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Vol 73, No 4 (2020)
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PRIVATE LAW / JUS PRIVATUM

9-20 1181
Abstract

With the rapid development of new technologies taking place during the 4th Industrial Revolution, new types of disputes of significant specificity have gradually begun to emerge. Among such cases a special category of cases has been formed by disputes arising from smart contracts based on block chain technology. There are two possible ways to resolve such disputes. Under the first approach, they are subject to consideration by traditional arbitration institutions, guided by the usual rules and guidelines (blockchain arbitration). The second approach involves the need to create innovative applications based on blockchain technology and designed to resolve disputes arising in a digital decentralized environment ( blockchain arbitration). Such applications, in turn, are divided into two groups. The first group consists of projects involving the creation of a special arbitration combining the advantages of international commercial arbitration and blockchain technology; the second group includes projects involving the establishment of a decentralized quasi-judicial system for dispute resolution. The paper attempts to analyze the most interesting projects related to each of the listed groups and assess the prospects of their development. Based on the results of the analysis, the author comes to the conclusion that the implementation of such projects will lead to the emergence of many issues (among which the problem of choice of applicable law, determination of place of arbitration, arbitrability, as well as the possibility of recognition and enforcement of awards made by such arbitral tribunal). Under the influence of new technologies, international commercial arbitration is gaining a new direction of its development. In the future, the development of new technologies will require not only rationalization of existing dispute resolution mechanisms, but also a fundamental rethinking.

21-33 899
Abstract

The paper is devoted to facilitation of essential features of the family, which could be the basis for its legal definition in the Family Code of the Russian Federation as a a general legal type concept. The author has analyzed different civilistic doctrinal approachers to such a possibility (impossibility), highlighted different variations of family unions, demonstrated problematic aspects of their legal existence or pretences for existence on the basis of parenthood when paternity is established in court proceedings, minor parenthood, surrogate motherhood, etc., as well as on the basis of a far from impeccable ground of gender diversity. The author notes the contradictory positions of the Russian law-maker regarding this matter: relying on traditional values, the latter, of course, does not tend to legalize unions between people with unconventional sexual orientation, but in some cases it seems to condone the opposite without establishing the legal effects of the acts and statements. In conclusion, on the basis of the assumptions developed under the family doctrine, the author proposes a composition of essential and legally significant features of the family, which will allow to design its general definition. As an assumption, the author suggests that one can be guided by the following draft definition: the family is an association of citizens who have a legal relationship regulated under family law (on the basis of marriage, parenthood and childhood, kinship, affinity, custody and/or guardianship, foster parenthood, adoption, dependance, etc.), live together and lead common household, have rights and obligations corresponding to thier family status; family membership is retained in case of temporary separation for good reasons.

PUBLIC LAW / JUS PUBLICUM

34-52 786
Abstract

The term ecotourism is traditionally referred to travelling to natural areas in locations unaffected or poorly affected by anthropogenic factors and having scientific, cognitive, recreational, cultural value, and carried out by environmentally friendly methods, contributing to and promoting the harmonization of human relations with the environment, ecological education and education that promotes the protection of biological and landscape diversity. One of the essential features of ecotourism is the involvement of the local population in providing tourists with works and services in the service sector. The use of natural areas for tourism is of great social and economic importance for the development of regions with significant recreational potential. The organization of tourism in protected natural territories has features related to their legal regime aimed at the preservation of natural objects for the purpose of protection of which such territories are created and containing restrictions on the use of natural resources and economic activities. The policy development of ecotourism in specially protected natural areas as an objective laid by the State requires to define this concept in compliance with the law, since its content depends on the degree of involvement of specially protected natural objects, complexes and ecosystems in recreational activities. The concept of ecotourism should include an indication of the maximum permissible recreational loads and the conformity of forms of ecotourism with the objectives of specially protected natural areas as defined in the legislation and individual provisions thereon. The list of objects of tourist infrastructure must be approved by the Government of the Russian Federation for federal specially protected natural territories and the highest executive authorities of constituent entities of the Russian Federation and municipalities for specially protected natural areas at the regional and local levels.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

53-68 838
Abstract

The paper deals with the problems related to the protection and enforcement of the rights of the victim during acceptance, registration and examination of reports of crimes at the initial stage of criminal proceedings. The author substantiates the necessity of improving the practice of initiation of criminal proceedings, the judicial data for the purpose of precise implementation of Art. 52 of the Constitution of the Russian Federation, as well as proposals on digitalization at this stage of criminal proceedings. The author emphasizes that criminal proceedings should be considered as a uniform state power activity, beginning with a report on the committed crime and ending with the final resolution of all substantive and procedural issues arising in the case. In view of this, the process of digitalization of criminal proceedings should be based on a single platform linking not only all stages of the proceedings, but also officials of any of the departments carrying out certain phases of this activity. Such a platform should comply with the statutory framework, be accessible to all participants in the process whose rights and interests are affected by the activity under consideration. The platform should represent a flexible digital system that secures the secret of production with regard to some parameters, including investigatory privilege, protection of the honor and dignity of a person, his or her right to privacy, family and other secrets protected by law. But according to other parameters it should be accessible for the person involved in this proceeding, his advocate and representative. In addition, according to certain parameters complying with the law, this platform should also be accessible for other persons to conduct research and to summarize the practice of criminal proceedings in the past; for the media providing the public with access to information about the proceedings in certain cases or in the public debate on certain legal issues, and it should be available to enforce protection of human rights in the field of criminal proceedings, etc.

69-83 519
Abstract

Systemic characteristics of the doctrine dealing with the person committing a crime predetermine the complexity of the use of information about him or her in the process of criminal prosecution. Systemic information on the behavioral aspects of the person in the process of genesis of criminal and post-criminal activity, as well as its procedural status, will be of great importance in the work of law enforcement agencies as a systematic structure. Criminalistically significant aspects of criminal activity (and behavior) as a systemic holistic structure should be discussed when the decisive role of personal features is determined not only in the mechanism of the criminal act, but also beyond it. The activity of the person that takes place both before the criminal prosecution (criminal aspect) and during the proceedings (post-criminal aspect) should be investigated. Therefore, the identity of the defendant should be considered in the context of such categories as the identity of an offender and the identity of an accused (a suspect). The typification of defendants is necessary In order to improve the effectiveness of the prosecution of offenders in court proceedings. The classification approach allows us to develop targeted recommendations (methods, tactical complexes) to maintain the prosecution. Obtaining and using information about the identity of the defendant implies the need for the public prosecutor to interact with other authorities involved in prosecution process. The author comes to the conclusion that the study of personal and behavioral characteristics of the defendant has important theoretical and practical significance. In the first case, the generalization of such knowledge contributes to the development of criminalistic theory in general and its certain sections in particular. From a practical point of view, accumulation of such knowledge contributes to the formation of targeted criminalistic recommendations used to improve the effectiveness of criminal prosecution of persons who committed crimes within the framework of criminal proceedings.

84-92 655
Abstract

The paper analyzes the problems that arise in the process of digitalization of criminal proceedings, when its organizers are forced to organize the interaction of social and computer technologies, the joint development and application of which become inevitable in modern conditions. The basic concepts of social technologies theory that were originally developed as a means of organizing human activities, with criminal justice system being only one of them, are interpreted in a new way. The main contexts of application of "social technology" concept, as well as the significance of social technologies in the formulation of principles and achieving the goals of criminal proceedings are studied. The author defines a special type of social technologies, humanitarian technologies in the paper, and analyzes the relevance of this type of technology in the system of principles of criminal procedure. The author substantiates the need to distinguish between the theoretical and technological aspects of compliance with the principles of criminal justice, which allows us to reconstruct the entire system of goal-setting impact on people’s actions and social relations through the development and application of social technologies. The concept of gradual transformation of society through the use of social engineering, put forward by K. Popper, is analyzed in detail. The role of the theoretical distinction between methodological essentialism and methodological nominalism (antirealism) is reconstructed. The ideological and political contextualization of the theory of social technologies, which dominates in modern social science, is subjected to critical analysis. The author examines the ontological assumptions and methodological guidelines proposed by K. Popper for the approval of his socio-technological doctrine. The author identifies and describes the specifics of the use of social technologies in the context of the use of artificial intelligence systems in criminal proceedings. The point about the need to search for the relationship and mutual consistency of the systems of the individual and society in the process of digitalization of criminal proceedings both at the level of principles and at the level of technology is substantiated.

93-102 3556
Abstract

The paper deals with the issue of the modern understanding of the mercenary purpose as an element of theft and its forms — fraud, misappropriation and embezzlement. The author closely analyzes the Plenum of the Supreme Court of the Russian Federation Resolution No. 48 dated 30 November 2017 "On court practice on cases involving fraud, misappropriation and embezzlement" in view of the discussion of understanding mercenary purpose in litigation. The author polemically sets out the point of view that it is impossible to interpret a mercenary purpose in a broad sense — as the ability to dispose of stolen property at their own discretion, including in favor of other persons, whose circle is unlimited. It is proved that the term "lucre" cannot reveal the content of the purpose of theft, since lucre is inherent not only in theft, but also in other crimes. "Lucre" can only indicate the attitude of a person to the act of his behavior, the method of committing a crime, but does not characterize the purpose of his actions, as a result of which the concept of mercenary purpose can be filled with different content. Mercenary motives should determine the existence of a mercenary purpose, and non-mercenary motives should exclude the qualification of committed acts as theft of someone else’s property. The explanation of a mercenary purpose proposed by the Supreme Court of the Russian Federation significantly shifts the scope of the presence of elements of theft and transfers them to an earlier stage. Evening a mercenary purpose with the purpose of gaining (receiving) property benefits is not certain, since property benefits can also be extracted from the illegal use of other people’s property. For the objective classification of theft, the motive of the perpetrator’s behavior and the nature of his actions must be essential. Therefore, from the point of view of subjective elements of theft, its purpose should indicate that such an act is aimed at enriching the perpetrator or other persons, the circle of whom should be limited.

THEORY OF LAW / THEORIA LEX

103-116 1115
Abstract

The paper analyzes the theoretical and practical aspects of the dual nature of legal institutionalization in the context of the systemic legal nature of legal institutions. The relevance of the research is due to the uncertainty of the content of ‘legal institutionalization’ concept, which determines the formal attitude to its use in scientific works. The purpose of the research is to form a conceptual understanding of legal institutionalization and legal institutions in the context of their systemic legal nature and correlation dependence. In the process of research, the key provisions of the theory and methodology of institutionalism, the method of systematization and legal modeling, as well as system-structural, functional and formal legal approaches are used. Within the framework of the theory of institutionalism, an essential and meaningful characteristic of legal institutionalization as a methodological basis for understanding the systemic legal nature of legal institutions is given. Methods of systematization and legal modeling allowed us to present the institutions of law as the result of systematization of legal norms. In order to present the theoretical foundations of legal institutionalization, its relationship with related legal categories is considered. In the aspect of the systemic nature of legal institutions, their correlation dependence on legal institutionalization is shown, the content of which is a two-pronged process of updating and systematization of legal norms in the order of their differentiation and integration at the level of normative system relations. The conceptualization of legal institutionalization in the aspect of systematization of legal norms allowed us to formulate a conclusion about the multidimensional status of legal institutions, which is not limited to the sectoral level and has a general legal national and transnational character, manifesting itself at the intersectoral and general legal levels of normative relations of national, European and international law.

117-129 903
Abstract

Based on the analysis of the approaches contained in the domestic and foreign literature, the correlation of the principles of law and legal principles is analyzed. The problems of using methodological tools for scientific knowledge of these concepts are highlighted, and the criteria for their correlation are considered. The author shares the researchers’ viewpoint about the identity of legal principles and principles of law. The author’s definition of the principles of law (legal principles) is formulated. It is pointed out that the position contained in the literature on the identity of the principles of law (legal principles) and requirements is debatable. The principles of law (legal principles) are considered in the context of their identification as sources (forms) of law. The libertarian approach to understanding the principles of law (legal principles) is analyzed, and the thesis is formulated that it does not exhaust all the diversity of the value dimension of law. The author substantiates the non-adaptability of the positivist approach to the interpretation of the principles of law (legal principles) to the common law family states. The dualism inherent in the principles of law (legal principles) is emphasized, which is manifested in the qualities of universality and locality. In this perspective, the author highlights the problem of increasing influence of religious regulators of social behavior, which can inspire the development and expansion of dissonance between the principles of law based on secular and religious law. It is indicated that intensive immigration from clerical (theocratic) states exacerbates the problem of harmonization of the principles of law in the implementation of contacts between civilizations of different orientations and levels of development. The author shows tendencies of formation of national-cultural and religious enclaves within which "own principles of law" are applied, which produces the development of parallel "legal spaces" that strengthen social confrontation.

HISTORY OF LAW / HISTORIA LEX

130-142 456
Abstract

The paper is devoted to the role of the history of political and legal ideas in state construction, science and education. In this aspect, the problems related to amendments to the Constitution of the Russian Federation initiated by the President of the Russian Federation are considered. According to the author, these initiatives are a logical continuation of the planned changes in the political system, the mechanism (apparatus) of the state, the system of local self-government, contained in the most general form in the annual address of the President of the Russian Federation to the Federal Assembly. Such an early date for the address, the subsequent submission of the draft Federal Law to the State Duma without delay, and the work on implementing the provisions contained in it, leave no doubt that there is some strategy for Russia’s political development in the near future. In this regard, an assessment of the political situation in modern Russia is given and suggestions are made regarding the further evolution of the institutions of society and the state. The dialectical relationship between the national development model and its ideological justification is argued. The author emphasizes the special role of ideas in the history of Russian statehood. In addition, the paper reflects the assessment of the history of political and legal doctrines in the system of social sciences and legal education in the Soviet and post-Soviet period. There is evidence of the need to increase the role of theoretical and historical disciplines in the context of modern "hybrid" war and the strengthening of global competition for major geopolitical projects. The idea of reorienting Russian legal education from the study of legislation, which is changing so quickly that it does not actually take the form of knowledge, to the study of law in all its manifestations as a universal regulator of public relations.

GENOME / GENOME

143-151 548
Abstract

The analysis of the European and Russian legislation and documents of international organizations made it possible to draw the following conclusions. The uniqueness of genetic data is determined by the following characteristics. These data are relatively static, do not develop by themselves during life. They are in principle unchanged, since it is impossible to simultaneously modify all identical genes present in all cells of the same organism. They can be invariant with respect to their carrier, going beyond the individual carrier through transmission from generation to generation. The subject can be identified using various identifiers specific to the subject’s physiological, genetic, psychological, cultural, or social identity, such as biometric data such as facial image, fingerprints, iris, venous palm pattern, genetic markers, and "digital" footprints. The legal regime of secrecy can be applied to genetic information by analogy, taking into account the specifics of the source of origin of genetic information and special rules for its processing. However, existing restricted access information regimes do not take into account the specifics of genetic data. The difference between genetic information and other personal data and medical secrecy protected in the regimes is that other family members — blood relatives or a spouse may be interested in it, in addition to the information carrier itself, which is not taken into account in the current Russian legislation. Special mechanisms for the legal protection of genetic information should be introduced, which should be enshrined in a special law "On genetic information".

COMPARATIVE STUDIES / COMPARATIVE STUDIES

152-164 758
Abstract

Today, legislators define the legal nature of the contract on voluntary (volunteer) activity in Russia in the form ranging from civil law to a complex contract, but the scope and limits of incorporation of related legislation remain open, which causes legal uncertainty, so it seems appropriate to analyze foreign models of regulation of voluntary (volunteer) activities. The two foreign models of regulation of volunteer relations through agreements are based on different ideas. German law elevates voluntary activity to the rank of service (alternative to civil service) and scrupulously fixes all issues of voluntary service in the law, setting the responsibility of the volunteer as a priority. The social significance of voluntary activity, resorting to the norms of administrative and labor legislation makes it possible not only to burden the volunteer, but also to protect him. The English model shows an example of a liberal approach, it is aimed at maximum separation of the subject from the employment agreement (contract). However, the agreement does not become part of the civil law field, remaining a moral obligation outside the legal field. The main point here is the freedom of expression of volunteers, which primarily provides for the possibility of a volunteer at any time to refuse to perform the functions. In Russia, the relationship between a volunteer and an organization is formed by a civil law or complex agreement on voluntary (volunteer) activities (mono — or multi-industry). The choice in favor of a multi-industry complex agreement is due to the high qualification of the volunteer’s assistance. It is necessary to proceed from a closed list of issues that can / should migrate from labor law to a contract on voluntary (volunteer) activity; these issues should be enshrined in the law, for example, restrictions related to employment in certain areas, provisions on the protection of personal data.



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