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Vol 74, No 7 (2021)
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AUTHORITATIVE COMMENTS / EX OFFICIO

9-15 1498
Abstract

The paper examines countering extremism, terrorist crimes, as well as legalization (laundering) of proceeds of crime, as an important element of comprehensive measures undertaken to ensure national security. These crimes constitute global threats, and their suppression is one of the priorities of the Investigative Committee of the Russian Federation. It should be emphasized that the public danger of legalization (laundering) of proceeds of crime lies in the fact that it undermines the country’s financial system by means of providing the material basis for corruption and terrorism.
In modern conditions, the risks of legalization of proceeds of crime, as well as the use of digital currency for illegal or criminal purposes, may arise, for example, when converting digital currency. In view of this, according to the author, it is necessary to establish clear criteria for transactions for which criminal liability for the illegal use of digital currencies may arise, including cases when the digital currency acts as a means of payment for the illegal circulation of weapons, drugs or other items, for the circulation of which criminal liability is established, as well as when illegal gambling or illegal banking are organized. With this in mind, there is a need to introduce criminal liability for illegal circulation of a digital currency and violation of the rules for making transactions with it.
One of the main tasks in the field of preventing financing of terrorism and extremism is to counter the spread of radical ideology. To effectively solve this problem, it is required to apply an integrated approach, and, above all, active participation in this process of not only state authorities, but of various institutions of civil society, the scientific community, educational structures, public and religious organizations, as well as the mass media.

FUNDAMENTAL PROBLEMS OF THE LEGAL SCIENCE / PROBLEMA PRINCIPALE

15-31 589
Abstract

Amendments to the Constitution of the Russian Federation in 2020 introduced many new meanings and concepts into the constitutional matter. Most of them have great ideological potential. The paper analyzes the worldview aspect of the amendments to the Constitution of the Russian Federation, the political message of their adoption, methodological approaches to identifying their content.
The paper highlights amendments with the greatest spiritual and moral content, such as succession, historical truth, patriotism. The author elucidates the prerequisites for their adoption, including the historical inevitability of changing the Constitution of the Russian Federation in 1993 and the defeat of imitative constitutionalism in the majority of post-socialist countries. It is shown that the ideological content of the amendments was used to adjust the liberal-democratic model from the standpoint of strengthening the state sovereignty. Particular attention is paid to the expansion of national identity in constitutional norms as a natural process of protection from global constitutionalism, universal democratic values, including the case study of Eastern European states. There is a worldwide crisis tendency for the market-type democracy, the search for more modern approaches to its renewal.
As a conclusion, it is noted that the worldview turn towards a reassessment of the liberal democratic doctrine is contradictory and not completely clear. It can be assumed that the amendments to the Constitution of the Russian Federation are the first step not only towards the modification of constitutional institutions, but also towards a qualitative renewal of the philosophical and legal meanings of the Russian constitutional identity.
As methodological tools of scientific research, it is proposed to use the potential of the integrative function of philosophy of law and the concept of system-wide contradictions of the society. This concept allows us to critically assess the universality of the traditional values of democracy, to form their own competitive models of the constitutional structure. It aims at finding a balance between the opposites in the society, the state, at the mechanism of dialogue and proportionality in decision-making.

PRIVATE LAW / JUS PRIVATUM

32-43 2621
Abstract

The paper is devoted to the problem of digitalization of objects of civil rights. In the context of the development of the digital economy, objects are consolidated and reflected in the digital environment. Article 128 of the Civil Code of the Russian Federation sets forth the concept of digital rights. They are defined as property obligations and other rights, which does not allow them to be considered as independent new types of objects of civil rights. The category of digital rights introduced into the legislation does not cover all new objects that appear in the digital environment, which results in appearance of legal relations, in connection with which it is relevant to introduce the category of digital objects into the list of objects of civil rights as an independent type of objects of civil rights or as application of legal regimes of the named objects to new objects. For example, the categories of big data, big user data again make us think about the legal regime of information. Adhering to the understanding that information itself is not an independent type of objects of civil rights, we can conclude that information posted in the digital environment is capable of objectification as an intangible benefit (for example, personal data is an integral part of privacy, other rights enshrined in the legislation), while the owner of this information can transfer the right to use it to other persons. This right can be considered as a property (exclusive) right. The very provision of information can be objectified within the framework of services for its provision. Big data, if it does not contain personal information, can also be covered by a category of publicly available data that can be collected, analyzed, summarized by persons accessing this data legally (for example, from open sources on the Internet). In addition, the paper elucidates the problems of determining the legal regime of so-called virtual objects in the narrow sense (in-game objects, objects of virtual or augmented reality), artificial intelligence and robots created on the basis of artificial intelligence technology. In general, it is concluded that it is possible to extend to digital objects the legal regime of the named objects of civil rights with due regard to the peculiarities of their consolidation in the digital environment

44-60 3230
Abstract

The paper analyzes the current trends in the development of private international law, its relationship with international public law. Special attention is paid to the relationship between the public and the private in the regulation of cross-border private law relations, the concept of a polysystemic complex. The special role of the international civil process in the system of modern private international law is noted. Being implemented by law enforcement agencies, also in the context of the application of uniform conflict-of-law rules, the conflict-oflaws method of private international law vests with the public area due to its implementation. It is difficult to call the conflict-of-laws regulation a trend in private international law. The author highlights the international (crossborder) nature of private international law. Modern private international law is characterized by the presence of a symbiosis of traditional methods of state substantive and conflict-of-laws legal regulation and non-state regulation emanating from the subjects of private law relations, formed with due regard to the use of modern information technologies and often implemented in the digital environment, including with the use of non-state alternative methods of dispute resolution modernizing their forms with the development of technologies (the ODR, blockchain arbitration, the UDRP).
The paper highlights the formation of “cross-border private law” that is private in its own nature and in the context of the formation procedure which means that it comes from the subjects of private law. The author highlights such trends in the development of private international law in modern conditions as harmonization, primarily of electronic methods, of mechanisms for the implementation of private law relations; profiling of private international law within the framework of the activities of international organizations and cross-border self-regulatory organizations; orientation towards the uniform formation of private international law in the world and the expansion of its regulatory elements

PUBLIC LAW / JUS PUBLICUM

61-72 1821
Abstract

The question concerning the concept of the subject matter of the claim, which is one of the features that individualize the claim, is one of the most disputable and unsettled in the doctrine devoted to the claim. A number of legal scholars define the subject matter of the lawsuit as the substantive law claim of the plaintiff against the defendant. However, this definition cannot be accepted as correct, since, first, petitioners bring claims that cannot meet the above requirement (for example, claims for recognizing transactions as invalid), and, second, the statements of claim filed with the court contain demand (request) for the court, rather than a claim against the defendant.
According to another point of view, the subject matter of the claim should be understood as the subjective right indicated by the plaintiff and the corresponding obligation or civil legal relationship in general, about which the court must make a decision. It is also impossible to agree with the above definition of the subject matter of the lawsuit in view of the fact that, as A. A. Dobrovolsky correctly noted, the law provides that the statement of claim must indicate the plaintiff’s claim rather than the disputed legal relationship. We should also agree with the argument given by G. L. Osokina, according to which the logic and practice of the statement of claim for the defense dictate the need to include a subjective right or legitimate interest in the basis of the claim, and not in its subject matter. According to the point of view of K. S. Yudelson, the subject matter of the claim is the requirement to the court to protect the right in the form that corresponds to the stated requirement. However, since this definition is too general, it cannot be used to resolve the issue of the equivalence of claims. The definition of the subject matter of the claim as protection (V.N.Scheglov) or a method of protecting the right (G.L. Osokina) also have the similar drawback. The most correct is the definition of the subject matter of the claim as the protection of a subjective right, freedom or legitimate interest through the specific application of one of the methods provided for by law or the direct exercise of the right that the plaintiff asks the court about.

73-84 512
Abstract

The purpose of the work is to assess the legal regulation of the activities of public authorities in certain areas in the coronavirus pandemic. Using general philosophical, general scientific, private scientific and special methods of scientific research, regulatory legal acts and the practice of interaction of public authorities in Russia in a pandemic of a new coronavirus infection, analytical and statistical materials, significant foreign experience are studied.
The paper attempts to formulate and study the factors that hinder the effective regulatory legal regulation of the activities of the levels of public authority in the conditions of the COVID-19 pandemic. Among these are: the inability of the constituent entities of the Russian Federation to determine the content of special restrictive legal regimes from the array of current legal regulation; a high proportion of acts (instructions) of the federal center; the refusal of the Federation to specify the scope of the powers of the regions in matters directly related to the state of protection of individual rights and freedoms; insufficient competence of special bodies to protect the population from emergency situations; lack of legal guarantees of local self-government when including them in the process of implementing public functions.
The paper concludes that the effectiveness of regulatory legal regulation of the activities of public authorities in the COVID-19 pandemic depends on three main institutional factors: the competence of the elements of the public power system, the political neutrality of the system of protecting the population from emergency situations, the consistent regulation of restrictive legal regimes, conditions and the procedure for their introduction, regardless of specific scenarios for the development of threats to national security. The paper substantiates the idea that the optimal organization of managerial decision-making in the context of countering the pandemic involves a comprehensive interdepartmental approach with a dominant federal influence.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

85-94 542
Abstract

The paper shows that the consolidation of the functions of the prosecutor’s office of the Russian Federation at the constitutional level leads to the need to return to the question of the effectiveness and sufficiency of the prosecutor’s powers to independently initiate a criminal case, initiate criminal prosecution, and bring charges. The modern models of granting various subjects the authority to initiate and carry out criminal prosecution, to bring charges in criminal procedural comparative studies are identified and analyzed. They are: 1) a system of public prosecution, or a monocratic model, in which criminal prosecution is initiated exclusively by the decision of state bodies with appropriate special competence, primarily the prosecutor’s office (prosecutor’s monopoly); 2) an ex officio prosecution system, or a polycratic model, when the subject of criminal prosecution is any of the state bodies authorized to conduct proceedings in a case, there is no monopoly of one state body or official to initiate criminal prosecution; 3) a private prosecution system, when the subject of criminal prosecution is either the victim or his legal successors; 4) a “people’s” system charges, in which any private person has the right to initiate criminal prosecution, regardless of whether he is a victim or not. The conclusion is substantiated that Russia belongs to the states in which the polycratic ex officio model is combined with private prosecution in certain categories of cases, while, unlike most other states, the prosecutor is not among the officials authorized to initiate criminal proceedings and/or criminal prosecution. It is shown that the lack of powers of the prosecutor in pre-trial proceedings hinders the achievement of the purpose of criminal proceedings. It is concluded that it is necessary to return to the prosecutor the authority to initiate a criminal case independently.

INTERNATIONAL LAW / JUS GENTIUM

95-110 316
Abstract

The development of the legal framework for the establishment of marine protected areas (MPAs) and other zonal management tools is due to the need to establish their nature (environmental or socio-economically oriented); to determine the interaction of the norms of international environmental law and maritime law; to ensure the harmonization of the rules for the establishment of MPAs and their regimes in national and international law in order to take into account the characteristics of ecosystems. The research is aimed at improving the efficiency of establishing MPAs and other zonal management tools by harmonizing the conceptual apparatus, identifying key features of marine protected areas and separating them from related international legal instruments.
International legal acts define the MPA as a zoning tool aimed exclusively at preserving the natural environment and biodiversity, in which, depending on the category of protected areas, the International Union for Conservation of Nature prohibit the withdrawal of resources except for traditional fishing. The indicated approach causes a conflict of types of use of biodiversity, non-perception by users of significant restrictions on activities, and contains the risk of becoming a political tool for restricting the activities of states.
MPAs are a type of zonally linked management tools. They consist of a clearly defined geographical area and applicable measures that entail the preservation of the environment.
It is necessary to move to a more flexible management model of MPAs, allowing for the sustainable use of the biological resources of the area. MPAs and other zonal tools should have a multi-purpose character. In most cases, in addition to environmental characteristics, socio-economic, scientific, educational and cultural characteristics of the space are taken into account to establish them.
It is erroneous to identify the management tool with the space and exclude response measures from it. Most of the acts justifiably do not contain a list of protective measures, leaving room for the most effective definition of measures, taking into account the goals set and the factors of establishing MPAs. However, it seems reasonable to define in regulatory legal acts the procedure for resolving conflicts of types of use within the same and between different instruments.

GENOME / GENOME

111-121 574
Abstract

The paper is devoted to the study of the legal nature of reproductive biological material and determination of the optimal legal regime of germ cells (oocytes, sperm) and tissues of human reproductive organs intended for reproduction purposes. It is noted that the reproductive biomaterial is not a thing, since it does not have the characteristics inherent in this legal category, and needs a special legal regime. The extension of the regime of ownership of the germ cells and tissues of human reproductive organs is unacceptable neither from the position of the current legislation, nor from the perspective of its development prospects. An analysis of the legal opportunities provided by the legislator in relation to reproductive biomaterial, as well as the procedure for their implementation, led to the conclusion that neither the persons from whom it comes, nor medical organizations can be recognized as its owners. The regime of property rights is not suitable for ensuring and protecting the interests of participants in public relations arising in connection with the use of reproductive biomaterial. It is proved that in relation to the germ cells and tissues of the reproductive organs, the interest of a person is not in acquiring actual and legal domination over them as such, but in acquiring or, on the contrary, not acquiring parental rights and obligations in relation to a child born as a result of their use. It is concluded that the designated interest should be mediated not by a real, but by a reproductive right.

CYBERSPACE / CYBERSPACE

122-129 406
Abstract

Today, many processes are being digitalized in the world: production, technological, social, legal, economic, food, and this is not a fashionable trend, but a vital necessity. The state policy of Russia is also aimed at large-scale digitalization of various industries. Agricultural complex is of great importance for ensuring sovereignty, national security and supplying the population with necessary products. According to economists, the introduction of platform and other innovative technologies will have an extremely positive impact on the economy of our state; will increase the export potential, which will eventually enhance the country’s prestige in the world. However, lawyers rightly point out that the introduction of innovative technologies requires adequate innovation legislation. The paper deals with the problems of legal regulation of digitalization of the Russian agricultural complex based on artificial intelligence and the need to introduce elements of modern “platform law” into it. The possibilities and importance of digitalization are shown, the expediency of creating an appropriate legal platform is indicated. Definitions and explanations of the functioning of platforms and platform law are given. Approaches to digitalization in the European Union and the Russian Federation are considered. It is noted that an important mechanism for the functioning of the platform, including for the agricultural sector, is the standardization of mechanisms and norms of interaction from a technical and legal point of view. It is concluded that when training specialists of agricultural enterprises, it is important to include the study of the legal component, which will effectively use the emerging elements of complex legal platforms necessary for the innovative development of the agro-industrial complex.

130-138 345
Abstract

The paper analyzes the legal positions of the Court of the European Union, developed when considering disputes arising from cross-border remote B2C (business to consumer) contracts. In particular, the criteria proposed by the Court of the European Union for determining the “orientation” of the professional party’s activity to the country of the consumer’s place of residence are being investigated. Based on the study of the practice of the Court of Justice of the European Union, it is concluded that consumers in the European Union are provided with increased legal protection as an economically weak party.
The author summarizes that the Court of the European Union has developed a number of legal positions. In particular, the Court proposed an open list of criteria for determining the “direction” of the professional party’s activities to the country of the consumer’s place of residence. In addition, it was noted that the “direction of the professional party’s activities when concluding remote contracts is evidenced by the website that reads that the professional party implied the implementation of transactions with consumers residing in one or more member States, including the member State of the consumer’s place of residence. However, the mere fact of having access to the website of an intermediary or entrepreneur in the member state in which the consumer resides is not enough. The same applies to the indication of an e-mail address or other contact information, or the use of a language or currency that is usually used in the Member State of the place of establishment of an economic entity, which corresponds to paragraph 24 of the preamble to the Rome I Regulation.

HISTORY OF LAW / HISTORIA LEX

139-147 452
Abstract

The paper deals with the problem of the correlation of law and morality as the most important social regulators in the interpretation of two outstanding thinkers of pre-revolutionary Russia, namely the religious philosopher V. S. Solovyov and the writer L. N. Tolstoy. In a sense, both were “iconic thinkers”, had a huge army of admirers, as well as critics. Of interest is the fact that L. N. Tolstoy studied at the Faculty of Law of the Kazan Imperial University, but did not graduate from it. It was during his student years that he formed an extremely negative view of law and legal professions. In this regard, Tolstoy can safely be counted among the representatives of the so-called theoretical legal nihilism, whose supporters sought to justify the denial of the value of law by conceptual argumentation in a way they understood it. V. S. Solovyov, on the contrary, treated the law more positively than negatively. However, he qualified the law as a “minimum of morality”, and considered the state to be “organized pity”. Nevertheless, in the professional academic environment, V. S. Solovyov enjoyed the reputation of a person who was deeply versed in law and understood its role in a state-organized society.
The paper notes some similarity of the theoretical views of V. S. Solovyov and L. N. Tolstoy. Law and morality occupy an important place in their ideological constructions. It seems that their ideas to some extent have not lost their significance today

COMPARATIVE STUDIES / COMPARATIVE STUDIES

148-160 1238
Abstract

According to the author of the paper, the head of state is not a position, not a title, not any state body, but the function of the President of the Republic of Belarus, along with the function of the guarantor of the Constitution, human and civil rights and freedoms. The function of the head of state is unchanged and is due to his position in the system of state authorities. This function manifests the nature and essence of the institution of the presidency, which cannot be reduced to specific actions or practices, therefore, it is implemented through the exercise of powers in various organizational forms. In this regard, the concept of “president”, unlike “head of state”, is not static, but dynamic, since the list of rights and duties of the President of the Republic of Belarus is open.
Powers are unambiguous, substantive rights and duties of the President, legitimized from the functions and expressed in various organizational forms of his activities. At the same time, the characteristics of the President’s powers can only show the external side of his activities. The powers of the President, in contrast to the functions, are a variable value. The President through representative, legitimation, arbitration, control, rulemaking, personnel, integration, symbolist and ceremonial state powers carries out the function of the head of state.
The function of the head of state is the superiority and precedence of the President over all state officials. In accordance with it, the idea of the Republic of Belarus is personified. This function allows the President of the Republic of Belarus to be the main public representative and act on behalf of the Belarusian state both within it and in international relations. This is the result of the state obtaining the status of a legitimate state, the continuity and interaction of state authorities, mediation between them. The constitutional function of the head of state makes it necessary for the President to have instruments of power-state bodies operating within this function.



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