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Vol 75, No 3 (2022)
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PRIVATE LAW / JUS PRIVATUM

9-18 442
Abstract

The paper is devoted to assessing the validity of the approach to understanding the harm caused to human health when such harm, in order to ensure its «recoverability», is fictitiously identified with a conditional set of losses arising in the propriotory environment of the victim as the consequences of the act committed by the offender (indirect, vicarious losses). The author proves that, being the most frequently broadcast in the doctrine of Russian tort law under the slogans about the special value of such an intangible good as health, this opinion does not correspond to its true legal nature and, when used in law enforcement practice, it creates additional obstacles in the implementation of the principle of full compensation for harm. Applying foreign experience, the author substantiates that the extension of the construction of indirect damages to the legal relations under consideration, as well as giving independent legal significance to the fact of the occurrence of adverse property consequences on the side of the injured person, in isolation from the content of physical harm as an actual consequence of the offense, does not serve this principle. It is noted that the formula widely used in the scientific literature «restoration of the previous state in case of injury to health or death is impossible» has played a negative role in theory and practice in determining the concept of such harm and its compensation. The author proposes to use an integrated approach to characterizing harm to health, in which disorders of individual body functions are investigated not only from the perspective of the violations or limitations of physiological functions of the body, but also in the context of their significance for the main categories of human activity (ability to work, self-service, independent movement, orientation, communication, etc.).

19-33 391
Abstract

The balance of secrecy set by the Soviet legislator, enshrined in the normative structure of the secret of adoption, is seen by many postmodern family researchers as an unfair and inharmonious consequence of adoption. The Russian doctrine intervenes in this problem, but more often it does not succeed in a scientific way The author seeks to scientifically describe a holistic and objective vision of the adoption secrecy extracting for this purpose from current humanitarian discourses unifying topics such as the child’s right to identity and the cchild’s right to know his origin, combining these interdisciplinary aspects into a single analytical structure appropriate for future legal studies of the adoption secrecy. Referring to this structure, the author avoids the trichotomy. The adoption secrecy , the right of the individual to identity and the right of the child to know his origin are investigated as interpenetrating social and legal phenomena. The author’s conceptual thought is based on the substantiation of the theoretical judgment that the theoretical construction of the adoption secret today can no longer be investigated as an absolutely isolated and autonomous construction, scientific attention to which is usually limited to judgments about who benefits from this secret. New theoretical accents should be introduced into this topic, which can modify the traditional perception of the adoption secrecy only as a static act, fixing the fact of adoption and hiding this fact from the public. The research is interdisciplinary and comparative in nature. The final conclusion of the paper is that the adopted children suffer from ignorance of their biological roots not because of the secrecy of adoption, but when the state denies them access to knowledge about their origin, not providing children over a certain age or adult adoptees with access to information about their childhood history. Such a policy of refusing to store information about genetic and social roots of an adopted child and the lack of access to it in today’s conditions in relation to adopted children looks discriminatory.

34-42 391
Abstract

Core facilities (CF) for scientific equipment work is examined in the context of the sharing economy. Currently, there is a development of legislation concerning CFs set up by state agencies or the functioning of which is provided with the involvement of budgetary funds. But there are no special rules concerning the CF that are not funded by the state and local self-government bodies. Accordingly, these CFs are subject to the norms that determine the legal status of the basic organization as a whole. Due to the social significance of the CFs, their role in ensuring the national security of the state, it is advisable to adopt regulations concerning the status and activities of the CFs, regardless of the CF’s type of founders and sources of funding. Although the core facility is being created as a structural unit of a state scientific or educational organization, the paper substantiates the admissibility of the CF formation as an independent entity. The legal regime of the CF property has specifics in relation to such a group as scientific equipment and unique scientific installations. The description of such equipment is an essential condition of the contracts made by the CF with external users. In addition, certain types of equipment meet the specifications of sources of increased danger. The author proposes a new definition of the core facility. A core facility for scientific equipment is a structural subdivision of a scientific or educational organization or an independent legal entity that has scientific and (or) technological equipment, highly qualified personnel, conducts scientific research, experimental developments in its own interests and by order of third parties, or provides scientific equipment to third parties to be used for relevant research and development.

PUBLIC LAW / JUS PUBLICUM

43-52 392
Abstract

The subject of the study is the legal norms regulating the amount of investments accompanying the procedure of redomicilation of a foreign company to special administrative regions of the Russian Federation. It is established that the current procedure for determining the minimum amount of mandatory investments prevents the expansion of the practice of redomicilation of foreign organizations into the Russian jurisdiction: the lack of differentiation of the amount of investments entails a disproportion (inequality) in their legal status. As a result, the redomicilation procedure in the Russian Federation looks more attractive for larger companies than for smaller ones (which reduces the interest of the latter in using it).
The hypothesis is proposed that, in its current form, the fulfillment of the obligation to invest in the economy of the Russian Federation is a «property encumbrance», which by its legal nature is equivalent to a measure of responsibility and acts as a kind of indirect sanction.
To eliminate identified shortcomings, a methodology has been developed for differentiating the minimum amount of mandatory investments based on the sum of the following two variables: 1) the value of assets of a redomiciled foreign company; and 2) the amount of assets of Russian organizations controlled by it. At the same time, it seems impractical to completely abandon undifferentiated amount of mandatory investments — a certain fixed amount of investments must be included as one of the components in their final value. The proposed model will make the minimum amount of necessary investments more equitable and will provide a proportional investment burden for both larger and smaller foreign companies (which will restore equality of their rights and legitimate interests in the process of redomicilation). In the study, analytical and hypothetical-deductive methods were used.

53-62 529
Abstract

Exercising its positive obligation to ensure the effective protection of the rights and freedoms of citizens, the rule of law State strives to create favorable conditions for the independent activity of judges. This is what mainly determines their special legal status in democratic societies and various guarantees of such independence. One of such guarantees is the financial and social security of judges, corresponding to their high status. In addition to the size and volume of such security that, as a rule, is the main focus of international and national institutions, the order of their formation and provision plays an important role in achieving the expected result, since it is the precariousness of the provisions regulating them that can not only nullify the guarantee of independence in question, even taking into account the high volume of material security, but also turn it into an instrument of pressure on judges.
The paper examines the quality of regulation of the grounds and conditions for providing financial support to judges. Based on the results of the analysis, the author reveals contradictions in the terms used by the legislator, shortcomings in the order of formation of the final monthly remuneration of judges — in terms of structural and subject composition, in the formality and wide discretion of assessments of the compliance of judges with individual payments, as well as in the negative difference between the salaries of judges of different levels that has developed because of this.
At the same time, the paper also contains very useful conclusions and recommendations at the end of each of the sections, contributing to the resolution of the shortcomings and problems identified in the paper. The author’s conclusions are mostly based on both international recommendations and a comparative analysis of foreign positive experience, which undoubtedly strengthens the argumentation presented in the paper.

63-75 947
Abstract

The subject of the study covers administrative procedural decisions made during the initiation and consideration of administrative cases, while appealing decisions on the case. The purpose of the study is to analyze the essence of the administrative-procedural decision and the procedure for its adoption. It is stated that in administrative science there are several related categories: managerial decision, administrative decision and administrative procedural decision, where an administrative procedural decision is a kind of administrative decision taken in an administrative procedural order in an administrative case. Thus, these categories are related to each other as the general with the specific. The features of administrative procedural decisions within the framework of cognitive activity in the administrative process are determined by the goals and objectives that must be achieved in the administrative case, the sphere of public relations, about which an administrative case has been initiated, the type of administrative proceedings, the stage of the administrative procedure. It should also be borne in mind that administrative procedural decisions are expressed in the form of procedural acts and have an individual or normative nature, i.e. an administrative procedural decision and an administrative procedural act relate to each other as the content and the form. Attention is drawn to the role of administrative discretion in making an administrative procedural decision. Administrative procedural decisions are not only the final element of any stage of administrative procedural activity, but also a means of obtaining a certain type of information. Such information has evidentiary value, and under certain conditions it will serve as an evidence in an administrative case. For an administrative procedural decision, it is also important that: a) legal qualification of the facts is correct and the choice with due regard to the relevant regulatory legal act is right, because in this case it is possible to talk about the validity of the administrative procedural decision; b) administrative procedure for making a decision the features of which are preconditioned by a specific type of administrative proceedings are established. The author makes an attempt not only to identify the signs of an administrative procedural decision, but also to classify it on various grounds.

76-87 554
Abstract

The building of social security models should be based on the principles of justice that are predetermined and recognized by society. Chaotic reforms without a common vision of the system in accordance with the principles of justice lead to complication, closeness of systems and a sense of insecurity. Since social security is primarily a matter of access to benefits, the state should clearly define the criteria of distributive justice: to whom, to what extent, at whose expense. Public opinion polls sometimes demonstrate that the existing mechanisms of redistribution do not correspond to the idea of justice in society. Throughout the 20th century, the systems were built and improved on the basis of the principle of solidarity of generations, insured, sick and healthy… Currently, due to the crisis of existing models, for many reasons, the old ones are being rethought and new construction options are being tested. They range from extremely liberal, with minimization of social guarantees, to the introduction of a universal basic income. In the Russian Federation, after experiments in pension provision and the introduction of a funded element, which did not show its effectiveness and caused the rejection of society, in 2020 the state fixed the principle of generational solidarity in the Basic Law of the country as the basis for building pension systems. It is equally important to ensure distributive justice in such a resource-intensive and individually unpredictable area as medical care. It is necessary to ensure that the system meets the expectations of citizens in an area where the principle of merit-based provision (meritocratic principle) does not always work. At the same time, the key point is the choice of the organizational and legal form of social security. Despite the opinion expressed about greater compliance with the principles of fairness of the budget model of medical care, it is concluded that there is a need for a broad discussion of reforming the healthcare system with the involvement of experts, the professional community of doctors, patient organizations, etc.

INTERNATIONAL LAW / JUS GENTIUM

88-104 591
Abstract

 Based on the legal positions set out in the scientific literature, the paper defines the normative complex of «peacetime law», and highlights the «law of crisis situations» operating under extraordinary legal regimes (state of emergency, counter-terrorism operation, peacekeeping operation). The author’s position on the «wartime law» as a set of norms of military legislation regulating relations during wartime under martial law is formulated, the analysis of the effect of these norms in time (ratione temporis), in space (ratione loci) and in the circle of persons (ratione personae) is carried out. The author opposes proposals to name a sub-branch of military law as «international humanitarian law», «law of armed conflict» or «operational law» following the study of the concepts of «international humanitarian law» and «law of armed conflict» found in the doctrine of international law and established contractual practice. It has been established that the use of the Armed Forces of the Russian Federation is not possible for its intended purpose within the framework of contractual and non-contractual regimes of their use. It is noted that the «wartime law» is intended to regulate relations during international armed conflicts and can only be partially based on the norms of international humanitarian law. It includes the institutions of mobilization, territorial defense, civil defense, occupation, internment, military captivity, etc.; its norms regulate the use of the Armed Forces of the Russian Federation for their intended purpose. The author raises debatable questions about the inclusion of a number of technical norms in military law, as well as the development of rules of engagement in certain geographical environments on the basis of recommendatory international legal norms.

CYBERSPACE / CYBERSPACE

105-118 838
Abstract

The paper deals with issues related to information technologies, resources and databases, as well as the digitalization of criminal justice using appropriate electronic arrays and electronic data. A number of problems are touched upon, the resolution of which is aimed at facilitating and speeding up the work of the judicial system (judges, their assistants, clerks of court sessions) in this aspect. The latest changes in legislation regulating these issues are analyzed. The necessity of the proposed innovations is demonstrated through specific judicial precedents (including federal courts and magistrates). Attention is given to the way these electronic services and databases, as well as access to them, make it possible to not only simplify and speed up the work of the court, but also to avoid judicial errors in terms of the qualification of the deed. The necessity of using the automatic and semi-automatic methods of notifying participants in criminal proceedings specified in the paper to speed up the notification process is substantiated. It is proposed to use speech recognition software to convert it into text when preparing court records (or to abandon the protocols if there is an audio recording attached to the criminal case). The expediency of providing the court with access to the databases of the Ministry of Internal Affairs of the Russian Federation to obtain the necessary and useful information for the consideration of a criminal case in court is argued. These innovations are proposed to be implemented with the possibility of their application in automatic mode when registering a criminal case in the electronic file of the court, namely: when it arrives from the prosecutor’s office with an indictment (act, resolution), without the mandatory actual participation of the judge, namely to save his time. Specific solutions to the problems under consideration are proposed, based on practical recommendations, which also need to be fixed at the legislative level.

119-127 314
Abstract

The paper is devoted to the conceptual apparatus in connection with the importance of its subject system-forming role in law. The author draws attention to the fact that the functional isolation of branches of law and legal institutions is manifested in special terminology. The author considers a special institute of information law, namely information security (cybersecurity). The object of the study is a glossary of cybersecurity terms, presented in Article 3 of the Royal Decree-Law 12/2018 of September 7 «On the security of networks and information systems» and the achievements of the doctrine on this issue. An attempt has been made to prove that legislative definition needs scientific commentary and interpretation, which greatly facilitates law enforcement activities, but in no way replaces rulemaking. The proprietary terminology base of the branch of law and the legal institute contributes to the effective legal regulation of public relations that make up their subject. It is concluded that information security covers the protection of both information systems and networks and devices (computers), representing a synthesis of organizational, technical and legal measures. The paper emphasizes that the use of information and communication technologies (ICT) contributes to the unprecedented development of information exchange, which, along with convenience, carries serious risks and threats to the globalized world. It is the cybersecurity institute that is designed to protect the information society from various kinds of offenses on the Internet. In conclusion, it is indicated that, although the conceptual apparatus of the Institute of Information Security has been formed, there is still an acute problem of denotation and connotation of legal concepts associated with the correct use of special legal (or legal) terms that require solutions at the legislative level.

MEGA-SCIENCE / MEGA-SCIENCE

128-141 323
Abstract

Given the growing interest in the exploration of outer space, the expansion of the parties to space activities and the scale of related tasks, the study of various legal models of international scientific and technical cooperation (ISTC) is gaining momentum. It is important to identify the advantages and disadvantages of such models and to develop proposals on the possibilities of their successful application in Russia.
The study of the reasons for the strengthening of international collaborations in the space sphere showed that the ISTC and joint research have been carried out regardless of the political context. They were determined by the specifics of the phenomena and processes being studied and the advantages of sharing funding, forming multinational research groups and exchanging data. Currently, a special incentive is the potential for the commercialization of space and the strengthening of the state’s economy.
In the field of space scientific research, the usual conventional and institutional models of ISTC are used. The peculiarity of cooperation in this area is manifested in the dominant use of conventional models. The most striking and complex example of such a model is the International Space Station Intergovernmental Agreement on cooperation for peaceful purposes in line with international law, including various bilateral memoranda of understanding and other documents that have been developed in relation to the Agreement. Almost all institutional models of ISTC in the field of space research are ecosystem-type models. The only example of a collaborative type model is the European Space Agency.
The risk of dependence on other states participating in collaborative projects and loss of leadership positions, a decrease in state funding for space projects, large-scale participation of private companies and priorities for their involvement in space activities indicate the upcoming transfer of most of the space research ISTC to the field of public-private partnership. As a result, interstate cooperation will continue as a short-term interaction on certain issues of space research: whether it is the installation of a certain module on a partner mission, the implementation of joint tests and observations on modules and other similar projects.

DISCUSSION PANEL / PRO ET CONTRA

142-159 445
Abstract

Social demands for justice and efficiency of justice, the reforms of the judicial sphere (constitutional norms, judicial system and judicial proceedings), as well as the rapid information development of society cause further transformations in the judicial system. Along with other social institutions courts of various jurisdictions designed to resolve disputes related to their jurisdiction on the basis of laws significantly influence legislative discretion and real law enforcement. In their entirety, the courts of the country form a single judicial system, the legal foundations, principles of organization and activity of which are fixed by law. The study of the dynamics of judicial transformations, as well as the periodization of such by dividing them into successive stages of judicial changes, seems to the authors to be an urgent scientific task. The object of research in the paper is judicial transformations in Russia in the second half of the 19th — beginning of the 21st century, which the authors divided into the corresponding periods. The subject of the research is the criteria for the periodization of judicial reforms in Russia in the second half of the 19th — beginning of the 21st century. Method and methodology: identification and development of criteria for the periodization of judicial reforms in Russia in the second half of the 19th — beginning of the 21st century are carried out by the authors on the basis of the principles of systematic, axiological, comparative legal and historical legal research, as well as historiographical and dialectical method. The novelty of the study, the main conclusions: the criteria for the periodization of judicial transformations in Russia in the second half of the 19th — beginning of the 21st century, which include normative legal, substantive, contextual environmental, temporal and axiological criteria, given by the authors, make it possible to effectively carry out this periodization. The methodology of applying the set of criteria justified in the paper to the periodization of judicial transformations has a great heuristic potential for studying other social phenomena, the study of which is included in the subject field of historical and legal sciences.



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