PRIVATE LAW / JUS PRIVATUM
The paper is devoted to the legislative and organizational instruments employed to ensure protection of the results of intellectual activity and the commercialization of rights to them in the member countries of the Eurasian Economic Union (EAEU), in particular in Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia, Uzbekistan (Observer in the EAEU). The authors have examined the regulatory and legal framework in the field of intellectual property of the EAEU countries, the experience of national patent offices, problematic issues of the modern development of the intellectual property (IP) market, commercialization of the results of intellectual activity (RIA). The role of the intellectual property market institutions in the management of rights to RIA was identified using a Russian venture company as a case study. The legislation analysis has revealed differences in approaches and depth of elaboration of the IP market institutionalization, heterogeneity of innovative and technical potential and legislation in the field of innovation. In addition, the analysis has determined the tasks of the EAEU member countries in the field of intellectual property protection and the need for further integration of the EAEU countries to form an effective IP market. The paper draws attention to the possibility of integrating the EAEU member states in the field of IP, which is important in the context of the progressive socio-economic development of countries. At the level of national economies, it is advisable to form IP ecosystems with due regard to the harmonization of the EAEU countries legislation in the field of protection of rights to RIA, as well as to create conditions for an effective institutional environment, that is flexible and adaptive in relation to all EAEU countries interested in cooperation. Constructing an interstate system of legal, financial, organizational mechanisms for the commercialization of rights to IP objects, using IP objects and the dissemination of best practices, for example, the experience of the Russian Venture Company as a development institut, constitute integral conditions for the effective functioning of the common IP market of the EAEU countries is the ion.
The paper substantiates the position that the entrepreneurial market is no longer a collection of individual participants one way or another interacting with each other through voluntary communication "clothed" in a legal form, but a potentially interdependent network, the presence of which is found in the conditions of a property crisis of one of its elements. In this vein, the bankruptcy procedure is an arena for the collision of multidirectional interests of multiplicities discovered in this process, the most important of which are the unions of the meeting of creditors. They engage persons included, together with the debtor, in a corporate group, qualified by the author as multiplicities of simple partnerships. These partnerships have a specific purpose, they arise at the moment of capital pooling (initiated by a corporate group) or objective bankruptcy (initiated by independent creditors), they are endowed with a certain amount of powers within the framework of the bankruptcy procedure with due regard to the specifics of their status and they cease to exist at the moment of an actual achievement of the set goal, which is not always connected with the termination of the trial. A feature of the studied varieties of a simple partnership is the predominant involuntary association of its participants when they are forced to interact with each other due to the insolvency of their counterparty. The uniqueness of this type of a partnership is manifested, among other things, in the form of a contribution to such a partnership, since, entering into civil law relations at the time of the objective solvency of the future debtor, his counterparties do not realize that their reciprocal contribution under the obligation is nothing more than "contribution" to the property (potentially bankruptcy) assets of the future partnership that arises at the time of actual bankruptcy of the person with whom they enter into a legal relationship. In addition, the author demonstartes the need to clarify the legal nature of this type of partnership, of which the debtor and related persons are members, in order to prevent the latter from participating in the bankruptcy process along with the debtor's independent creditors.
The legal structure of an inheritance contract introduced into the system of Russian civil law on June 1, 2019, caused an ambiguous evaluation in the doctrine of inheritance law. Analyzing various points of views of scholars and legal prescriptions, the author expresses her opinion on this legal structure highlighting in particular an imbalance in the legal status of the parties to the inheritance contract, expressed in the possibility of unilateral refusal to execute it by only one of the parties, in the absence of legal protection of the testator's counterparty when the latter alienates the property specified in the inheritance contract. This makes this legal structure practically non-binding for the testator and reduces its relevance. The author substantiates that the legal prohibition of concluding an inheritance contract through a representative applies only to the testator. The assumption is made that the reference to a third party acquiring the right of inheritance does not turn this agreement into a contract made in favor of the third party. The paper focuses on the controversial issue of the limits of the discretion of the testator and the essential conditions of the inheritance contract. The author differntiates the gaps in the law in the regulation of a number of issues related to the conclusion and execution of an inheritance contract, some wordings of Art. 1118 and 1140.1 of the Civil Code of the Russian Federation and suggests proposals that improve rules under consideration. The author comes to the conclusion that the legal structure of inheritance law raises many questions caused by faulty legal formulations and insufficient completeness of legal regulation, which can give rise not only to doctrinal discussions, but also to contradictory law enforcement practice.
PUBLIC LAW / JUS PUBLICUM
National and ethnic enclaves constitute one of the forms of "parallel spaces" materialization (In the entire palette of inherent properties) and, therefore, it is legitimate to qualify them as a unique practice of refraction of the concept of multiculturalism. Historical experience has shown that the presumption of mutual desire for integration based on the recognition of the concept of multiculturalism as a guiding principle of relations (primarily in relation to European states and migrant groups within their borders) did not justify itself due to insufficient consideration of the entire scope of influencing factors (risks). On this basis, the author emphasizes the importance of applying an approach the structure of which includes differentiated complex methodological formulas (political and legal, socio-economic, national-cultural) that encourage harmonization of "foreign" authentic cultures (including religious practices, behavioural patterns in the framework of social environments) with a dominant and historically determined culture of the host community with the recognition of the primacy of its culture (including a heterogeneous nature).
Enclaves are viewed as a spatial-geographical and socio-institutional phenomenon. The spatial and geographical component reflects the infrastructure landscape of the enclave, including the inherent economic, production, and environmental features in certain geographical coordinates (at the location). A socio-institutional variable characterizes a community that has appeared and functions by virtue of and within certain groups of co-identity parameters (national, religious, linguistic, legal (usually legal), etc.), emphasizes its inherent connections (internal and external). Under national-ethnic enclaves it is proposed to understand separate quasi-territorial formations, where, due to objectively forced conditions, national minorities (mainly migrant groups) live compactly (permanently or temporarily), adhering to an authentic way of life that differs from the generally accepted way (mainstream) in the host society. The paper highlights the characteristic imperative and optional features of enclaves, emphasizes the heterogeneous configuration of the social structure of enclaves, investigates the reasons for the formation and functions of ethno-national enclaves, identifies the similarities and differences between enclaves and ghettos and ethno-burbes.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
The paper analyzes the errors committed by law enforcement officers in the implementation of various types of special knowledge at all stages of criminal proceedings. Shortcomings under consideration are differentiated into shortcomings committed in the production of investigative actions, during which objects were seized, subsequently presented for an expert examination, when forensic examinations are appointed, in the production of forensic examinations, when examining the expert's opinion by officials of the preliminary investigation bodies and the prosecutor's office. At the same time, such errors are periodically repeated and multiply: forensic examinations, the need for the production of which is caused by the specifics of the crime being investigated, the current investigative situation and, being justified by specially developed recommendations, are not scheduled; the questions posed to the experts do not cover all the circumstances the establishment of which is possible only through the involvement of persons knowledgeable in a particular area of special knowledge; the questions themselves are not always directly related to the expert's specialization and the type of examination; the presence of proper qualifications of a person involved as an expert is not verified, etc.
Without setting themselves the task of analyzing all or most of these errors, the authors thoroughly consider the most serious errors using specific examples from judicial investigative practice and they come to the conclusion that the effectiveness and efficiency of using the expert's conclusion in proving is possible only under the context of impeccable observance by officials of preliminary investigation bodies, forensic experts and heads of forensic institutions of the provisions of the Criminal Procedure Law, the Federal Law "On State Forensic Expert Activity", departmental regulations and forensic recommendations.
The the paper is devoted to the results of a comprehensive legal and linguistic study of the "Columbine" ("school shooting") subculture from the standpoint of criminology, criminal law, forensic science and forensic speech studies. Despite some conventionality of the well-established term "school shooting" borrowed from the English language, the author proceeds from the fact that any form of violent actions in educational institutions committed by a student (group of students) or an outsider in relation to teachers and students using weapons and improvised means should be understood as school shooting.
Empirically, the study is based on the publications of Russian and foreign scientists, the results of semi-automated monitoring of social networks for the promotion of school shooting, as well as materials of criminal cases held in the archives of the investigative departments of the Investigative Committee of the Russian Federation for the Volgograd, Moscow, Saratov, Tyumen, Chelyabinsk regions, Krasnoyarsk Territory and Republic of Khakassia. The author concludes that the the Columbine subculture is extremist-terrorist in its essence. The paper summarizes the most characteristic ideological attitudes of this subculture, signs of a person's involvement in the targeted community, examines the problems of the legal characterisation of school shooting acts and proposes criminalistic diagnostic complexes to examine extremist speech actions aimed at promoting Columbine. These complexes give a law enforcement officer clear criteria for recognizing information materials as extremist, as well as for holding liable or discharging an individual under Art. 205.2, 280, 282 of the Criminal Code of the Russian Federation depending on the presence or absence of mass executions propaganda aimed to intimidate the population in order to influence the authorities or other extremist motives.
The paper is devoted to monitoring the development in the Russian criminal legislation of responsibility for the illegal movement of strategically important goods and resources across the customs border of the Customs Union within the EurAsEC or the State border of the Russian Federation. At the same time, the author argues the correctness of the indication in the disposition of Art. 226.1 of the Criminal Code of the Russian Federation a State Border as a place of commission of the crime under consideration. The author provides a detailed list of strategically important goods and resources, since the establishment of the subject matter of a crime makes it possible to qualify the offense and differntiate criminal smuggling from smuggling the responsibility for which is envisaged only in administrative legislation. The author substantiates the statement according to which this type of smuggling infringes not on public safety, but on relations in the field of economic activity. Therefore, a proposal is made to return the criminal law rule to Ch. 22 of the Criminal Code of the Russian Federation. At the same time, it is proposed to establish criminal liability for smuggling flora and fauna items classified as strategically important goods and resources in a separate article in the Chapter entitled "Environmental Crimes" with due regard to the social danger of this act. The liability should not be related to the value of the goods and resources being moved. Taking into account only the cost of biological resources in their protection under criminal law does not reflect the real social danger of these acts. The need for the protection of biological resources using criminal law instruments is caused not only and not so much by economic preconditions but by the need to preserve rare and endangered representatives of flora and fauna for future generations—the most important components of the ecosystem of the entire planet. The author draws conclusions largely aimed at observing the systematic nature of the criminal law due to the peculiarities of the object of the offence.
GENOME / GENOME
The increased scale of genetic research in the world determines the relevance of legal regulation of relations on the turnover of genetic information. The purpose of this study is to define a new legal institution for the circulation of genetic information and the main directions of development of future legislation. The methodological basis of the study comprises empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; private scientific methods: the method of comparative jurisprudence and the method of interpretation of legal norms. The results of the study allow the authors to state that there is a process of separation of the still few legal norms on the turnover of genetic information into a separate institution in the system of the information law branch.
The developing institute should include norms (principles) of turnover and processing of genetic information. These are norms that consolidate the rights and obligations of subjects of information legal relations regarding the turnover of genetic information; norms that establish the legal regime of biological banks and national databases of genetic information; protective norms for state supervision of the activities of subjects in the field of turnover of genetic information; special norms on liability for violations of the requirements of the law.
The most effective solution to the problem of legal regulation of relations on the turnover of genetic information in the Russian Federation is the adoption of a special law.
The information activities of various entities in this area are often international in nature and are based on the norms established in treaties and national legislation. In this regard, it seems appropriate to launch a broad discussion of the problems of genetic information turnover at the level of the international scientific community. These should include identification of threats; identification of possible risks of using information technologies in medicine; unification of digital identification mechanisms; development of ethical codes of conduct for the scientific community; use of foresight methodology in order to develop common positions.
DISCUSSION PANEL / PRO ET CONTRA
The presented paper aims at revealing the essence of legal and judicial doctrine in Russian private law. The paper criticizes the position that the legal doctrine is an authoritative opinion of scientists expressed in the form of principles, theories, and concepts. This approach to legal doctrine is amorphous. Legal doctrine is a unified concept based on specific methodological foundations and developing conclusions that are in systemic unity. The legal doctrine toolkit is the alpha and omega of law. An interdisciplinary approach to the study of legal phenomena should be based on the categorical apparatus of legal doctrine, on the general doctrine of the essence and purpose of law. The result of an interdisciplinary study should be a rethinking and filling with new content of the tools already developed by the legal doctrine. The work scrutinizes the functions of legal doctrine: description of existing law (de lege lata); development of proposals for its improvement (de lege ferenda); justification and legitimization of novels. The paper concludes that the modern civil doctrine can be revealed through the postmodern concept of the rhizome, since the doctrine is becoming more international, interdisciplinary and creative. The author investigates the triad of functions of judicial doctrine, namely interpretation, addition and correction of law. It is proved that social and technological challenges predetermine the emergence of judicial doctrines aimed at rethinking and interpreting positive law, its addition and correction. The author concludes that the evolution of private law is based on the dialectical unity of legal and judicial doctrine, each of which implements its functional triad.
JUDICIAL REVIEWS / RES JUDICATA
Improving the legal regulation of family relations involves the search and implementation of new social, organizational, legal and other measures to support the functioning of the traditional institution of the family. At the same time, family legislation does not always take into account modern trends in the life of society, which to a certain extent hinders the exercise and protection of family rights, as well as ensuring a fair balance of interests of participants in family and other relationships. In this sense, in some cases, higher courts react most effectively, taking into account even minor changes in social reality in a timely manner.
The transformation of the family law in the context of changing social reality is based on two conceptual principles: firstly, the preservation of traditional family values of Russian society and, as a consequence, the reflection of such at the legislative level and in judicial practice, and secondly, legislative and law enforcement response to the latest social practices. These principles of transformation of family law complement each other, allowing us to take into account the public demands of various social groups.
The main directions of the modern transformation of family law, reflected in judicial practice, include the following. First, the expansion of the sphere of family law regulation of public relations is due to the complexity of the system of social relations. Second, it is the expansion of the system of intersectoral relations of family law, caused by the complexity of the legal regulation of public relations in general. Its consequences are a shift in emphasis in ensuring a fair balance of interests of participants in family and other legal relations, the strengthening of civil law principles in the regulation of family relations, giving traditional family law institutions new optional properties and purpose, including the penetration of public legal goals in the private legal field of family life. Third, it is to ensure gender balance in family relations at the law enforcement level.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
The paper describes possible ways to reform the rules on trust management agreements in connection with the upcoming reform of Part II of the Civil Code of the Russian Federation. Currently, the reform of this part of the Civil Code of the Russian Federation is being carried out in relation to financial transactions, but the rules on intermediary transactions have not been changed, while the situation is complicated by the fact that the reform of property law has not taken place. The improvement of the provisions of Chapter 53 of the Civil Code of the Russian Federation on trust management agreements is due to the development of economic relations for the management of corporate rights, securities, investments, pension contributions, the emergence of a number of new forms of investment activity, as well as a significant difference in the relationship of "consumer management" of property in family and inheritance law (management by virtue of the law), as well as "professional management" of property in investment and other business areas (voluntary transfer of property to management).
The Anglo-American experience of the trust, as well as other models of "trust property" cannot be borrowed by Russian law in any form. The ownership right must remain unitary and cannot take any form. In view of this, the paper suggests using European alternative models of managing someone else's property in the form of mandatory legal institutions for conducting someone else's business using various forms of representation (direct and indirect) instead of the Anglo-American trust. The author considers the possibility of differentiating the professional and non-professional regime of managing someone else's property, the nature of the beneficial interest, the rules of segregation of the management object and the nature of the trustee's responsibility.
Despite the fact that cases of harm caused as a result of defects in goods, works and services represent the third most common special type of tort in Russia, with which claims for compensation for health damage are associated, the legislation does not provide additional insurance means of protection for the consumer. In judicial practice, the problems of determining the basis of tort liability for such harm, its nature and size according to Article 1086 of the Civil Code of the Russian Federation remain relevant. Foreign experience shows that many of these problems can be solved through the introduction of special evidentiary tests and the development of norms on product liability, the use of institutes of insurance of the risk of harm and liability. The paper presents a comparative legal study of the procedure and conditions for compensation for the harm caused to consumer health in Russia and foreign countries. Special attention is given to the fundamental differences between the American and European models of legal regulation of these relations. The author studied the most indicative approaches to determining the causal relationship between the defect of the goods and the damage caused, calculating the amount of compensation, understanding the defect of the goods and its legal consequences. The goals and objectives of the study are to identify and analyze the problems of legal regulation of compensation for harm caused to consumer health in Russia, study foreign experience and identify fundamentally significant areas of improvement of Russian legislation in this area. The expediency of establishing in the domestic legislation special presumptions of the presence of a defect in the goods, the origin of harm from such a defect for cases of causing damage to health during the operation of certain categories of goods is justified, a set of conditions is given, under which such a step may become possible. The prospects for the development and implementation of insurance methods of compensation for harm in this area, including mandatory no-fault insurance, are determined.
ISSN 2686-7869 (Online)