PRIVATE LAW / JUS PRIVATUM
September 2021 marks five years of the arbitration reform in Russia. During this period, fundamental changes have occurred in this area, affecting both arbitration institutions that are authorized to administer disputes on the territory of Russia, and the distribution of categories of arbitrable disputes between permanent arbitration institutions and arbitration tribunals created to resolve a specific dispute (ad hoc arbitration tribunals). The paper attempts to analyze the main results of the reform and assess its impact on Russia’s attractiveness as a place of arbitration. The author comes to the conclusion that, despite some positive consequences of the reform (such as "pocket" arbitration courts leaving the market, resolving the issue of arbitrability of corporate disputes, empowering state courts with the functions of promoting and monitoring the activities of arbitration courts, etc.) a number of problems remained unresolved, and the attitude towards Russia as a place of arbitration remainedalmost unchanged. Moreover, innovations that relate to the procedure for creating arbitration tribunals and obtaining the right to administer disputes on the territory of Russia and apply, among other things, to foreign arbitration institutions, have led to attempts to circumvent the requirements of Russian law both by the parties and by the arbitration institutions that failed to obtain appropriate permission. An equally important problem resulting from the reform includes leaving the market by regional arbitration courts that used to be popular among small and medium-sized businesses that are often not ready to pay rather high arbitration fees set by large arbitration centers. Thus, most of the goals set by the reform ideologists have not been achieved, which indicates the need for further improvement of legislation in this area.
In the Russian legal terminology, the term "property relations" is widely used. However, the category "property" in terms of its constituent elements, due to the absence of its legal definition in the Civil and Family Codes of the Russian Federation, is explained in different scientific contexts. In theory, debts are often named as one of the elements internally forming the property, along with things and property rights, and the relations of common property of spouses are no exception. The prospect of legalization of debts as a structural element of the property of spouses is considered in the draft Federal Law No. 835938-7 that proposes to make appropriate amendments to Art. 34 of the Civil Code of the RF IC, which gives rise to a special concern in identifying the legal nature of common debts. The solution to this problem determines the need to analyze the current legislation and scientific publications devoted to property relations, property rights and its objects. Due to the fact that the debts of the spouses represent unfulfilled civil legal obligations arising from participation in relations with the third parties, their merger with family legal property relations of the spouses’ property is unacceptable. Debts do not have the qualities of objects of property rights that cumulatively form the property belonging to spouses and existing in the common property regime. Thus, it cannot be added up from an asset and a liability. Regarding legal regulation of property relations, we only can compare, on the one hand, the totality of property objects belonging to spouses on the ground of common property and, on the other hand, the objects of execution of their common obligations with respect to creditors expressed in single value units. To indicate the result of the comparison, it is advisable to use the concept of "property solvency of spouses", which allows us to assess their property status for participation in civil transactions, their real property responsibility, as well as in ensuring the interests of creditors. In support of these conclusions, the author provides detailed arguments.
PUBLIC LAW / JUS PUBLICUM
The purpose of the paper is to systematize the main mechanisms of the correlation between the subjects of constitutional law and to describe the specifics of each mechanism. The correlation between the subjects of constitutional law means the relationship between the subject and something or someone else in view of its actions or states. If legal relations arise only within the framework of the normatively established rules of behavior, the interaction is also carried out by various subjects in the name of a single common goal, the interrelationship simply represents absolutely any relationship between the subjects, the correlation includes all the listed phenomena, bearing in mind still different ways of life, the emergence of legal relations. One of the sections of this doctrinal concept is the "mechanical" element -- how the participants in the relationship relate to each other, sometimes not directly entering into legal relations, but exerting mutual influence. This element is important both in determining the specific actions of an individual subject, and for building a general systematics of the behavior of subjects, regulated by law. At the same time, it is necessary to pay attention to the fact that the paper deals exclusively with the mechanisms of correlation of the subjects of constitutional law, which does not always fully comply with the norms of law and has nothing to do with the mechanism of legal regulation. It should also be noted that the author examines only the mechanisms that he considers to be main. And the logic of the presentation is to consider them in such a way that this theoretical construct forms the basis of law-making activity, when actual relationships are primerely taken into account, and only then into account are taken project ideas with the help of which these relationships are expected to be transformed.
Corruption is one of the most pressing problems and real threats to the national security of every state, including Russia. The Prosecutor’s Office of the Russian Federation plays a key role in the fight against corruption. One of the most effective ways to counter this antisocial phenomenon is prevention. The author proposes the concept of "anti-corruption education", which is unusual for the legislation on the prosecutor’s office and prosecutorial practice, in relation to the activities of prosecutors, defines the concept and explains the main directions, forms and methods. Two main areas of this prosecutor’s activity are indicated: 1) anti-corruption education of prosecutors themselves; 2) anti-corruption education (including within the framework of legal informing the population) of other persons. The author examines thier content, identifies common problems and proposes solutions. The specific features of anti-corruption education within the framework of the system of professional training and advanced training of prosecutors are analyzed separately. The paper explains the role and positive value of legal education and legal information as effective tools of anti-corruption education of citizens. Based on the analysis of the practice of prosecutorial activities, the authors noted the demand for active anti-corruption informing of the population, increasing the anti-corruption legal awareness of citizens (especially young people). The paper elucidates the effectiveness of organizing and conducting thematic lectures and other meetings, contests and other game forms of interaction, combining the efforts of the prosecutor’s office with civil society institutions. The potential of anti-corruption informing citizens with the help of Internet resources and the achievements of computer technologies is characterized. Attention is drawn to the expediency of such work in the framework of the implementation of special documentary films and feature films projects devoted to the activities of the prosecutor’s office. The author highlights the importance of anti-corruption education through active and purposeful interaction with the media, including interaction carried out in order to form citizens’ convictions about the inevitability of punishment for corruption crimes. The conclusion is substantiated that the prosecutor who carries out anti-corruption education must certainly meet high moral requirements and be distinguished by an impeccable reputation.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
The paper examines the content of the organized criminal group characteristics provided for under the law. The criminal activity of a stable association of persons poses an increased public danger. The identification of such facts and their investigation is fraught with significant difficulties that arise also due to the evaluative nature of the concept of "organized group". Therefore, its essence is analyzed not only on the basis of theoretical sources, but also in the context of judicial practice. The author compares and generalizes the signs listed in the relevant decisions of the Plenum of the Supreme Court of the Russian Federation and in court decisions on specific criminal cases. A correct understanding of the organized group characteristics is necessary for the competent qualification of crimes committed by its members, and the successful proof of their fault. The author summarizes that the sustainability of complicity is based on two complementary aspects. The first provides for a close, relatively long-term relationship between members of the group united by criminal motivation and goals (which ensures the stability of its main composition), as well as the recognition by ordinary participants of the decisions of their leader or the leading core of the group or decisions jointly made by the group as binding. The second aspect of sustainability provides for the implementation of effective criminal activity through the advance development of its plan and a clear distribution of role functions among the group members, ensuring the consistency of their actions, and the implementation of other measures necessary for the successful achievement of the intended goals. In cases where the conspiracy of the members of the group occurred immediately before the commission of the crime or took place in advance, but there was no close relationship and careful joint preparation for it we deal with a group of persons created by prior conspiracy due to the lack of stability of such an association.
The paper examines the methodological problems of understanding the method of committing theft in the doctrine, law enforcement practie and modern science of criminal law. The author analyzes such objective signs of theft as seizure, confiscation, circulation, and their relationship with other signs of theft. The author proves that the modern description of objective signs of the theft does not correspond to the realities of the theft as a tort infringing on property and obligations. The situations of qualification of actions related to the replacement of the owner (owner of the property) and causing damage to the owner or another owner are considered in detail, regardless of the fact of direct seizure or circulation of the stolen property (taking possession of it). It is stated that in order to avoid contradictions and fictions, law enforcement practice is forced to interpret “seizure of someone else’s property” too broadly and equate this feature with the fact of legal replacement of the owner (owner) of the property. The paper demonstrates the inconsistency of this situation and the fictitiousness of the rules for qualifying property crimes. The author concludes that it is necessary to correct the legislative description of the method of action in case of theft competing it with elements that would most fully cover all kinds of situations and would be universal. This takes place because today it is impossible to choose and fix a method of theft that would characterize a single criminal encroachment on bodily and non-corporeal material goods and would reflect theft as an act causing damage to the owner. Due to the fact that the mechanism of criminal encroachments on property and obligations is not the same type and has its own specifics, the reflection of the mode of action in property crimes should be differentiated.
THEORY OF LAW / THEORIA LEX
The paper is devoted to the fundamental issues of modern legal regulation, in particular, its grounds and limits. The author substantiates the position according to which the absence of certain essential imperatives of law that help direct and restrict the functioning of public authorities and other subjects, complicates the activities of the latter, concedes its inconsistency and spontaneity, creates conditions for the perception of law as a kind of "designer" of economic, political and other relations. According to the author, the lack of unified conceptual criteria in determining the essence of law leads to an imbalance in public relations, to their turbulence at all levels (national, international, etc.) and as a result has a detrimental effect on the life and security of a person, society and the state.
The author notes that at the present stage of civilization development, it is the economy with its interests and principles that acts as the "nerve", as the main driving mechanism in recognizing the status of the subject state. From the author’s point of view, economic interests and relations today form the world agenda, set the tone for political and legal relations, and often directly correct the value bases of other social regulators.
The author summarizes that in general, the current situation in the international legal space, associated with the lack of a generally recognized doctrine of legal understanding alongside the variability and inconsistency of views in the field of human rights and freedoms based on the natural law approach, allows some subjects to arbitrarily interpret and impose certain decisions and positions in the course of their political activities, based on their own resources and potential. This supports law usurpation, making it an instrument of manipulation and blackmail in the field of politics, economics, culture, ecology, etc. in order to create the most profitable conditions and obtaining the expected results.
Thus, the natural law approach, on the one hand, needs to be rethought, transformed, on the other hand, it needs to be refined or analyzed in detail when building an original concept of legal understanding.
The paper is devoted to certain provisions of the Hans Kelsen’s pure doctrine of law (normativism). Based on an analysis of legal and doctrinal sources, the author attempts to find the most accurate concept for the status of decisions of the constitutional court as a judicial body of constitutional control. The identification of the theoretical foundations for a clear definition of the boundary between rule making and law enforcement is one of the most important problems of law. The situation of the constitutional control bodies is of particular interest. The status of the constitutional court as a judicial body of constitutional control implies that its acts are generally binding on the entire territory of the state. The question of the legal nature of these decisions, which in Russian science initially belonged to the number of debatable ones, deserves attention. Longterm disputes, however, have not yielded positive results; have not revealed the fundamental foundations on which it would be possible to develop the doctrine of the guarantees of the constitution. Thus, the decisions of the constitutional court are equated with both law enforcement acts and sources of law that exist in the form of a precedent or even in the form of a special normative act.
DISCUSSION PANEL / PRO ET CONTRA
The restriction of rights and freedoms is objectively inevitable. However, the criteria for making appropriate decisions at the level of federal legislation, although established in the norm of Article 55 of the Constitution of the Russian Federation, are very diverse and require different technologies and boundaries. Among them, such grounds as the interests of protecting morality and health need the most fine-tuning. The circumstances of the coronavirus pandemic confirmed this, being the prerequisites for the introduction of a package of restrictions and prohibitions along with positive measures to support citizens in a difficult life situation. A significant part of the protective measures is based on a clear justification. However, some of them, both at the federal and especially at the regional level, including law enforcement practice, are justly criticized in legal doctrine, political science and sociology. The greatest concentration of criticism should be directed at restrictions and prohibitions for the elderly. In fact, the requirements of strict self-isolation have led to the emergence of a new type of discriminated minorities. Moreover, the results of sociological research indicate the undesirability and harmfulness (albeit relative) of an excessive paternalistic approach to the problems of older people, which reduces their potential for resistance to age. The orientation towards self-assessment of one’s strength and voluntary conscious self-restraint is more consistent with the features and meanings of the "silver age" (In this regard, the main religious denominations have succeeded more). The state needs to adjust the standards of its actions in emergencies regarding the population as a whole and its individual groups based on the experience gained and public demand.
The paper is devoted to the transformation of information transparency of Russian securities issuers after the implementation of sanctions by foreign states and international organizations against a significant number of Russian companies. In response to foreign policy pressure, the Russian state quite naturally took a number of steps to protect domestic companies affected by sanctions, including by providing significant concessions in the field of disclosure and presentation of information. The author examines the question of which categories of companies and in relation to which information the rights to disclose/present it in a limited scope are granted, considers the conditions for the implementation of this right. Any change in the above-mentioned area aimed at reducing the availability of information about the activities of companies to the public and market participants may in the future have a negative impact on the development of the Russian economy as a whole. That is why it is especially important to pay attention to legislative changes and law enforcement practice taking place in this area. The author conducted a study of sources of information about public companies that began to disclose and present information in a limited scope. The most interesting examples of how societies began to abuse the rights granted to them were identified.
Given that the sanctions affect significant sectors of the Russian economy (including the financial, energy, defense, mining and metallurgical industries), the widespread inappropriate practices in the field of presentation and disclosure of information may adversely affect the value of securities of investors who find themselves in a situation of an information vacuum regarding the activities of issuers. In order to preserve trust between market participants, the author proposes to give an opportunity for investors to resort to such a method of protecting their interests as the right to demand the redemption of securities belonging to them of those issuers that radically restrict access to information about their activities.
IIMPROVEMENT OF LEGISLATION / NOVUS LEX
The Russian Federation is inhabited by about 150 thousand species of animals and this figure accounts for 9% of the world’s fauna. Guided by the logic of the utilitarian economic and legal approach called rational use of natural resources, this number includes a set of living organisms of all types of wild animals that permanently or temporarily inhabit the territory of the Russian Federation and are in a state of natural freedom, as well as related to the natural resources of the continental shelf and the exclusive economic zone of Russia, which are only part of the subject of the emerging complex branch of faunal law, together with wild animals in captivity, service animals, domestic animals, agricultural animals, and living organisms obtained as a result of the use of genetic engineering technologies. Higher mammals are sentient beings, that is, they are capable of experiencing suffering, pain, emotions, and the development of intelligence is confirmed by solving the most complex natural problems and puzzles, which allows us to consider them as individuals of non-human nature and non-human origin, and therefore it is incorrect to associate some of the objects of the animal world belonging to higher mammals with objects of property rights, that is, things. Commercial, amateur and sports hunting are types of hunting in Russia, carried out by trapping or shooting, expressed in the killing of hunting resources, that is, objects of the animal world that can be used for hunting. Hunting in the domestic legislation is a form of leisure, recreation and economic activity that ignores the natural rights of higher animals, including the right to life. A characteristic feature of the Law "On Responsible Treatment of Animals" is that its norms and principles for the treatment of animals do not apply to objects of the animal world, marine and aquatic mammals, animals classified as hunting resources, agricultural animals, living organisms created as a result of genetic engineering activities, which significantly reduces its humanistic significance.
In the pursuit of family happiness, married couples, faced with family infertility, often turn to surrogate mothers either directly or through intermediaries. Having experienced a large number of negative factors on the part of the participants in this process, the author concludes that it is necessary to create a platform for the effective implementation of the surrogacy program under state control using new (experimental) legal mechanisms within the framework of a pilot state experiment within a certain medical organization. The use of private legal means aims at creating comfortable and safe conditions for the implementation of the surrogacy program. The introduction of special credit conditions (new types of loans issued on special conditions, with additional guarantees), with the possibility of early repayment at the expense of maternal (family) capital will help to stabilize the financial side and protect potential parents.
The goals and objectives of the study are to highlight problematic issues related to the implementation of the surrogacy program, as well as to model an experimental platform that will create a favorable legal climate of openness and security for potential parents, surrogate mothers and medical organizations. The paper also analyzes the advantages of the participants of this platform.
Research methods are analysis, synthesis, modeling, comparative legal, system analysis, as well as deductive and inductive methods.
The result of the conducted research is the author’s reasoned conclusion that the implementation of the experiment on state regulation of the surrogacy program in Russia will not only create favorable legal conditions aimed at the effective implementation of the surrogacy program, but also solve a number of important social, including demographic, tasks.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
The paper considers the second attempt made by the Supreme Court of the Russian Federation in terms of introducing the concept of criminal misconduct into the Russian criminal and criminal procedure legislation, examines the goals of its introduction. The authors conclude that the introduction of a criminal offense in the draft law No. 1112019-7 will entail the need to review some approaches in Russian law: the legal nature of the crime, the ratio of a criminal offense with a minor act and an administrative offense, the elements of a crime with administrative prejudice, the principle of justice. It seems possible to achieve procedural effectiveness, reduce the burden on judges and protect the rights of victims without introducing a criminal offense within the existing criminal and criminal procedural mechanisms related to exemption from criminal liability and expansion of non-rehabilitating grounds for termination of a criminal case or criminal prosecution. It seems possible to use the already established categorization of crimes in relation to crimes of small and medium gravity. In terms of expanding the grounds for terminating a criminal case or criminal prosecution, it is appropriate to use the experience of the German legislator, which provides for the possibility of terminating criminal prosecution on grounds of expediency when the accused fulfills various duties and regulations assigned to him. In German criminal procedure law, the termination of criminal prosecution on grounds of expediency when assigning duties or prescriptions to the accused is the right of the relevant officials and bodies, and not their obligation, since in fact it is an alternative to criminal prosecution. This will allow it to be terminated at a certain stage in the case when there are all legal grounds for criminal prosecution.
The paper considers alternative methods of dispute resolution as a measure to reduce the workload on the courts. At present, the need to reduce the workload on courts is quite acute in Russia. According to the members of the European Commission for the Efficiency of Justice (CEPEJ), a large workload on courts (and, accordingly, on judges) seriously affects the quality of justice and the timing of the consideration of cases. It should be noted that all judicial systems of the world without exception face this problem, but the statistics of the European Commission for the Efficiency of Justice (CEPEJ) shows that over the past few years the burden on courts and judges has significantly decreased in the EU countries. The authors summarize that foreign judicial practice has successfully tested working tools to reduce the burden on courts, which the Russian judicial system may well borrow. However, these tools require gradual development and elaboration given all Russian legal realities. A sharp transition to alternative dispute resolution may negatively affect the quality of dispute resolution in Russia. If the legislator restricts the ability of citizens to consider disputes in courts (for example, by increasing court fees), but at the same time alternative dispute resolution methods will remain at a low level of legal and social development (citizens’ distrust, weak legislative elaboration, etc.), then citizens will completely lose the platform for legal dispute resolution. It is quite possible that we will return to the criminal experience of the economy of the 1990s.
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