PHILOSOPHY OF LAW / PHILOSOPHIA LEX
The paper analyzes the main processes that gave rise to such a phenomenon as “public law”. The problem of public law is one of the fundamental problems of jurisprudence. A classical dichotomy of public and private law will never lose its significance, and the search for their harmonious interaction only heightens the interest of thinkers around the world in this issue. We should agree that addressing such issues is always secondto-none, as it gives grounds for the development of the best legal regulation acceptable for a particular society. The very notion of “publicness” has gone a long way to finally gaining a foothold in the political and legal lexicon. In the Digestas of Justinian, the famous Roman jurist Ulpian writes: “Public law, which (refers) to the position of the Roman state, private law, which (refers) to the benefit of individuals; there is the useful for the society and the useful for a private individual. Public law includes the sacreds (sacra), the ministry of priests, the position of magistrates” (D.1.1.1.2). Thus, from the ancient Roman forum through medieval corporations to the political parties of modern times, the public space was certainly controlled by the state in some way or another. It was the intervention of the state in the private sphere that determined the nature of “public” in general and public law in particular. These processes have defined both modern political landscapes and the system of public legal institutions. Although, to a large extent, the motivations that affected the formation of public law were dogmatic, formal and virtual, or imaginary in nature, their influence adopted quite real features and led to practical political and legal consequences.
PRIVATE LAW / JUS PRIVATUM
Currently, neither conclusion nor execution of the contract for the performance of sociological research have legal regulation. The paper proves that the contract under consideration refers to civil contracts for the provision of services. Thus, in case of a dispute, the general rules of Chapter 39 of the Civil Code of the Russian Federation (“Reimbursable Services”) should be applied. The ICC/ESOMAR Code applies to sociological services relations if the parties in the agreement between them have stated the provisions of the ICC/ESOMAR. The essential terms of the contract for the performance of sociological studies using the questionnaire should include: the subject matter of the contract; the type and characteristics of the information collected; the method of research; the study respondents; confidentiality of respondents’ personal data; the term (period) and the place of the study. The subject matter of the contract under consideration covers the main actions of the parties: the performer conducts the sociological research (collects, purposefully processes and transmits certain information), and the customer accepts and pays for services rendered. The collected data is intended for establishing and analyzing social trends, patterns of social development, solving the problems of the society as a whole, population groups and a separate team. Non-essential terms of the contract for the performance of sociological studies using the questionnaire method include the terms stipulating the method of conducting the questionnaire, the quality of the research, the registration of the result of the study and the procedure for the transfer of information, the amount and procedure of remuneration for services rendered, the terms regulating liability for non-performance of the duties of the parties. The author proposes to enshrine in the law a simple written form of any kind of contract for the performance of sociological research regardless of the price of the contract, the personality of the customer and the performer indicating that failure to comply with the simple written form of the contract entails its invalidity.
PUBLIC LAW / JUS PUBLICUM
The paper analyzes the status of bodies and officials of the prosecutor’s office as subjects of protection and subjects of violation of the constitutional right of citizens of Russia to petition as bodies exercising public power, whereas the very norm-principle of the basic Russian law on the right of citizens to petition is considered both as a constitutional right and as a constitutional safeguard. The author identifies the main practical problems, legal gaps and conflicts of law when citizens implement their constitutional right to petition and their reasons. The author proposes options for their elimination at the law-making and law-enforcement levels. It is noted that article 5.59 of the Code of the Russian Federation on Administrative Offences from 2011 providing administrative liability for violation of established procedure of consideration of citizens’ petitions, despite being a very effective instrument for the legal protection of the right under consideration, needs to be adjusted because its discretionary part contains only general language and does not reveal the objective side of this administrative offence. At the same time, prosecutor’s offices have long developed a certain practice concerning the application of Art. 5.59 of the Administrative Code of the Russian Federation as a means of public and legal protection of the violated right of citizens to petition. However, what should be done if the right of citizens to petition is violated by the prosecutors themselves with their special status as subjects of the offense, whereas it is the exclusive competence of prosecutors by operation of law to initiate cases under Art. 5.59 of the Administrative Code of the Russian Federation? The paper is devoted to the search for the answer to this question.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
Based on the provisions of the general theory of systems and the theory of law, the author of the paper, taking into account philosophical objective attitudes, argues that, despite the fact that the law-maker refers legal norms ensuring protection of the military law and order to differnt institutions of criminal law, they must be regarded as a system that is a holistic, relatively independent, component institution of criminal law. The author argues that this system in its type belongs to open systems, since even in the conditions of partial determination in the structure of the criminal law it is able to react to the external conditions through available points of contact. Given various challenges and threats to the military law and order at the beginning, this system, having transformed them, allows in the end to provide prevention of military crime and criminal law protection of the military law and order. It is stated that this system is based on a variety of external and internal relations between its elements and larger formations. Among such connections the author enumerates genetic relations (spawn relations), coordination, subordination and structural intra-system connections that together support homeostasis of the systems of military-criminal norms, i.e. ensure its existence and functioning. The structure of this system depends on its subject and functional purpose, namely, providing criminal legal protection of military law and order in peacetime and wartime. The analysis of the integrative properties of this system, its typological characteristics and subject and functional purpose makes it possible to conclude that the system of military and criminal law rules constitute a sub-brunch of criminal law.
Underestimation of the importance of solving problems in law enforcement agencies in the context of the use of new digital technologies by criminals may lead to the situation when high-tech crime does not replace traditional forms of theft, but may result in a sharp hypoxia of preventive activities, which will lack the planned law enforcement resources and means of responding to emerging threats. The relevance of the paper lies in the fact that when assessing the use of modern digital technologies in scientific literature and regulatory support, special emphasis is placed on specific data functions of technologies to automatically analyze a set of data and with the help of a set of algorithms to make decisions on optimization of processes and activities, that is, the ability to simplify human relationships. However, the experience of law enforcement has shown that the lack of law enforcement support for protecting the society from negative use of technology leads to the fact that the response now follows the criminal consequences of their use of technologies. The creation of artificial intelligence (AI) systems has led to serious social changes, there is a kind of transformation of public relations under the influence of the digital economy, which inevitably creates the prerequisites for the emergence of specific criminal behavior. The paper provides for a brief analysis of information from open sources about the possibilities of criminal use of artificial intelligence. The author aims to analyze the various possibilities of creating a new model of protection against cybercrime under the control of law enforcement agencies in the context of new threats caused by criminal use of AI technology and the new industrial revolution.
The paper is devoted to the analysis of a new ground for recognition of a person as a suspect, introduced under the Code of Criminal Procedure of the Russian Federation, namely, the initiation of a criminal case against the person. The ground under consideration has caused controversial debates among criminal process scholars. The author has carried out a retrospective analysis of the legislative regulation of this ground for giving a person the status of the suspect. The paper evaluates various doctrinal approaches to its merits and disadvantages. The author also demonstartes the need for the new ground for recognition of a person as the suspect in law enforcement on the basis of statistical data, according to which more than half of criminal cases in Russia are initiated against a particular person. The study at question reveals an interconnection between initiation of proceedings upon commission of a crime and a particular person. The conclusion is substantiated that the recognition of a person as a suspect in case of initiation of criminal proceedings against him is aimed at ensuring his right to protection from criminal prosecution. However, the issuance of the order to initiate criminal proceedings against a particular person entails the possibility of implementation of coercive criminal procedural measures against him. It is shown that suspicion forms the substantive basis of recognition of a person as the suspect. The author criticises the approach according to which the issuance of the order to initiate criminal proceedings against a particular person forms an allegation that he has committed an act prohibited under the criminal law. Under this approach the assumption is made that can later be either proven or refuted in the course of further investigation. The author criticises the practice of dividing criminal cases into a judicial perspective and lacking such a perspective, which entails violations of the rights and legitimate interests of individuals suspected in committing crimes.
INTERNATIONAL LAW / JUS GENTIUM
The international community is experiencing the beginning of a new era in the development of international environmental law, where the rights to healthy environment are protected not only by international intergovernmental and non-governmental organizations, States, but also by young activists around the world. Since 2020, States have committed themselves to implementing nationally determined contributions made in accordance with the 2015 Paris Agreement. (The Russian Federation is one of the Parties to this Agreement). The Fifth Montevideo Programme for the Development and Periodic Review of Environmental Law implemented under the auspices of UNEP was also launched in 2020. Thus, the UN is trying to intensify the process of improving and implementing international rules of law of international environmental law into the national legislation of Member States. The review of international and national practices on environmental disputes indicates a trend towards an increase in this type of disputes, which in turn shows an increase in the level of legal culture and legal consciousness of citizens. These are people who are not indifferent to their future and the future of the next generations, to a healthy environment and to a prosperous life on the Earth. It is important to understand that, in accordance with the principles of international environmental law, such as “the environment is the common concern of mankind” and “the relationship between the protection of the environment and peace , development, human rights and fundamental freedoms”, the responsibility for pollution (in broader understanding) is borne by each of us: citizens, companies, States, international organizations, and everyone should be interested in achieving the goal of protecting it.
Historical science shows a growing interest in the study of images of the past, images of historical reality; the reconstruction of mentalities is becoming a priority in the field of historical knowledge. The paper aims at finding (developing) methodological tools for a retrospective study of the legal mentality, as well as its subsequent representation.
Historians and legal theorists are paying more and more attention to the process of forming concepts and relevant terminology. At the same time, the "supraconceptual field", namely the field of images, contains a significant potential for both reconstruction and representation of mentalities and historical phenomena (events). The concept itself is only one of the triggers forming images associated with it and partly generated by it. Legal concepts are the object of linguoculturology of law as one of its branches. At the same time, the author believes that the historical legal science should more actively use the appropriate scientific tools on an interdisciplinary basis. In terms of the reconstruction of legal phenomena, their image will help to study the phenomena that are immersed in the mentality of the corresponding era in a more systematic and comprehensive manner. In terms of the representation of legal phenomena, a well-chosen image recognizable by the recipient of the results of legal historical research can serve as a relay of "contextually packed" information (with elements of both rational and evaluative or emotional information) about a legal historical phenomenon.
The paper attempts to reconstruct and represent the phenomenon of a "snitch" in the sense of "abuse of procedural rights" by means of a chronotropic, figurative model. The reconstructive and representational model is based on the image symbol of the trial as "roads-paths-tracksways" and snitches are considered as a "path".
The paper presents a comparative legal and comparative historical analysis of one of the aspects of the institution of the arbitration, namely, the election of an arbitrator. The contractual, non-state nature of arbitration leaves the disputing parties with a wide freedom of expression, including in determining the personality of a mediator or intermediaries in resolving a dispute. The paper focuses on identifying the key features that the disputing parties should pay attention to when choosing an arbitrator (judges). The Roman jurists established comprehensive and justified set of personality traits that an arbitrator should possess in order to maintain the general idea of the conclusiveness of judicial decisions. According to the norms of Roman law, an arbitrator must be a free person, physically healthy, with a developed intellect, with life experience, not tainted by immoral acts, not involved in illegal activities, not interested in a certain outcome of the case. In the Middle Ages, the system of mandatory requirements for a mediator in a dispute was reduced due to the simplification of public relations regulated by customary law, which was reflected in legislative documents. Priority was given to the high social stratum, ethnic and religious conformity of the judge to the disputing persons. In modern times, the freedom of litigants to choose arbitrators is almost absolute, taking into account the tendency to individualize the interests of the parties to the conflict and the inability to take into account all the particular circumstances of various disputes that could affect the choice of an arbitrator. Only when resolving economic disputes, the parties were guided by the judge’s special knowledge, which makes it possible to understand the essence of the property dispute and make a fair decision. The analysis made it possible to identify the continuity of the provisions of Roman law and the requirements imposed on the arbitration intermediary in the Middle Ages and Modern times. Historical comparison revealed a tendency to reduce the number of mandatory features of the candidate for arbitration, which determined the growing importance of the freedom of the disputing parties as the most significant feature of the arbitration court.
MEGA-SCIENCE / MEGA-SCIENCE
In recent years, Russia has invested significant assets in unique scientific facility of the “Megascience” class that are being built or are already operating on the territory of foreign countries, mainly member states of the European Union: the International Thermonuclear Research Reactor-ITER (France), the European X-ray Free Electron Laser-European XFEL, the Large Hadron Collider (Switzerland and France), etc.
How reliable and safe are such investments in the context of the sanctions policy of the West, including the EU, against our country? To what extent are they protected by the principle of immunity of states and international organizations, which is generally recognized, but is not interpreted and applied in different legal systems? The paper considers these issues in the context of the development of the judicial practice of the supranational institution of the judicial power of the EU, namely the Court of Justice of the European Union and the concept of relative immunity (immunité relative) formulated herein.
Having conducted a comparative legal review of the current state of the sources of law and doctrine on the issues of immunity of states and international organizations, the author analyses and evaluates the decisions of the EU Court of Justice and the legal positions of its attorneys General:
— Mahamdia v. Algeria, 2012: for the first time ECJ formulates the concept of relative immunity in relation to states;
— "Rina" and "Suprim" cases, 2020: EU Court clarifies the interpretation of the concept of acta iure imperii (acts of public authority), in respect of which states retain immunity in the EU, and extends its concept of relative immunity to international intergovernmental organizations.
The final section deals with legal issues that yet to get a clear answer in the practice of the EU Court of Justice. In this regard, the author highlights possible directions of its evolution, and studies other recent decisions of the EU Court of Justice that may affect Russia’s national interests in the context of cooperation with EU member states in the scientific and technical sphere, including megascience, and in other areas.
IIMPROVEMENT OF LEGISLATION / NOVUS LEX
The 21st century has seen the development of biotechnologies and artificial intelligence technologies leading to illegal testing of a gene and the introduction of a person’s voice, image, body movements into appropriate electronic procedures, followed by the imitation of a similar human voice, body movements, etc., which can cause a violation of personal rights. Since the establishment of the PRC, four codifications of civil legislation have been carried out: 1954, 1962, 1979 and 2001. However, none of them was implemented for various reasons. In May 28, 2020 for the first time, China has adopted the Civil Code of the People’s Republic of China entering into force on January 1, 2021. The Civil Code of the People’s Republic of China has become the basic law of the market economy in China. It consists of seven parts: "General Part", "Property law", "Contracts", "Personal rights", "Marriage and Family", "Inheritance", "Tort liability" and "Additional provisions". The paper analyzes the features of civil protection of human rights in the new Civil Code of the People’s Republic of China in the era of the development of biotechnology and artificial intelligence. The author examines the provisions on the legal protection of human rights in the illegal occupation of medical and research activities related to human genes, human embryos, and reveals ways to protect the rights to image, voice, privacy and personal information in civil law in violation of personal rights using artificial intelligence technology in China. The author also explains the regime of a preliminary injunction in civil law and ways to find a balance of different personal rights and interests in the Civil Code of the People’s Republic of China.
The paper analyzes the investigative experiment regulatory issues. It is stated that because of the extreme conciseness of legal regulation, many aspects are based on scientific developments. The purpose of the investigative experiment is to establish whether the algorithm of trace formation as a result of the experimental actions performed by the investigator corresponds to the mechanism that took place when committing a criminal act.
The conditions of the investigative experiment are highlighted: 1) exclusion of danger to the health and life of its participants; 2) similarity of the situation with that which took place during the checked event; 3) voluntary participation; 4) the inadmissibility of reproducing a crime. The cases in which the participation of the person who committed the act in the course of the crime is required (to check individual characteristics and skills), and in which the replacement of this person with a stand-in is possible (to check the fundamental possibility of a phenomenon that is not related to individual qualities) are differentiated.
The main participant of the investigative experiment, if his personal characteristics are checked, must have the procedural status of a witness, victim, suspect or accused. Specific participants of the investigative experiment are distinguished: the understudy and the assistant, who are not given an independent procedural status. Proposals for participation in the investigative experiment of all persons who are in one way or another concerned with the results of experimental actions are considered. Such proposals are unrealistic, instead, it is proposed to use a video recording to record the progress of the investigative experiment, which can be demonstrated to other participants in the proceedings.
Taking into account the legal nature of the investigative experiment, it is stated that it is impossible to seize material objects directly within the framework of this investigative action; they can be seized after its completion, during inspection or seizure.
JUDICIAL REVIEWS / RES JUDICATA
With the development of technical capabilities for the exploration and exploitation of the continental shelf, the desire of coastal states to expand the area of their jurisdiction in the "underwater territory" (the territory of the seabed) increased. Thanks to the activism of the judges of the International Tribunal for the Law of the Sea, the concept of the continental shelf for the purposes of international maritime law has been significantly developed. As a result, the coastal states signatories to the 1982 Convention on the Law of the Sea were able to establish the outer limit of the continental shelf, which, under certain conditions, can extend even beyond 350 nautical miles from the baseline.
Disputes between states on the continental shelf mainly arise in connection with the need to distinguish between marine areas rich in sources of living and non-living resources. In such cases, it may be necessary to delineate the continental shelf between adjacent States (with a common border) or located opposite each other, i.e. their delimitation under article 83 of the Convention on the Law of the Sea. The subject of the dispute is the external legal boundary of the continental shelf of the state, where it extends beyond 200 nautical miles from the baseline of that state (the continental shelf beyond 200 nautical miles), adjoins the area that is the common heritage of mankind, outside the jurisdiction of any of the states.
On the issue of determining the limits of the continental shelf beyond 200 nautical miles, the decision of the International Tribunal for the Law of the Sea of 14.03.2012 "On delimitation of maritime boundary between Bangladesh and Myanmar" is of a precedent value, since no international court has previously addressed this issue.
ISSN 2686-7869 (Online)