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Vol 73, No 6 (2020)
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ANNIVERSARY / LIBER AMICORUM

9-17 695
Abstract

The paper deals with the events devoted to the anniversary of an outstanding Russian historian of law, Prof. Igor A. Isayev. On June 11, 2020, our colleague, prominent historian of law, Doctor of Legal Sciences, Professor, Honoured Worker of Science of the Russian Federation Igor A. Isaev turns 75 years old. In addition, for 30 years Prof. Isayev has been the Head of the Department of History of the State and Law, first, at All- Russian Law Correspondence Institute that was later renamed into Kutafin Moscow State Academy of Law (MSAL) and, later, Kutafin Moscow State Law University (MSAL). Since the late 1980s, our University has taken a leading place in the field of legal education, which became possible due to its scholarly potential: the involvement of the most gifted and professional scholars, professors and educators who create and maintain an academic tradition, introduce innovations. Igor A. Isayev has become one of the leaders of the team that has achieved this success and earned credibility in the legal world is. The paper presents his views. In particular, the paper highlights that in his research Igor A. Isaev addresses the fields of history of the State and law, legal ideology, legal culture and legal symbolism, history of political and legal doctrines, and the philosophy of law. Igor Isaev’s life history represents the way of a real scholar, the milestones of his life are represented by written works, numerous pupils and the life of the faculty of the Department of History of the State and Law, the formation of which is impossible without creating an atmosphere of academic freedom, professional solidarity and mutual support.

PRIVATE LAW / JUS PRIVATUM

18-32 572
Abstract

Fixing the situation of doctrinal backlog in the development of the problem of actual parenting of a minor, the author explores the problem from the perspective of the instrumental approach. At the phenomenological level, the essential signs of actual upbringing are subject to the theoretical analysis These signs include: implicity as a social phenomenon, casuability, heterogeneity of social reasons for emergence, apparent voluntariness, gratuitousness, opacity of the circle of actual educators, preservation of continuous communication with the child’s family, lack of legal connection with the moment of emergence and termination of this type of actual relationship. At the interdisciplinary level, the extra-legal grammar of actual parenting is investigated with the inclusion of other social phenomena, structures and institutions closely related to it, providing reasonable scientific perception of this theoretical construct in jurisprudence. Using the political-legal approach complementing the traditional dogmatic approach to the study of the problem of actual parenting, the author aims to expand doctrinal boundaries of the solution of the problem of actual parenting in its legal perspective, creating prerequisites for future research of the topic in the context of its methodological preparedness. The author’s findings are based on the fact that the legal problem of actual parenting lies in the bosom of the problems of family education rather than between family education and forms of institutional protection of children, as is often seen in the family law doctrine. The normative nature of relations in the field of the family upbringing of a child, ensured through numerous acts of international law on child saving, national constitutional norms, principles of family law, general provisions of individual institutions and structures, does not make it clear that today’s legislative attitude to actual parenting is in no way consistent with the family law dogmatics.

33-43 2037
Abstract

The paper proposes to use the expression ‘personal space’ to refer to the concept of ‘private’ during the period of professional activity. A personal space refers to the space personal in content and parameters, surrounding an individual and including personal connections and communications of the individual used for personal purposes and distinguished from the field of labor and other public relations within which the person independently determines the mode of his or her behavior and other people’s behavior for comfortable autonomous existence (including establishing contact with some persons and preventing interference of other persons, objects, natural phenomena).
The personal space can be described as part of private life. Accordingly, the right to the personal space is part of the legitimate right to secrecy and privacy. The legal assessment of intrusion into an employee’s personal space depends on the type and scope of the employer’s actions, the type of technical means, the affiliation of the technical means to the employee or employer, the type of processed information (data), the order of a local regulatory act adoption. The boundaries of an employee’s personal space are defined as the balance between the employee’s interest in secrecy and privacy and the employer’s interest in achieving the quality and efficiency of the labor force activities, security of workers, property and information. The paper substantiates the need to include in local acts of educational organizations a ban for educators during their training sessions to use a mobile phone, as well as to leave the phone in the mode of receiving audio incoming signals. Restrictions to take selfies in the workplace during the periods free from training sessions are formulated. It is substantiated that in order to respect privacy it is advisable to stipulate in the law the possibility for the educator to refuse to permit his or her personal data processing by the educational organization not relevant to the work and objectives set out in the Labor Code of the Russian Federation without negative consequences for the employee. 

44-60 584
Abstract

Recent legislative amendments regarding an arbitration agreement incorporated into the agreement of accession have contributed to the formation of the concept in the Russian doctrine giving additional argumentation in favor of qualifying clauses envisaging the consideration of domain disputes under the UDRP as arbitration agreements. Taking into account a number of procedural and legal consequences determined by both the fact of the conclusion of the arbitration agreement and the fact of the award, the author raises the question of the nature of clauses providing for the consideration of disputes under the UDRP procedure. The study of the main properties and characteristics of the clauses under consideration leads to the conclusion that the balance between public law and private law foundations defined in the doctrine inherent to the arbitral agreement, does not meet the nature of the dispute resolution clauses under the UDRP (the impossibility for the domain name holder to refuse from the clause; the absence of the derogatory effect of the clause, etc.). Accordingly, enforceability of this clause cannot be determined under the provisions of the Federal Law on Arbitrazh [Arbitration] of 2015 and the Law of the Russian Federation on International Commercial Arbitration of 1993, providing the conclusion of the arbitration agreement, which, for example, include the principle of effective interpretation of an arbitration agreement that does not exclude in a number of cases the competence of the arbitral tribunal in the absence of the agreement signed by the parties. In this regard, the author questions the argumentation in favor of unenforceability of the clause under consideration based on the named laws.
The study of certain principles of dispute resolution proceedings under the UDRP (limited list of remedies; resolution of the dispute in the form of oral hearings only on the initiative of an administrative commission; the unduly short period of time provided for both response to the claim and going to a competent court; the disparity of the dispute resolution clause, etc.) allows the author to conclude that, in some cases, such a clause is burdensome for the owner of the domain name due to the violation of the principles of legality and independence in the establishment and formation of a specific administrative commission.

61-67 1441
Abstract

The paper is devoted to the study of the category “economic activity” used in modern Russian law. The
author notes that, despite the absence of a legal definition of this category, it is used in the current legislation of the Russian Federation (civil, criminal, administrative and other branches of legislation, including legislation regulating procedural issues). The legislative gap under consideration creates problems in law enforcement, which the judiciary draws attention to: the lack of definition of the concept under review makes it difficult to establish jurisdiction, since any activity of the participants of relations regulated under civil law has an economic basis. However, a number of documents contain a description of economic activity. 

In the doctrine, the category “economic activity” is mainly investigated by academic economists, lawyers pay little attention to the consideration of this concept. The few legal doctrinal statements and attempts made by the judiciary to define it are insufficient to fully understand economic activity in the context of law. 
The paper analyzes doctrinal and judicial approaches to the content and characteristics of economic activity, attempts to define the concept under consideration. The author considers that the concept "economic activity" refers to the commission of legal actions by the actors at various levels of management aimed at production, distribution, exchange and consumption of goods through the use of their or attracted skills and assets to meet their (or third parties) material and spiritual needs. At the same time, the characteristic of professionalism used in the doctrine should be used to differentiate economic activity carried out in active and passive forms.

 

PUBLIC LAW / JUS PUBLICUM

68-76 1310
Abstract

The article is devoted to topical issues of determining the effectiveness of the work of governmental agencies in the Russian Federation. The relevance of the study’s subject matter is determined by the lack of comprehensive examination of the subject matter from the perspective of methodology and practice. Public authorities’ activities in the Russian Federation are changing acquiring new qualities. Thus, clear and uniform criteria for their assessment are necessary. Evaluation criteria should be closer to social indicators and should meet the demands of society. The author analyzes the normative-legal regulation of this issue. to this end, the paper provides examination of the Decrees of the President of the Russian Federation that have been issued since 2007 to establishing indicators for assessing the effectiveness of the activities of the executive authorities of the Russian Federation. It is possible to observe a constant change in the methodological approach to the number, formulation and content of the criteria for assessing the effectiveness of the executive authorities of the constituent entities of the Russian Federation. Between 2007 and 2012, the evaluation criteria were based on public control over the public services effectiveness exercised by citizens. Currently, the approach has changed — public control has been removed from the system under consideration and is now governed by a separate regulatory act. For the first time, to recognize executive authorities’ activities as effective the determination of the level of evaluation criteria to be met by executive authorities is used.
The normative regulation of the evaluation of the effectiveness of the executive power at the federal level is also investigated. At the national level there is no any regulatory framework for assessing the activities of federal executive authorities of the Russian Federation. The author draws conclusions about the lack of a uniform approach to the evaluation of governmental authorities’ activities at both federal and regional levels. The conclusions can be used in law-making activities of state bodies.

INTERNATIONAL LAW / JUS GENTIUM

77-96 561
Abstract

The world energy industry today faces new challenges. They include regulating energy markets, protecting the environment and sustainable development. An appropriate response to these challenges could be to employ the potential of multilateral interaction within the framework of international energy associations with a view to establishing effective mechanisms for the provision of international energy security. The importance of an intra-organizational (institutional) mechanism is due to the fact that it ensures the cooperation of States within the framework of international energy associations. Accumulated during more than half a century of the existence of international energy associations, the normative framework requires processing, scientific systematization, as well as theoretical generalizations and proposals of obvious practical importance. This paper, for the first time in the Russian science of international law, makes a comprehensive scientific and legal analysis of issues of membership, institutional structure, working order and interrelations among different bodies, personnel formation, privileges and immunities of international energy associations. The scientific and legal analysis is aimed at exploring the constituent acts, headquarters agreements, agreements on privileges and immunities of international organizations, international treaties, as well as modern doctrine of international law.
The conclusions and proposals made in the paper can be used by States to improve the institutional (intraorganizational) mechanism of effective international energy associations, as well as for planning new associations. They can also be used by the Russian Federation in developing strategies to interact with such associations. The paper uses general and private scientific methods of research: formal-legal, historical-legal, system analysis, comparative-legal approaches.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

97-109 1045
Abstract

Many publications are devoted to the identification of social conditionality of criminal regulations. However, the science of criminal law does not have any comprehensive research on the social conditionality of establishing criminal responsibility and punishment for military personnel. In this regard, its essence, features and criteria for identification remain practically unknown. The paper reveals the problematic aspects of the concept and meaning of social conditionality of establishing criminal responsibility and punishment for military personnel; the author’s definition is given. Based on the widespread opinion in the theory of criminal law that the mechanism for identifying this social condition consists of criteria that are studied by the legislator at the appropriate stages of the processes of criminalization (decriminalization) and penalization (depenalization) of military socially dangerous acts, the author analyses them in detail. The problem of ways of legal regulation of criminal responsibility and punishment of military personnel is touched upon. It is stated that the peculiarity of the definition of this social conditionality is the resolution by the legislator, among other dilemmas, of the question of the need for normative fixing of a special military or ordinary prohibition and (or) fixing of the corresponding special military regulationsin the general part of the Criminal Law.
The author concludes that the identification of social conditionality of the criminal-normative prescription on responsibility and punishment of military personnel is one of the important tasks of modern science of criminal law, which necessitates the development of a unified approach to the structure and content of this process. The establishment of the theoretical and legal essence of this conditionality should be considered as the most important step in this direction. The author offers the following definition. It is the compliance of criminal regulations that establish responsibility and punishment for criminal behavior of military personnel, resulting from the demand of society in the objective need for criminal law protection of military law and order and other public relations that are most important for the individual, society and the state.

110-121 836
Abstract

The paper draws attention to the intensification of criminal use of electronic technology, on the one hand, and the digitalization of forensic activities to investigate crimes, on the other hand. It is stated that it is necessary to develop a unified concept of electronic digital criminalistics. The paper analyzes the views on the essence of this concept and similar concepts of other scientists. The ideas of allocating a new branch, section or subsection in criminology are subject to reasonable criticism.

Investigating the main opinions of scientists on the criteria for distinguishing private theories in criminology, the author concludes that the private theory of electronic digital criminology (detection, fixation, seizure, research and use of electronic information and information technology devices) fully meets the basic requirements for private forensic theories. Regarding the place of the considered private theories in the criminology we can see justified criticism of the private placement of this theory in the section "Forensic engineering", and the distinction between two individual theories that are, respectively, technical and tactical in nature. The author states that the conceptual issues of the private theory of electronic digital criminology (collection, research and use of electronic digital information and information technology devices) should be considered in the section "General theory of criminology".
The paper discusses in detail the place of this particular theory in the system of other private theories of criminology and its relationship with them, as well as its relationship with other sciences, primarily with cybernetics and computer science, information law, criminal procedure, the theory of evidence, the theory of operational investigative activities, forensic expertise, general, legal and cybernetic linguistics. 

THEORY OF LAW / THEORIA LEX

122-138 1131
Abstract

The state is for the most part a key political concept in the minds of lawyers. It is often "devoid" of history: they use the same term to name ancient and modern political associations (Polis, Republic, Empire, national state), without noticing the fundamental difference between them. The paper emphasizes the difference between "universalist" and "critical" approaches to the state. The former seeks to see the birth of the state in the second Millennium BC, trying to link the emergence of law with the emergence of the state. The latter emphasizes the historical contextuality of the emergence of the state — a unique social institution that appeared in Europe during the early Modern period. The state is a modern (modern) social construct, and its reality is determined not only by the presence of a certain idea in the minds of people, but also by stable, typified social practices. In the modern world, law is mediated by the state, and in many cases, it is monopolized by it. In this perspective, the history of the state is often inseparable from the history of law, and the theory of law from the theory of the state. The author of the paper adheres to the second approach and agrees that law is a phenomenon whose existence has not been determined by the state for a long time.
The author presumes that for many reasons, the state continues to be a priori political category in the minds of lawyers who observe daily manifestations of power mechanisms. To denounce this "naturalness" of the state, critical approaches to the concept and origin of the state are necessary. The paper presents various critical concepts of the state: from radical political evolutionism to critical conceptual history.

CYBERSPACE / CYBERSPACE

139-148 730
Abstract

The paper examines the European and American legal approaches based on legislation regulating the use of computer algorithms, i.e. systems for automated decision-making of legally significant decisions. It is established that these jurisdictions apply essentially different concepts.
The European approach provides for regulating the use of automated decision-making systems through legislation on personal data. The authors conclude that the general data protection regulation does not impose a legal obligation on the controllers to disclose technical information, i.e. to open a "black box", to the subject of personal data, in respect of which the algorithm makes a decision. This may happen in the future, when the legislative authorities specify the provisions of this Regulation, according to which the controller must provide the subject of personal data with meaningful information about the logic of decisions taken in relation to it.

In the United States, issues of transparency and accountability of algorithms are regulated by various antidiscrimination acts that regulate certain areas of human activity. At the same time, they are fragmentary and their totality does not represent a complex, interconnected system of regulatory legal acts. In practice, legal regulation is carried out ad hoc with reference to certain legal provisions prohibiting the processing of sensitive types of personal data.
The paper states that the legal regulation of algorithmic transparency and accountability is in its infancy in Russia. The existing legislation on personal data suggests that the domestic approach to solving the "black box" problem is close to the European one. When developing and adopting relevant regulatory legal acts, it is necessary to proceed from the fact that the subject of personal data should have the right to receive information explaining the logic of the decision made in relation to itin an accessible form.

COMPARATIVE STUDIES / COMPARATIVE STUDIES

149-159 385
Abstract

he paper considers the goals implemented in the legal regulation of the formation of public chambers (councils) inArkhangelsk, Barnaul, Volgograd, Yekaterinburg, Surgut (Russia) and social, economic and environmental councils of the Auvergne-Rhone-Alpes, Hauts-de-France, New Aquitaine, Brittany, Normandy regions (France). It is suggested that the main possible goals are to ensure that citizens represent their interests and the city authorities receive assistance from citizens when solving their tasks. 
There is a similarity between the requirements for candidates for membership in Russian public chambers and French social, economic and environmental councils (the need for representation of those whose lives depend on the level of development of the territorial unit in which the Advisory body operates; the ban on membership for those having been involved in offenses; the need for representation of public organizations). The requirements, both identical and different, are primarily aimed at ensuring the representation of the local population. At the same time, the French legislature sets a requirement for mandatory representation not of any local resident, but of particular groups defined for various reasons and a certain numerical ratio of representatives of these groups. As for the formation procedure, the composition of the considered Russian Advisory bodies is determined by local self-government bodies, while the French ones are determined by state authorities, besides local organizations are involved both in Russia and France. This procedure (as well as part of the requirements for candidates) is aimed at selecting individuals who are qualified enough to help local governments in the implementation of their functions, in case there are guarantees that these individuals will be representatives of the local community. At the same time, it is stipulated that elections are not the only way to ensure the representation of citizens; alternative methods include, in particular, the division of members of the Advisory body into groups based on the categories of the population they represent, provided for in the French law. 

IIMPROVEMENT OF LEGISLATION / NOVUS LEX

160-169 737
Abstract

In Russian criminal lawthe fact of committing a crime for the first time determines the operation of the fundamental institutions: responsibility and punishment. The identification of the person having committed a crime for the first time is an extremely important task not only for the further proper focus for law enforcement officials on the individualization of punishment and criminal responsibility, but in general, for a more clear perception of the enforcement of the criminal legal relations caused by the criminal act. Despite the importance of this concept, if attention is given thereto in theoretical research, it is mainly from the point of view of clarifying the legal content. The questions of expediency of introducing the concept of a person who has committed a crime for the first time into the text of the criminal law, the criminal legal significance of this circumstance among others affecting the adoption of a criminal legal decision remain little explored to date. Any concept that is applied in practice and has real significance for the qualification of crimes, determining the grounds and limits of criminal liability, as well as for the imposition of punishment, undoubtedly requires criminal law consolidation. The absence of any concept of such significance in the law means that there is a gap in criminal law. Meanwhile, the concept of a person who has committed a crime is complicated by the fact that in real law enforcement it is filled with specific legal content, different from the everyday understanding of this phenomenon. This causes problems such as the association of such persons with "legally non-indictable persons". Full identification of these concepts does not allow the legislator to provide a sufficiently selective, individualized and adequate approach to different categories of such persons. In addition, questions are raised about the differentiation of responsibility of a person who committed a first-time careless crime with a person guilty of committing an intentional criminal act. The paper attempts to answer these questions by the example of specific criminal legal norms, taking into account the experience of their enforcement. 



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