to fixing the conditions for the disclosure of information constituting a secret during genetic research without the consent of the subject or his legal representative, as well as on the disclosure of relevant information after the death of a citizen.
CYBERSPACE / CYBERSPACE
The paper considers the main technologies (including socio-humanitarian ones) that pose challenges to ensure the security of communication in the Internet environment and require the development of new regulatory models. The correlation and interrelationships of the concepts of information, information-psychological, reputational and media security; information and cognitive sovereignty; information, cognitive and hybrid warfare; the phenomenon of «soft power», «sociological propaganda», which is important for the unification of the terminological apparatus in this area, are considered. For the first time, from the point of view of jurisprudence, the concept of cognitive sovereignty is comprehensively considered and its components are characterized, including media security, cultural sovereignty, technological sovereignty, managerial sovereignty, and legal security. The research section devoted to the comprehensive consideration of the phenomenon of social engineering is also new, not only as a set of methods of psychological influence aimed at obtaining unauthorized access to data, but also as other complexes of socio-humanitarian technologies for managing meanings, methods and techniques of information and psychological influence on human behavior. The place of legal social engineering in the system of social engineering is considered and the role of the lawyer-strategist (lawyer-lawmaker) is justified as a social engineer who develops models for rationing not only current, but also emerging, predictable social relations. The analysis of the development of cyberspace from the point of view of the concept «Web 1.0 — Web 2.0 — Web 3.0 — Web 3» allowed, firstly, to develop an author’s feature model of various «types» (stages) of the development of the Internet environment and, secondly, to identify challenges to the law caused by the need to ensure media security and cognitive sovereignty, and also the adaptation of new economic models.
ISSN 2686-7869 (Online)