FUNDAMENTAL PROBLEMS OF THE LEGAL SCIENCE / PROBLEMA PRINCIPALE
The paper is devoted to the issues of conceptualization of legal development in the 20th and 21st centuries. The paper investigates social relations that determined the global law evolution in the 20th century, as well as changes in macroregulation in the first quarter of the century under consideration. The subject matter of the analysis covers theoretical understanding of the development vectors in the essence of law at the turn of the last two centuries.
As a scientific hypothesis, the author puts forward the statement regarding regulatory specificity and a special strategic role of the 20th century for subsequent legal development. Proving this hypothesis, the author structures the directions of global transformation of social essence and social interrelations of law in the preceding period. The author also shows that these changes have led to the rise of a systemic postclassical legal tradition. The author has described its characteristics and the role in the formation of a new legal identity of the 21st century. The paper also examines the signs of novelty of the law of the present century. The author determines the features of its regulatory individuality generated by technological changes. It is concluded that the novelty of the law of the present century is preconditioned by the combination of Postmodern and the era of introduction of technological regulators.
The paper shows the directions of formation of regulatory individuality of the 21st century, its contradictions related to the legal adaptation of a new technological order. It is concluded that the legal regulation moves towards inclusion patterns of nature and new biological and virtual states of the man in its immediate subject matter. The legal complex integrates the methodology of technology and the artificial language of technology, which results in providing a significant insight into the boundaries of social and technical norms.
The paper questions the possible rupture of the legal tradition, which the 21st century is bringing, the factors of its aggravation, including the pandemic. The assumption is formulated that a new law arises in the system of innovative interrelations in the technological sphere that leads to the restructuring of institutions of law and legal relations, as well as to the formation of new value properties of law—its syncreticism, integration of the individual and the general, non-subjectivity, non-objectivity, public-private permeability, anthropomorphism.
PRIVATE LAW / JUS PRIVATUM
The business reorganization regulation has traditionally been associated with creditor’s rights protection. The main difficulty in this case lies in the fact that in attempts to provide comprehensive protection of creditors to prevent them from losing the main thing for which the reorganization is needed—in fact, to enable enterprises to adapt to changing economic conditions—because in the presence of excessively burdensome rules, entrepreneurs will not be able or not want to take advantage of such a legal regime. In other words, any law and order is forced to seek a balance between the interests of reorganized entities and creditors. The Russian doctrine is largely isolated from the European tradition and focuses on the discussion of private issues of the application of Russian rules and lacks clear conceptual guidelines for development of these very rules. Special rights that the creditor has in connection with the reorganization of the company constitute the basis for the protection of the creditor’s legitimate interests. The shortcomings of domestic rules give rise to practical problems in the implementation of reorganizations. The creditor’s exercise of special rights during reorganization creates many risks for the company. In this regard, all legal orders impose restrictions on creditors exercising their rights. The paper discusses expedient restrictions of such rights on the basis of the European doctrine.
The author concludes that each law and order has developed its own restrictions regarding the circle of creditors protected during reorganization. Concurrently, from the point of view of the previously considered rationale for the protection of creditors the only restrictions we can justify are the restrictions on the exercise of special rights in the event of reorganization of those creditors whose obligations arose after the reorganization started (disclosure of information about reorganization), as well as creditors who have other means of protecting their legitimate interests (for example, a counter-non-performance objection or the right to demand termination of the contract).
The paper investigates the legal nature, essence and significance of the business contract, its role in the implementation of entrepreneurial activity. At the present stage of the development of the society and law and order, the vast majority of legal relations in countries with developed or rapidly developing market relations arise and develop on the basis of various business contracts. The business activity carried out by entrepreneurs, is, as a rule, organized on a contractual basis. As you know, the contract is a universal legal instrument that allows detailed settlement of specific relationships and relations between business entities. At the same time, the freedom of such regulation is limited by the imperative prescriptions of the rules of law and the expression of the will of the parties to the contract. That is, the contract plays a special role in the implementation of entrepreneurial activity, as it is one of the important instruments of individual legal regulation of entrepreneurial relations.
The authors note that the current legislation does not provide for any legal definition of the "business contract". On the contrary, the law-makers apply the concept of "obligations associated with the implementation of entrepreneurial activities", which, although not identical to an entrepreneurial agreement, allows us to assert that domestic legislation sets forth factual prerequisites to the legal regulation of the business contract. In conclusion, the authors attempt to define the business contract and determine its distinctive features.
The authors summarize that modern market relations, development of entrepreneurship are based on the principles of increasing the level of competition, state dispositive regulation, and equality of participants. Guided by such important principles, individuals carry out business activities where the rules of civil legislation play a significant role (as general regulations) and special rules established in certain regulatory legal acts of the Russian Federation governing contractual business relations.
PUBLIC LAW / JUS PUBLICUM
At a new stage in the development of digitalization, the main challenge is the expotential growth of quantity, quality, diversity of links between citizens, organizations, development institutions and legal regulation, public authorities. Interrelations are dynamic and unstable due to a number of factors because of insufficient synchronization between all elements of socio-economic systems and institutions.
The paper examines topical issues of competition law in terms of legal regulation of digital markets. The authors provide for the legal interpretation of the digital market. Key aspects of legal regulation of digital markets are defined. The authors propose instruments of legal regulation of emerging digital markets for the Russian Federation. Their proposals are based on generalization of European experience and practice of the OECD countries.
The authors substantiate that widespread digitalization threatens to monopolize economic relations. And this is monopolization of a new, not classical character. Therefore, it is important to identify properly the forms and methods of legal protection of competition in specific digital markets.
Based on the results of the study, the authors conclude that the development of the digital economy and the formation of new market relations establish prerequisites for the improvement of antimonopoly regulation, legal rules unification for the protection of competition in global digital markets. Digital markets differ from traditional ones. Therefore, they need special legal regulation. The practice of antimonopoly regulation in the OECD countries should be considered in the context of their consistency with Russian legislative conditions.
Strategic planning in land is now at the stage of development and adoption of new documents defining goals, objectives, directions, priorities and instruments of state land policy and land management. The uniqueness of this object of public management and strategy requires a systematic approach to strategic planning based on both the ecological and social significance of the land and economic value of land resources. The authors examine the possibility of their use as a natural means of agricultural production, draw attention to forestry—the most important factor in the development of economic industries as a territorial (spatial) basis (foundation) of economic activity—location of capital construction objects, other real estate objects, development of modern systems of settling population in an urban and rural areas, urban agglomerations. Accordingly, strategic planning for land management in real estate and spatial development is an important part of land management, urban planning and other related areas.
The paper considers terminological and conceptual problems of the object and subject matter of these relations (land, land resources, territory, space, real estate, spatial development, land use ) in the cross-sectoral context of strategic planning. The authors have determined the main issues of formation of the concept and strategy of state strategic management concerning land resources in general, as well as the land use strategy in differnt settlements in the context of present day factors influencing the state of development of this strategic area. The paper examines intersectoral aspects of preparation of documents of strategic planning, the connection of the land use with other areas of strategic management of public development (socio-economic, spatial, urban planning, state property management, energy, environmental safety).
As the result of the study, the authors propose new approaches to land strategy and its improvement.
INTERNATIONAL LAW / JUS GENTIUM
International agreements are of particular importance in interstate energy cooperation. The application by the Russian Federation of the mechanism of temporary application of treaties in the field of energy requires a comprehensive analysis, taking into account the problems that have arisen in connection with the provisional application of the Energy Charter Treaty and subsequent amendments to Article 79 of the Constitution of the Russian Federation. The general and sectoral approaches to the provisional application of treaties that exist in Russian practice need to be improved.
The paper analyzes and compares the norms of international law and Russian legislation regulating the provisionary application of treaties, the works of Russian scientists, which highlight the general problems of the provisional application of treaties by the Russian Federation, as well as the final provisions of treaties of the Russian Federation in the field of energy.
The author identifies common gaps in the norms of Russian legislation regulating the provisional application of treaties, trends and problems of the provisional application of multilateral and bilateral treaties by the Russian Federation in various energy sectors.
The author concludes that the new approach should be based on a restrictive approach to the use of the institute of provisional application of treaties regarding terms and types of treaties. The treaties to which a special restrictive approach should be applied are to include those that have significant financial and economic consequences, provide for expenditures or lost revenues of the budget of the Russian Federation, regulate taxes, duties, and the provision of state credit; agreements on the borders, delimitation of maritime spaces, the status or regime of individual territories; and agreements that provide for the mandatory jurisdiction of judicial and arbitration bodies.
The continuous improvement of international legal regulation in the field of energy should be a separate state task, since, despite numerous skeptical assessments, international law plays a special role and will be of great importance in the regulation of international relations, including in the field of energy.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
The importance of criminal law protection of competition is determined by the important role that competition plays in a market economy, namely, its ability to promote the growth of public welfare, as well as the socially dangerous consequences of acts that are directed against it. The need for state intervention in the economy, especially in the field of competition, is basically a recognized position in economic science. However, there is a discussion among researchers about the problems of criminal law impact on the sphere of economic activity. A number of authors point out the importance of criminal liability for anti-competitive acts, as well as the need to expand the scope of criminal law impact on other manifestations of anti-competitive behavior.
The paper notes that the impact of criminal law on the economy is based not only on constitutional and legal guarantees of protection against monopolization and unfair competition, but also on economically justified reasons. Applying the economic approach the author conducted the study of the impact of anti-competitive violations on public welfare and the economy. As a result, the author notes the relatively similar nature of the negative consequences of different types of anti-competitive acts. The scale of such consequences led to the recognition of the anti-competitive actions considered in the paper as market failures that require state intervention. Particular attention is given to the economic justification of the criminalization of cartels, acts of corruption in the field of competition, unfair competition.
Based on the criminal-legal approach, taking into account the economic analysis of the consequences of anticompetitive acts, the conclusion is made about the degree of their public danger, about the impossibility of excluding criminal legal counteraction to such behavior, despite the fact that decriminalization of individual acts can be effective if the state takes the necessary measures.
THEORY OF LAW / THEORIA LEX
HISTORY OF LAW / HISTORIA LEX
In the Soviet theory, the complex and confusing path that administrative justice overcame in its formation is conditionally divided into four stages. Based on the periodization identified by Soviet scientists (A.V. Absalyamov, V. I. Piunova, and D. M. Chechot) the authors conclude that the institute under consideration was more or less developed in 1961-1993. The administrative justice of the second half of the 20th century has a relatively high quality characteristic, because, first, at the fourth stage of the Soviet period, the right to judicial appeal was assigned to a wider range of persons and was provided for in the most important spheres of society. Second, with the adoption in 1961 of The Foundations of the civil procedure in the USSR and Union republics disputes between the bodies of Soviet power and citizens were separated from other cases and formed a separate category. These two circumstances determined the choice of the research topic.
The authors analyze the normative legal acts adopted in the post-war years, which regulated public-legal relations. Familiarization with the theory of the Soviet administrative justice and the practice of its application in the second half of the 20th century is of interest to the former Union Republic, namely the Kazakh SSR. The paper describes the Soviet way of development and improvement of the institute of administrative justice in the period from the end of the Great Patriotic War to the beginning of the collapse of the Soviet Union. The purpose of the work is to study the public legal relations that arose between Soviet citizens and the Soviet state in the person of its bodies and institutions, as well as officials and employees.
ISSN 2686-7869 (Online)