PRIVATE LAW / JUS PRIVATUM
The author considers the concept of «digital money». The paper analyzes the legal nature of various types of digital currency. Special attention is paid to the civil law regime of the cryptocurrency and the peculiarities of its property turnover in an information system using blockchain technologies. The paper examines the following complex debatable issues of civil law: 1. possibility of applying provisions on obligations to digital relations; 2. problems of protecting the rights of digital money holders; 3. enforcing restitution in the digital environment. The paper analyzes the design of a crypto loan using a centralized Binance Loan exchange. The author concludes that the actual algorithm for lending cryptocurrencies is similar to the mechanism of traditional transfer of things determined by generic characteristics applied to a loan. The conclusion is reasoned that such legal concepts as «transaction», «legal relationship», «obligation» and «contract» can only be applied to the interaction of participants in actual loan relations in the digital environment with a high degree of conditionality. It has been revealed that attempts to qualify cryptocurrency loan relations without taking into account the position of the legislator are premature. Currently, the actual relationship with cryptocurrency is not a legal relationship and it cannot be formalized by civil contracts. The paper determines the tasks the solution of which, according to the author, will serve to settle loan relations in the digital environment. In particular, the issues concerning legislative determination of the civil law regime of digital money, consolidation of digital legal facts, possibility of applying general provisions on obligations to digital relations need immediate resolution. It is proved that in order to guarantee the proper fulfillment of cyber loan obligations, it is necessary to establish rules for the functioning of information systems at the legislative level, to formalize requirements for their operators and determine the responsibility of the latter for the data safety and reliability of transactions.
The paper examines the meanings of an age as an independent legal fact or an element of a complex legal and factual structure in the family legal sphere. The author states that the legal significance of a person’s age is diverse and ambiguous. At the same time, legislative decisions are based on various factors: conventions of the digital designation of the age report point, respect for national and cultural traditions, including legal ones, considerations about medical and psychological characteristics more or less corresponding to a particular age, subjective preferences or mistakes, purely political (ideological) motives. As a result, the combination of these factors leads to justified or, to varying degrees, unjustified approaches that are extremely approximate in digital terms. The paper criticizes family law provisions concerning regional diversity and regulating the issue of reducing the age of marriage, which does not always reflect the real national and cultural characteristics of the territories and excessively localizes the concept of legal capacity. The author analyzes the differentiation of the child’s age capabilities as a subject of family law, including the context of interaction with relevant decisions in other branches of Russian law (constitutional, municipal, administrative, civil, labor, civil procedure). The absence of a system in this matter is stated. It is proposed to adjust the legislation in terms of systematization of «launch points» of partial legal capacity of minors. The author emphasizes a psychological context of the problem of a legal age for the child. The paper demonstartes other values of age for the family law sphere, namely: invalidity of marriage, alimony obligations, custody and guardianship, adoption (adoption).
Mediation among alternative ways of dispute resolution, along with conciliation and negotiations, occupies priority positions, having shown its effectiveness in comparison with judicial and administrative forms of protection of the rights and legitimate interests. The attractiveness of mediation lies precisely in the simplicity and convenience of the procedure itself, a calm atmosphere of dialogue mediated by a mediator and the obligation to resolve the conflict fairly with due regard to the opinions of all parties involved. Mediation originated as a technique for the family law disputes resolution and it is still widely used for this category of disputes and for cross-border (international) intra-family conflicts as the optimal form of dialogue between conflicting family members. Fundamental principles of mediation — the guiding principles of construction — predetermine its attractiveness as conciliation prosedure. This social institution is based on voluntariness, confidentiality, impartiality and neutrality, applicability, decisions made by the participants themselves, availability of independent legal support for each of the participants, priority of the rights and legitimate interests of minors, understanding and taking into account cultural differences between family members, as well as special qualification requirements applied to international family mediators. In some cases, mediation really avoids seeking legal assistance from judicial and administrative authorities, and in some cases it accelerates the processes of proceedings involving representatives of judicial or executive authorities. For cross-border intra-family disputes, this approach is very relevant, since the international family mediator, while mediating, does not ignore cultural, religious and social differences between disputing family members. In addition, a mediation agreement does not become enforceable at its conclusion. A mediation agreement becomes enforceable only when confirmed by a court or notary, which provides it with the coercive force of the state.
PUBLIC LAW / JUS PUBLICUM
Anti-corruption expertise of regulatory legal acts and their drafts plays an important role in the anti-corruption system, as it allows to assess and reduce the corruption potential of regulatory defects and thereby prevent the emergence and development of corruption relations in the process of law enforcement. The doctrinal approaches presented today in the specialized literature applied to interpret the object and subject of anti-corruption expertise do not reveal the entire cognitive potential of these categories, since they do not take into account the influence of external functional links of the normative content of legal acts on the processes of determining the corrupt behavior of officials, and also do not orient practitioners to find the most effective ways to eliminate the identified corruption-causing factors. As a result of the analysis, the author comes to the conclusion that the traditional understanding of normative legal acts and their drafts as an object of anti—corruption expertise, and corruption-causing factors as its subject, can be taken as a basis and detailed taking into account the perspective tasks of state policy in the field of combating corruption. Based on philosophical and theoretical-legal views regarding the categories of «object» and «subject» of the study, taking into account the provisions of the current anti-corruption legislation, the author provides definitions of the object and subject of anti-corruption expertise of regulatory legal acts and draft regulatory legal acts. In addition, the paper outlines some promising directions for the development of scientific knowledge of the legal nature of this anti-corruption tool and its functional purpose in the anti-corruption system.
The paper examines the issues of biosafety as an independent direction of national security. The development of biotechnologies inevitably leads to the emergence of new threats to society and the state, requires a comprehensive study of the current legislation in the field of security. The paper elucidates scientific approaches to the definition of biosafety in a narrow and broad senses. The author notes that the appearance of the official definition of biosafety is a significant step in the development of the system of interdepartmental interaction and an independent direction of national security, but by no means a revolutionary novation. In addition, the paper provides a semantic and meaningful analysis of the concepts of biorisk, biohazard, biological factor, determines the relationship of biological threats and biotechnologies. The paper defines a new independent component of biological safety, namely, genetic safety. The author notes the positive dynamics of biosafety development as one of the directions of national policy and at the same time states obvious legislative and methodological gaps. First, a biohazard is the result of the transformation of a biorisk into a concrete factual circumstance that creates a real danger to human life and health, as well as the security of society, the state and humanity. Second, there is no concept of biotechnologies, their types and classification through the prism of biosafety. Third, genetic safety is an independent component of biological safety. The concept of «genetic safety» should be developed. Fourth, biosafety is an independent vector of the national policy of the state aimed at the effective prevention of biological threats, as well as the development of biotechnologies without risk to human life and health by creating a high-quality legislative framework, an adequate level of law enforcement, the formation of legal awareness and legal culture of the population.
The paper is devoted to the consideration in the Russian constitutional legislation of the legal stances of the European Commission for Democracy through Law» (Venice Commission) in the field of freedom of peaceful assembly. Freedom of peaceful assembly is closely associated with political struggle, relationship between civil society and the authorities. It is fixed at the constitutional level and therefore is a sensitive topic in law enforcement practice and relevant in special scientific research, of which there are currently a small number in Russian and foreign science of constitutional law. Therefore, this article, as applied to the Russian Federation, aims to complete this gap. The implementation of the research tasks was achieved on the basis of the analysis of the Guidelines of the Venice Commission on Consolidation of Freedom of Peaceful Assembly in the legislation of European states. The author used the following research methods: comparative legal, logical, institutional, formal legal, comparative legal. The paper examines the legal principles of the Venice Commission on Freedom of Peaceful Assembly and the extent to which they are taken into account in the constitutional legislation of the Russian Federation. The conclusion is made about the narrow understanding of freedom of peaceful assembly reflected in the wording «the right to assemble peacefully without weapons». In this regard, the Federal Law on Assemblies is devoted not to freedom of peaceful assembly but to the right to assemble peacefully, which may be restricted by the State to a greater extent than freedom of peaceful assembly. This created the basis for a positivist regulation of freedom of peaceful assembly with broad powers of public authorities and the possibility of restricting the right to assemble peacefully, without weapons, while, according to the Venice Commission, the State should create adequate mechanisms and procedures to ensure that freedom of peaceful assembly is not subjected to excessive bureaucratic regulation. The Constitutional Court of the Russian Federation has largely adjusted Russian legislation on public events, bringing it closer to the legal standings developed by the Venice Commission.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
The paper investigates victimological factors producing corruption victimization. The research methodology includes a dialectical method of scientific cognition, a systematic approach, analysis and synthesis as general scientific methods for understanding criminological and victimological concepts, private scientific methods: criminal statistical, sociological (survey of convicted respondents — officials), analysis of documents, etc. The empirical base is made up of the results of a criminological study conducted by the author in 2018–2020 as part of an interregional research team (Vladimir, Volgograd, Kazan, Nizhny Novgorod, Syktyvkar), as well as criminal statistics data, materials of judicial practice. To solve the terminological problem, definitions of the concepts «corrupt crime», «corrupt behavior», «corrupt delinquency» are proposed. The author substantiates the application of a systematic methodology for the study of victimological factors as a structural element of corruption offences, their properties, conditions and relationships with other elements. The paper presents the results of a survey involving convicted respondents-officials, and a comparative analysis of judicial statistics data. The author gives a definition of victimological factors of a corruption crime, substantiates their unity with corruption-causing factors, which is manifested in victim-corruption and criminal-corruption behavior, the commission of a corruption crime. It is shown that the corruption crime is based on a corrupt transaction, its concept, characteristics, main elements, content, types are presented. The author shows that any of its subjects can become victims of a corrupt transaction: an official, his counterparty and an intermediary, while victimological factors, levels of victimization and types of victims are presented. It is concluded that anti-corruption victimological security should become a priority area of victimological prevention based on scientific (criminological) support. The expediency of creating (reviving) criminological laboratories on the basis of modern national research universities is argued.
The author attempts to analyze the current criminal procedure legislation of the Russian Federation, as well as the system of scientific knowledge available in the theory of criminal procedure law for the need to improve the criminal procedure institution of preliminary investigation suspension. The reliability of the results is ensured by the integrated use of general scientific and private methods allowing formulating an idea of the modern criminal procedure institution of preliminary investigation suspension. The use of the comparative research method allowed the author to conclude that it is possible to implement certain criminal procedural norms of foreign legislation regulating the institution of suspension of a criminal case. The method of historical analysis used in the study allowed us to consider the evolution of this procedural institution and highlight the historical stages of its legal development. The statistical method provides for the study of the suspension of the preliminary investigation based on representative empirical material, which made it possible to identify objective patterns and formulate specific conclusions (it was used when taking into account the results of a survey of citizens). As a result, the author determines the elements inherent in the institution of preliminary investigation suspension and defines the concept. The suspension of the preliminary investigation should be understood as the complex activity of the competent state bodies and officials established by the Criminal Procedure Law, including the adoption of a temporary procedural decision on the suspension of the preliminary investigation, criminal prosecution, the production of procedural actions on the grounds that prevent further criminal proceedings provided for in the law, up to their elimination. According to the author, the main trends in the development of the institution of suspension of the preliminary investigation are: amendment of Chapter 28 of the Code of Criminal Procedure of the Russian Federation, which consists in replacing the phrase «suspension (resumption) of the preliminary investigative activities» with «suspension (resumption) of the preliminary investigation»; expanding the list of grounds for suspending the preliminary investigation; supplementing the criminal procedure legislation with an appropriate norm regulating the prohibition of decision-making on the suspension of the preliminary investigation carried out in the abbreviated form of inquiry; resolution of the issue of the production of investigative actions in suspended criminal cases.
The paper contains a comprehensive analysis of the amendments made to the Criminal Code of the Russian Federation by Federal Laws No. 3-FZ dated January 28, 2022 and No. 38-FZ dated March 06, 2022. Noting the next round of strengthening criminal repression for pedophile assaults, the author draws attention to the legislative bias in assessing the public danger of acts, since rape or violent sexual acts committed against two or more minors are punished more severely than the murder of these victims. Having identified technical and legal flaws in the content of Part 5 of Articles 131 and 132 of the Criminal Code of the Russian Federation, the author identifies issues that may arise when qualifying violent sexual crimes committed against two or more minors; involving the commission of another grave or especially grave crime against the person; with a special relapse. Critically assessing the content of Part 3 of Article 133 of the Criminal Code of the Russian Federation, the author raises the question of the validity of strengthening criminal liability for group coercion to sexual acts only against minors (paragraph «a«); attribution of «use of mass media» to the number of signs that increase the public danger of harassment. The author pays special attention to one of the obvious defects of the norms of Chapter 18 of the Criminal Code of the Russian Federation, which violate the principles of equality and justice, namely, the normative separation according to the degree of public danger of sexual intercourse and sodomy or lesbianism with a person under the age of 16, which does not correspond to the principle of gender equality. The conducted legal analysis testifies not to the consistent normative implementation of the strategic course, but to the spontaneity of decisions aimed at solving particular problems.
The paper is devoted to the analysis of the procedural side of the institution of criminal misconduct contained in the draft federal law «On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation in connection with the introduction of the concept of criminal misconduct», introduced by the Supreme Court of the Russian Federation. The author examines the proposed institution through the prism of the existing problems in criminal proceedings — its excessive formalization and limited resources of judicial and law enforcement agencies. According to the author, domestic criminal proceedings do not provide proper differentiation of legal impact depending on the severity of the committed act, and some legal constructions in the Criminal Procedure Code of the Russian Federation, conceived as ways to increase the effectiveness of criminal procedural activities, do not fully fulfill their purpose. The introduction of the institution of criminal misconduct fits into the global trend of wider use of simplified (accelerated) procedural forms, of which it is a kind, and will allow achieving greater procedural savings and, as a result, using the released resources in matters requiring closer attention. The institution of a criminal act is proposed in a somewhat truncated form — this is caused by practical considerations, the requirements of smoothness, gradual accumulation of new legal institutions. Touching upon the issue of the limits of possible simplification of procedural forms, the author notes that procedural economy and the desire for a proper degree of diversity of legal regulation cannot serve as a justification for reducing the level of procedural guarantees of participants in criminal proceedings.
THEORY OF LAW / THEORIA LEX
The paper is transdisciplinary in nature: it is written at the junction of the theory of the state and neurobiology.
The purpose of the paper is to establish a correlation between the evolution of human consciousness and changes in statehood.
According to the type of neurobiological processes, people are divided into 4 categories: visual, auditory, kinesthetic and digital. If we group these psychotypes, then the neurobiological characteristic of society will appear as a changing constant of two types of thinking: irrational and rational. The global trend in their ratio is as follows: there is a gradual increase in rational thinking. However, the pace of development of countries varies, and to measure the level of development, the UN uses the Human Development Index (HDI), based on economic and social indicators. The author suggests supplementing the HDI with a political component: a characteristic of statehood, since ignoring this gives an incomplete picture of human development. The main parameters of the state are its type and essence. According to the type of state, they are divided into agrarian, industrial and informational. It is concluded that if in an agrarian state the proportion of people with rational thinking is extremely small, then in an industrial state their number increases, but not enough to make the government controlled by society. In an information state, the government becomes controlled by the people precisely because of the presence of a critical mass of sane people. The essence of the state — its volitional component — has a dual nature: it expresses the interests of society and the ruling elite. This balance again depends ultimately on the level of public consciousness. The pattern here is as follows: at the early stages of the development of society, the state mainly expresses the interests of the ruling elite. Then the share of general social interests gradually increases. At later stages of the development of the state, general social interests begin to dominate in law. Ultimately, the state turns into a «servant» of society, and civil servants, including senior officials, become managers of public administration.
CYBERSPACE / CYBERSPACE
The paper is devoted to the definition of the special legal term «traditional Russian spiritual and moral values» / «traditional spiritual and moral values of the peoples of Russia». The relevance of the study is due to its role in the field of legal provision of information security (as the underlying system for ensuring relevant strategic national priorities). This interdisciplinary scientific research is carried out at the intersection of such legal sciences as information law, criminology, theory of forensic examinations (forensic expert science) and judicial speech. According to the results of the study, the authors conclude that the use of the category «morality» in normative acts does not mean at all that it is permissible to substitute ethical legal regulation. The analysis of the content of the term «traditional Russian spiritual and moral values» as a composite special legal term that generalizes and designates an extensive group of legal concepts, the development of an appropriate list and its consolidation in legal acts should be carried out based on the legal nature of the listed phenomena, and based on their comprehensive legal assessment (establishing the degree of compliance / non-compliance with the law, the presence/absence of public danger). Based on this approach, the authors propose their understanding of the term «traditional Russian spiritual and moral values» and list them. The authors propose an approach based on the ranking of values according to the degree of their social significance and compliance with the norms of law, expressed in the division of the entire set of traditional Russian spiritual and moral values into the so-called core and periphery. Nuclear values are the most significant, at the same time uniform for the whole society, supported, and stimulated by the existing system of law. Around the core of the essential values, there is a belt of secondary, that is, separate, less widespread traditions, values and foundations of individual social groups of our society.
The development of digital technologies has inevitably put on the agenda the problems of their application in judicial activity, primarily in justice in civil cases. Digitalization is actively penetrating the legal proceedings, procedural legislation and approaches to its application are changing. At the same time, traditional forms of judicial activity remain. The range of directions for the introduction of modern technologies is expanding following the achievements of scientific and technological progress. The author sets out to identify the relationship between the use of information technology and improving the efficiency of justice. The study showed that digital technologies can become an effective means of ensuring the effectiveness of civil and arbitration proceedings, reducing its costs and reducing the time for resolving cases. Digital technologies are able to ensure the efficiency of legal proceedings in modern conditions; however, they carry risks and problems, the solution of which should be suggested by procedural science. A special role is assigned to artificial intelligence technologies and machine learning methods. Scientists argue about the possibilities and social justification of their use in judicial activity. The attitude towards artificial intelligence on the part of specialists is extremely restrained. However, the experience of China, the USA, Germany, as well as domestic developments indicate an increasingly active and inevitable introduction of artificial intelligence into the system of civil jurisdiction. At the present stage, there is no point in discussing the possibility of using artificial intelligence in the civil process; it seems more productive to discuss its conditions and potential. In the paper, for the first time in Russian procedural science, it is proposed to consider the effectiveness of judicial protection implemented with its support as a key condition for the use of artificial intelligence in civil and arbitration proceedings. The author’s conclusions can be applied in practical activities to improve justice and procedural legislation.
ISSN 2686-7869 (Online)