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Vol 73, No 7 (2020)
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THEORY OF LAW / THEORIA LEX

9-23 731
Abstract
The paper is devoted to the analysis of the development of the system and structure of the Russian legislation in the space-time continuum. The author demonstrates the defining role of economic, and more widely—social—factors, ultimately determining the vector for the development of law. The paper questions the idea of the supposed self-sufficiency of law that develops in compliance with its own rules. In recent years this approach has dominated the domestic legal science. In the Western doctrine, this approach has existed for quite a long time. Such a methodological platform fits into the general context of postmodern, where objective reality is replaced by preconceptions about it. In this regard, the need to prove any approach disappears because all opinions are declared to be equal. The author substantiates the statement concerning the necessity of studying law in the context of causal relations between legal and social factors. The analysis made by the author attempts to justify the fact that the economic reform carried out in Russia by means of privatization and shares-forloans auctions was not aimed at economic growth. The objective of the reform was to redistribute property, which became the basis of first oligarchic and, later, bureaucratic Russian capitalism, equally unpromising in the present and foreseeable future. To meet this objective, i.e. to redistribute property, a system of legislation was formed under immediate control of Western, mainly American, analytic centers. That policy resulted in creating the economy based on raw materials and off-shores. It is noted that the pandemic has seriously affected the system of values and benchmarks of social development. Therefore, the issue of a shift in the paradigm of social development will inevitably arise. The economic, political, social and legal doctrines of the past that were perceived largely uncritically, will lose their strength and will never be the intellectual basis of evolution. The author anticipates the orientation of nations at maximizing the demand of the domestic markets. Russia’s integration into the world economic system, the idea of which used to dominate in Russia, proved completely untenable, as did the myths of globalization in general. In this regard, the transformation of the system and structure of the Russian legislation is inevitable. The development of Russia’s legal system should be aimed at solving internal problems, which, of course, does not mean isolation of the country.

GENOME / GENOME

24-33 549
Abstract
3D printing is currently one of the markers of the technological revolution. The development of additive production challenges the legal science to search for adequate legal regulation of relations concerning the use of 3D printing in the area of treatment of humans. At the present stage, we need to resolve not only the issues concerning regulation of property relations arising in connection with bioprinting, but also the issues of regulation of personal non-property relationships. The implementation of 3D printing of human organs is inevitably associated with the interference with the exercise of personal non-property rights. New technologies development requires the resolution of the content of the right to health, the liability and responsibilities of creators of 3D printing files (CAD-files), medical establishments. The need to address bioethical problems is a new challenge for the humanity. Due to the possibility of creating human organs artificially, it is important to define the limits of the exercise of personal non-property rights. Do the limits for the perfection of a person’s body exist? Can an individual freely dispose of his or her body, their organs, individual cells of the body? Can the human organism, its individual cells, be considered as a material for bioprinting, giving them all the properties of material objects having marketability? On the other hand, the creation of bio-prints raises the problem of protection of personal data, information about the person’s health, other personal data that may become available to third parties and be used by the third parties to the detriment of the individual. Can the appropriate bio-material or a layout of printed unique human organ be used by third parties in their activities? How does the exercise of property and intellectual rights relate to the exercise of personal non-property rights in the framework of personal non-property relationships not related to property relationships? The research is devoted to finding answers to the questions posed.
34-42 498
Abstract

The paper deals with the problems of interpretation of individual genome sequencing results as predictively probabilistic information. The authors have determined the main issues related to the legal area within the framework of self-regulatory organizations uniting subjects of professional activity (professional associations).The authors have analyzed the features of perception of risks (negative probability). Information under consideration is particularly complex for the consumer, as risk assessment is difficult for ordinary perception. The conclusion is made about the necessity of training all participants — geneticists, clinicians of various specialties, general practitioners, average medical staff and potential consumers of services.

A fundamental conclusion is as follows: the integration of genomic research into the science and practice of the public health system can contribute to the improvement of public health, change of the lifestyle of the population implementing the recommendations of specialists aimed at correcting genetic risks identified by testing.

When analyzing the main features of self-regulation of genomic studies, we come to the conclusion that in order to correct their lifestyle and health, the society faces a question of competent attitude to the results of genomic studies and their use. Moreover, this competence concerns not only consumers of genomic testing services, but also professionals obliged to correctly and accurately present the results of testing.

The task of carrying out training activities and additional vocational education can be solved by a competent professional community based on self-regulatory organizations unifying subjects of professional activity (professional associations). 

43-49 646
Abstract

The paper is devoted to the analysis of current trends and prospects of development of legislation of the Russian Federation in the area of environmental, biological and social safety. Based on the results of the study of mechanisms of operation of modern legal systems in the context of increasing exponential threats and risks, the authors carry out the general evaluation of the ability of emergency situations legislation to respond to contemporary challenges. The paper also identifies factors that could have a decisive impact on the formation of new environmental and biological security.

The author substantiates that, since any extreme environmental and biological situation is sudden, rapid, and it rapidly transforms from local to global, the emergency legislation should be as specific, clear, logical as possible, consistent with the goals and objectives of prevention of harm to life and health. In this regard, it should be revised primarily from the perspective of notions, variability of consequences, establishment of causality, description of basic solutions and responsibility. It is fundamentally necessary to change the paradigm from the elimination of accidents, disasters, fires and other man-made accidents to the presentation of emergencies as a systemic crisis of management and law. Special acts should clarify the criteria for “danger” and “safety”, taking into account socio-economic and environmental consequences, the competence of the authorities, security provision economy, permissible risks and losses, mechanisms and protocols for the operation of the entire state and public machinery in emergencies.

In addition, the law-maker should adopt the legislation regulating the health system, which must have sufficient reserves of capacity and resources for emergencies, the legislation regulating financial reserves for the establishment of special accounts and emergency financing mechanisms, as well as information legislation regulating emergency situations. 

50-58 2541
Abstract

The importance of genomic information has now increased due to the possibility of its practical use. Meanwhile, the understanding of the term “genomic information” is specified based on different criteria. Genomic information is proposed to be classified depending on the following criteria: 1) the origin of a biological sample, 2) the place of fixation and storage of genomic information, 3) the purpose of use, 4) the completeness of examination, 5) the relation of a person to the acquisition of his or her genomic information, 6) the scope of content. Genomic information can be presented as a generic concept referring to all biological objects, as a special concept (species) referring only to humans, and as subspecies reflecting specificity of such information in a particular area of activity. Genomic information of a living being (human, animal, plant, microorganism) is understood as data on certain fragments of deoxyribonucleic acid (sometimes ribonucleic acid) on the basis of which the living being is identified or other permitted activity is carried out.

Human genomic information is defined as biometric personal data extracted from certain fragments of deoxyribonucleic acid (sometimes ribonucleic acid) of a living individual or corpse, on the basis of which it is possible to identify, determine genetic predispositions or extract patterns of the development of the human being obtained voluntarily, and, in cases provided for by the law, forced to be fixed in a biological sample and/or stored in an information map or database.

It is proved that the existing laws on information or a new law dedicated to regulation of the application of genomic technologies should be amended instead of adopting a special law “On Genetic Information”. 

59-68 330
Abstract
Genomic research on athletes can potentially contribute to the improvement of public policy in the field of sports in the area countering the use of gene doping, as well as the development of the system of sports training. The study has investigated in detail the validity and necessity of genomic research in sports. Thus, the study argues that, despite the impossibility of determining an accurate degree of influence of genetic parameters on the performance of athletes, the presence of certain gene variations determines the value of some characteristics, e.g. speed, endurance, muscle strength, and control over emotions. The development of scientific knowledge about such parameters in the field of sports and physical culture will increase the safety and effectiveness of the training process. However, this will also increase the threat of application of gene doping. However, at the moment in the doctrine no consolidated approach to the methodology of detection of the use of gene doping has been developed. This article presents various approaches to its identification, as well as the potential problems of legal support in the field of genomic research related to the complexity of the public interests concerned. The paper focuses on the study of domestic and foreign approaches to the formation of state policy aimed at ensuring confidentiality of genomic research data. Features related to the storage and use of data are considered on the example of legal regulation of both the full confidentiality of such information and the circumstances suggesting the possibility of allowing others to access such information together with identifying data. As a result, the authors have elaborated potential recommendations to regulate issues of collection, use and storage of genomic data of athletes, as well as features of their regulatory support.
69-75 493
Abstract

The paper deals with the features of the legal regulation of genetic research in the Commonwealth of Australia with due regard to the state structure, national, ethical and other factors. The primary source of law in Australia is the common law articulated in judicial precedents (case law) that has recently been supplemented by acts of statutory regulation. The paper thoroughly investigates the processes of storage, access and protection of full-genome sequencing data. The authors analyze the peculiarities of functioning of the judicial system of Australia; the experience of normative consolidation of informed consent for genetic research, confidentiality of obtained information, strategic priorities in integration of the results of genetic research into Australia’s health system. The paper provides the analysis of the list of documents containing indications of cases in which medical organizations should not collect confidential information about a person. As a result of the study, the authors identify certain gaps in the normative legal regulation of genetic research and inconsistencies and contradictions of certain normative legal acts. The paper focuses on specifics of genetic research with the participation of the Aboriginal population of Australia, which, in turn, will help in the formation of the relevant legal framework in the Russian Federation.

As a conclusion, the authors note that in the field of legal regulation of the processes of storage, access and protection of genetic information in Australia there is a tendency to use normative regulators. Particular attention is drawn to the normative consolidation of the priority of public interests over private interests and its reflection not only in numerous reservations and exceptions, but also in the framework of generally relevant strategic priorities. Presuming the development of the similar legal framework in the Russian Federation and taking into account the multiethnicity of the population, it should be highlighted that Australia’s experience in implementing the genetic research involving the Aboriginal population should be implemented.

CYBERSPACE / CYBERSPACE

76-85 559
Abstract

In the paper, the author points out that humanity has moved into the era of information society, the era of digitalization, when the digitalization of all socio-economic relations becomes an inevitable global process radically changing the existence of man and even of man himself. In the sphere of Economics, the traditional borders between the producer, seller (intermediary) and consumer of goods are being erased, and the phenomenon of sharing economy is replacing traditional channels and supply chains, radically transforming socio-economic relations. New forms of collaboration between manufacturers, wholesalers, retailers and consumers are emerging, and a new technological infrastructure for such collaboration is actively developing, i.e. digital online platforms that act as one of the drivers of the fourth industrial revolution. The development of the three-dimensional printing technology allows any individual to participate in the creation of various material goods. Printing of material objects is based on a three-dimensional digital model, the digital equivalent of its physical embodiment. A serious legal challenge is the regulation of relations related to the circulation and use of three-dimensional models of objects of the material world, as well as liability for damage caused by a defect in the three-dimensional digital model.

The paper contains a number of prognostic conclusions. If a defective three-dimensional digital model is purchased for a fee as a product (digital content) on the corresponding online platform, it is possible to impose tort liability on both the counterparty under the contract and the platform operator. Such liability must be strict, joint and several. A strict, joint and several liability model will serve as an incentive to ensure transparency in the field of digital turnover, as well as exert a preventive influence by deterring illegal behavior. If the identity of the seller of digital content is not established, only the platform operator will be held liable.

If a defective three-dimensional digital model is placed free of charge on the hosting site, the creator of such a digital model will be held liable. The responsibility of a hosting provider that provides only a technical service for hosting content must be subject to the rules on the responsibility of the information intermediary. 

86-96 703
Abstract

In the paper, the author notes that the development of modern technologies, including artificial intelligence, unmanned transport, robotics, portable and embedded digital devices, already has a great impact on the daily life of a person and can fundamentally change the existing social order in the near future.

Virtual reality as a technology was born in the cross-section of research in the field of three-dimensional computer graphics and human-machine interaction. The spectrum of mixed reality includes the real world itself, the one that is before our eyes, the world of augmented reality — an improved reality that results from the introduction of sensory data into the field of perception in order to supplement information about the surrounding world and improve the perception of information; the world of virtual reality, which is created using technologies that provide full immersion in the environment. In some studies, augmented virtuality is also included in the spectrum, which implies the addition of virtual reality with elements of the real world (combining the virtual and real world).

The paper substantiates the conclusion that in the near future both the legislator and judicial practice will have to find a balance between the interests of the creators of virtual worlds and virtual artists exclusive control over their virtual works, on the one hand, and society in using these virtual works and their development, on the other hand. It is necessary to allow users to participate, interact and create new forms of creative expression in the virtual environment.

The author concludes that a broader interpretation of the fair use doctrine should be applied in this area, especially for those virtual worlds and virtual objects that imitate the real world and reality. However, it is necessary to distinguish between cases where the protection of such objects justifies licensing and those where it is advisable to encourage unrestricted use of the results for the further development of new technologies. 

97-104 662
Abstract

The paper is devoted to the study of law and computer algorithms as tools regulating social and technical processes. The purpose of this work is to study the possibilities of using computer code to regulate public relations, as well as the impact of this process on traditional legislative procedures.

The paper puts forward the thesis that computer code regulating technical processes can be used to a certain extent in the legal sphere of activity. To use computer code in law making, it is necessary to define the scope of legal regulation, develop an appropriate programming language and adopt a system of internal and external code audit measures that will ensure transparency, legality of the code and, as a result, public confidence in the adopted normative legal acts.

One example is smart contracts used in certain areas. The authors have studied various approaches to the definition of the term "smart contract" and formulated an integrative definition of this concept. When using a smart contract in the legal sphere, this term should be understood as a legally binding contract drawn up in the form of computer code and supported by appropriate legal remedies.

In this paper, the authors investigate the possible consequences of using computer code in law making and propose a number of additional measures (requirements) to the procedure for adopting regulatory legal acts. The authors summarize that law is to a certain extent an algorithm, which means that the same methods can be used to regulate public relations that are used in the technical sphere to fix the sequence of various operations. 

105-114 623
Abstract
Today, humanity has witnessed an extremely complex historical event. The head of the world health organization, Tedros Adhanom Ghebreyesus, stated that the spread of the new coronavirus was of a pandemic nature, which happened for the first time in several decades. "In the days and weeks ahead, we expect to see the number of cases, the number of deaths, and the number of affected countries climb even higher," the organization’s CEO said. Humanity has faced coronavirus infection that has developed into a rare and dangerous phenomenon — a pandemic. The latest threat that the entire planet is fighting against has given each country, without exception, special tasks to find and develop new methods to combat the spread of the virus and effective ways to treat it. New legal norms are necessary for the introduction of innovative technologies — creating conditions for the most effective use of the capabilities of artificial intelligence (AI) to combat the spread of COVID-19. World experience also shows us the need to use the latest technologies to defeat a new infection. This is the only way the fight can be effective. This paper broadly presents and classifies the world experience in the use of AI to combat coronavirus, as well as analyzes strategies for innovative legal regulation in the context of a pandemic. This is a valuable platform for constructive research of the identified problem in the field of law, and contributes to the creation of reliable legal conditions for the use of artificial intelligence technologies to resolve the situation with coronavirus infection.
115-126 711
Abstract

In the modern realities of converting document flow to the digital plane, the issues of validity of contracts concluded in electronic form, as well as the conditions for recognizing an electronic signature, are of particular importance. In this regard, the authors turn to the study of the provisions of the United Nations Convention on the Use of Electronic Communications in International Contracts of 2005, as well as other international trade agreements to clarify their applicability to cross-border contracts concluded in electronic form.

In the paper, the authors raise the question of the validity of an electronic cross-border transaction that falls under the regulation of the Vienna Convention on Contracts for the International Sale of Goods of 1980, the USSR reservation to which on the inadmissibility of concluding a contract not in writing, but in any form, continues to apply. In this regard, the authors explore the possibility of interpreting article 13 of the 1980 Vienna Convention containing the definition of the "written form", outside of the general rule of interpretation of the provisions of the 1980 Vienna Convention provided for in article 7.

Based on the comparative analysis of national and international legal norms, norms of soft law regulating electronic documents, the authors reveal a number of problems arising from the lack of specificity of the mechanism of recognition of foreign electronic signatures in Russia and put forward proposals for their solution. To this end, the authors explore the possibilities of developing international standards for the compatibility of technological algorithms for electronic digital signatures using an asymmetric scheme, based on which foreign certificates of electronic signature keys can be recognized. 

127-136 898
Abstract

We are currently experiencing a new revolution, which is related to the Internet, nanotechnology, biotechnology and robotics. Artificial intelligence is based on intelligent algorithms or learning algorithms similar to human intelligence, technologies make it possible for computer systems to acquire independence, self-adaptive reconfiguration. The greater the autonomy of AI, robots, and androids, the less they depend on manufacturers, owners, and users.

The fact that the new generation of robots will coexist with humans should be taken into account in legislation, it should adapt and regulate issues of great legal significance, namely: who takes responsibility for the actions or inaction of intelligent robots? What is their legal status? Should they have a special regime of rights and obligations? How to resolve ethical conflicts related to their behavior?

The analysis of legislation and doctrine in Latin America has revealed some trends in the use of AI.

1. The use of AI in various spheres of public life causes legal problems in terms of guaranteeing human rights, as evidenced by the analysis of the constitutions of Brazil, Mexico and Argentina. For example, article 8 of the American Convention on Human Rights states: "Everyone has the right to have his case heard, with appropriate guarantees and within a reasonable period of time, before a competent, independent and impartial court convened in advance by law in support of any criminal charge brought against him or to determine his rights or obligations of a civil, labour, financial or any other nature."

2. The similarity of AI and human intelligence raises the question of legal personality of AI, granting AI rights. The civil and commercial code of Argentina departs from the category of "human person" and establishes the term "legal persons": "all persons to whom the legal system grants the ability to acquire rights are legal persons for the purpose of fulfilling their purpose and obligations".

The line between things and people is becoming more blurred, technology and a more sensitive view of other living beings lead to doubt whether man is the sole subject of law.

MEGA-SCIENCE / MEGA-SCIENCE

137-145 407
Abstract
The paper deals with the rights and obligations of participants of mega-science projects in relation to individual projects that are being implemented or are being prepared for implementation. Particular attention is given to the role of the state in organizing the work of unique scientific installations of the mega-science class and the interaction of various subjects of scientific collaborations. It is proved that in the process of scientific collaborations functioning various aspects of the personality of the collaborations themselves become up to date. Their individual elements, in particular the freedom of entry into mega-science projects and legal confirmation of the rights and duties of subjects, the combination of public and private interests when performing activities within the framework of scientific collaborations become of importance as well. Currently, states participate in mega-science projects through the transfer of significant public powers to specially established non-profit organizations — state corporations, as well as through the establishment of international intergovernmental research organizations with the rights of legal entities. The legal personality of public and private subjects of mega-science projects, which is formed by a regulatory act or contract, indicates a strict framework for proper and possible behavior and creates the need to use coordination tools based on the principles of reciprocity and common interests of participants. The paper examines the practice of legal regulation of interaction between the state and private entities when creating mega-science projects in Brazil, where legal entities responsible for the creation of the project are recognized by law as a subject with public responsibilities, and are subject to state authorities on the basis of the so-called management contract. The parties to such agreements do not have opposite interests, their interests coincide and are aimed at achieving public goals. Through these agreements, different entities structure their obligations and rights in the common interest and benefit from each other, provided that they effectively perform the actions stipulated in the agreement. The organization that has concluded such a contract is obliged to properly perform the tasks assigned to it. To the extent that it performs these actions properly, it will have the right to demand that the state perform its respective duties. Therefore, the management contract allows changing the structure of legal personality not only of individuals, but also of the state.
146-155 539
Abstract
The paper examines the legal regulation of scientific research in professional sports as in the case of Formula 1. The importance of the process of searching for new engineering and design solutions for the performance of athletes, as well as its continuous nature, is emphasized. It is noted that this sport is in the process of transition to a new cycle of legal acts, including Technical regulations, which sets the main requirements for the results of scientific research. The analysis of the provisions of the Technical regulations shows that the activities of engineers and designers are largely limited. For clarity, there are specific norms that fix either the exact indicator for the result of scientific research to achieve, or the range within which fluctuations are allowed. At the same time, it is noted that there are still rules that are not formulated in the most obvious way (the so-called gray zones). It is stipulated that the specifics of scientific research in these areas will be the subject of a separate analysis. Special attention is given to the requirements for the minimum degree of independence of scientific research in the car engineering and constructing and the possibility of using the results of competitors. The author gives examples of interaction between Formula 1 teams in terms of the use of engineering solutions by the team of competitors. The importance of research and development by Formula 1 engineers and designers is further emphasized, not only in the field of sports or the automotive industry, but also in everyday life, especially in the context of the coronavirus pandemic (COVID-19). Specific examples of the contribution of racing teams to the global fight against the virus are given, including cooperation with medical centers and laboratories in the framework of the Project Pitlane, which unites most of the teams of Formula 1.


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