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Vol 73, No 5 (2020)
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PUBLIC LAW / JUS PUBLICUM

9-17 927
Abstract

The purpose of the research paper is to study the problems of legal regulation of administrative liability in the field of patent law. As a result of the conducted research, the author comes to the conclusion that administrative responsibility as a means of legal protection of patent rights possesses significant potential capacity. However, a number of factors do not allow this potential to be enforced to the necessary extent. The author enumerates the following factors: latency of administrative offenses in the field of the patent legislation and lack of confidence of rights’ holders in law enforcement agencies in this area; low level of legal qualification of law enforcement officials in the field of the patent legislation; problems of the normative and legal regulation of administrative liability for infringement of patent rights. The author sees the solution to the problem of increasing the efficiency of administrative responsibility in the field of the patent legislation as a complex counteraction to the above factors. Within the framework of the paper special attention is paid to the problems of legal regulation of administrative liability in the field of patent legislation. The author analyzes Para 2 of Art. 7.12 of the Code of Administrative Offences of the Russian Federation, which provides for liability for violation of patent and inventor’s rights. The author comes to the conclusion about the need to develop this legal rule and defines a number of proposals for amending the current legislation. In addition, in order to ensure a comprehensive and effective protection of the right to remuneration for an invention (utility model, industrial design), a proposal has been formulated to expand the jurisdiction of the federal labor inspectorate and introduce the consequential amendments to the secondary legislation.

18-28 649
Abstract

The values of the consumer society have an impact on all fields of social relations. Currently, significant changes are taking place in trade, financial and credit, information, social, environmental and other fields.

The purpose of the study is to analyze the current transformations from the point of view of interaction with constitutional and legal institutions, and to identify promising directions of their further formation. Particular attention is paid to the concept of sustainable development initiated at the end of the last century — a set of measures aimed at rational consumption of environmental resources, coordinated overcoming of social and economic crises for the benefit of not only present generation but also future generations. Methodologically, the paper is based on the methods of legal modeling and intersectoral analysis, formal-legal and system-structural methods. The formal-logical analysis of the current legislation and international instruments, as well as the method of monitoring enforcement allow us to assume legal approaches that significantly hinder sustainable progress in the environmental, economic and social fields.

Following the results of the study, the author raises the question of the development of a model of the constitution of proportional development as a tool for counteracting the risks of the consumerist society. Taking into account the specifics of state and public institutions of Russia, the presented model provides economic, ecological, social, ethical and aesthetic components. Key issues of mutual influence of these subsystems concern new approaches to the catalog of constitutional and legal values, goals and principles.

29-40 639
Abstract

The paper concludes that there is a lack of uniform judicial practice concerning the use of free geoinformation systems and cartographic services based on high-resolution satellite images in the field of protection of environmental rights and rights to natural resources.

The author has defined additional criteria of relevance and reliability of public satellite images and parts of digital maps when they are used as evidence in the category of cases under consideration. Additional criteria for the relevance of such evidence should include: (1) the existence of geographical coordinates or their independent georeferencing and gridding by means of an existing or other program when compared with other images or digital maps; 2) indication of the date of shooting; 3) quality (clarity, high resolution, absence of clouds, fog and other visual “obstacles”), which allows us to “read” satellite image and parts of the digital map.

An additional criterion for the credibility of such evidence should include the possibility of “double” verification. First, one needs verifying that the printout or screenshot of a page of the Internet site containing an image of a public satellite image or a part of a digital map correspond to the satellite image itself or a part of a digital map using the specified date, geographic coordinates, and scale. Second, one needs verifying that the information about circumstances recorded in public satellite images and parts of digital maps corresponds to the actual circumstances. In law enforcement, approaches contrary to screenshots of pages of Internet sites used as evidence have been determined. It is shown that the additional criterion of evidentiary relevance of screenshots in cases under consideration is characterized as sufficient.

41-52 2302
Abstract

The paper analyzes the amendments to the Constitution proposed by the President of the Russian Federation in connection with certain elements of the constitutional and legal status of the judge, evaluates the possible limits of the change of the Basic Law without distorting the fundamental principles and legal foundations of the Constitution, including ensuring the independence and autonomy of the judiciary and the principle of separation of powers. According to the amendments, the powers of the President and the legislature regarding their influence on the judiciary were considerably expanded. It seems that the changes in the legislation detailing the powers of the President to initiate the early termination of the powers of judges and the procedure itself, should be formulated in such a way that the powers of the President and the Council of the Federation in this regard neither overlap with the powers of the qualification boards of judges nor diminish the independence and autonomy of the judiciary. The author argues that judicial self-government plays an extremely important role in maintaining the balance between the branches of government, creating conditions for effective justice through guarantees of independence of judges. In this connection, the decision concerning early termination of the judges’ powers on defamatory grounds without the participation of bodies of the judicial community, in the absence of elements of an adversarial process and without the possibility of appealing against such a decision, significantly diminishes the constitutional and legal status of the judge. As a result of the conducted research it is proved that amendments to the Constitution have redistributed powers between the branches of government, there are real risks of violation of the principle of independence and autonomy of the judiciary. The constitutional reform should result in making laws aimed at preserving the constitutional balance between the branches of government.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

53-63 1530
Abstract

The paper investigates the normative regulation of socially dangerous consequences of economic crimes set forth in Chapter 22 of the Criminal Code of the Russian Federation. A legislative structure of economic crimes is rather heterogeneous. Some of them are determined as formal (registration of illegal transactions with real estate — Art. 170; illegal organization and conduct of gambling — Art. 171.2, etc.); others are defined as economic (illegal obtaining of credit — Art. 176; abuse of securities issue — 185, etc.); and the third are defined as formal economic (illegal entrepreneurship — Art. 171; restriction of competition — Art. 178 et al.).

The paper analyzes the negative aspects of including the criteria characterizing socially dangerous consequences in the norms-notes to Chapter 22 of the Criminal Code of the Russian Federation, determines the significance of criminological peculiarities of economic crimes in determining the extent of damage caused by economic crimes of different types; the influence of the nature and amount of damage established in the law on the exemption from criminal liability for the commission of economic crimes.

It is concluded that a law-maker needs a more uniform approach to determining the types and sizes of consequences caused by economic crimes (types should be, as a rule,” economic”, and the size should be the same for all the crimes) and to the placement of quantitative indicators of consequences (in the note to Article 1 where sequences are specified); to achieving compliance with the rules of differentiation of responsibility in the construction of basic and qualified crimes (large and especially large scale of consequences should be indicate only for the latter); to imposing "unfavorable” sanctions from the point of view of the legal consequences of economic crimes, and, on the contrary, to giving a “favorable” character to the exemption from criminal responsibility under Art. 76.1 of the Criminal Code of the Russian Federation in comparison with the specified sanctions.

64-72 726
Abstract

The achievements of modern medical science have led to the situation when children born deeply premature have a chance to survive. In the paper, the authors examine the problems of determining the initial moment of human life associated with the life birth criteria, analyze approaches to the definition of live birth criteria adopted by the World Health Organization and consolidated by Russian experts in the Order of the Ministry of Health and Social Development of Russia of 27 December 2011 No. 1687n “On Medical Criteria of Birth, Form of the Birth Document and the Procedure for its Issuance” (as amended on 13 September 2019).

The authors intended to identify and analyze some issues related to the lack of regulation of the legal status of deeply premature babies born 22 weeks premature or if the body weight of such children is not more than 500 g from the moment of their birth until they are seven days old. The authors are critical of the actual lack of legal regulation of the status of such children, assess the legal provisions regulating the mandatory resuscitation measures in relation to such children with due regard to the risks of further development of pathologies.

The paper provides for the conclusions about the need to clarify the conceptual and categorical apparatus in relation to the criteria of live birth, more complete consideration by domestic specialists of the criteria of live birth proposed by the World Health Organization, the need to take into account parents’ opinion concerning the extent of medical care for deeply premature children, including intensive care, within the framework of the institution of informed voluntary consent.

The authors call for special caution to examine any proposals to extend the limits of responsibility of medical workers, especially those related to the existence of gaps and ambiguities of the legal regulation.

HISTORY OF LAW / HISTORIA LEX

73-82 734
Abstract

The paper examines the progressive significance of the entry of Parthia, Margiana, Khorezm and other regions of Central Asia into the structure of the Achaemenid State, the political regime of which had no obvious features of the occupation order based on the brutal exploitation of the conquered peoples, but rather flexible and adapted to the specificities of each area. The unification of the Central Asian peoples under the authority of the Achaemenid dynasty was also facilitated by their national, linguistic and mental similarities, since the Persians, on the one hand, the Saks, the Dahs, the Parthian, the Caspian, Khorezmians — on the other, were in previous epochs related to peoples and, most likely showed a tendency to political consolidation.

On this basis it is concluded that the power of the Persian kings among the peoples of Central Asia, despite separatist tendencies and a number of anti-government speeches, was legitimate. Mutual cooperation and strong ties between the center and the provinces led to stability, peace, the creation of favorable conditions for the development of economic and trade relations, the establishment of regular monetary treatment, respect for the cultural, religious and linguistic identity of peoples and the balance of interests of social communities. The Achaemenid rule introduced in the history of legal thought the idea of fighting between the good and the evil, the proportionality of personal and State interests, the codification of the laws of the conquering peoples, their legal customs and religious norms in accordance with the general imperial law.

This historical and legal experience was not only creatively perceived and applied by geopolitical successors of the Achaemenid state — Alexander the Great, Seleucids, Arshakid and Sassanid, but also in the context of modern national and state interests may be relevant for the Russian Federation, Iran, Kazakhstan, Uzbekistan — leaders of the modern integration, defining the foreign policy and geopolitical orientations of the Central Asian region.

83-96 654
Abstract

In the 1960s, the process of criminal prosecution of Nazi criminals became more active in Germany. Former members of the einsatzkommand, SS members, SD, and police services who took part in the mass extermination of Jews in Eastern Europe were brought to justice. However, these trials resulted in unreasonably lenient sentences to Nazi criminals handed down by the courts. Often, the convicts managed to avoid imprisonment altogether.

By the example of two trials against the commander of the einsatzkommando 8, Lodz Otto Bradfisch the head of the Gestapo Department and the chief burgomaster the paper aims to show what legal assessment the crimes of the Holocaust in Eastern Europe the German justice of the 1960s received and how the Nazi criminals managed to evade serving their sentences.

The Munich and Hanover jury found the convinced nazi O. Bradfish, who was guilty of killing 37 thousand Jews (according to the most minimal calculations), to be only an "accomplice", "blindly implementing the criminal will of the Fuhrer". Such court decisions fully fit into the general conceptual approach of West German justice to assessing the crimes of the Holocaust. This approach made it possible to remove responsibility for the genocide of Jews not only from the Nazi criminals who appeared before the courts in the 1960s, but also from the entire German society. Placing full responsibility on Hitler and his inner circle, the German society refused to take seriously even the smallest penalties that the so-called "accomplices"received. Bradfish was sentenced to 13 years in prison. However, under the pretext of "poor health", without declaring an amnesty, on the basis of questionable medical reports and decisions of local justice bodies, the convicted person was released early. The narrative of O. Bradfisch showed that the sentences of the West German courts turned into a mockery of the memory of millions of victims of Nazi crimes.

97-105 528
Abstract

The paper reveals the historical development of criminal law sanctions in the territory of the current Republic of Serbia. The paper contains the results of a study of the criminal law sanction, as well as its effectiveness in the Principality of Serbia, the Kingdom of Serbia and the Kingdom of Yugoslavia. The analysis of criminal law sanctions in the paper is based on the oldest legal monuments of both the state of Serbia and others. Examining the grounds for criminal law sanctions, the author comes to the conclusion that criminal law as we know it today appeared only in the 13th century. Thus, through a systematic and careful analysis of the characteristics of that time, we can come to a complete understanding of the current definition of criminal law sanction, its types, features of application and purpose. Thus, based on the review of the criminal offences and the corresponding criminal sanctions in the Dushan’s Code adopted in 1349, it can be noted that most of the criminal sanctions consisted of the death penalty (for example, burning), corporal punishment in the form of cutting off body parts (for example, hands, nose) or monetary fine. Awareness of the social situation of that time makes clear and fully justified the severity of criminal sanctions. The study of the differences between ancient methods of punishment and today’s method of resocialization of people allows us to conduct a thorough analysis of the effectiveness or ineffectiveness of the strictest criminal law sanctions. By sublimating the main criminal law sanction and its various types, we aim to eliminate any illogic, confusion and dilemma about this topic in our criminal legislation.

106-115 678
Abstract

The paper presents the evolution of law-making process in the Russian Empire through the prism of urban planning legal regulation. It covers the period of uncodified and codified legislation with the period up to the appearance of the Digest of Laws of the Russian Empire (all its editions) and the Complete Collection of Laws of the Russian Empire (PSZRI). In these materials, the author identified about 300 historical normative acts related to the regulation of urban development from the era of Peter the Great to 1825 (the period systematized in the PSZRI), and a number of major codified acts of the 19th — early 20th century. The analysis of their content and form formed the basis for conclusions about the quality of law-making process in the Russian Empire.

Based on the analysis of normative material covering construction, architectural legislation, legal norms in the field of organization of urban development, the author considers the characteristic features of pre-revolutionary law-making process in encouraging the creation of normative acts, conceptual techniques of legal technology, systematization characteristics. Subjects of law-making process are singled out. Normative acts are classified according to different grounds, a parallel is drawn with the modern hierarchy of normative acts, and historical features of their typology are highlighted. The author draws conclusions about the inaccurate classification of the main identified acts (charters) as codes, about the prevalence of legal idealism in the concept and policy of urban planning regulation. The source of fixing public relations in the form of a legal norm is the monarch’s will. In the research area it is based on the idea of an ideal city, the concept of which has evolved from the idea of regularity to a rational capitalist space. It was supplemented by proposals from the professional community at the end of the period.

116-128 390
Abstract

In the paper, the author analyzes the activities of the judicial authorities in transport on the basis of previously unpublished archival sources. In his opinion, there are several groups of shortcomings in their activities. Among them: deviation from the set tasks and "liberal" punitive policy; errors in the application of the norms of substantive and procedural law, shortcomings of organizational work, legal proceedings, and secret proceedings. According to the author, the main reasons for these defects are the lack of a high-quality training system for these bodies, as well as insufficient funding for their activities. The main results of such mistakes were reduced to unfounded criminal proceedings and unfounded conviction.

The author came to the conclusion about the unstable competence of these bodies. It widened and narrowed. In the event of an emergency, it tends to expand and the punitive function of these bodies comes to the fore. As a result, there was a systematic abuse of the powers, as well as mass violations of substantive and procedural law. During periods of stabilization, these bodies were supposed to perform broader functions of educating transport workers and promoting the decisions of the party and the government. Such a policy, according to the country’s leadership, was supposed to help prevent crimes.

The system of these bodies was a clumsy mechanism. They were not able to a quick reorganization if necessary. It was possible that errors identified during audits were not eliminated. During the great Patriotic war, the leadership was forced to put up with these shortcomings. After the end of the war, these bodies began to meet higher requirements. However, even in the 1950s, there were manifestations of the main defects identified by the author in the activities of transport justice bodies.

GENOME / GENOME

129-142 574
Abstract

In the context of the rapid development of new medical technologies, the problem of protecting the rights of citizens and ensuring respect for human dignity is becoming increasingly urgent. The authors come to the conclusion that the protection of the patient’s rights when using genomic technologies can be carried out in the order of claim proceedings. Typical methods of protection are recovery of damages in the event of injury to health, compensation for moral damage in connection with the violation of such non-material benefits as life, health, physical integrity, privacy. Particular attention is given to the problem of children’s rights protection when using genomic technologies, including the right to natural biological origin, the right to know their biological parents and family (genetic) history, since the use of advances in genetics and biomedicine by one generation of people can be a serious challenge to the existence of fundamental freedoms and equality of future generations.At the moment, states should define the limits of possible intervention in the sphere of private (parental) arbitrariness in order to prevent future harm to children born with the help of modern technologies. Consideration of individual problems of the rights of citizens protection when using genomic technologies indicates objective difficulties in finding solutions due to bioethical principles, the need to ensure a fair balance between the interests of the parties to the relevant relationship and third parties, and the need to minimize potential risks. The breakthrough achievements of medical and biological science pose an important task for the state to develop an effective system of legal guarantees aimed at ensuring respect for human dignity, protecting the rights and interests of an individual, preventing the biotechnological construction of a person for the purposes of eugenic practice, etc.

COMPARATIVE STUDIES / COMPARATIVE STUDIES

143-147 392
Abstract

Should we join the European Union or not? The European Union is not some imaginative goal to be pursued. It requires and offers concrete solutions. At the same time, it seeks out and establishes values and obligations to be fulfilled and inserted in a concrete political life. These obligations and values are universal and it is up to each state to assess whether the acceptance and realization of those interests and values is in its own interest. It should be borne in mind that the legal state and the rule of law, respect for human rights and freedoms, a market economy with developed social policy, fight against corruption and terrorism and many other values that the European Union stands for are essential to every democratic society and exactly these values are a goal that every human being strives for. Eurasian integration is also in favor of these values, but instead of ultimatum and conditioning, they offer a more flexible negotiation method.

It is indisputable, at the moment, that in the region of the Western Balkans, the Republic of Serbia is at the back line of the European integration process. It has entered these processes as the last interested state, but in addition it constantly faces major internal problems and insufficient understanding, as well as new conditions that are constantly being set for its accession. If we add the fact that the decrease of the interest of citizens to join the European Union is currently being noticed, it is clear why the question of who to approach is becoming actualized. One of the goals of the reforms undertaken in the accession process is the harmonization of internal regulations with Communitarian Law. In doing so, it should be borne in mind that total harmonization is almost impossible.

148-156 627
Abstract

The paper is devoted to the legal regulation of the initial and subsequent assignment of the first, second, third or individual degrees to convicts held in Spanish prisons. The concept and tasks of the penitentiary classification are formulated, its procedure, criteria, and exceptions to the rules are revealed. The distribution of convicts by degree has a legal consequence. It consists in sending convicts to penitentiary institutions (departments) of a certain regime with appropriate conditions for serving their sentences. The subjects involved in the procedure for awarding a degree or revising a degree (progress or regression) are the penitentiary institutions and their governing bodies, and in relation to the qualification to the third (mildest) degree, the penitentiary supervision court. Attention is given to the most important principle of the Spanish penitentiary system — the scientific individualization of punishment. In its purest form, it means that the assignment of a degree to a convicted person is not tied to the real term of serving the sentence, the type of crime, or its nature, but is determined solely by personal data and an individual correction program. However, at present, the initial classification and revision of the degree depend not only on these factors, but also on the criminal law, criminological and penal data. A special feature is also the possibility of awarding an individual degree, which combines the characteristics of various degrees and is an example of flexibility in the process of achieving the main goal of penitentiary activities — re- education and social reintegration of prisoners sentenced to imprisonment. In Russian penal enforcement legislation, classification techniques are also used in the distribution of convicts, when the court appoints the type of correctional institution, and the administration of the institution changes the conditions of detention and makes a request to change the type of institution. In the latter two cases, it is quite possible to improve domestic legislation by establishing criteria and a classification system based on correction and treatment of the main means of correction.

IIMPROVEMENT OF LEGISLATION / NOVUS LEX

157-166 505
Abstract

In ILO Recommendation No. 195 "On human resource development: education, training and continuing education" (adopted in Geneva on 17.06.2004 at the 92nd session of the ILO General conference) it is stated that member States should ensure the development and strengthening of vocational education and training systems that provide adequate opportunities for the development and certification of skills that meet the requirements of the labour market. The Labor Code of the Russian Federation contains a set of legal norms that regulate the relationship between training and additional professional education of employees and job seekers. The analysis of these norms allows us to conclude that employers can either conduct training on their own training and production base, or send employees to study in educational organizations with guarantees for maintaining their jobs, average wages, and travel expenses coverage. In both cases, the training and additional professional education of employees are carried out at the expense of the employer. The corresponding expenses of the employer can be called investments, because as a result of training employees and job seekers, there should be a useful effect in the future in the form of work of a certain quality. The paper analyzes the current problems of economic interests protection of the employers who provide training for employees and job seekers at their own expense. The author reveals contradictions in the rules of the labour code and in judicial practice regarding the determination of the composition of the expenses of the employer related to the learning conditions of the student agreement and learning agreement on the work repayment period with the employer, on reimbursement of training costs in case of dismissal without valid reasons. The author proves the need to strengthen the legal mechanism for employers’ investments protection for employee training, but at the same time draws attention to the protection of employee rights as the economically weaker side of the employment contract. In particular, it is proposed to exclude paid wages and scholarships from the employer’s reimbursable expenses for training an employee or student, since they are necessary for the existence of the employee or student. The study of doctrinal, regulatory and judicial sources on employee training at the expense of the employer resulted in proposals for amendments to articles 4, 207, 249 of the Labor Code of the Russian Federation.



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