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Vol 75, No 2 (2022)
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PUBLIC LAW / JUS PUBLICUM

9-23 410
Abstract

The paper attempts to demonstrate (on the basis of international and national experience) that it is the federal structure that contributes to the successful resolution of the ethnical issue, the convergence of numerous ethnic groups on the basis of comprehensive understanding of their historical, socio-economic, cultural-linguistic and spiritual-religious features. Based on the study of best practices of institutional and management structures’ activities of federal states, the analysis of scientific works of domestic and foreign authors, a number of reports of the Venice Commission, the author concludes that there is no single model of federalism; each state has its own characteristics due to pecularities of historical and modern stages of development. In this regard, there can be no single, unified approach to resolving issues of self-determination of the peoples of constituent entities of the federation.

The author pays special attention to Prof. Oleg Е. Кутафafin ideas devoted to the problems of federalism and the Russian statehood.

The paper substantiates the statement concerning the need, in the conditions of the asymmetry of the federal structure of Russia, to pay attention to the proportional development of the regions while unconditionally maintaining the unity and integrity of the country. According to the author, the essence of the modern correct interpretation of the right to self-determination lies in the fact that each territorial community creates such a model for the development of its economic and socio-cultural life, such a management system that would comply with the democratically expressed will of the majority of the population, would meet its needs, guarantee individual human rights and would not contradict the general interests of the state. This is the only approach that can ensure implementation of the interests of ethnic, religious and other groups claiming self-determination within the mother state.

The main factors of exercising the right to self-determination are described depending on the number of relevant ethnic groups, the compactness of their location, the level of socio-economic and cultural development, national self-identification and spirituality. At the same time, based on the principle of the state sovereignty that constitutes the foundation of modern international law, it is the prerogative of a State to resolve problems of the internal structure, to grant autonomous status to territorial units.

24-33 369
Abstract

The paper examines the reasons for the use of the US dollar as a means of payment in the implementation of foreign economic activity, determines shortcomings that do not allow the use of the Russian ruble in international trade. An organizational and legal mechanism has been developed that makes it possible to switch to the use of the Russian ruble when foreign buyers pay for certain exports of Russia. The mechanism under consideration is based on market principles and it is implemented on the basis of the absence of administrative coercion to apply it. The consequences of using the mechanism are considered in the context of the Russian Federation’s implementation of the monetary policy.

The paper uses analytical and structural-logical methods of research, financial and legal modeling of the processes of partial replacement of foreign currencies by the Russian currency in the implementation of foreign economic activity by domestic exporters.

It is proposed to create a mechanism for the short-term provision of ruble liquidity to foreign buyers of certain Russian exports, which involves the exchange of foreign currency for Russian rubbles in order to pay for specific foreign trade contracts. Stimulation for its use should be carried out by means of customs and tariff regulation. The mechanism functioning for providing liquidity is supposed to be established using organizational capabilities of the Bank of Russia (either within its structural unit, or in the form of an independent organization controlled by the Central Bank of the Russian Federation). To test the action and consequences of using this mechanism, it is necessary to conduct an experiment on a limited product market that meets the selected criteria. The mechanism for providing ruble liquidity should result in a significant increase in demand for the Russian ruble in the domestic foreign exchange market, which will cause its exchange rate to strengthen and make it possible to reduce the key rate of the Bank of Russia in order to stimulate economic growth to compensate for the deflationary effect.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

34-45 805
Abstract

The paper, based on the interrelated provisions of Art. 35 and Art. 210 of the Criminal Code of the Russian Federation, examines the criteria for distinguishing such a form of complicity as a criminal community (criminal organization). The study has taken into account the diversity of points of view of domestic scientists who covered the problematic issues of the content and qualification of organized criminal activity. In the context of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 10, 2010 No. 12 “On judicial practice in considering criminal cases on the organization of a criminal community (criminal organization) or participation in it” and a number of court decisions, the author determines the most typical features of this criminal association. Based on the analysis of the stages of constructing a criminal community (criminal organization), there is a low probability of qualifying the interrupted creation of this form of complicity as an unconsummated crime. The main practical difficulty lies in establishing and proving its integral criminal-legal aspects (signs) at all stages of formation. This applies, firstly, to the evaluation sign of the stability of a group of persons (their consolidation), which is the basic characteristic of organized complicity. Secondly, a unified leadership of two or more organized groups or the presence in such a group of separate units that carry out their activities as part of a criminal community (criminal organization) is mandatory. Therefore, characterization of roles of its organizers and participants is possible only if the management hierarchy of the consolidated association of accomplices included in the structural divisions is proved, which, in turn, is associated with their activities to achieve the goals provided for in Part 4 of Art. 35 of the Criminal Code of the Russian Federation. Consequently, bringing the perpetrators to criminal liability under Parts 1 and 2 of Art. 210 of the Criminal Code of the Russian Federation is actually due to the proof of the preparation or commission of planned crimes by them as members of these groups.

46-55 1111
Abstract

One of the most important areas of criminal policy is to increase the effectiveness of the norms of criminal law concerning the responsibility of minors. The paper aims to study criminal law norms that differentiate responsibility depending on the age of the person who committed a crime and the practice of its application. A study carried out using historical and comparative methods showed that the number of crimes, the responsibility for which starts at the age of 14 under the Criminal Code of the Russian Federation is constantly growing. The number increased from 20 crimes in 1997 to 33 crimes in 2021. The results obtained in the course of the study confirm that the practice of establishing criminal liability for committing a crime from the age of 14 or reducing the already established age from 16 to 14 years based on the mere danger of such a crime cannot be considered justified. Another conclusion drawn from the study is that the Russian law-maker should have taken advantage of the recommendation of the Model Criminal Code for the CIS member states and enshrined the rule that in cases provided for by law (for example, for crimes commited by public officials or military crimes), only a person who has reached an age older than 16 years can be subject to criminal responsibility. Refusal to include in Art. 20 of the Criminal Code of the Russian Federation of the third age (in addition to 16 and 14) of criminal liability has led to the fact that the courts, in particular, do not apply the provisions on «age-related insanity» to persons who have reached 18 years of age at the time of the crime, but who have a mental retardation, which under certain conditions can be considered as a manifestation of age discrimination.

56-63 558
Abstract

The paper examines the internal psychological characteristics of a corrupt official, his main driving force (motivation). The author highlights that the internal motivation of a person is manifested in his needs. The

impossibility of satisfying basic needs and interests in a legal way pushes a person to choose a corrupt behavior model. The author names selfishness, self-interest and other personal interests as the main primum mobile of a corrupt official.

The interest in the motivation of a particular type of crime in the criminological science is broad and boundless. This happens due to the fact that the criminal’s primum mobile is formed along with the criminal’s personality. At the same time, the formation of primum mobile largely depends not only on the internal characteristics of the individual, but also on external factors that affect him.

According to the author, the circumstances influencing the formation of the primum mobile of a corrupt official should be eliminated through ideological and social education of the individual with the mandatory creation and application of a system of early censure of corrupt views and guidelines. The process of self-realization of the individual and satisfaction of basic needs and interests should exclude a corrupt behavior model.

The author points to the obvious need to expand measures aimed at combating corruption. In order to implement effective measures that guarantee the anti-corruption security of the Russian Federation, it is necessary to minimize or exclude any possibility of acquiring benefits, satisfying the needs and interests of the individual through corrupt practices. The process of self-realization of the individual and satisfaction of basic needs and interests should become as accessible and transparent as possible, and it should exclude a corrupt behavior model.

HISTORY OF LAW / HISTORIA LEX

64-76 363
Abstract

The paper is devoted to the main principles of the political and legal transformation of the economy in the doctrine of Cuban socialism. Cuban socialism itself is threefold: a socio-political system, a social movement, and a political and legal doctrine. The paper highlights the backbone importance of the economy as an object of political and legal transformations, focuses on the special flexibility of the corresponding concept, which made it possible, in a situation of limited natural resources and a large-scale economic blockade, to find many correct solutions to the tasks set. The author describes modern fundamental principles of economic construction that serve as a guideline for making both today’s political and economic decisions, and for determining the economic strategy of the future.

An economic agenda in the political and legal doctrine of Cuban socialism at all times was of a system-forming nature, being one of the main components, relying on which this doctrine could explain the most complex political and legal processes of the present and illuminate the horizons of the future. The flexibility of economic thought inherent to the Cuban revolutionaries in synthesis with its deep value orientation, made it possible in the most difficult conditions of the economic blockade to make right decisions and confidently move forward. Due to this circumstance, Cuban socialism as a social system has shown amazing stability for more than six decades, changing and transforming in accordance with the requirements of the time and a rapidly changing world reality. At present, the economic doctrine of the Island of Freedom continues its modification and enrichment, finding more and more effective, comprehensive and systemic solutions in response to the global challenges of our time generated by the stormy waves of the 21st century.

GENOME / GENOME

77-89 344
Abstract

The paper is devoted to the issues of advisability of introducing amendments to the civil legislation in connection with the development of additive technologies or the possibility of effective application of the existing rules of law to the regulation of «innovative» civil relations.

Digitization of objects of the material world associated with the creation of their digital prototypes constitutes a revolutionary element of 3D printing technology. A three-dimensional digital model (CAD file) can be easily modified, distributed and embodied in the form of a physical object by printing it on a 3D printer. This gives rise to new risks of infringement of exclusive rights to objects of patent law. In a foreign doctrine, a discussion has started regarding the possibility of qualifying the creation and circulation of digital models of patented products (inventions) as a direct infringement or indirect infringement of exclusive rights.

The paper concluded that Russian patent law was not ready for the challenge generated by the development of 3D printing technology, since it was not aware of the concept of indirect infringement of the exclusive right. In Russian law enforcement practice, the concept of direct patent infringement is interpreted in a restrictive manner.

The question of admissibility of patenting technical solutions in the field of bioprinting has been studied. It is concluded that in Russian law there are no fundamental obstacles to patenting technical solutions in the field of bioprinting technologies. Russian legislation provides for the possibility of patenting «natural products», as well as methods and means of treatment, which distinguishes the Russian approach from the American or European one. If the risk of genetic instability of pluripotent cells is leveled, the technology for creating bioprinted human organs will comply with the requirements of civil law. In particular, it will meet the requirements for the compliance of patented technical solutions with the public interest, the principles of humanity and morality.

90-100 340
Abstract

The European Union countries tend to ensure the protection of citizens’ rights when processing genetic information in such areas as healthcare, science, labor and insurance. In Russia, such protection of citizens’ rights is provided exclusively for the prevention, disclosure and investigation of crimes.

The results of the study show that genetic information is an element of objects of various constitutional human and civil rights (for example, the right to health, the right to privacy, personal dignity, etc.). Consequently, it can be the object of a complex of legal relations of various areas of law: constitutional, civil, labor, etc. In this regard, it is concluded that the protection of the rights of citizens in Russia in processing of genetic information in such areas as healthcare, science, labor and insurance should have a complex (intersectoral) character. At the same time, there is no need to adopt a general law that would ensure the appropriate protection of citizens’ rights in all these spheres of society. It is enough to make point changes to the laws regulating public relations on processing of genetic information within a particular sphere. The Federal Law «On Personal Data» should definitely take a central place among such laws. Its norms are of «cross-cutting» character and are subject to application to all public relations, one way or another related to the processing of genetic information.

In addition, there is a sphere of social life in Russia that is directly related to the processing of genetic information, but is not subject to legislative regulation. This is scientific research that uses biological samples of human origin. The authors of the paper, by analogy with the legislation of the European Union, propose to adopt a new Federal Law «On research of biological samples of human origin».

101-107 513
Abstract

Achievements in the field of biotechnology raise the standard of human life and improve its quality, open up new opportunities for social activity, including for business, and are also used when combating crime. The paper analyzes the problems associated with the study of trace substances of human biological origin, the collection and storage of genomic information, the formation of such a direction as DNA forensics. The author examines the issue of criminal threats associated with the use of biotechnologies, including crimes committed with the use of biological weapons, bioterrorism, and analyzes the criminal use of biotechnologies, including the sphere of assisted human reproduction. The paper defines the possibilities of criminalistics in the process of countering the use of biotechnologies in the commission of criminal offences. First, we are talking about the development of measures to prevent crimes in this area, creation of methods for investigating crimes committed in this area, development of effective technical, tactical and methodological recommendations for verifying information that is significant from a forensic standpoint.

The author proves that further development of biotechnologies is impossible without proper legal regulation, without protection from criminal risks. The high level of abuse, including of a criminal nature, in the field of genomic research determines the need to form a scientific basis for developing measures to respond to criminal risks in the field of artificial human reproduction, as well as measures to counter criminal activity in this area. In view of this, according to the author, there is a need to adopt a separate federal law on assisted reproductive technologies.

CYBERSPACE / CYBERSPACE

108-120 432
Abstract

Digital transformation of legal profession and advocacy involves finding, selecting, and developing approaches that ensure the translation of data about objects, connections, and processes of the real (analog) world related to the relevant subject area into a virtual (digital) format. Therefore, it is very important that the description of the properties of objects, connections and processes subject to digitalization should be machine-readable, and the «pre-digital» (analog) image of such should fit into the paradigm of information technology (Information Technology, IT) for the subsequent transformation of this image into digital form.

The digital transformation of legal profession and advocacy is not an end in itself. The key issue is the quality of expert legal assistance. The issue of the quality of expert legal assistance must be addressed on a systematic basis, taking into account such quality management functions as quality planning, quality assurance, quality control, and quality improvement. The development of the topic of quality (proper quality) of expert legal assistance involves the formation of a certain theoretical model on an appropriate methodological basis, followed by its implementation in the regulatory (regulatory) framework of the ecosystem of advocacy and implementation in corporate practice. The author offers one of these models. The model is based on the so-called process approach. The paper describes the essence of the process approach, the process model of the quality of the expert legal assistance itself and gives a general description of its elements. The process model allows you to look at the provision of expert legal assistance through the prism of the process approach used in IT: it makes it possible to plan the provision, provide and analyze the results of the rendered expert legal assistance in the paradigm of this approach. The author notes the high analytical potential of the process model of the quality of qualified legal aid and its practical usefulness.

121-131 578
Abstract

The paper analyzes legal approaches to solving key problems of human rights implementation in the conditions of mass exploitation of artificial intelligence (AI) systems in the public space. Within the framework of the study, the emphasis is placed on the features of the legal regulation of the use of artificial intelligence systems for remote biometric identification. The use of these systems is currently only beginning to acquire a regulatory legal framework and law enforcement practice in most countries. The study analyzes several different models of legal regulation that are typical of individual countries and regions, such as the United Kingdom, the United States, China, the EU and Russia.

In the UK, the use of real-time facial recognition systems in public spaces is allowed, but the set of scenarios and situations of their use is significantly limited by legislation and law enforcement practice. In the United States, both at the federal and state levels, there are no general rules that form a unified legal approach to regulating the area in question. The EC has developed a draft Regulation on Harmonized AI Rules (Artificial Intelligence Act), which is supposed to prohibit the use of AI systems for remote biometric identification of individuals in real time in public places. There is no special regulatory regulation of this sphere of public relations in the PRC. The development of these systems in China is controlled by the state, which, due to the high centralization of power, leads to the risk of human rights violations and the creation of an atmosphere of total surveillance of citizens without any legally established framework and restrictions. In Russia, the state is actively deploying these systems at the federal and regional levels in the absence of a specialized regulatory framework. Human rights are protected only by the general norms of the Constitution of the Russian Federation and legislation, law enforcement practice is mainly aimed at ensuring the interests of the state.

132-147 897
Abstract

Provisions on the systematization of legislation, primarily on incorporation and codification, have been actively developed by European and domestic legal science for about two centuries (the 19th century is often characterized by lawyers as the century of codifications). The foundations of the domestic theory of systematization of legislation were laid by the Russian pre-revolutionary jurisprudence. Many provisions, the content of which was clarified in the 60-80s of the 20th century, are in use almost in the same form now. Modern theoretical and branch legal science, legislation (laws on normative legal acts in force in the post-Soviet space, their projects) proceed from the importance of legal systematizing activity, its individual varieties (incorporation, codification, consolidation). Meanwhile, the development of legal systematizing practice and legal science, including in modern conditions of digitalization of public relations, significantly transforms the traditional content of the theory of systematization of legislation. Codification, with good reason, is increasingly being considered as a kind of law-making, rather than law-systematizing activity. The value of incorporated collections is falling; their functions are taken over by legal reference systems (both official and unofficial). Computer based reference systems have become the main form of both systematization and incorporation of legislation. The characteristics of consolidation that distinguish it from codification and law making are not sufficiently clear. The general concept of «systematization of legislation» may well be limited only to the external processing of normative material. Everything connected with the so-called internal systematization (codification and aspects of law-making in the consolidation of legislation, compilation of a single normative legal act as a result of systematization, cancellation of previously valid acts) can be transferred to the theory of law-making and considered within its framework. The subject field of the theory of systematization of legislation is being modified, this entails changes in the content of the basic terminology used both in science and in legislation.

148-158 867
Abstract

The purpose of the paper is to analyze the legal regulation and judicial practice of digitalization of criminal proceedings. In modern conditions, rapidly developing technologies are being introduced into all spheres of human life. On the one hand, technologies facilitate and simplify processes, on the other, entail the need to solve specific tasks that did not arise before their use. Criminal proceedings, being a multifaceted and complex activity that affects the most significant human rights, such as life, freedom, inviolability of the home, requires the most careful approach and caution when using digital technologies. However, the essence of the criminal process itself does not exclude the expediency of optimizing the investigation of a criminal case, its consideration and resolution by the court through digitalization. The criminal procedure legislation includes a few norms regulating the use of technologies in criminal proceedings. The draft law, which proposes to introduce norms regulating remote judicial proceedings, does not concern criminal proceedings, which indicates the gradual and cautious digitalization of this area of law enforcement. At the same time, judicial practice dictates the need for detailed regulation of the use of digital technologies in criminal proceedings. Amendments should be made to the Code of Criminal Procedure, providing for the grounds and procedure for remote participation in a court session by means of a web conference for a witness, specialist, and expert. The current level of development of digital technologies makes it possible to use them without negatively affecting the quality of the process, while reducing court costs, terms of consideration of cases and ensuring the protection of the rights of participants in criminal proceedings.

ANNIVERSARY / LIBER AMICORUM

159-163 418
Abstract

The paper analyzes the contribution to the development of the science of criminal law made by Samvel Mamadovich Kochoi, Dr.Sci (Law), Professor, Honored Worker of the Higher School of the Russian Federation, Honorary Worker of Justice of the Russian Federation, Honorary Worker of Higher Professional Education of the Russian Federation, Professor of the Department of Criminal Law of Kutafin Moscow State Law University (MSAL). The author is convinced that the development of modern legal science, its authority entirely depends on scientists who, with their selfless work, innovative activity, possessing multifaceted talent, giftedness, breadth of views, scientific courage, transform life, turn ideas into reality.

The sphere of scientific interests of Professor S. M. Kochoi is the problems of criminal law protection of property. Taking into account the emerging new socio-economic relations in Russia, in his scientific works Professor S. M. Kochoi proves that the protection of property is one of the priorities of criminal law policy, implementation of which influence the economic power of the state and the well-being of its citizens. In addition, the scientist pays special attention to the problems of terrorism and extremism, namely the issues of responsibility for crimes committed by the international terrorist organization «Islamic State» banned in Russia, including the crime of genocide against the Yazidi people in northern Iraq.

The paper, through a biographical description of the life and creative path of Professor S. M. Kochoi, attempts to reflect the most significant periods of his life, the scientific and educational and socio-political results achieved by him, as well as to show the image of a person, a scientist, a researcher who, with his patient work, inquisitiveness of mind, glorifies the domestic criminal law science, makes a worthy contribution to its development.



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