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Vol 75, No 7 (2022)
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PRIVATE LAW / JUS PRIVATUM

9-18 700
Abstract

The study examines the problem of the principles of civil law in the context of the author’s conceptual standings concerning the principles and methods of civil law and their axiology, as well as in connection with modern changes of socio-economic and legal nature. The aim of the study was to establish axiological significance of the principles of civil law in modern conditions, including economic and legal transformations associated with the coronavirus pandemic and digitalization of society. The methodology of the study was based on general scientific and private scientific methods of cognition. Among them, a large role is assigned to the historical-legal and comparative-legal methods. In addition, the author analized domestic jurisprudence from the perspective of the problems posed in the paper. The author substantiates the definition of an independent category «axiology of principles of civil law» and describes its characteristic features. The author elucidated the axiology of principles in theoretical and practical aspects. It is concluded that the axiological meaning of the principles of law is constant and stable, does not depend on historical or socio-economic conditions. In a variety of situations, including the coronavirus pandemic or widespread digitalization of society, the principles of civil law retain their value and are able to solve specific theoretical and practical problems. An essential role in this case will belong to the pedagogical function of the principles. According to the author, it is the pedagogical function of law that is currently being implemented to a lesser extent than the rest functions. Students, and then future lawyers, are not always able to interpret the norms of legislation in the context of the principles of civil law and the basic meaning of legislation.

PUBLIC LAW / JUS PUBLICUM

19-27 491
Abstract

The paper is devoted to the problems of applying such a security measure in cases of administrative offenses as inspection. The author explores the essence and potential of inspection as a procedural means of recording and documenting evidence in the framework of proceedings on administrative offenses. The current administrative procedure legislation provides for two types of inspections: inspection of the place of commission of an administrative offense (Article 28.1.1 of the Code of Administrative Offences of the Russian Federation) and inspection of premises, territories and objects located on them belonging to a legal entity or individual entrepreneur (Article 27.8 of the Code of Administrative Offences of the Russian Federation). At the same time, the content of these procedural actions, their procedural goals and grounds for application are not clearly defined in the law. In addition, the legal regulation of the inspection as a procedural action in the framework of an administrative case leaves open the question of all possible objects of such an inspection. Currently, the peculiarities of the legal regulation of the inspection do not allow the appropriate measure to be applied in all necessary cases. Moreover, its application carries high risks of recognizing the results obtained during the examination of the case as inadmissible evidence. As a solution to the above problems, it is proposed to consolidate in the administrative legislation a single unified concept — procedural inspection. Developing this proposal, the author provides the definition of a procedural inspection, develops general procedural requirements for its conduct. In addition, the paper substantiates the thesis about the need for special legal regulation and consolidation of special procedural requirements for conducting a procedural inspection of web pages (pages in information and telecommunications networks, including the Internet).

28-39 529
Abstract

The paper examines the cyclical process of alternating periods of centralization and decentralization in the state administration of the USSR and post-Soviet Russia. Based on the system-informational understanding of public administration, the author identifies the causes of this phenomenon that are associated with certain advantages and disadvantages in both centralization and decentralization of administration. It is shown that implementation of a particular style of administration is determined by its relevance in a specific economic and social situation. At the same time, in order to ensure the effectiveness and sustainability of the public administration system, it is usually advisable to simultaneously use several administation styles: centralization, partial decentralization, self-government. Since centralized models are associated with the implementation of cybernetic, and self-government — synergetic approaches, the author analyzes the essence of cybernetic and synergetic control systems, their similarities and differences, the mechanisms of their functioning and the features of their inherent feedback channels. The paper examines the prospects of synergetic approaches in public administration. The author notes that unlike cybernetic management models that are more effective in large territorial and industrial structures, synergetic systems provide a tangible advantage for small entities. A serious issue in the integration of these two models of administrative activity is the need for an optimal combination of appropriate information resources. The paper shows that one of the solutions to the problem is the development of a unified system of public power in the Russian Federation, as it is able to largely ensure the integration of cybernetic and synergetic approaches in public administration.

40-50 559
Abstract

The paper examines the influence of socio-economic formation on crime. The author comes to the conclusion that the determinism of the existing economic, social and regulatory causes of corruption is based on an inefficient socio-economic formation. The author notes that an inefficient form of public administration, as well as a type of socio-economic formation, are not able to eliminate the causes of corruption, since this formation does not at all imply elimination of these causes, but, on the contrary, contributes to their existence and development. This takes place due to the fact that the form of public administration limits the possibility of applying and implementing a different, more effective form of public administration and socio-economic formation.
Corruption as a phenomenon exists in a socio-economic formation in which socially useful principles, guidelines and attitudes are poorly organized or absent. The use of effective measures to combat corruption is not possible in the socio-economic formation where the main vices of society still exist or are idealized: selfishness, greed, thirst for power, excessive exploitation of an individual, etc. A corrupt behavior model becomes the norm in a situation when the state power and the state economy are dependent on private capital and investors.
The author comes to the conclusion that the use of combined forms of public administration is effective and expedient. An effective use of combined forms of public administration can eliminate the main set of causes, circumstances and conditions that contribute to the emergence, growth and development of both corruption and crime in the country as a whole.
A combined form of public administration presupposes the uniform participation of society, business entities and authorities in the implementation of socio-economic policy, which has common socially useful goals based on socially useful attitudes and guidelines.

THEORY OF LAW / THEORIA LEX

51-63 366
Abstract

The author deduces, defines and examines the concept of sustainable development law. The paper highlights the formation of the law of sustainable development as a system of norms regulating complex social relations arising in the context of sustainable development (sustainable development relations). The law of sustainable development is already taking shape. It regulates social relations of sustainable development that include environmental, social and corporate relations that mediate social development, ensure satisfaction of the needs of the current generation and do not undermine the ability to meet the needs of future generations. These relations are also regulated by an array of norms of non-state mediating the so-called ESG standards. The author examines a special methodology and specific ways legal impact on regulated social relations characteristic of the law of sustainable development: standardization and conformity determination (comparative methodology). Special attention is paid to the transformation of the law of sustainable development and the ESG agenda in the context of sanctions restrictions. The author concludes that it is advisable to consider the issues of sustainable development and legal regulation of sustainable development relations in modern conditions in the context of differentiated approaches to assessing and promoting sustainability in various areas of public relations. Regulation of public relations in the context of sanctions restrictions should be built with maximum consideration of the instruments of sustainable economic development (assessment of compliance with ESG standards, disclosure of financial and non-financial information, introduction of anti-crisis practices of corporate social responsibility, ensuring a balance of rights and freedoms of citizens in the adoption and implementation of sanctions restrictions, etc.).

HISTORY OF LAW / HISTORIA LEX

64-73 363
Abstract

The paper is not devoted to the problems of methodological framework in the traditional sense of the word. It is difficult, and perhaps even impossible, to find in the intellectual history of mankind a thinker who would not dwell on law and the state, other political and legal institutions. They all were guided by their own methodology. We assume that this could happen even at the subconscious level. The emphasis in this paper is not on what methods were used in the study of the essence of political and legal institutions, but on completely different aspects. Specifically, the focus is made on the methodological component (potential) of the history of political and legal doctrines. The peculiarity of this science and academic discipline is that it has accumulated enormous experience in understanding the state and legal construction on a global scale, and not only in relation to a particular country or continent. Economy and ideology constitute the basis of any civilization, country and state.
The aim is to draw attention to the methodological potential (possibilities) of the history of political and legal doctrines. In this branch of scientific knowledge, we can find not only theoretical models of interest for research. The most important thing is that the history of state construction illustrates to us the experience of introducing theoretical constructions into real social practices. In other words, the methodology is interpreted in the article not from a cognitive point of view, but somewhat more broadly, in a close «doctrine — practice» combination.

PHILOSOPHY OF LAW / PHILOSOPHIA LEX

74-86 551
Abstract

The paper provides for debatable issues of rationality as a general philosophical category and as a legal concept. The author argues for the transition in philosophy and science from classical rationality to postclassical. Classical rationality is based on the presumption of the knowability of the world and the possibility of its transformation in accordance with the reasonable goals of the progressive development of mankind. However, the 20th century demonstrated the limitations of the human mind, unpredictability of the consequences of applying scientific rationality. Hence, the paradox of classical rationality follows: its growth, associated (or manifested) with the development of technology and technology, turns into an increased risk in all spheres of life. Post-classical rationality (post-non-classical, according to V. S. Stepin’s terminology) not only postulates the limitations of our knowledge about an opaque and stochastic world where uncertainty reigns, but also it assumes the involvement of a person socialized in the corresponding culture in the process of cognition (more broadly, perception, nomination, classification and categorization of the world and its development), its historical, valuebased and socio-cultural contextuality. The most developed and elaborated variant of postclassical rationality is the communicative contextuality which, however, is not devoid of problematic issues.
According to the author, postclassical rationality of law is dialogical and it includes a transcendent aspect — ensuring the normal reproduction of humanity -- and an immanent one — the legitimacy of the accepted norms of law also in the process of their reproduction. Postclassical rationality of the law norms construction is expressed in the struggle of the main social groups for the right to determine the significance (including legal) of various social problems. The rationality of the implementation of the norms of law is problematized by the paradox of «following the rule» elaboarted by by L. Wittgenstein that never contains the entirety of the prescriptions of its — rule — implementation. The author believes that in order to resolve the problems of rationality of law it is necessary to reconsider classical rationality of law as a postclassical rationality, rather than to reject this category and principle of law.

CYBERSPACE / CYBERSPACE

87-99 417
Abstract

The development of modern public relations shows the formation of new subjects of constitutional law, since the content of mutual relations between them is increasingly moving into the digital space, where updated constitutional values arise. The current legal regulation is much more conservative and cannot respond to the rapidly developing relations in this area in a timely manner. Indirectly it can be confirmed by the fact that the programmatic regulation is gaining popularity when the state is trying to influence or at least predict the future through projects, plans, complexes of planned activities, etc. In this regard, theoretical approaches are proposed to optimize classical legal regulation. The main purpose of the paper is the application of the author’s theory of relations of subjects of constitutional law to assess public relations through establishing the presence of new subjects and conditions for their mutual influence. The expediency of this activity is due to the desire for subsequent proposals of a theoretical nature in order to develop a system of legal and regulatory framework. The list of tasks of the work is determined by those spheres of public relations that are selectively considered in the paper, namely high-tech medicine, the Internet space, the system of education and upbringing of youth, ensuring and protecting human rights in the electoral process, etc. Of course, this list is not exhaustive. The author analyzes phenomena regulated by law and that take place in foreign countries and the international practice of transnational corporations. This indicates the use of a comparative legal method. The key result of the conducted research is the proposal to revise the established rules for the analysis and systematization of public relations implemented in the digital space or otherwise related to it. Regulatory legal regulation should also be reoriented to this.

100-107 394
Abstract

The development of digital technologies has led to the active introduction of new forms of expression of legal documents into the legal system. For several decades of their existence, QR-code and barcode have shown their uniqueness and versatility, as well as convenience in certain areas of law enforcement practice. In the conditions of the coronavirus pandemic, states had to restrict natural rights in order to curb the spread of the disease and accelerated the introduction of QR codes into the everyday life of citizens to control the established measures and certify the fact of vaccination, having actually implemented a socio-legal experiment The inductive method of research with the analysis of the draft law on the introduction of QR codes revealed insufficient theoretical elaboration of the mechanism for introducing digital innovations into legal life. This is fact generated social tension and revealed problems of ensuring the legality of the relevant mechanism of legal regulation. Given the application of a QR code as an innovation in legal life in 2021, theoretical and legal analysis demonstrated the need to strengthen the fundamental foundations of legal theory. On the other hand, it showed the necessity to ensure the expediency, concretization and validity of the introduction of not a QR code per se, but rather of restrictive measures as a method of legal regulation.
The problem of legal and digital literacy of the population remains unconditional. Citizens’ misunderstanding of the specifics of the process of using QR codes in practice often generates and provokes increased conflicts, which in modern conditions of a developing digital society and a publicly accessible information space contributes to the artificial formation of an aggressive field, which ultimately affects the rule of law and legality.

108-119 327
Abstract

The paper discusses the problems of implementing technically capacious solutions in order to regulate public relations based on the case of QR-code technology application during the pandemic of a new coronavirus infection. The use of this technology has caused an increase in conflict potential in Russian society, the cause of protest actions, increased petition activity, appeals to the judicial procedure for resolving the conflict, which also allows us to restart discussions about the legitimacy, proportionality and balance of the legal measures taken to the specifics of the social problem. The paper considers the problem of the introduction of QR-coding technology as a trigger of social tension in the context of trust issues in the framework of communication between the regulator and the public; social inequality and social exclusion; distribution of power powers in the social system; distribution of competencies for regulating the problem between state and public administration bodies. The analysis of these aspects of public relations reveals a number of unaccounted for defects in the introduction of high-tech technology. In particular, the authors show that in the context of a crisis of trust in communication between government agencies, social institutions and the population, the introduction of technically capacious solutions becomes a factor in discrediting major areas of state policy. In this case, the goals of vaccination as protection of the population from the epidemic threat are compromised. The use of high-tech technologies problematizes the issue of localization of coercive power and power resources, which are legally a state monopoly, and contributes to the formation of new social splits and the emergence of discriminated groups. Finally, the use of QR codes raises the question of the integrity of the legal space of the state system and requires solutions in the field of separation of powers between public authorities. The problematic aspects not taken into account during the implementation make a decisive contribution to the adoption of new regulatory methods by the public, which keeps the search for the necessary legal regulators relevant.

IIMPROVEMENT OF LEGISLATION / NOVUS LEX

120-130 756
Abstract

The paper is devoted to the legal aspects of medical errors arising in medical activity. The purpose of the work is to conduct a legal analysis of a medical error and the resulting iatrogenic harm, as well as to formulate the author’s definitions of the concepts under study, such as: medical error, iatrogenic harm, tort liabilities in the medical field.
The author conducts the legal analysis of the stated problems based on the existing regulatory legal acts in this area, as well as materials of judicial practice. Separately, within the framework of the paper, an illustrative analysis of a specific court case is given, the judicial representative for which was the author of this scientific study and within which a number of problematic issues that courts face when considering this category of cases were expressed. The problematic aspects identified by the author following the example of the court case represent the quintessence of the existing approach of judicial practice within the whole set of cases arising from harm to human life and health as a result of iatrogenies.
In conclusion, the author concludes that the so-called medical cases require a special approach when considered and resolved by the court, taking into account the circumstances indicated in the content of the work cited. The more effective consideration and the adoption of objective, fair judicial decisions is possible through the implementation of legislative measures. Among them are the introduction of a special «medical» corpus delicti in the norms of the Criminal Code of the Russian Federation and a special tort in the field of harm to human life and health through iatrogeny in the norms of Part II of the Civil Code of the Russian Federation.

131-138 491
Abstract

Based on the analysis of regulatory legal acts, the concept and features of conducting an administrative investigation provided for by both military legislation and administrative legislation are revealed. The grounds, objectives and procedure for conducting an administrative investigation are analyzed. Attention is given to the fact that in the field of military-service relations, an administrative investigation is conducted against subordinate military personnel, while administrative legislation prescribes an administrative investigation against individuals and organizations that are not organizationally subordinate to the National Guard troops. The errors affecting the recognition by the court of the procedural order for conducting an audit, as well as an administrative investigation, as illegal or unjustified are indicated. We are talking about the fact that a legal unit participates in the administrative investigation (proceedings). At the same time, the administrative legislation considers this procedure differently. It is mentioned that if the level of competence in a military unit is assessed by the commander (chief), then the competence of officials is assessed by the court, which is authorized either to approve the decision taken or to cancel it. It is substantiated that the initiator of the administrative investigation is the appropriate commander (chief), who appoints such an investigation independently or on the basis of a written report of a serviceman, notification of a medical organization, notification of law enforcement agencies, notification (messages, statements) of other persons, including relatives of the injured serviceman. The reason for conducting an administrative investigation is a ruling on conducting an administrative investigation made based on a decision of an official. The mixing of the two forms of inspections in practice leads to the incorrect application of regulatory legal acts, which creates confusion. This leads to the fact that an administrative investigation in the field of military service relations should be called differently, removing the term «administrative investigation» from circulation.

DISCUSSION PANEL / PRO ET CONTRA

139-147 505
Abstract

Researchers of international legal reality continue to master the theoretical advances of prof. Rein Müllerson. Newly published monograph by Austin Macauley Publishers Ltd Living In Interesting Times: Curse or Chance? Recollections of an International Lawyer — Participant and Observer sums up the fruitful work of this famous international lawyer, conveys his experience to the next generations of theorists and practitioners. An experience that not only contains the international legal qualification of modern life’s complex concepts, but also brings them together into a coherent system. Based on a broad doctrinal basis, the book is, in the words of the author himself, a reflection of subjective realism, the author’s understanding of the philosophy of international law. Operating with such instruments of a modern researcher of international relations as liberalism and democratization, globalization and regionalization, linking the theory built in the Soviet scientific paradigm with the practice tested in the UN structures, the author brought international law to a higher level of comprehension as a complex system of regulators of interstate behavior. The neutral and non-politicized views of prof. Müllerson on most modern international problems, as well as his rich experience in the application of legal norms in practice, should be appreciated by present and future generations of researchers interested in building a new world — free from wars and confrontations.

148-159 461
Abstract

The paper is devoted to the formation of the conceptual apparatus of the Russian judicial system as an independent branch of law with its own specific subject and method of regulation. The current Russian judicial system legislation is a set of normative acts regulating the organization of various types of courts that form the judicial system of the Russian Federation (the Constitutional Court of the Russian Federation and constitutional (statutory) courts of constituent entities of the Russian Federation, courts of general jurisdiction and arbitrazh (commercial) courts). A separate block of judicial laws consists of normative acts on the legal status of judges, jurors and arbitrazh (commercial) courts assessors, as well as on the bodies of the judicial community and the bodies ensuring the activities of the court. All laws contain a certain categorical apparatus, which is often called a conceptual apparatus. The authors draw attention to the fact that, despite its great importance, there is virtually no terminological unity in the sphere of the judicial system. Many doctrinal definitions do not find their legal support, and therefore receive different interpretations and meanings, which is unacceptable in a developed legal system. In addition to analyzing the conceptual apparatus, the authors also make a conclusion about the need to adopt a unified judicial code that would solve many problems of legal science and practice.
The study of the issues of the conceptual apparatus of the Russian judicial system makes it possible to summarize that, firstly, the basic and derived definitions of the judicial system are practically absent in the texts of normative legal acts; secondly, the same terms are used in different meanings; thirdly, a clear categorical apparatus has not been developed, which is necessary for any branch of law; finally, it is necessary to adopt a unified judicial code.



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