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Vol 73, No 9 (2020)
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PRIVATE LAW / JUS PRIVATUM

9-20 816
Abstract

The paper is devoted to the phenomenon of the legal regime investigated through the prism of business law. The authors give a brief description of the main legal regimes. They examine the concept, types, content, features and discuss the legal regimes’ classification using various grounds.
In particular, they supplement the list of special legal regime features with not only possible specificity of an industry or field of entrepreneurship, but also with activities of certain categories of subjects. Following the traditional classification of legal regimes into general, special and specific, the authors determine the place of legal regimes that have appeared recently, namely: the high alert regime, preferential legal regime, and experimental legal regime — in the system of legal regimes for implementation of business activities. The authors describe the preferential legal regime as the specific legal regime, and, with regard to the experimental legal regime, they highlight that it tends to a specific legal regime, although it may claim to stand alone in a system of different legal regimes.
The analysis of the high alert legal regime can lead to classifying it as a special legal regime, as well as to highlighting its distinctive features. Taking into account the spread of a new coronavirus infection (COVID-19) in Russia, a separate emphasis in the paper is placed on the measures of state support taken in order to restore the economy after a nearly three-month stoppage. The authors highlight key measures of state support for business and underline that, despite the temporary nature of the majority of support measures, some of them have been introduced without determining the period during which measures under consideration will remain in force.
The paper provides links to numerous useful Internet resources, referring to which one can obtain comprehensive information on measures of state support approved and adopted during the COVID-19 pandemic.

21-29 566
Abstract

The paper investigates the issue of the unity of labor law in the context of development of legalization of so-called new, atypical forms of employment in European countries and their forthcoming (and partially already completed) legalization in the Russian Federation. The author has analized some negative features of atypical forms of employment, the preservation of which can threaten the unity and integrity of labor law. the paper highlights the inadmissibility of reducing the uniform standard of labor rights and focuses on problems in the institution of labour remuniration and protection. On the basis of the analysis of elements characterizing the unity of labor law, the author describes deviations from the classical features of labor relations that sometimes lead to shifting employers’ (entrepreneurial) risk on the person involved in hired labor.
The author concludes that the extension of the scope of application of the provisions of Chapter 53.1 of the Labour Code of the Russian Federation (albeit in a very limited scope) to employees working in government authorities and the public sector is a very disturbing trend. Traditionally, the budget sphere is seen as low-paid stable employment. The introduction of non-permanent, atypical employment into the public sector reduces the low level of employment rights of employees in the public sector. The development of atypical forms of employment not only actively affect the informal employment sector, but also invade the field of “traditional” relations, setting incorrect directions of HR policies. In this regard, acts adopted by the legislator in the case of legalization of one of the atypical forms of employment must be strictly correlated with the fundamental principles of labor law, the concept of a uniform labor relation and basic rights of the employee, which will prevent the destruction of the unity of labor law.

PUBLIC LAW / JUS PUBLICUM

30-38 452
Abstract

The paper analyzes the necessity of a fundamental reform of the Administrative Code of the Russian Federation with its division into two codes (a substantive part — the Code of Administrative Offences of the Russian Federation, and a procedural part — the Procedural Code of Administrative Offences of the Russian Federation). With regard to the problem of modernization of procedural administrative and tort legislation, the author questions the main directions, objectives and prerequisites of the third codification in this field and draws the conclusion that the fundamental reform of the Administrative Code of the Russian Federation with the division of it into two codes — material and procedural — is premature and, in fact, political decision not grounded by feasible research results. The author highlights that the Concept of the new Code of Administrative Offences of the Russian Federation approved at the meeting of the Government of the Russian Federation in June 2019 primarily deals with the issues of reforming mainly substantive administrative and tort legislation, while proposals for the improvement of procedural regulation of administrative responsibility are not covered in details. The Concept does not contain information concerning the fact that instead of the current Code of Administrative Offences of the Russian Federation two new codes — the Administrative Code of the Russian Federation (CAO) and the Procedural Code of Administrative Offences of the Russian Federation (PCAO) — will be adopted.
The author focuses on the analysis of the draft of the PCAO published on the website of the Ministry of Justice of Russia. Primarily, the paper highlights such provisions that deserve an affirmative response. However, the author devotes the most significant part of the study to the analysis of the conceptual shortcomings of the PCAO of the Russian Federation. Without elimination of these shortcomings, it can hardly been concluded that a complete and qualitative procedural and legal mechanism for the implementation of justice in the field of administrative and tort relations is established in the courts of general jurisdiction.

39-48 958
Abstract

The problem of ensuring national security is so important for the Russian Federation that, along with the rule of human rights and freedoms, as well as patriotism, it can become an ideological pillar. The asymmetry of the state system of Russia poses one of the treats to the state security. It invariably affects the vector and pace of socio-economic development of the Russian Federation, creates conditions for decentralization and, in the long term, could lead to more serious political consequences. A potential for improvement of the state system lies in strengthening of the institution of plenipotentiary representatives of the President of Russia in the federal districts, as well as in considering the further enlargement of certain constituent entities of the Federation. The fact is that the existing model of the state system that evolved as a result of the Russian Federation succession to the USSR does not any longer comply with the national interest creating a gap in the field of ensuring state security.
The existance of the constituent entities that are heterogeneous in territory, population size and composition, economic potential, and the most importantly — the actual amount of political rights granted to ethnos -- inevitably raises the question of the illusory of the equality of peoples settled in the republics, autonomous districts and regions, with other indigenous and non-indigenous small peoples, as well as with the Russians. Such differentiation forms the dynamics of latent migration processes, as well as complicates the criminogenic situation due to “ethnic crime”, including corruption-related crimes, creating problems for the State in the field of law enforcement. This kind of metamorphoses, which require constitutional changes, forces the domestic legal science to develop a perspective model of the state structure of Russia. Discussions on this issue are valuable in themselves, as they allow us to formulate possible directions for the development of the state and law with due regard to the historical destiny and international mission of our State, especially in light of the 75th anniversary of the Victory in the Great Patriotic War. The considerations stated above mainstream this paper.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

49-62 609
Abstract

The paper deals with the history of criminal law and criminal liability in conflictological discourse. On the basis of ideas of legal pluralism, the authors investigate the transformation of the criminal and legal mechanism of conflict resolution from ancient times to the present. They study the customs of exile, blood vengeance, blood reconciliation, as well as a number of other customs of Amazonia and North America. The paper explains that such customs remain until now due to the expressed compensatory character and evaluates the origins of ritualization of conflict resolution procedures in ancient society. The authors examine the circumstances of the disappearance of the victim concept from repentant law, as well as the borrowing of the religious concept of responsibility not before the victim, but before the suzerain by secular law.
The authors note that many generations of lawyers have formed their professional consciousness under the influence of an indispensable formal cliché: for the committed crime the perpetrator must be held criminally liable not before the injured person, but before the State that is not in the least at times guilty of failing to provide the victim with a safe life. Few doubted that the postulate given is the only one true. This example of survivability of ancient criminal law customs demonstrates the interest of society in alternative ways of solving criminal law disputes. The authors conclude that legal pluralism is natural for the area of criminal law due to the expressed compensatory tendency in the society’s perception of criminal liability. The penetration of compensatory elements into modern criminal law is assessed as a positive and only possible trend of further criminal law development.

63-76 852
Abstract

In this paper, the author continues the cycle of his scientific publications devoted to the problems of theory, legislative regulation and practice of cognition and proving of circumstances that are relevant to a criminal case.

The paper investigates and analyzes two of the most common scientific approaches to the essence of criminal procedural evidence: a) a narrow approch, i.e. identifying proving with a specific type of cognitive activity of a person; b) a broad approach, i.e. involving inclusion in the content of proving cognitive (cognitive-verifying) techniques and various argumentative and logical operations carried out by the interrogator, investigator, as well as the accused, the defence counsel, the victim and other participants in criminal proceedings.

Methodologically relying on the results of many years of research conducted at the intersection of philosophy and psychology, psychophysiology and neuropsychology, the author comes to a conclusion about the feasibility of using a broad approach to the essence of criminal procedural evidence that reflect the continuity of this enforcement activity in relation to the general laws of gnoseology and formal logic. According to the author, the use of this approach allows to maximize harmonization of criminal procedural theory with the real life needs of investigative and judicial practices.

At the same time, the paper concludes that many scientific disputes and disagreements about the essence and content of criminal procedural evidence are to some extent factitious and derived from a lack of uniformity in the terminology used. However, the author believes that in modern conditions it is almost impossible to reach any consensus in this part of the development of criminal procedural science. Thus, this circumstance should be perceived as an objectively existing theoretical reality.

HISTORY OF LAW / HISTORIA LEX

77-87 5470
Abstract

The history of Germany of the second half of the 19th century and the activities of Otto von Bismarck form an integral unit, provided we bear in mind the process of Germany becoming a centralized state. The author argues that the attainment of German unity could only be achieved on the paths of war with Austria and France. This implies why military reform in Germany has been given so much attention.

This study is focused on the second stage of military reform — the strengthening of the German army after the establishment of a centralized state. The author poses the question: if the “German issue” was resolved, what was the need for further armament? The Bismarck Government in 1874 and 1881 successfully sought from Parliament the adoption of septennat laws (seven years of funding for the army). But in 1887 the Parliament refused to extend the septennat. The author uses Bismarck’s collection of political speeches in the Reichstag as the main source of research. It is an important source of official origin, reflecting the approaches of not only of the subject of Bismarck’s legislative initiative, but also of Germany’s ruling elite.

A point of view about Bismarck as vehicle of Germanic militarism prevails in historical literature. As a result of the analysis of the debate on the draft law, the author concludes that Bismarck’s military policy was dictated not so much by the militaristic nature of his personality, but by the necessity of strengthening the military potential of Germany, surrounded by strong adversaries, to defend its sovereignty. For the further development of events, the Chancellor who had been removed from his office, cannot be held responsible. The tragedy of Bismarck-era Germany is expressed in the fact that he failed to prepare a successor capable of leading the country during a period of crisis.

GENOME / GENOME

88-99 563
Abstract

Bioprinting is a new technology that allows us to overcome the shortage of human organs and tissues in transplantation. This technology, in addition to its positive effect, creates serious risks, since the negative consequences bound to arise from its active implementation remain unknown. For example, deficiencies in digital design of a digital model of a human organ or the skeleton of this organ may harm the life or health of a patient. Therefore, civil liability has become one of the main areas of legal regulation that bioprinting will have a serious impact on. Foreign law enforcement practice indicates that there are problems in determining the model of liability for harm caused in the field of additive technologies and bioprinting. The foreign science of civil law attempts to develop a scientific response to a new technological challenge, in particular, it is proposed to use a number of approaches to compensate for the damage caused by the use of bioprinting technologies. For example, it is proposed to use a special culpable tort or to compensate for damages under the strict liability model. Positions are also expressed in favor of using contractual remedies.

It is necessary to take into account not only the risks that bioprinting technology creates, but also its benefits. In order to obtain a beneficial effect, the patient can voluntarily assume the risks arising from its use. Russian law has established a rule according to which compensation for harm can be refused if the harm was caused at the request or with the consent of the victim, and the actions of the harmer do not violate the moral principles of society. This rule may become very important in the future when dealing with questions on liability for harm caused to the patient due to the use of bioprinting technologies in treatment. This will require the use of other compensatory mechanisms aimed at protecting the rights of patients, such as life and health insurance when using bioprinting technologies.

100-107 719
Abstract
Modern breakthrough scientific ideas in the field of introduction and development of biomedical technologies have led to a significant objectification of the human body. The paper analyzes the trend of commodification of the human body and its parts from the standpoint of bioethics and law, which determines the consideration of these as goods that participate in economic turnover and have their own price. The problems of insufficiency of human organs suitable for transplantation, the risk of rejection of the transplant by the recipient’s immune system, as well as the need to ensure the safety of donor organs and tissues can be leveled by creating artificial human organs and tissues, including through the use of advanced additive technologies (3D bioprinting), creating a three-dimensional model of a human organ on a cellular basis, which is subject to subsequent transplantation to a recipient in need. The development of 3D-bioprinting allows us to resolve bioethical and legal contradictions caused by the actual inclusion of human organs and tissues in civil (economic) turnover, while international acts enshrine the principle of inadmissibility of commercialization of the human body, by virtue of which the human body and its parts should not be a source of financial benefit. The author summarizes that 3D bioprinting is able to significantly smooth out the negative manifestations of the human body commodification trend. The peculiarity of applying the principle of non-commercialization of the human body is due to the fact that in this case the emphasis is placed on obtaining cellular material for creating a bioprinted human organ. First of all, the principle of non-commercialization of the human body should remain in effect when providing cell material by a third party (donor), even if only in terms of determining the legal regime of cell material and created bioprinted human organs and tissues. If the recipient’s own cells are used, this principle loses its meaning.

CYBERSPACE / CYBERSPACE

108-118 495
Abstract

The network society, which is relevant to the social landscape of the 21st century, determines the building of a new architecture of law. The current legal map of the world is extremely heterogeneous and often does not coincide with the political map of the world. It is full of a variety of normative arrays that collide with each other, layered on top of each other, while the traditional legal methodology is not always able to resolve conflicts that arise. The problem of controversy between law and not law is gaining considerable potential due to the rapid growth of non-legal matter and the emergence of legitimizing institutions. The situation is complicated by the simultaneous existence of several institutional dispute resolution systems (state, non-state, alternative, platform-based) that refer to completely different, relatively autonomous subsystems of norms as applicable law. Such material and institutional fragmentation, the emergence of hybrid regulatory and institutional regimes has provoked an active search for new principles of building a legal architecture that is adequate to such a rapidly changing society. Globalization is transforming into networking, which redefines the geography of the world, the well-known and traditional principles of affiliation of legal entities, and then exacerbates the debates about legal taxonomy. The marked evolution of the legal superstructure also generates new types of conflicts, prompting the search for a new or adaptation of the known methodology in order to overcome them.

The paper attempts to explore the new normativity in the context of a new sociality, to identify key trends in the development of the law of a network society, to predict the development of individual legal and sub-legal institutions, and to model legal ways of managing hybridity.

MEGA-SCIENCE / MEGA-SCIENCE

119-130 448
Abstract

The institutional model of international scientific and technical cooperation in the field of marine scientific research characterizes the status and activities of subjects. It is mainly expressed in the establishment of international intergovernmental and non-governmental organizations. European research infrastructure consortia act as an independent institutional model.

Institutional models of international scientific and technical cooperation can be divided into ecosystem-based and collaborative models. Ecosystem-based models only create the necessary legal, organizational, economic and other conditions for international cooperation and joint marine scientific research. Collaborative models are created directly for international scientific research. There is no strict border between them, but while the former are mainly focused on creating the necessary environment and conditions for simplifying and strengthening international scientific and technical cooperation, the latter mainly adapt the developed mechanisms of interaction to the needs of a particular project.

As ecosystem-type models, the UNESCO IOC and SСOR make the most visible contribution to the formation of regulatory and organizational conditions for the implementation of international projects in the field of ocean research and their financing. They involve a significant number of bodies and programs of international intergovernmental and non-governmental organizations, specialized national scientific institutions, related structures and individual scientists. Collaborative institutional models, such as the European research infrastructure consortium "The European Marine Biological Resource Centre (EMBRC)" and GRID-Arendal, carry out international research projects and act as a unifying platform for various research institutions and scientists, based largely on the organizational, financial and structural basis developed by ecosystem models.

131-142 611
Abstract
The paper deals with issues of international scientific and technological cooperation for environmental protection. The legal platform for cooperation in the field of science and technology (STC) between states is an international treaty. At the same time, the search for an optimal model of international STC requires considering the features of scientific and technological development at the present stage. The development of an international STC for environmental protection is linked to the task of finding the most promising and convenient forms of such cooperation. Along with international agreements on global scientific projects, STC for environmental protection is actively developing at the bilateral level. The paper defines the features of bilateral agreements and memoranda of understanding in the development of scientific and technological cooperation for environmental protection. STC issues for optimal implementation of international environmental obligations are considered. Serious natural disasters present challenges when it is necessary to understand the scientific basis of decisions made by different countries and to improve the exchange of data and information. This determines the direction and activity of STC in relation to the prevention and overcoming of the consequences of environmental emergencies, which is emphasized in the paper. While STC between developed and developing countries has traditionally taken the form of technical assistance, there are now new motivations and opportunities to support scientific cooperation for development and research capacity-building, especially for developing countries in the sense of focusing on real partnership. STC for environmental protection between developed and developing countries is analyzed. In conclusion, a summary of the prospects for STC for environmental protection is presented.

COMPARATIVE STUDIES / COMPARATIVE STUDIES

143-154 587
Abstract
The law of the Republic of Belarus of July 18, 2019 No. 219-Z "On changing laws" introduced significant changes and additions to the Labor Code of the Republic of Belarus. These innovations can be assessed as the third global reform of labor legislation. The importance of this reform is evidenced by the following facts. First, more than 170 articles were corrected. Second, the Code was supplemented with two new chapters. Third, 12 new articles were introduced (except for new chapters), about the same number of articles were excluded. Fourth, 25 articles of the Labor Code of the Republic of Belarus were set out in a new version. The paper analyzes in detail the new legal definitions of labor function, qualification, contract, and local legal acts. The Law of July 18, 2019 No. 219-Z introduced a new Chapter in the Labor Code of the Republic of Belarus on the contract system of employment, which implemented norms from a number of decrees and decrees of the President of the Republic of Belarus. In the course of the last reform, the Labor Code of the Republic of Belarus amended the provisions on the term of the employment contract, employment, transfer, changes in essential working conditions, and dismissal of an employee. The paper reveals a number of conflicts, legal and technical errors and legal uncertainties associated with the adoption of the Law of July 18, 2019 No. 219-Z, which may lead to problems in practice when applying the updated Labor Code of the Republic of Belarus. Special attention is given to the new rules of the Labor Code of the Republic of Belarus on the extension and scope of the collective agreement. The authors make suggestions for improving the labor legislation of Belarus. The comparative legal method is used, in particular, it is compared with the labor legislation of the Russian Federation. It is concluded that the Belarusian legislator has not approached the reform of the Labor Code of the Republic of Belarus in a well-thought-out and scientifically justified way. The shortcomings of the Law of July 18, 2019 No. 219-Z noted in this paper will be overcome and leveled by law enforcement and personnel practice.

IIMPROVEMENT OF LEGISLATION / NOVUS LEX

155-164 463
Abstract

The paper provides a critical analysis of the draft law on the introduction of certain norms in the Criminal Code of the Russian Federation concerning the criminal responsibility of arbitrators. The authors present a number of arguments regarding the fact that the prerequisites for the introduction of such responsibility in Russia are currently absent, since the issue is not sufficiently theoretically developed. Issues related to determining the legal responsibility of an arbitrator in various legal systems are considered. The authors substantiate the thesis that in the existing conditions other legal instruments for stimulating the proper activity of arbitrators are more effective, a number of which are successfully applied. In addition, the implementation of the initiative in modern conditions may involve costs that exceed the expected result.

It is proved that in the case of imposition of responsibility for arbitrators a set of safeguards activities of arbitrators should be simultaneously legislated. Here, the authors propose to establish guarantees of non-interference in professional activities of an arbitrator as well as legal responsibility for obstructing the activities of an arbitrator’s resolution of a particular dispute. The authors suggest that abitritrators be referred to those individuals who are subject to special procedure of criminal proceedings. It is necessary to provide at the legislative level elements of self-regulation associated with the formation of the arbitration bodies who possess significant powers, including regarding the involvement of arbitrators to criminal responsibility.

Based on the results of the research, it is concluded that the relevant issues need to be thoroughly and comprehensively worked out and professionally discussed, which may precede possible changes in legislation.

RECOMMENDED BOOKS AND REVIEWS / INDEX LIBRORUM

165-169 769
Abstract
The review covers the monograph by Dr. Sci. (Law), Professor V. G. Golubtsov "The Russian Federation as a Subject of Civil Law" (Moscow, 2019). The reviewer appreciates the following. Firstly, the aspect of research, namely a complete and comprehensive analysis of the status of the Russian Federation as a subject of civil law, and the way the author considers these problems from the standpoint of civil law. Secondly, deeply reasoned monographic position give a great opportunity to reflect on the set of the problems and proposed solutions and to maintain or introduce more or different positions. The work is well structured: the approach chosen by the author allows us to express and justify his views on the entire range of issues related to the participation of the Russian Federation in public relations as a subject of civil law. At the same time, the volume of work is so large, and the rationale for author’s decisions is so rich, that the reviewer expresses his position only on one, but the most fundamental issue presented in the monograph, namely, the legal nature of state property rights. According to the author, state property relations are included in the subject of civil law regulation, the method of which is such legal techniques as equality, autonomy of will and property independence. The state, acting directly or indirectly, when rejecting public rights and privileges that do not correspond to this method, should be considered as a special subject of these civil relations, acting along with "classical" subjects — individuals and legal entities. According to the reviewer, on the contrary, property relations of state property do not have a commodity-monetary form and, therefore, cannot be included in the subject of civil law regulation. The review provides arguments in favor of the latter position.


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