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No 2 (2019)
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IIMPROVEMENT OF LEGISLATION / NOVUS LEX

9-28 1576
Abstract

The paper gives a general description of unmanned ground, aerial, surface, underwater, space vehicles developed inRussiaand abroad to be used for military purposes and national economy. In general, the paper highlights principles of their functioning and the degree of their autonomy. Special attention is paid to the danger they create to a person, property, etc., in traffic accidents and when moral and legal problems are involved (in compliance with the concepts of a “trolley case” and necessity that are often applied in common practice, e.g. concerning road transport). The authors suggest a road map according to which, first, gaps in the legislation (i.g. in civil and administrative law) should be eliminated; second, the rules of traffic safety and operation of unmanned vehicles should be determined, and, third, a criminal law on liability for damage caused by the drone should be elaborated. Main approaches to the definition of this criminal law prohibition are indicated and the most important algorithms of criminalization of the act in question are highlighted.

THEORY OF LAW / THEORIA LEX

29-40 1003
Abstract
The article discusses the issue of whether implementation of a legal right is possible by means of omission to act or whether an omission to act constitutes a waiver of a legal act. The author proposes to distinguish between implementation of the legal right and implementation of the freedom to commit an act that is not prohibited by law (the right to freedom to act). In addition, implementing the legal right in the form of its exercise, an individual pursues a specific legal interest, an individual has the aim to acquire certain tangible or intangible benefits. If a person, for the purpose of exercising a particular legal right does not act, it means that he, relinquishing the right, pursues a different interest than the results of implementation of a particular legal right.

PRIVATE LAW / JUS PRIVATUM

41-47 1820
Abstract

The article highlights that when disputes concerning upbringing of children are being dealt with by the courts, custody and guardianship authorities may act both as a procedural claimant and as a state authority competent to give an opinion on the merits of the dispute. In cases provided for by law, custody and guardianship authorities are entitled to perform the functions of a jurisdictional body, as well as to participate in proceedings as a defendant.

48-56 1452
Abstract

The article analyzes the concept and legal nature of a transferable letter of credit in the comparative legal aspect. The author compares the legal structure of a transferable letter of credit under the civil code with the legal regulation of a transferable letter of credit under the Uniform Customs and Practice for Documentary Credits (UCP) (2007 edition, ICC publication No. 600).

Under the law, transferable letters of credit mean such letters of credit that the payer (applicant) and/or issuing Bank allowed to transfer to the second beneficiaries. The transfer of the letter of credit is executed in two transactions. First, the first beneficiary shall unilaterally declare his will addressed to the transferring Bank where the first beneficiary shall propose to the Bank to change the range of possible beneficiaries under the letter of credit. The will of the first beneficiary should be qualified as a unilateral transaction on behalf of the first beneficiary concerning the full or partial exemption of the issuing Bank (confirming Bank) from the original offer (opening of the letter of credit), if the transfer of the letter of credit to the second beneficiaries is made. Second, a transferring Bank makes a unilateral transaction to transfer the letter of credit to the second beneficiaries. This transaction is made by the transferring Bank on behalf, at the expense and in the interests of the issuing Bank (confirming Bank) on the basis of the authority granted under terms of the letter of credit. A unilateral transaction of the transferring Bank concerning the transfer of a letter of credit is an offer made on behalf of the issuing Bank (confirming Bank), and brought to the attention of the second beneficiaries (beneficiary) with a proposal to conclude a contract for the payment (acceptance and payment of a bill of exchange) against the relevant financial and/or commercial documents.

At the same time, the transfer of the letter of credit leads to a change in the original offer to open a letter of credit to the first beneficiary in terms of a range of possible future acceptors.

PUBLIC LAW / JUS PUBLICUM

57-68 924
Abstract

The article focuses on various approaches to the concept of administrative jurisdiction in modern Russian Law, analyzes the problems and contradictions in the development of the theory of administrative jurisdiction in administrative law. Methodologically, the article is based on the modern achievements of the theory of cognition. In researching the author applied theoretical, general philosophical methods (dialectics, system method, analysis, synthesis, deduction), traditional legal (formal-logical) methods. Turning to the question of the concept of administrative jurisdiction, the author touches upon the problem of its subject composition and comes to the conclusion about recognition of courts as subjects of administrative jurisdiction and the existence of administrative and judicial jurisdiction as a form of this legal phenomenon. In this regard, the author substantiates the view concerning the need to abandon “narrow-wide” understanding of administrative jurisdiction that is considered precisely as outdated stereotypes of the Soviet era.

Also, the study of subjects of administrative jurisdiction that is associated with a legal conflict is of considerable interest. In this context, the author raises the issue of the legal nature of the court’s activities with regard to application of administrative responsibility, believing that, on the one hand, it is a manifestation of activities that can be considered as an independent form of administrative jurisdiction. On the other hand, this activity amounts to justice, within the framework of which the judicial power is exercised.

Having studied administrative jurisdiction as a category that allows revealing the content and legal essence of this type of state activity, the paper defines administrative jurisdiction in the context of its connection with judicial jurisdiction and justice.

69-80 1678
Abstract

The article deals with the problems of differentiation between control and regulatory (rule-making) functions of federal ministries and federal services. Analyzing the logic of differentiating the functions in question within the framework of the administrative reform carried out in Russia in 2004, the author highlights, on the one hand, the reduction of the influence of corruption factors on the process of departmental rule-making as a positive effect of the reform, and reduction of efficiency in the preparation of normative legal acts, the negative impact of disagreements and contradictions between federal ministries and Federal services on the process and the results of rule-making. The author proposes to limit regulatory powers of regulatory authorities in terms of their adoption of normative legal acts regulating foreign relations, i.e. the activities of controlled entities, as well as regulating the procedure of control (supervision). At the same time, in the author’s opinion, it is irrational to limit the powers of federal services concerning adoption of normative legal acts of intra-organizational nature or aimed at regulating human resources issues and issues of providing social guarantees to officers of governmental agencies. The author concludes that improvement of the structure of federal executive agencies and the differentiation of functions between them should be carried out on the basis of functional and procedural reforms providing for the adoption of federal laws on normative legal acts and on state control (supervision). It is expedient to exclude from the rule-making from functions forming the basis for determining the types of federal agencies of executive power in accordance with the Decree of the President of the Russian Federation of March 09, 2004 No. 314 “On the System and Structure of Federal Executive Bodies.”

CRIMINAL LAW SCIENCES / JUS CRIMINALE

81-91 672
Abstract

The relevance of the article is that in modern society, ensuring a full fight against crime involves including a solution to various problems in the implementation of the rights and legitimate interests of persons against whom the crime has been committed. For example, in the criminal procedure the rights and obligations of “persons involved in the proceedings when checking reports of a crime are explained under the Criminal Procedural Code of the Russian Federation. Alongside it provides the possibility of exercising these rights to the extent that the procedural actions and procedural decisions affect their interests, including the right not to testify against themselves, their spouses and other close relatives, the range of whom is defined in para. 4 of art. 5 of the Criminal Procedural Code of the Russian Federation. Such persons are provided with the right to use the services of a lawyer, as well as to bring complaints about actions (inaction) and decisions of the investigating officer, the head of division of inquiry, the chief of body of inquiry, the investigator, the head of investigative body in the order established by Chapter 16 of the Criminal Procedural Code of the Russian Federation”. Still this sound rule lacks referencing to certain subjects defined in the Criminal Procedural Code of the Russian Federation. This leads to the fact that legal guarantees for persons who have not received the status of a participant in criminal proceedings remain declarative. The analysis of criminal cases revealed many inaccuracies, legislative gaps and contradictions, which play an important role in the fact that individuals or legal entities in respect of whom the crime has been committed do not have procedural rights to protect their interests within the period up to 30 days. The article aims to develop a mechanism for their protection from the moment of registration of a crime report by law enforcement agencies, taking into account a certain amount of knowledge on the activities of persons who were involved in the criminal process.

92-106 491
Abstract

The paper is devoted to the current problems of theory and practice of cognitive activity of an investigating officer in the field of pre-trial criminal proceedings. The ideas expressed by the authors, the developed provisions and recommendations, characteristics and classifications concerning the subject, methods, means and technologies of the investigator’s cognitive mission are based on empirically established regularities of two groups (categories). The first is the regularities of criminal and related types of legally significant behavior (activity), as well as the process of its reflection in the material environment. The second group is the laws underlying the organization and implementation of anti-criminal investigative activities in the stages of initiation of criminal proceedings and preliminary investigation. Attention is given to the issues concerning the relation of investigative knowledge and recognition, essence and mechanisms of these forms (directions) of professional activity of the investigating officer, as well as the problem of formation, interaction and recognition of mental images of the acts containing indicia of crimes. Along with this, the paper reflects the concept definitions of investigative cognition and investigative recognition formulated by the authors.

CYBERSPACE / CYBERSPACE

107-120 1892
Abstract

Modern economy and society are reconfigured in connection with the emergence and development of digital platforms, which is figuratively referred to as “uberization of everything”. This became possible with the development of information and communication technologies and the formation of cyberspace. The key problem for lawyers is the construction of the legal superstructure of cyberspace, which leads to the emergence of a number of concepts: cyberlaw, “platform law”, internet law etc. However, while science is trying to comprehend the relevant paradigm shifts, a huge array of cross-border transactions are made by consumers with platformtype companies; cross-border disputes are resolved through online dispute resolution (ODR) procedures in international commercial arbitration or courts; law enforcement practice is being formed, which responds to the challenges of the cyber environment. It is the tools of private international law that are most in demand in regulating the relevant relations. What would be more viable in modern conditions: international private law or cyber law?

COMPARATIVE STUDIES / COMPARATIVE STUDIES

121-131 1197
Abstract

At present, the problem of terrorism has ceased to be a predominantly external threat to the EU. At the beginning of the 21st century, the geography of terrorist attacks has expanded and increased significantly in frequency. In this regard, the fight against terrorism has taken a special place in the EU policy. Despite the limited powers in the field of law enforcement, many efforts are being made at the EU level to develop a mechanism to counter terrorist activities. Anti-terrorism policy includes a variety of means, among which are special legal measures, the development of which was carried out exclusively or primarily for the purpose of combating terrorism. The present work aims to study the special legal tools for combating terrorism that form the EU anti-terrorist legislation. Anti-terrorism legislation is a central component in the system of measures to prevent terrorism in the EU, it does not replace the relevant provisions of the national law of the EU. Its task is to develop common standards for combating terrorism, as well as to ensure the uniform application of international legal means of counter-terrorism in the EU. The EU anti-terrorism legislation consists of two key components: measures to harmonize criminal and criminal procedures, as well as measures to combat the financing of terrorism. Both directions have been developed in line with the implementation of international standards to combat terrorism, which, in turn, were the result of the reaction of the international community to the strengthening of terrorism in the West. The main impetus for the development of EU anti-terrorist legislation should be the events of September 11, 2001 and the strengthening of terrorist activity in 2015-2016 in the EU.

132-150 663
Abstract

As part of the analysis of the practices of institutionalization of constitutional and legal status of territorial autonomies of Bolivia, Great Britain, Denmark, India, Indonesia, Canada, China, Moldova, Uzbekistan, Finland on the basis of the criteria and methods of their formation, it is indicated that there are two main scenarios. According to the first one, territorial autonomies are formed on the basis of international and national legal acts. The second scenario assumes the formation of autonomies based on national legal acts only.

In the structure of the first scenario, territorial autonomies formed as a result of negotiations between the parties to the conflict (confrontation model) and in the Directive order (Directive model) are separated. In the structure of the second scenario, territorial autonomies established following the negotiations on the basis a peaceful compromise or as a result of confrontation (consensus and confrontation models), as well as autonomies formed unilaterally (policy model) are highlighted.

The conceptual requirements for the successful institutionalization of territorial autonomy are as follows: the presence of rooted in society and the state traditions of democracy and the rule of law; the establishment of a real regime of internal self-government; limited material and financial resources and the resulting dependence on the state; the absence of disputes about sovereignty; clarity of the formal legal structure of the constitutional legal status; small population and the territory of autonomy. In this case, the structure and content of these requirements are very mobile, and therefore can be combined in different proportions with different specific gravity.

Typical examples of the most stable territorial autonomies (in terms of territorial integrity and unity of the state), in which these conditions are present in different volumes, are the autonomies of Bolivia, the Aland Islands, the Faroe Islands, Hong Kong and Macao. This category can also include Karakalpakstan and Nunavut because of their total dependence on the support of national governments.

In turn, the potential for the development of separatist tendencies remains in the UK (Scotland, Northern Ireland), India, Indonesia, China (Tibet), Moldova, and the Philippines.

PHILOSOPHY OF LAW / PHILOSOPHIA LEX

151-162 502
Abstract

The paper presents an analysis of one episode from the life of two Russian scientists, namely the discussion between P. Novgorodtsev and his student V. Savalskiy. All the poignancy of the episode lies in the fact that both opposing thinkers had been followers of neokantianism trends in philosophy, and defended the concept of natural law. In addition, a detailed description of life and work of the little-known philosopher of law Vasiliy Alexandrovich Savalskiy is given. It is noted that at the beginning of his scientific search, he became the main researcher and critic of the teachings of neo-kantians in Russia. During his time at the University of Warsaw V. Savalskiy studied the problems of history and theory of state and law, constitutional law.

HISTORY OF LAW / HISTORIA LEX

163-175 790
Abstract

The authors of the paper make an attempt of a complex theoretical and historical analysis of factorsthreats to the national security of Russia in the information space. Within the framework of the problem statement, the urgency of the study of national security issues within the framework of the general theory of state and law is substantiated, the features forming the concept of a factor-threat to national security are developed. The attention is focused on the role of passionate personalities in the processes of destabilization of society. It is hypothesized that a two-tier structure of the information space as an object of information security, including deep (ideology) and surface levels, the modeled relationships between processes occurring at these levels. Analyzing the periods of extreme transformations of the Russian statehood (revolutions of 1917 and perestroika), the authors find the connection between the efficiency of political processes regulation and the presence of changes in the information space. It is suggested that there is a stable connection between legal regulation, scientific and technological progress and the state of protection of national interests. The emergence or increase in the availability of new technical means of disseminating information to the population inevitably leads to a lag in the regulation of relevant public relations, which, combined with certain political and social factors, jeopardizes national security. The forecast of development of a situation in the short-term prospect is given taking into account the development of the Internet. As a conclusion, the authors propose to focus on the development of a new model of information security regulation, based on the awareness of the loss of the effectiveness of traditional means and methods of legal regulation, which the state had previously. Having lost the monopoly on control over the surface level of information space, the state can and should ensure stability at the level of ideology.



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