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Vol 74, No 6 (2021)
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ANNIVERSARY / LIBER AMICORUM

FUNDAMENTAL PROBLEMS OF THE LEGAL SCIENCE / PROBLEMA PRINCIPALE

11-22 815
Abstract

The paper elucidates the history and current state of the administrative procedure doctrine, the idea of the structure of the administrative procedural code of the Russian Federation, shows the role Prof. Nadezhda G. Salishcheva and Prof. Valentin D. Sorokin plaid in the development of the theory of administrative procedure. The author highlights that the first link of administrative procedural activity and the structure of administrative procedural law have been created. The second link, namely, the creation of the Administrative Procedural Code of the Russian Federation has been completed. The third link that involves the recognition by the legal scientific community of the fact that, in the system of Russian law, administrative procedural law does exist, has taken place. And, according to strict logic, there is a need for the fourth final link in the system of administrative procedural activity, namely: the creation of an all-Russian system of administrative courts, which will require a financial basis, the availability of human resources and a modern digital infrastructure, including a unified all-Russian database of citizens and organizations brought to administrative responsibility qualified according to the constituent entity of the Russian Federation and fields (areas) of management, high-speed Internet connection with all local jurisdictional authorities. And as we can see, the system of administrative courts will meet the needs of two branches of state power — the executive branch and the judiciary.

The author expresses the wish that curious scientists — administrative law experts — appear in Russian science, who would be interested in the considered scientific issue that constitutes an interesting and very important problem and proceeds researching the theory, legislation and practice of the administrative procedure.

PHILOSOPHY OF LAW / PHILOSOPHIA LEX

23-35 494
Abstract

The paper highlights the main stages of the formation of such a philological and legal phenomenon as a metaphor. From ancient times to the present time, the "metaphorical imperative" has determined the most important aspects of the emerging legal reality. The transfer of meanings in jurisprudence took the form of analogy and the objective influence of symbolization and virtual legal structures.

Metaphors were also considered as factors of the formation of legal theories acting as some kind of "preforms". Metaphors did not perceive existing similarities, but they themselves created them. This was their significance as "demiurg tools". Therefore, metaphorical expression produced effects rather than meanings, but meanings leading to change. The birth of a new legal meaning was largely spontaneous and unpredictable: it is known that law enforcement sometimes differs from the original intention of the lawmaker and legislator. For the precise establishment of the content of the law, legal knowledge of its original meaning is also necessary. The hermeneutic problem is to bridge the gap between the law and the incident. A change in the social or political situation should not determine the current law to obsolescence: the inherent irrational elasticity of a legal idea provides a field of action.

There are also "resonating" metaphors that induce a large number of implications, stimulating new interpretations that reveal hidden implications. Thus, a certain loss of meaning inevitably takes place.

The paper clarifies: in the history of law, the metaphor has gone from mythological and traditional ideas to modern legal fiction and "simulacrum".

PRIVATE LAW / JUS PRIVATUM

36-45 647
Abstract

At the beginning of 2021, new norms came into force, completely revising the content of Ch. 49.1 of the Labor Code of the Russian Federation concerning remote workers. Since 2020, the interest in this form of labor relations has acquired a feverish character due to the need to adapt to the COVID-19 pandemic. The original text of the amendments was prepared for the State Duma by the Department of Labor Law and Social Security Law of Kutafin Moscow State Law University. However, it was deeply revised during the discussion by social partners. The paper evaluates how the new rules on remote work solve the key problems identified by experts in connection with this form of work. The author makes conclusions that, as a whole, the new norms, to a greater extent, reflect the interests of employers rather than employees. For the convenience of employers, rules have been adopted that provide for the unilateral temporary transfer of employees to remote work mode in emergency situations, for the recall of employees from remote to stationary ork mode, etc.

Unfortunately, the law failed to solve the urgent problem of securing the right of workers not to be in constant communication with the employer (“the right to disconnect”). The most important asset for workers is the exclusion from the Labor Code of the Russian Federation of the discriminatory right of employers in relation to remote workers to secure additional grounds for dismissal in an employment contract.

A number of significant problems in the legal regulation of remote work remained unsolved. We are talking about transnational and trans-regional remote work, when remote workers and their employers are located in different states or in different constituent entities of the Russian Federation.

46-55 666
Abstract

The use of "close connection" in conflict of laws area and in international civil procedure preconditions the question whether it is possible to interpret it uniformly both as a basis for establishing the jurisdiction to resolve cross-border private law dispute, and as a basis for choosing the applicable law.

When studying close connection within the framework of conflict-of-laws regulation, the author of the paper, along with the concept of "close connection" examines the concepts of "connection with only one country" and "the closest connection". The paper also discusses the concept of Proper law which, as a rule, in the Russian doctrine is identified with the category of close connection.

Analysis of the close connection as the basis for establishing jurisdiction has led to the conclusion that it is necessary to apply a differentiated approach to determining the content of close connection within the framework of Conflict of Laws and international civil procedure. This assumption is based on the fact that when establishing jurisdiction to consider cross-border private law disputes on the ground of a close connection, a special task is solved to overcome the conflict of jurisdiction while observing the principle of equality between judicial procedures of different states, as well as the principle of international judicial cooperation. In addition, within the framework of the international civil procedure, the concept of “foreign element” preconditioning the manifestation of a close connection of the disputed legal relationship with the court of the state, can be endowed with additional content except the content attached to the foreign element within the framework of the conflict of laws, namely: obtaining evidence abroad; enforcement of a court order abroad, etc.

PUBLIC LAW / JUS PUBLICUM

56-67 507
Abstract

Environmental regulation is a mechanism that restores the balance on the path of sustainable socioeconomic development of Russia.

The paper examines the problems of regulatory pressure from the EU and the US on the implementation of the environmental and energy policy in Russia. It is shown that the national environmental legislation, the national environmental regulation of Russia is increasingly dependent on environmental regulations and standards of the EU and the United States. Foreign environmental rule-making as an element of expansion is manifested not only in the example of the carbon tax, but also in many other cases. The EU directives are built on the principle of preserving the quality of the environment and individual components, but at the same time, they are the instruments that allow the EU member states to enjoy a certain kind of advantages over other countries that are not included in the EU environmental control zone.

The authors conclude that gradually, in foreign practice, environmental regulation is becoming not only and not so much a tool for protecting the environment as a convenient mechanism for solving economic problems.

The authors conclude that the only way to resist the obvious expansion of environmental rule-making is to have a proven and obvious “environmental” alternative. Leadership in the field of environmental management, environmental safety will give the economic policy of the Russian Federation meaning and support from the whole world in the event that national environmental standards have their own content that is different from others (the EU and the USA).

68-78 572
Abstract

The paper is devoted to the consideration of issues related to the value of the legal mechanism of budgetary regulation for the management of economic and social processes in a modern innovative society. The conceptual basis of the study was formed by the regularities of distributive financial relations that are objective in nature. Acting with the help of the rules of law regulating financial relations, the federal state through its public apparatus, on the one hand, regulates these relations, and on the other hand, forms, on the basis of these relations, financial and legal regulatory mechanisms for managing society as a whole. It has been established that the finance (the financial system), public financial activity and financial law constitute interrelated and interdependent elements of a uniform system that determines the distribution of gross domestic product in the state. For public financial activities aimed at distribution and redistribution of funds within the budgetary system of the Russian Federation, the mechanism of budget regulation governed by the rules of financial law is of key importance. In the course of the study, the author highlights various features of distributive financial relations in a federal state, examines approaches to the characterization of public financial activity, focuses on aspects of the concept of "budget regulation", and analyzes the significance of this mechanism for maintaining the stability of a federal state. The author concludes that groupings of financial law norms regulating certain types of homogeneous interbudgetary public relations associated with the distribution and redistribution of funds within the budgetary system of the Russian Federation constitute separate legal forms (methods) of budgetary regulation subdivided into primary and secondary forms (methods). It is concluded that in an innovative society, budget regulation is of key importance in the process of public financing, de facto performing the role of a universal management tool that ensures a socio-economic balance in the society.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

79-94 1439
Abstract

Today, in the context of universal digitalization and informatization of the society, the Internet environment is becoming a criminogenic communication environment, favorable for the commission of "speech crimes", i.e. speech actions that form the objective element of the corpus delicti. The paper is devoted to the criminological analysis of the factors that determine the negative impact of information threats on users of the digital communication environment (primarily, the Internet environment). Based on monitoring social communication in the Internet and analyzing the patterns of language functioning in conditions of the Internet communication, the authors summarize the main properties of the Internet communication and factors that provide the possibility of abuse of rights (freedom of speech and the right to freely search, receive, transmit, produce and distribute information) in order to have a destructive impact on the ideological safety of Internet users (primarily children and young people). Such factors include simulation, virality, hyperreality, the phenomenon of social disinhibition, etc. Particular attention is paid to the concept of destructiveness of information impact, considered on the basis of an analysis of the phenomena of human destructiveness, aggression and cyber aggression, deviance and delinquency. The authors propose to treat content risks and communication risks as forms of representation of destructive speech behavior in the digital environment as information threats to the ideological security of the Internet communication. The paper provides the authors’ classification of the information risks under consideration based on a generalization of judicial and forensic practice (including cases when materials were included in the Federal List of Extremist Materials by court decisions), the practice of the Federal Service for Supervision of Communications, Information Technology and Mass Communications (Roskomnadzor), as well as interdisciplinary analysis of scientific publications. The authors suggest that the terms "mortilatrya" and "eridophobia" be introduced in the context of ensuring the worldview security. The authors of the paper analyze the influence on the axiosphere of the Internet user of delinquent subcultures that erode a person’s identity in order to impose a new pseudo-correct- identity.

95-107 920
Abstract

The question of the legal nature and the binding nature of explanations of the Supreme Court of the Russian Federation remains debatable in the literature. When considering criminal cases, the courts do not always follow the decisions of the Plenum of the Supreme Court. It seems that the explanations of the Supreme Court, while not being a source of criminal law, are nevertheless binding on courts and officials applying the norms of criminal law. This is a general rule, to which there are exceptions. First, there are erroneous explanations of the Supreme Court, which are not based on the established judicial practice and are not supported by it. Second, there are outdated explanations of the Supreme Court that do not meet modern legal realities. Third, there are explanations of the Supreme Court, which, in relation to a particular situation, require an expansive or restrictive interpretation. In these three situations, the Supreme Court’s explanations do not bind the law enforcement officer. The binding nature of the Supreme Court’s explanations is determined by the value of the law as such. Questions of law require a uniform resolution. An alternative to a uniform interpretation of the law is arbitrary administration. Arbitrary administration is not within the competence of the judge. There is no case law in Russia. The works of legal scholars in modern Russia also cannot satisfy the need for a uniform interpretation of the law. The significance of the explanations of the Supreme Court determines the high requirements for their quality. The Supreme Court’s explanations should not directly contradict the law. The Supreme Court’s explanations should not change unless there is an urgent need to do so. The rule nullum crimen, nulla poena sine lege, being an achievement of legal culture, binds the Supreme Court. By clarifying the practice of applying the law, the Supreme Court forms and preserves judicial doctrine, thereby providing legal certainty.

108-117 930
Abstract

The paper considers the legal positions developed by the courts in cases of theft of someone’s property. The author is critical of the concept of "judicial doctrine", believing that the courts in essence cannot create a doctrine (theory, science), but notes the significant role of the legal positions of the courts in the formation and development of the doctrine (theory) of theft. The purpose of the work is to find an answer to the question of whether the legal positions of the courts on the application of the legal definition of theft in practice remain relevant (note 1 to Article 158 of the Criminal Code of the Russian Federation), as well as the doctrine about this crime and its elements. Having studied various points of view contained in the scientific literature, as well as the positions of the courts, including those expressed in individual decisions of the highest judicial instance of the country, the author concludes that neither the legal definition of theft nor the doctrine of it has lost its relevance. We should not be talking about the "revision" of legal and scientific structures or the "collapse of the system", but about the crisis of practice and doctrine due to the uncertainty associated with the emergence of new property goods and objects (virtual assets, digital rights, etc.) and forms of encroachment on property that are not covered by any of the features of theft. For this reason, in the absence of answers to the challenges that have arisen, controversial decisions are made in judicial and investigative practice, and contradictory recommendations are proposed in the scientific literature. According to the author, the crisis that has arisen can be solved by introducing legislative amendments to Chapter 21 of the Criminal Code of the Russian Federation aimed at forming norms on new property crimes against property that do not contain elements of theft of someone’s property.

118-126 385
Abstract

The importance of the measure of procedural coercion in the form of seizure of property increases against the background of the high amount of damage caused by crimes, namely about 550 billion rubles annually. This measure of procedural coercion has a high security potential in order not only to satisfy claims in civil lawsuits, but also to recover a fine and other property claims provided for in Part 1 of Article 115 of the Criminal Procedure Code of the Russian Federation. Investigators (interrogators) annually initiate the seizure of property about 40 thousand times. 90% of cases are a success. The application of this measure is accompanied by the restriction of the property rights of both natural and legal persons, including those who are not recognized as a civil defendant in a criminal case, in the first case, and the accused (suspect).

The seizure of property in criminal procedure practice is accompanied by the need for the investigator to overcome a number of difficulties, which are caused, firstly, by the intersectoral nature of the regulation of this legal institution; secondly, by the presence of gaps in the regulation of relations arising in connection with the imposition of this arrest; thirdly, by the inconsistency of the objectives of proof to establish the nature and amount of damage caused by a crime and the implementation of security activities in a criminal case. This gives rise to numerous violations of the legality and validity of the seizure of property on the part of not only the investigator, but also the court, despite the expression of a number of positions of the ECHR on this issue, despite the explanations of the Constitutional Court and the Supreme Court of the Russian Federation.

The author concludes that without the release of the investigator as a subject of proof in a criminal case from performing an unusual function — providing compensation for property penalties in a criminal case — it is impossible to achieve the full legality and validity of the seizure of property.

127-137 645
Abstract

Based on the analysis of the history of legal science and law enforcement practice, the paper considers the prerequisites for the conceptualization of the phenomenon of uncertainty in law. The author offers a historical and rational reconstruction of the transition from the everyday and practical experience of understanding uncertainty to the concept that allows us to formulate the principles of lawmaking and law enforcement that prohibit uncertainty in the law and court decisions. The author explicates the difference between the conceptualization of the phenomenon of uncertainty in the Russian legal literature and similar literature of the English-speaking world, where three different concepts are used to denote it: indeterminacy, vagueness and uncertainty. The paper analyzes the difficulties that arise in the implementation of the desire to integrate the system of Russian law into the legal space of the European Union, where the principle of legal certainty is one of the main instruments of integration. The author analyzes in detail the assessment of prospects and the significance of the principle of legal certainty in the practice of implementing the idea of the rule of law, and considers the paradoxes that arise in this case.

Examples from the practice of the European Court of Human Rights, when certain decisions are criticized because of non-compliance by lawmakers with the principle of legal certainty, confirm the essential importance of ideological and value bases in the systems of modern law. The paper examines the significance of the philosophical and theoretical-conceptual grounds for the inclusion of the general scientific concept of uncertainty in the private scientific methodology of legal research. The differences in the interpretation of the phenomenon of uncertainty in linguistics, physics, economics, philosophy, logic and other sciences are determined. It is concluded that it is necessary to attract funds and methods of interdisciplinary research for the further development of the theory of legal uncertainty.

MEGA-SCIENCE / MEGA-SCIENCE

138-153 359
Abstract

The paper examines the little-known pages of the legal regulation of international integration in Europe: the project of the creation in the middle of the 20th century of the European Health Community (EHC) and its relationship to the current project for the establishment of the European Health Union. The introduction examines the reasons for the ineffective response of the modern European Union (EU) to the global coronavirus pandemic, mainly due to the lack of European institutions, in contrast to the economy and a number of other spheres of public life, supranational powers in the field of health.

The first section analyzes the main provisions of the draft EHC presented by the French Government in 1952 and became the subject of an international "preparatory conference" with the participation of 16 European countries at the end of the same year. The author gives special attention to the legal consolidation in the EHC draft founding treaty of "sanitary activities" (prevention and counteraction of various types of diseases); "cultural provisions" dedicated to the collection of information, the development of scientific research and education in the field of health; provisions on the creation of a common therapeutic and research infrastructure of the EHC; the political and legal nature of the EHC as a supranational organization with restrictions in its favor of the sovereign rights of the participating states.

The second section describes and evaluates the domestic, foreign, and economic factors that prevented the creation of the EHC.

The final section examines the impact of the EHC on the law-making and law-enforcement activities of the modern EU, and compares the legal model of the EHC with the model of the European Health Union, which was established in the end of 2020. There are also proposals for using the experience of European integration in the field of healthcare for the development of integration processes in a similar field between Russia and other former Soviet republics, including the creation of common medical and research centers under the auspices of the Union State of Russia and Belarus and (or) the Eurasian Economic Union, equipped with mega-science facilities (synchrotrons, etc.), other advanced infrastructure of scientific theoretical and scientific applied nature.

HISTORY OF STATE AND LAW

154-162 355
Abstract

The paper is devoted to a little-studied problem, namely, source assessment in the history of political and legal doctrines from the perspective of the competition of different approaches. In this paper, sources refer to various forms of theoretical knowledge: views, doctrines, theories, concepts, ideas, schools, trends and approaches. In other words, we consider the types of sources in which thinkers of different eras and trends try to reflect the essence of state legal phenomena, primarily, the state and law, and other closely related institutions, such as power, property, democracy, the rule of law, etc. One of the main ideas of the paper is to justify the fact that the history of doctrines is primarily the evolution of the struggle between them. Moreover, the opposition of ideas is actually observed from the very beginning of political and legal thought. The problem of an objective assessment of the doctrines is highlighted, since there are many factors that prevent this. In this regard, we consider the time (chronological), methodological, ideological, political, scientific, ideological and other circumstances, including individual preferences. The assessment is based on the main form of theoretical political and legal knowledge, i.e. a doctrine and its structure. It is the structural elements of political doctrine that are evaluated by researchers of ideas, who themselves are not always free in their expert activities. This aspect is also reflected in the paper.

The author summarizes: since the history of ideas is a history of struggle, competition in their evaluation is inevitable. It is possible to adhere to various philosophical views, but it is impossible to neglect the scientific validity of the teaching that is subject to evaluation. At the same time, this problem does not concern the doctrines that are being evaluated, but the personality of the evaluator of the doctrines, sometimes formed by the greatest thinkers.



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