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No 7 (2019)
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PRIVATE LAW / JUS PRIVATUM

9-19 1098
Abstract

Commercialization of results of intellectual activity and introduction of rights to intellectual property into civil law transactions have revealed serious legal problems, including those related to the existing system of state registration of intellectual property. However, the nature of such registration, its characteristics and the principles underlying it are not given sufficient attention in the juridical literature.

State registration of results of intellectual activity and means of individualization has its own specificity. As a rule, the prevailing view in the academic literature is that registration of intellectual property rights should be subject to the rules that apply to state registration of rights to immovable property, which is not always justified. The article deals with the principles underlying the state registration of the objects mentioned above and reveals the features of such principles in the field of registration of intellectual property. The authors highlight the general and distinctive features of state registration of rights to immovable property and registration of results of intellectual activity. Examination of the features of the two registration systems reveals, inter alia, divergences in the implementation of the principles of unity, credibility, publicity, and disclosure. Also, the authors examine three basic principles of state registration of property rights: verification of legality of the grounds for registration, publicity and reliability of the register.

The research has made it possible to conclude that, despite convergence of systems of registration of rights to immovable property and to the objects of intellectual rights, they represent separate legal institutions. This is due to both a different nature of immovable property and intellectual property objects, and to different implementation of registration actions.

20-28 848
Abstract

The article is devoted to the analysis of changes that have taken place in the regulation of cross-border contractual relations with the participation of consumers in connection with the development of information and telecommunication technologies and e-commerce. The author examines the concept of «transnational online contract» and the influence of a «digital element» on the characteristics of contractual relations. Also, the paper provides for the classification of online contracts with due regard to: 1) the subject matter of the online contract; 2) characteristics of the parties involved in the online contractual relationship; 3) the process of concluding and executing the online contract.

Attention is drawn to the fact that new methods of conclusion of contracts has predetermined the emergence of new approaches to qualification of certain aspects of contractual relations between the parties, in particular, it concerns determining the moment of contract conclusion, distinguishing between offer and invitation to offer in online interaction, assessing the validity of online contracts and dispute resolution mechanisms online.

The article analyzes the impact of globalization of trade on consumer markets, mechanisms of regulation of transnational consumer relations in the context of e-commerce. It is noted that globalization of trade has pointed to the need to develop a transnational approach to the regulation of e-commerce, to unify and harmonize relevant legal instruments. The author examines the steps taken in this direction within the framework of UNCITRAL, the EU, by the representatives of American business. It is concluded that the US policy concerning consumer protection is aimed at implementation of economic interests of business, which promotes competition and commercial prosperity in the market, but at the same time puts consumers at risk when concluding online contracts. This approach runs counter to the EU policies that promote implementation of social regulation in order to maximize consumer protection.

The authors consider Lex mercatoria as a separate source of transnational consumer law.

29-35 681
Abstract

The relevance of the study lies in the existence of a larger range of socially significant processes taking place in the Internet. This has been made possible by the development of information and communication technologies and the formation of a network society. The key problem for lawyers is the construction of the legal regulation of certain actions performed in the Network and the protection of the rights of persons doing such actions. As a result of the study, the author has analized a number of actions in the field of matrimonial relations in the Internet that will improve the quality of life of citizens and will not harm personal and family values.

The purpose of the study is to try to identify features of transformation of marriage and matrimonial relations in the context of development of globalization of the society and formation of a so-called network society. The objectives of the study include the analysis of features of the existence of marital and family relations in the context of a network society. The author uses various general scientific research methods: dialectical, systemic, logical, as well as special: observation, content analysis and other research methods.

The author uses a system analysis of legal norms (legislative acts, departmental normative documents) and methods of comparative jurisprudence to study the issue and resolve the problem in question.

PUBLIC LAW / JUS PUBLICUM

36-44 678
Abstract

The article reveals the content of the mechanism of legal regulation of the municipal process. The municipal process is considered as an activity of subjects of local self-government regarding application of procedural rules for resolution of local issues and other issues concerning community life. The paper highlights that the mechanism of legal regulation of the municipal process has its own features. These include, in particular, its limitation to the territory of a municipality, the incorporation of municipal procedural rules not only in federal and regional laws, but also in municipal legal acts. The author concludes that the mechanism of legal regulation of the municipal process ensures the exercise of substantive powers of subjects of municipal law.

The paper proposes to recognize the legal institution of the municipal process as an element of Municipal Law of the Russian Federation, as well as to adopt codified acts containing procedural rules ensuring the exercise of substantive powers by local authorities. This is seen as an important condition for improving the efficiency of the municipal process.

45-53 540
Abstract

The scientific novelty of the problem of protection of architectural heritage in the Russian Federation is that many of its aspects are of not only theoretical, but also practical significance. The preservation of historical memory is becoming increasingly popular in our country, where, till recently, utilitarianism and pursuit for endless renewal have prevailed. It has been realized that every object of national cultural and historical heritage, regardless of the aesthetic effect and form of ownership, belongs to all the people of present and future generations. Every individual has the right to cultural property. A comparative method in cultural and protection activity is extremely relevant, since different countries have different stereotypes of assessment of tengible heritage. The authors have determined the regularities of different evaluations of similar phenomena, in connection with which carriers are assigned to two types of cultures. A methodological basis of the study includes the following theoretical provisions: «self-sufficient» communities are communities that thoroughly examine and fit each artifact into the mosaic of the existence of the community; «less self-sufficient» communities recognize their legacy as flawed, i.e. «ugly» physically and spiritually disabled, which «helps» part with them easily. On the example of the city of Krasnoyarsk the authors provide for the analysis of facts allowing to consider the second opinion «inspired» and subject to correction. This case as a phenomenon of the legal field manifests itself as a conflict of private and public interests, which requires its resolution. In order to find the most effective model of organization of the state apparatus and formation of legislation in the field of culture, it is necessary to use the method of state legal modeling. The conclusions of the authors are accompanied by recommendations, assessments, and proposals of practical importance.

INTERNATIONAL LAW / JUS GENTIUM

54-65 1213
Abstract

The development of contemporary world politics puts new demands on the diplomacy of the 21st century that has rapidly transformed into a multilevel and complex system. The remarkable features and, at the same time, imperatives of diplomatic relations include globalization and multipolarity, turbulence and the multifaceted nature of the foreign policy process, rapid accumulation and processing of information, integration and regionalization, increased national consciousness of States, extensive interaction with non-state actors of international law. In the context of this long-term trend, the most important place belongs to the new actors of the foreign policy process that find themselves in the formats of international dialogue often more competitive as compared with formal, classic mechanisms of diplomacy. Thus, currently, public, economic, digital, sports, regional, scientific, and electoral diplomacy are actively manifested as key trends. The institution of parliamentary diplomacy plays a significant role in the implementation of foreign policy goals and objectives. The uniqueness of this diplomatic course is manifested in the fact that it organically combines the features of official diplomacy and public diplomacy, as parliamentarians act as legitimate representatives of their countries, elected through democratic procedures and representing the interests of their constituents. In the Russian Federation, parliamentary diplomacy is recognized as conceptually important, demanded and promising format of global interaction, which has been repeatedly mentioned at high level of the State.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

66-73 586
Abstract
A multinational character of our state (currently more than 204 nationalities live on the territory of the Russian Federation), a considerable representation of migrants and naturalized foreign citizens among the Russian population, a large number of foreign citizens who are in Russia illegally adversely affect criminality in the country and entail difficulties for the investigation of relevant criminal cases. At the moment, we can argue that a new element has emerged in the structure of the Russian population, namely: naturalized citizens of Russia and foreign citizens who differ in their ethnicity from the titular ethnic group and the peoples of the Russian Federation having national territorial formations on the basis of their national language, culture, traditions, mentality and values. The authors of the article believe that such persons form an independent group of advenals. Difficulties with the implementation of such principles as respect for the honor and dignity of such individuals, language of court proceedings, the right to freedom of religion considered in the paper result in drawing a conclusion about the necessity of development of methods of investigation of advenal crimes. They include a set of scientific premises and practical recommendations developed on the basis of such premises used to organize and implement identification, investigation, disclosure and prevention of crimes committed by advenal persons against advenal persons or crimes perceived by advenal persons whose personal characteristics, as reflected in their activities, determine the course of conduct of investigators collecting, examining and evaluating evidence in a case.
74-84 1815
Abstract
Digital reality has firmly entered the life of society and the state. It has also become a solid medium and a means of committing crimes, the digital (electronic) traces of which law enforcement and judicial authorities use to restore the picture of the event. Various digital devices (mobile phones, tablets, smartphones, flash drives, hard drives, etc.), carrying important information for the preliminary investigation and the court, fall into the orbit of the criminal process. It is often impossible to withdraw, investigate, consolidate this information without the participation of a specialist. The current criminal procedure legislation is not fully adapted to such sources of information. Therefore, digital novels of reality become the object of study of many sciences of the criminal law cycle, including the science of criminal procedure law. Is it necessary to include the concept of «electronic evidence» in the criminal procedure legislation? If necessary, are there grounds for concluding that this type of evidence is independent, or can electronic evidence be classified as one of the traditional types of evidence? What are the theoretical and practical prerequisites for this? What are the features of electronic evidence? In science, there are different points of view on these issues. Most scientists and experts believe it is possible to classify electronic evidence as either physical evidence or other documents. In the paper, it is offered to consider these evidence as an independent type of evidence, treating them as electronic carriers of information, and electronic information in the form of electronic documents. Based on the proposed theoretical proposals, it is necessary to begin the development of appropriate legal norms for their inclusion in the criminal procedure law.

THEORY OF LAW / THEORIA LEX

85-92 613
Abstract

In the paper, the author notes the acceleration of dynamics of social and legal transformation in modern Russia. The need to study the constitutional and legal cycles of development of the Russian society is highlighted. The concepts of «cycle», «time» and «rhythm» of transformation of law and legal system are correlated. Attention is drawn to the problem of crisis phenomena in the process of functioning and development of the legal system of modern Russian society. The possibility and prospects of using the theoretical model of legal development cycles in the study of crisis legal phenomena are analyzed. The crisis is interpreted as an integral part of the structure of legal development of society, which carries negative and positive aspects. The causes, conditions and types of crisis phenomena of law and legal system are considered. The author concludes that it is efficient to differentiate subjects of cyclic dynamics of the Russian legal system in a relatively independent direction of state and legal research.

CYBERSPACE / CYBERSPACE

93-107 2317
Abstract

The central institute of private international law — conflict of law — in the modern globalization and information context is evolving, which is largely due to the paradigm shifts in law, laid down and developed based on international commercial arbitration. The widely interpreted concept of «rules of law» actualizes a completely new view of conflicting arrays of rules: the law of the state and the system of non-state regulators. The medieval lex mercatoria, revived in the XX century, is modernized by cyberspace, acquires a new sound in the form of e-merchant or lex informatica, especially in the context of the parallel development of smart contracts and new decentralized forms of dispute resolution, one of which is blockchain arbitration. In particular, the issues of conflict of law, traditional for cross-border transactions, arise in relation to smart contracts, which, using blockchain technology, are inherently linked to several jurisdictions. It is important to reflect on the questions of applicability of traditional conflict-of-laws bindings to the regulation of relevant relations, including through forecasting the practice of choosing the law of a state, the substantive rules of which are adapted to the use of new technologies, or recourse to the rules of non-state regulation.

108-118 1494
Abstract

The author examines the features of the use of smart contracts in transactions in virtual property, taking into account the fact that the smart contract is a way of fulfilling those obligations in which the transfer of property provision takes place in the virtual world with the help of appropriate technical means. It should be recognized that the list of virtual property is open, at the moment it includes, for example, cryptocurrency, domain names, «game property», virtual tokens.

The question of the legal nature of objects related to virtual property is relevant: are they a new independent type of property requiring special legal regimes, or are they a form of known property rights? The paper also notes that smart contracts differ in both vulnerabilities in computer code and insufficiently effective legal regulation. Smart contract, in the opinion of the author, is a kind of written (electronic) form of a contract, the peculiarity of which is that the will of the subject is expressed by means of special technical means in the form of program code. In this case, the will to conclude the contract simultaneously means the will to its execution upon the occurrence of certain conditions of the contract circumstances.

In conclusion, the author shows that the automation of performance of obligations in particular and the digitization of contract law in general should not create obstacles to the implementation of the fundamental principles of good faith and contractual justice, to assess the proportionality of the distribution of rights and obligations of the parties, the equivalence of their property.

119-129 1377
Abstract
The paper is devoted to the conditions of realization of sovereignty and jurisdiction of the state in respect of extraterritorial information and communication space on the platform of cyberspace. The author attempts to consider the constructability of the concept of «territory of the state», the legal meaning of which is to determine the spatial limits of the territorial sovereignty and full jurisdiction of the state in relation to cyberspace. The paper examines the extent to which Russian law reflects the principles of establishing jurisdiction based on the principle of server location and domain name registration proposed in the foreign and Russian doctrine. The author also raises a question whether the solution of the jurisdictional issue in relation to the national segment of the Internet is covered by the attempt of the centralized management of the Internet, i.e. the creation of a national system of routing Internet traffic in order to establish protective measures to ensure long-term and sustainable operation of the Internet network in Russia, regardless of external or internal conditions, in the bill «On amendments to the Federal law «On communications» and the Federal law «On information, information technology and information protection» adopted in the third reading by the State Duma on April 16, 2019.

IIMPROVEMENT OF LEGISLATION / NOVUS LEX

130-140 2761
Abstract

In the paper, the authors formulate a multidimensional concept of «cryptocurrency», which takes into account the technical, economic and legal nature of cryptocurrencies. In addition, the paper defines the relationship of the concepts of «cryptocurrency» with such commonly used terms as «digital currencies», «virtual currencies» and «electronic money». The authors understand cryptocurrencies as a kind of digital money, which is the result of the functioning of the corresponding computer program (digital code). Cryptocurrencies are created using the appropriate Protocol, operating in a decentralized manner, with the use of the blockchain technology. If the issue has a centralized issuer while maintaining other features inherent in these cryptocurrencies, then it is possible to talk not about cryptocurrencies, but about the issue of electronic money. The main difference between electronic money and cryptocurrencies is the presence of electronic money of the Central Issuer and the lack of it in cryptocurrencies. Another important difference between cryptocurrencies and electronic money is the way they are issued and stored. Cryptocurrencies are stored and issued in a decentralized manner, while the information about electronic money and transactions with them can be centralized on one server. There are also other differences, such as the mandatory use of asymmetric cryptographic encryption when creating cryptocurrencies, etc. Being digital money, cryptocurrencies at the same time are a kind of digital property that performs the functions of a means of payment in the society, does not have a physical form, that is, can not exist in the form of coins or banknotes. The authors support the addition of art.128 of the Civil Code of the Russian Federation with a new object of civil law (digital money) in the context of improving the draft law «On digital financial assets».

MEGA-SCIENCE / MEGA-SCIENCE

141-150 672
Abstract

The paper in the theoretical and practical aspects considers the legal status and the legal nature of a new, unique organizational legal form of legal entities created by the law of the European Union in the development of integration processes in the infrastructure of research activities, including megascience. The adoption of the EU legislation on European research infrastructure consortia is due to the desire to overcome the shortcomings of the «classical» forms of implementation of international scientific and infrastructure projects, namely the forms of international intergovernmental organizations and national legal entities with international membership.

The EU regulation on European research infrastructure consortia, adopted in 2009, provides that as their main task such consortia have the construction and operation of the research infrastructure for the purpose of forming the European research area.

In terms of the structure, establishment and operation, European research infrastructure consortia have common features with international intergovernmental organizations, limited liability companies, as well as a number of unique features arising from the application of the EU integration law to them. Hence, the complex question on the legal nature of European research infrastructure consortia arise. The author shows the impossibility of reducing consortia to international intergovernmental organizations. Similarly, consortia are not equivalent to national legal entities. While agreeing with the European Commission, the author concludes that consortia should be considered as legal entities sui generis (of a special kind), although this solution is not ideal. As a practical result of the study, the author proposes to start the preparation of the Agreement on the Eurasian Scientific and Technological Integration immediately within the framework of the Eurasian Economic Union and to provide for provisions on the Eurasian consortia of research infrastructure, which will be an analogue and competitor for the European consortia considered in the paper.

COMPARATIVE STUDIES / COMPARATIVE STUDIES

151-159 1210
Abstract

The paper analyzes the dangers faced by man and modern society in the light of the development of artificial intelligence and robotics in the fourth industrial revolution. The author examines the areas of human rights that are threatened by these advances in science and technology in case they are not properly monitored and regulated through legal advances. The historical and regional aspects of legislative regulation of the use of artificial intelligence units and robotics are investigated. Prospects of collision of artificial intelligence units with interests of the person and mankind, and also possible legal mechanisms of the resolution of the conflicts arising between them are analyzed. Using the methodology of comparative law, integration law, international law, analysis and synthesis, the author considers the latest documents of the European Union, EU member States, the United States, Russia, China, South Korea and other most representative countries of the world aimed at effective legal regulation of this promising area of development of modern law. The paper provides an analysis of the main trends in the evolution of modern law of science and technology that affect the life and realization of human and civil rights at the national, supranational and international level and the peculiarities of their legal regulation. The research is carried out on the interdisciplinary combination of elements of comparative law, integration, international and national law with reference to philosophy, sociology, history and prognostics. Conclusions are drawn on the possibility of using the world scientific achievements for the long-term development of the law of the Russian Federation. It is also possible to apply positive foreign experience of legal regulation of artificial intelligence and robotics adapted to the conditions of integration organizations with the participation of the Russian Federation.

160-171 745
Abstract

 The paper covers the current problems of applying the wiretapping results in the process of establishment of evidence in criminal cases, taking into account the modern requirements for information technology.

In recent years, there have been some studies on the use of information technology in establishment of evidence. However, most of them deal with the problems of the use of electronic media and «electronic evidence» in criminal proceedings. The order of the analyzed event, as well as other operational investigative measures, is regulated not by the criminal procedural legislation, but by the legislation on investigative activities. In this connection, in the legal literature, discussions regarding the procedure of introduction of the wiretapping results in criminal proceedings are not dying out. The study of different opinions is not only of interest for the development of scientific thought, but also has practical significance, since it determines the admissibility of evidence and creates the necessary guarantees to ensure the rights and legitimate interests of the individual in criminal proceedings. All this does not lose the relevance in the era of digitalization.

In order to search for resources to improve the efficiency of establishment of evidence, the paper provides an analysis of the positive experience of legislative regulation in some foreign countries both as ways to use information technology in the process of wiretapping, and the use of the wiretapping results in establishment of evidence. Special attention is given to the rights and legitimate interests of the person involved in the orbit of criminal proceedings.



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