PUBLIC LAW / JUS PUBLICUM
The paper was prepared based on the materials of a sociological study conducted by the author in order to reveal the attitude of respondents to the organizational measures and legal innovations implemented by the Russian Federation aimed at the re-domiciliation of organizations registered offshore to the Russian jurisdiction, as well as the return of their assets to the domestic economy. The objective of this work is to determine the proportion of respondents who agree to the implementation of re-domiciliation in the Russian Federation on the terms proposed by the legislator, reasons preventing re-domiciliation, factors that increase the interest in “moving business” from offshore zones to the Russian Federation. As a result, the author determines that the organizational and legal conditions for re-domiciliation are acceptable for almost half of the respondents. At the same time, the one-fifth of the respondents evaluate the prospect of re-domiciliation to the domestic jurisdiction as inappropriate, since in principle they do not trust the Russian Federation and do not want to accumulate assets on its territory regardless of the attractiveness of the proposed conditions. The results of the survey held among respondents planning to engage in entrepreneurial activity (to do business) in the future showed that this group of survey participants demonstrates a more negative attitude towards the use of offshore jurisdictions (compared to other categories of respondents) and generally perceive as attractive the idea of re-domiciliation in the Russian Federation. The most significant obstacle to re-domiciliation is formed due to the uncertainty among the research participants in the stability of Russian legislation, which poses the task before the State and the scientific community to develop legal safeguards concerning the invariability of the legal regime of entities re-domiciled in the Russian Federation. The attitude of the respondents to the ongoing change in the agreements concerning avoidance of double taxation concluded by the Russian Federation with foreign states demonstrates a surprising outcome of the survey: these agreements’ revision acts as a demotivating factor.
The paper examines the concept of a public service dispute as a type of a legal conflict, as a protective legal relationship and a juridical procedural activity. The author analyzes the modern terminology of a public service dispute enshrined in the legislation regulating public service, identifies the shortcomings of legal definitions. The author establishes and describes the mechanisms for the consideration of public service disputes provided for by the legislation.
The main approaches to the definition of a public service dispute are analyzed. The author has highlighted its features as a complex protective legal relationship. The author shows the erroneous identification by some researchers of labor and public service relations and approaches to their determination of the legal nature of public service disputes, including the legality of the application of disciplinary sanctions. It has been substantiated that the legal nature of public service disputes in the civil service system is primarily determined by the content of the relations that underlie their occurrence—public service legal relations—and not by the forms of their consideration, which allows the possibility of applying labor and civil procedural legislation to disputed legal relations.
The author defines a public service dispute and an official conflict, describes the signs of a public service dispute on the legality of the imposition of a disciplinary sanction, qualifies the subject matter of the dispute under consideration—substantive legal requirements (disagreements) of the parties that act as an element of the connection between the substantive legal relationship between the parties to the dispute and the procedure applied for the dispute consideration. It has been substantiated that the public service dispute consideration concerning the legality of imposing a disciplinary sanction, termination of a public service contract constitutes a type of law enforcement procedural activity that has its own basis, subject matter, goals, elements, procedural forms and stages, types of decisions, which makes it possible to single out such disputes as one of the administrative proceedings included in the administrative process structure.
The paper examines the features of the international status of "UNESCO Global Geopark" that are important for the development of Russian legislation regulating Geoparks. The criteria for the status of a “UNESCO Global Geopark” that affect the national legal regime of the Geopark include the criterion for the presence of geological objects with a protected status on its territory. The author has analyzed the references to national legislation contained in the criteria for UNESCO Global Geoparks. The paper highlights the differences between the UNESCO Global Geopark, the World Heritage Site and the Biosphere Reserve, analyzes the cases of overlaps between the Geopark concept and the concept of a World Heritage site or a biosphere reserve. Also, the author shows that the term Geopark is extremely rarely used in federal legislation (single strategic planning documents) in the context of the need arising in the constituent entities of the Russian Federation to regulate the processes of creation and functioning of Geoparks. The author has proven the connection between the Russian legislation on Geoparks, regardless of the further fate of its development, with the legislation on specially protected natural areas.
The author determines four possible types of organization and functioning of geoparks in Russia: 1) a geopark as a tourist and recreational zone; 2) a geopark without a legal regime for a tourist and recreational zone and without a legal regime for a specially protected natural area; 3) a geopark with a legal regime of a specially protected natural area in the form of a state paleontological, mineralogical or geological reserve; 4) a geopark as an independent category of a specially protected natural area approved by regional regulatory legal acts. The author specifically describes the legal regime of each type of the Geopark. The author makes suggestions and recommendations for the development of federal and regional legislation on Geoparks in Russia.
The paper analyzes the negative legal consequences associated with the fact of bringing to administrative responsibility and circumstances occurring after the end of the execution of the sentence. These consequences are established not only by the Code of Administrative Offenses of the Russian Federation, but also by many other laws. They differ among themselves in the content and duration of the periods during which they arise and continue. Based on this, the author concludes that it is necessary to introduce a concept similar to the concept of "conviction" in criminal law into the legislation on administrative offenses, and talk about the "state of administrative punishment" that should be understood as a special legal status of a person brought to administrative responsibility, characterized by the possibility of the imposition of a more severe punishment in the event of a repeated offense and the application of other negative measures. Under the Code of Administrative Offences of the Russian Federation, the term of administrative punishment is one year, i.e. any negative consequences of being brought to administrative responsibility can take place within a year after the end of the execution of the sentence, including the possibility of imposing a more severe punishment for the repeated offense, recording the information about the facts of bringing to responsibility during employment, disseminating information about the fact of committing an offense. After the expiry of the term of administrative punishment, the person should be considered not previously brought to administrative responsibility. After that term no negative consequences associated with this fact can take place. As in criminal law, the term of administrative punishment can differentiate depending on the gravety of the offense or the type of punishment imposed. The mechanism is provided for the early termination of the state of administrative punishment.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
The paper analyzes the features of the regulation of objective and subjective characteristics of the elements of the crime under Art. 133 of the Criminal Code of the Russian Federation, their influence on application of the aforementioned norm. The paper examines the category of "compulsion", the concept of "other sexual actions", their correlation with the definition of "sexual harassment". The paper resorts to legal and etymological approaches to the understanding and content of these terms, gives recommendations for improving the legislative and law enforcement practice in this area. The author analyzes the approach to the interpretation of the content aspects of compulsion—encouragement/compulsion. The issue of the moment of the end of the criminal act under consideration (process/result) is examined. The author determines and substantiates deficiencies in the regulation of methods of coercion to actions of a sexual nature. The concept of "dependence" in the considered area, its relationship with the state of helplessness is investigated. The essential and substantive characteristics of the threat as a method of coercion to sexual actions (criteria and their interpretation) are analyzed. Also, the author examines the issue of qualifying characteristics of the elements of the crime under Art. 133 of the Criminal Code of the Russian Federation and problems of interpretation of the characteristics of the subject matter, motives and purpose of this act. The complexity of the delimitation of the aforementioned criminal act from an insignificant offense, a moral offense, an administrative offense, and related crimes are indicated. The author also analyzes the issue of qualification of the act under Art. 133 of the Criminal Code of the Russian Federation and its impact on its relationship with violent sexual crimes. The paper presents an analysis of the legislation of the CIS countries on the issue under consideration and provides for historical summary about the evolution of the domestic legislative approach in the aforementioned area. The determinants of law enforcement problems are identified and indicated. Conclusions and recommendations are based on the study of judicial practice, researchers’ opinions, the RF Supreme Court standing, the rules applied to qualify criminal acts.
The paper analyzes the legislative definition of criminal procedural evidence. The author gives critical assessment of replacement of the phrase “any factual data” from the Criminal Procedure Code of the RSFSR with the phrase “any information” in the Code of Criminal Procedure of the Russian Federation. The wording under consideration gave rise to the possibility for some authors to conclude that the law does not indicate the factual nature of information claiming the status of evidence. The main attention is paid to the question of the necessary properties of proofs. The paper points to the erroneous perception by some researchers of the content of Art. 88 of the Code of Criminal Procedure of the Russian Federation, which manifests itself in endowing the properties of relevance, admissibility and reliability with the status of criteria for evaluating evidence. According to the author, relevance, admissibility and reliability are not criteria for evaluating evidence, but information obtained in the course of proving for the possibility of using it as evidence. The criteria for evaluating the evidence are specified in Part 1 of Art. 17 of the Code of Criminal Procedure of the Russian Federation—the law and the conscience of an authorized person who evaluates evidence according to his inner conviction. In contrast to the opinion of researchers who believe that the necessary properties of evidence include only relevance and admissibility, the author argues that each evidence must also have the property of reliability. Only in the presence of the entire set of necessary properties, the information obtained in the course of proving can be endowed with the status of evidence.
The author demonstrates that each of the necessary properties of a proof has an independent content and meaning. Therefore, their confusion is unacceptable. It is concluded that relevance, admissibility and reliability should form the basis for all procedural decisions concerning evidence. According to the author, a clear understanding of the content of these properties would be facilitated by the consolidation of the definitions of these categories in the Criminal Procedure Code of the Russian Federation. It is also advisable to edit Part 1 of Art. 74 of the Criminal Procedure Code of the Russian Federation by means of defining the concept for criminal procedural evidence as "any factual information" and indicating the purpose of obtaining them as "for the correct resolution of the case".
CYBERSPACE / CYBERSPACE
The importance of digitalization in all industries is increasing, especially since the possibilities of information technologies are obvious. Criminal proceedings are no exception. In criminal proceedings, information technologies are generally used in the production of an investigative action or with the transition of the entire criminal proceedings to an electronic format. Digitalization in criminal proceedings can be caused by the search for the optimal way to increase the efficiency of criminal proceedings and create reliable guarantees for the protection of the rights and freedoms of persons involved in the criminal proceedings, the use of information technologies on a single digital platform in the paradigm of decisions and evidence. Therefore, digitalization can play a certain role in making decisions about the participation of a person in criminal proceedings.
The concept of "artificial intelligence (AI)" appeared in the middle of the last century, but it is only now that AI itself and its capabilities became of interest to society. Modern electronic dictionaries and built-in translators have become popular. It seems important to take into account the very nature of digital technologies.
The paper is devoted to clarifying the question of whether multi-vector and multi-valued information technologies can replace any participants in criminal proceedings or become one of the conditions for creating a basis for such a participant as a translator to enter the sphere of criminal proceedings. We will analyze not only the legislation and law enforcement practice of the Russian Federation, but also the positive experience of legislation and law enforcement practice of some foreign countries.
The paper considers the main threats to human rights in connection with the introduction of digital profiles in the Russian Federation. Rights such as the right to privacy and the right to dignity are most at risk. In addition, the risk of discrimination increases. Analyzing the current legal regulation of the digital profile, the author concludes that it does not meet the criterion of legal certainty and creates increased risks of intrusion of the state and private structures into the sphere of a person’s private life. Despite the fact that currently digital profiles of citizens are only a set of official information contained in some state information systems and public registers, according to the author, in the future, this infrastructure can be used for profiling people, in-depth analysis, monitoring and forecasting their behavior, as is already done today by some other states and nongovernmental organizations.
The legal regulation of the digital profile should be based on special guarantees of human rights in connection with the collection and processing of personal information about citizens available to the state. Among such guarantees, the author includes, in particular, the establishment in the law of a list of information that cannot be part of a digital profile of a citizen or be otherwise related to it, a list of unacceptable purposes for using digital profiles, as well as the establishment of the obligation of operators to inform subjects in an accessible form about the facts and legal consequences of profiling, about the principles and logical schemes underlying profiling.
The paper considers the doctrine of information and computer forensic support of investigative and judicial actions tactics, which is part of the system of the private theory of information and computer support of forensic activity. The subject of the teaching is the laws of gathering, scrutinizing and applying computer information in the production of investigative and judicial actions. The objects are the tactics and technology of investigative and judicial actions. Based on the theoretical aspects of the teaching, the authors have developed the tactics and technology of non-verbal investigative actions in cases of computer crimes. Among these are inspection of the scene of the crime, search, seizure, investigative experiment, given the choice of tactical impact and making a tactical decision depending on the specifics of investigative situations in the conditions of tactical risk associated with possible counteraction to the investigation. The tactical and technological support for the production of the above-mentioned non-verbal investigative actions is developed taking into account the features of digital traces, which are characterized by a high speed of transformation, are easily destroyed and modified, can be represented by an almost infinite number of copies, are characterized by the impossibility of perception directly by the senses, but only with the use of special devices and programs for detection, fixation and preservation, are confirmed by control numbers (hash sums) or other data indicating their integrity. The basic principles of working with digital traces in the production of non-verbal investigative actions are determined. They are the preservation of digital traces unchanged at all stages of working with them; full reflection of all manipulations in the protocols of investigative actions; the exceptional importance of preparatory measures, including the selection of a specialist and the determination of his competence, the availability of the necessary equipment and software for working with digital traces. For each of the above-mentioned investigative actions in the investigation of computer crimes, tactical techniques and technological support for the most effective obtaining of criminally significant evidentiary and investigative information have been developed.
Digital technologies are affecting society, and this influence is becoming more and more noticeable. The further development of technologies and their use change the way of life of people, the content of public relations. Of particular importance are "end-to-end" digital technologies, the use of which is possible in various fields. The interaction of these technologies leads to results that include answers to the global challenges of humanity: increasing life expectancy, simplifying various communications, increasing labor productivity, etc. Today, the greatest attention is given to artificial intelligence technologies, the legal regulation of which is already being formed in different countries, including in Russia. The increasing use of artificial intelligence technologies in industry, the service sector and in everyday life requires certain regulation; in addition, the issue of adjusting the ways of developing artificial intelligence with the help of legal norms is raised. Since the norms of constitutional law form the basis of legal matter, the need to create constitutional and legal norms that establish the principles of regulating public relations arising in connection with the use of artificial intelligence in the information society will increase.
Neurotechnologies are closely connected with artificial intelligence technologies, it is their combination that can greatly change the future of human civilization, in particular through the creation of hybrid human-machine intelligence. Such prospects cause concern to many researchers, including legal scholars, who suggest ways to solve social problems arising from the development of technologies, among the solutions is the need to resolve a number of issues by constitutional law.
The main issues requiring constitutional and legal regulation can be called issues related to the guarantees of human rights that correspond to the conditions of the information society, with the need to consolidate a number of new rights and establish certain prohibitions on the use of artificial intelligence technologies and neurotechnologies.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
The degree of standardization of the practice of M&A transactions in Europe and the United States, which is largely accepted in Russia, allows us to raise the question of the formation of lex mercatoria in the field of corporate transactions. The experience of forming and studying the standards for concluding transactions considered in the paper reflects the technological capabilities of information processing over the past 20 years. This experience is the basis for the next stage of the development of legal regulation related to the use of machine learning technologies and the transformation of the regulation of public relations. From a practical point of view, when concluding complex transactions that are yet to be unified by platform technologies, the relevance of the issue is undoubtedly relevant: what would be the usual (average, compromise, most reasonable) solution for a particular situation? The paper provides an in-depth and detailed analysis of empirical research data, in particular, the 2019 report “On the main terms of European transactions with respect to private companies” published by the American Bar Association. The author concludes that, despite some statistical limitations of the sampled information, the periodic nature, uniform methodology and international coverage of the report data allow us to track the dynamics of the use of a particular condition in time and space, as well as the level of standardization and unification of approaches to regulating M&A conditions. The author identifies the conditions that are well-established in practice, in particular, the conditions on the applicable law, the mechanism of price adjustment, risk liability insurance in connection with assurances about the circumstances, approaches to determining losses and limiting the seller’s liability. The paper also analyzes the trends of consolidating positions on controversial issues, including those related to a significant change in circumstances (MAE) and the inclusion in its scope of circumstances related to the COVID-19 pandemic, the application of the knowledge criterion, the dispute settlement procedure, etc.
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.
ISSN 2686-7869 (Online)