THEORY OF LAW / THEORIA LEX
Nearly a dozen and a half different humanities, natural and technical sciences have chosen the city as a subject of research and, within their subject areas, have developed theoretical approaches to defining the livesustaining activities of the city. All spheres of the city’s existence are interconnected, at least to some extent, by a complex system of city legal relationships and are combined into a single complex, dynamic, controversial, but rather stable structure. In other words, we can, by means of law, investigate the whole (syncretism) of various scientific approaches to the analysis and description of the system of life of the city and its inhabitants. The author investigates various approaches to the concept of syncretism, including the essence of syncretism in legal context. The concept of syncretism is applied to the city in order to present it as a legal framework linking the knowledge of the city of various humanities into the system of social relations in order to explore the main spheres of the population’s life. The paper investigates some basic provisions of the theories of the city of such humanities as history, sociology, philosophy, psychology, economics, urban studies and political science as a matter of law. The purpose of the study is to form a new, comprehensive legal approach to the understanding of the essence of urban life and urbanization processes within the framework of legal urbanology with due regard to the totality of theoretical and practical knowledge about cities accumulated in some humanities. This study implements an interdisciplinary approach based on the use of sources from different fields of scientific knowledge on the basis of general scientific and private scientific research methods (analysis, synthesis, deduction, hypothetical, statistical, comparative-legal, and prognostic methods). Analysis of legal aspects of the main approaches of some humanities to the study of the city shows their syncretic character and the possibility of forming a generalized legal theory of the city within the framework of legal urbanology as a branch in legal science on the basis of fundamental and applied interdisciplinary studies of the city.
GENOME / GENOME
The paper is devoted to the study of problems related to the establishment of the origin of children born as a result of artificial fertilization in the comparative legal aspect. It is noted that the principles laid down as the basis of the rules governing the order of the child’s origin vary significantly depending on whether it is a matter of natural or artificial reproduction. In the case of assisted reproductive technologies (ART), the value of blood (genetic, biological) kinship is leveled, and its substituted by the will of the person to acquire parental rights and obligations with regard to the child. A person’s will to become a child’s parent is expressed before the child is born in a written permission to use the ART. It is noted that the absence of normative rules regulating the order of expression of consent and conditions of its validity is an obvious gap in the legal regulation of the ART application. It is proposed to treat consent as informed consent if the person applying for the use of ART is provided not only medical but also legal information concerning the legal status of the person participating in the ART program and the legal implications of such participation. The author investigates requirements applied to mutual consent and voluntary consent, its substantive and revocable nature, as well as inadmissibility of representation when expressing the will to use the ART. The author argues that the will to acquire the status of a parent should be expressed in a separate document describing the content of the will and verified by the notary. In order to ensure the best interests of the child in parental care, it is proposed to impose statutory restrictions on the free will to apply the ART.
Uncertainty concerning admission to various levels of sports competitions that remains at the level of international organizations results in the situation when law-makers in a number of States express their view of the matter. To this end, experience of the USA in this sense is of particular interest as in the USA the conflict between the principle of equality, particularly with respect to national minorities, and fair competition in sports is resolved in differnt ways. On the one hand, the problem is politicized. On the other hand, states exercise unprecedented powers in the field of rulemaking, which creates prerequisites for the formation of diametrically opposed approaches that sometimes do not comply with the approach applied at the federal level. While a broad interpretation of gender that includes sexual orientation and gender identity, has been adopted at the federal level, in some states, e.g. Idaho, in deciding the question of admission to competitions it is prescribed to focus on the biological sex formed at birth. Opponents of the Idaho law can be divided into two groups: 1) individuals focusing on the ethical side of the issue arguing that under the new law anyone can question the gender of an athlete, which would lead to additional examinations; and 2) individuals who advocate rights of transgenders. Thus, law-makers pay more attention to substantiating the need for a legislative decision that appeals not only to jurisprudence and doctrinal approaches, but also to the results of medical research. A number of states have followed this approach and, while not everywhere, the idea of gender verification in sports has been brought to a logical conclusion that the very possibility of deviating from federally enshrined non-discrimination standards based on the broad interpretation of gender has created a unique opportunity for derogation from falsely understood ideas of tolerance and political correctness.
The development of modern medicine is based on the development of high-tech treatment methods. One of such methods includes the application of genomic research that in Russia is not inferior, but in many ways superior to the achievements of Western scientists. However, legal regulation, or rather lack of such regulation in our state prevents comprehensive application of advanced techniques in practice. In order to solve this issue, it becomes relevant to study the experience of foreign countries in order to take into account their flaws and gaps in legal regulation to deal with the debate over problems that may be associated with the application of advanced techniques. The paper considers the use of genomic technologies in the UK in the field of embryology and artificial fertilization as one of the most open areas for genomic editing in modern medicine. The paper elucidates the issue of obtaining and withdrawal (revoking or suspending) of the license by organizations that provide medical services in the field of embryology and artificial human fertilization. The authors also deal with the issue of the formation of specialized bodies, e.g. appeals committees in the Human Fertilisation and Embryology Department, dealing with narrow issues. The authors have chosen legal regulation of the issue under consideration in Britain because it appears to be the most liberal regulation as compared with the regulation applied in the other States and even under international law. This, in turn, creates grounds for fears, disputes and discussions in the expert community, which is also of particular interest to the forthcoming Russian law-making and law enforcement. For the purposes of the study, the authors analyze the provisions of the Human Fertilisation and Embryology Act in terms of their applicability both in the UK and in Russia and examine expert opinions regarding the issues under consideration. Based on the work done, the authors propose to implement the model of legal regulation under which both children who appeared as a result of genomic editing and donors are to be informed of the application of this method.
Genetic technologies offer wide prospects for socio-economic progress. At the same time, their application in practice could put at stake the interests of society, human rights and freedoms. Therefore, the development of genetic technologies requires its analysis from the standpoint of jurisprudence, thoughtful legislative regulation and protection from uncontrolled spread and criminal use. The paper analyzes different points of view on the use of genetic technologies. The author substantiates the necessity of proper legal regulation and security of the process of development of genetic technologies. The paper contains the results of the scientific research. The paper elucidates the problems related to the use of genetic technologies in the process of artificial human reproduction: imperfection of the legal framework (In particular, lack of the definition of the legal status of human embryo, lack of justification for the legality of its use for research and therapeutic purposes), the threat of the use of genetic technologies for criminal purposes. The author concludes that the use of genetic technologies for criminal purposes is especially dangerous because organized criminal groups focus their attention on genetic technologies. This gives rise to a special criminal situation that requires new approaches for effective counteraction. To this end, the priority is given to identification of crimes committed with the use of genetic technologies and analysis of the emerging practice of investigating this category of crimes. Failure to comply with standards, deviation from regulations and procedures imposed on medical care may result in harm to health or death also when the assisted reproductive technologies are used. The author has made some proposals to solve these problems with due regard to domestic and foreign experience in the use of genetic technologies in the field of human artificial reproduction (in particular, it is proposed to establish effective international cooperation in this area).
A secular trend of the development of medicine in the 20th century was on the ways of strengthening the foundations of public health, formation of systems of affordable medical care. Human genome deciphering opens wide prospects for using the obtained data in medicine. In recent years commercial medical organizations have been developing genetic research and personal genomic testing services. The paper is devoted to the analysis of the importance of legal self-regulation in the field of genomic counseling in the Russian Federation. The authors investigate the prospects of the introduction of personalized medicine and limitations that arise today in one of the areas of the approach under consideration, namely: forecasting predisposition to diseases of mixed nature, which is related to the peculiarities of development of medical and demographic situation in the world. The question is raised about the need for broad population studies to verify the risk values for diseases with low genetic determinacy. The authors conclude that it is impossible to predict what medicine of the future will be, but the results of genome decryption and increasing availability of personal data represent a unique social phenomenon that should be developed within the legal framework. In the coming years, the debate on the role of legal mechanisms in the self-regulation of genetic research and genetic services will become increasingly important. At the international level, this discussion will be focused on the fundamental issue of respect for individual rights in the interpretation of the data received. As genetic advice evolves, the issue of responsibility for the information provided and the availability of national regulatory mechanisms within the framework of state regulation or self-regulated professional associations will become a key concern.
CYBERSPACE / CYBERSPACE
The development of digital technologies and creation of high-tech services constitute one of the directions of strategic development of Russia. Modern technologies are already capable of searching, systematizing and analyzing large data amounts within a short period of time. But the state sets additional tasks: to process and synthesize speech, to prepare analytical materials for making complex decisions, to perform tasks at the level of results achieved by a human being, to train and even automatically self-learn and eventually create a “strong” artificial intelligence. Adopted legal acts and legal acts under consideration define the main objectives, tasks and expected results to be achieved through the application of artificial intelligence technology in the immediate period. However, the application of artificial intelligence technology raises additional questions related to the creation of new technical solutions and works and the application of the protected results of intellectual activity, exclusive rights to which belong to third parties. The search for data for further analysis is carried out, inter alia, in databases that are objects of related rights, limited access to which is provided through information and telecommunications Internet network. In this regard, the lawfulness of such search and processing of information from protected databases requires clarification. The paper gives examples of judicial practice that show the difficulty of establishing and proving the fact of using materials from databases accessed through high-tech services. The paper also identifies the risks of violation of the rights and legitimate interests of third parties whose personal data are posted in databases that can be accessed via the Internet.
The paper is devoted to the study of prospects and regulatory limitations of the development of the concept ‘information openness of the state and municipal services’. The authors focus on how the public function affects the activities of state and municipal employees not only in but also out the service. The principle of openness of the state and municipal service in modern society obliges to take a responsible approach to any information posted publicly on the Internet, even if it is not related to the service. Big data technologies and the analytical capabilities of neural networks allow us to collect information from various sources and deanonymize them by comparing them. As a result, any state and municipal employee who is present in the public space can be subjected to public control procedures at any time. The panopticon model is used as an explanatory model. It is transformed in the conditions of digitalization of modern society. Alongside the synopticum, the panopticon expands the supervisory capabilities of the government, but at the same time makes its representatives visible to the mass "observer". The model of a new panopticon determines the risks of the emergence and reproduction of social tension and distrust between the authorities and the population. This is also as any member of the public can act as an expert without having expert knowledge and skills. In order to avoid the termination of the information openness development of the power in the new panopticon, it seems promising to educate the citizens in the area of regulatory (legal and moral) grounds for the state and municipal employees’ activities. It is important to include rules governing the presence of the authorities in social media and determine the degree of responsibility of those violating the rules of behavior in public space into the administrative ethics codes.
In the paper, the author uses general scientific and specific scientific methods of cognition to scrutinize the problems of constitutional and legal regulation of public relations in Russia, related to the widespread introduction of artificial intelligence technology. Based on the results of the research, the author concludes that modern Russian constitutional legislation, even in its current form, makes it possible to regulate the nascent social relations associated with the widespread introduction of artificial intelligence technology. In particular, it is noted that the provisions of the Constitution of the Russian Federation allow for an expanded interpretation of the concept "personality", covering not only a person, but also highly developed artificial intelligence. According to the author, the constitutional and legal status of highly developed artificial intelligence should be based on the image and likeness of the constitutional and legal status of a person. The only exceptions should be the following. First is legal personality, which by its legal nature should be extremely close to the legal personality of bodies and organizations and should arise from the moment the relevant decision is made by the competent state authority. Rights, freedoms and obligations should imply a limited amount of personal rights and freedoms, the complete absence of political and socioeconomic rights. The last exception is the limited passive dispositive capacity of artificial intelligence. In addition, the main element in the structure of the constitutional and legal status of artificial intelligence in Russia should be universal restrictions on its rights and freedoms, which would serve as analogues of natural human physiological restrictions and would not allow artificial intelligence to acquire evolutionary advantages over humans. Thus, the structure of the constitutional and legal status of artificial intelligence as a person can and should in the future look like this: legal personality; rights, freedoms and duties; guarantees that ensure the implementation of rights and freedoms; universal restrictions on rights and freedoms.
The paper considers the impact of global digitalization on the detection and investigation of crimes in the field of copyright and related rights violations based on the doctrine of criminalistic research of computer tools and systems, which is part of the private theory of information and computer support for criminalistic activities. It is noted that since the early 2000s, approaches to investigative tactics and forensic research of audio recordings, videos, and software have been considered in isolation from these types of objects. The development of information and computer technologies has led to the transfer of all the above-mentioned objects of copyright and related rights to digital format. Currently, copyright and related rights are protected by digital content, which includes audio-visual products, digital photos, digitized movies, digitized books, and software products. This content is computer-generated information that is independent of its medium and requires a uniform approach to its collection and research. The use of distributed computer technologies makes it possible to store and operate a single information and computer product on different, spaced media. Based on the analysis of existing literature, theoretical research and monitoring of investigative, judicial and expert practice, a new definition of "counterfeit information and computer product" is substantiated. It is a product of conscious human activity which is made using computer-digital technologies, presented in a digital form on one or more information carriers connected via computer networks or data virtualization technology so that several physical data carriers are linked into a logical module. If the product is altered when being manufactured, sold, exchanged, distributed or in any other way introduced into circulation, there is a violation of exclusive rights to the results of intellectual activity or means of individualization. The approach to counterfeit information and computer products as one of the types of digital footprint provides for a new way of tactical and forensic support development for investigative actions, the creation of methods of forensic research.
MEGA-SCIENCE / MEGA-SCIENCE
This paper is a follow up of the paper "Peculiarities of Scientific Research in High-Performance Sports as in the Case of "Formula 1". The author examines the influence of the regulations, which are not formulated in the most obvious way, on scientific research in professional sports as in the case of Formula 1. It is emphasized that the "gray zones" represent a certain gap in legal regulation, which should be negatively assessed by the participants of the competition. At the same time, since Technical Regulations restrict the freedom of scientific research, such provisions allow engineers and designers to fully demonstrate their abilities, creativity and non-standard thinking. Some of the most striking examples in the history of the "Queen of Motorsport", when a particular team used a loophole in the legal regulation, are given. The circumstances of the emergence of innovative solutions, the reaction of competitors and the International Motorsport Federation (FIA) are presented. The author analyzes the decisions of the FIA court of Appeal in cases where a dispute about the interpretation of the rules and the legality of the use of a particular design reached the court. Special attention is given to ambiguous research results that have appeared in recent years, including the Renault team brake bias system, Ferrari fuel system and power unit investigation and the Mercedes Dual-Axis Steering (DAS) system. It is emphasized that the elimination of gaps in legal regulation is carried out not only by adding or changing Technical Regulations, but also by issuing technical directives that are not subject to official publication. The author carries out a comparative analysis of the legal properties of Technical Regulations and technical directives with acts of secondary law of the European Union with similar titles (regulation and Directive) is carried out.
DISCUSSION PANEL / PRO ET CONTRA
The paper deals with current international legal problems that have arisen in connection with the uncontrolled spread of the COVID-19 pandemic. Based on the study of the international legal framework aimed at countering the spread of dangerous infectious diseases, the author concludes that the existing rules and recommendations have been ineffective during the rapid spread of coronavirus infection. The activities of individual states and the World Health Organization are analyzed, and the possibility to request an advisory opinion from the International Court of Justice on the issue related to the spread of the pandemic in 2019-2020 is justified. A proposal has been put forward to establish a Committee on dangerous infectious diseases. The author suggests that international medical law as a complex international legal institution be at the stage of formation and should receive progressive development, including through the development and adoption of international medical agreements. A conceptual framework for decision-making is provided for evaluating and notifying events that may constitute a public health emergency of international significance. The chronology of the events in January — March 2020 related to the spread of COVID-19 and the measures taken to counteract it is reproduced. The author proposes the concept of a new International Convention "On the fight against dangerous infectious diseases" that should enshrine the following provisions: early notification about dangerous communicable disease; cooperation of the states in localization of the infectious diseases foci; cooperation with WHO; grant aid to the requesting state; facilitation of personnel, equipment and property transit through the territory of a state in and out of the requesting state; cooperation of states in order to facilitate the settlement of legal actions and complaints, etc.
The paper is devoted to the legal analysis of the consequences of a new coronavirus infection, due to which the World Health Organization declared a pandemic. By its nature, this infectious phenomenon refers to a force majeure event. Within the framework of the scientific research, the author describes the concept of force majeure, as well as the features of emergency and unavoidability that make up this legal category. In addition, a number of regulatory legal acts regulating public relations in this area are subject to legal analysis, both adopted earlier and published literally from the very beginning of the spread of coronavirus infection throughout the territory of the Russian Federation. Along with the analysis of the regulatory legal acts, the paper also provides judicial practice on the issue under consideration. Based on the legal analysis of the issues under study, it is concluded that adequate legal regulation of the consequences of the coronavirus infection within the framework of relations between civil law subjects will guarantee the participants mutual bona fide behavior in accordance with the norms established by civil law, and in the case of unfair behavior — the implementation of civil liability measures for such subjects. In conclusion, it is noted that prompt and qualitative regulation of the consequences of the coronavirus infection is one of the key tasks in the legal field in the current situation, since contract law, which includes provisions on force majeure, plays an important role in the development and maintenance of stability of civil turnover, providing all its participants with legal guarantees for the implementation of the basic norms and rules established in the Civil Code of the Russian Federation concerning the conclusion and execution of contracts.
The paper examines the legal problems of protection and use of intellectual property in the context of fighting the pandemic. It is noted that the recommendations proposed by the World Health Organization to identify, diagnose and isolate, as well as to provide assistance to patients with suspected coronavirus infection in a pandemic can be effectively implemented only with proper legal regulation of the protection of intellectual property rights to the relevant results of intellectual activity, stimulating relevant developments while maintaining a balance between private and public interests. The paper examines the modernization of Russian legislation in the sphere of relations under consideration. Of vital importance are developments related to medicines and medical devices in preventing and overcoming the consequences of the spread of infectious diseases; flexibility of the legislator and the need to implement special-simplified, accelerated-legal regimes for the introduction of medicines and medical devices into trade. The author summarizes regulations at the interface of the legislation on circulation of medicines and intellectual property law in Russia and abroad (USA, Germany), as well as at the supranational level (EAEC). In modern conditions, the possible rapid spread of viral infections and pandemic threats it is essential to establish the legal basis for the balance between the public interest and the interests of patent holders in national legislations, based on a harmonizing international treaty provisions. The authors considers the restriction of patent rights in the extreme urgency with the obligatory non-exclusive and temporary nature of the use of objects of patent rights by a third party based on such restrictions and the mandatory payment of a just compensation to patent holders together with accelerated and simplified mechanisms for registration and introduction into the turnover of the relevant medicines, including vaccines, be a justified and necessary tool to combat the pandemic and the best means of overcoming its consequences.
IIMPROVEMENT OF LEGISLATION / NOVUS LEX
The paper analyzes the problems of ensuring a fair and cost-effective balance of interests of the parties to an employment contract in the development of various forms of atypical employment, including those revealed through the analysis of the norms on the provision of labor to employees (personnel). There are gaps in the legislation regarding the equal level of remuneration of transferred employees in comparison with the regular staff of the receiving party; the lack of opportunities to participate in collective-contractual setting of working conditions; inability to implement the employee’s right to training and additional professional education. The author examines the legal position of the Constitutional Court of the Russian Federation expressed in the decision of 19.05.2020 No. 25-P "On constitutionality test of Art. 59 part 1 para. 8 of the Labor Code of the Russian Federation in connection with the complaint of I. A. Sysoev" regarding the conclusion of a fixed-term contract with transferred to other employers’ workers. The author concludes that the norms of Chapter 53.1 of the Labor Code of the Russian Federation do not provide a fair and cost-effective balance of interests of the parties to the employment contract in the development of atypical employment. They may seem effective and useful to employers who use their own employees’ labor to minimize staff costs, but this efficiency is imaginary as it is based on short-term benefits and savings on the development of the organization in the future. In this regard, further development of both legislation and law enforcement practice should be based on ensuring a truly equal status of the regular employees and employees engaged by the employer under the contract for the provision of labor to employees (personnel). In the course of the research, the need to make changes to the Labor Code of the Russian Federation is justified.
ISSN 2686-7869 (Online)