PRIVATE LAW / JUS PRIVATUM
Public life transformation, including transformation caused by digitalization processes and expansion of remote interaction capabilities, determines changes in essential features of trust and conditions for its formation and manifistation. Today, the priority task is to create an environment of trust in the digital sphere and beyond it to ensure progress and social development. Various civil law mechanisms can contribute to this, including consistent implementation of the principle of good faith, development of the institute of business reputation, formation of civil law communities, including virtual ones with a special nature of interconnections, improvement and expansion of the use of blockchain technology. Trust formation should contribute to the implementation of a generally permissive method of civil law regulation of relations, including those arising in the digital sphere. Certain difficulties are associated with the fact that the concept of trust is not disclosed in the current legislation. The category of trust in civil law is usually considered in a narrow sense in relation to cases of personal trust relations between subjects when they make fiduciary transactions, although civil law also knows the concepts of fiduciary property, fiduciary duties and responsibility. Trust between the participants of the civil turnover is assumed, but its low level entails risks associated with the choice of a counterparty. In this regard, judicial practice develops a standard of prudent behavior expected from a reasonable participant in comparable circumstances, which is taken into account in tax legal relations. In the future, civil legislation and judicial practice should follow the path of improving the mechanisms of influencing public relations, contributing to the formation of an environment of trust and protection of participants in civil turnover from unfair and illegal actions.
The paper discusses three consequences that can occur if there are insufficient funds in the customers’ bank accounts. The first consequence — the order is sent to the file of unpaid bills and there it is waiting for a sufficient amount of money to be credited to the account (file number 2) — has contradictions in legislation that go unnoticed and pass from old acts to new ones without being resolved. One of these contradictions is shown in Regulation No. 762, adopted in 2021 that provides for various consequences of insufficient funds in the account, depending on the subject composition of customers. All customers are divided into two groups. For individual clients, the rules on the order of payments do not apply and their orders are not accepted for execution. Orders of customers — legal entities, individual entrepreneurs or individuals engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation — are not accepted by the bank for execution and are returned (with some exceptions). This contradicts Article 855 of the Civil Code of the Russian Federation, which establishes uniform rules for all subjects of civil law. In addition, the exceptions listed in Regulation No. 762 almost completely coincide with Article 855 of the Civil Code of the Russian Federation, which makes the relevant provisions of this Provision meaningless. Contradictions are also expressed in the fact that in some regulations the concepts of «order» and «payment order» are confused and replaced. The paper also analyzes the types of orders mentioned in the acts under consideration. The second consequence of insufficient funds in the account constitutes a long-known overdraft. The third consequence forms the borrowing of funds from other accounts included in the group of bank accounts. The latter is a novelty for Russian legislation and, despite numerous advantages, it does not yet have sufficient legal regulation.
The right of a child to express his opinion has been enshrined in the Convention on the Rights of the Child for more than 30 years and in the Family Code of the Russian Federation for more than 20 years, but there is no uniformity of opinions in the doctrine regarding the procedure and method of exercising this right. Currently, there is a need to realize the right of the child to express his opinion as the legal right to family life. The purpose of the article is to develop conceptual ideas about the content, procedure and limits of the implementation of the child’s right to express his opinion. The achievement of this goal is conditioned by the solution of such tasks as determining the meaning of the child’s expression of his opinion, highlighting significant elements of the procedure for exercising the child’s right to express his opinion. The author applied such research methods as analysis, synthesis, structural and functional analysis, historical and comparative legal analysis. The article defines the content of the child’s right to express his opinion and its elements, identifies the specifics of the order and method, as well as the limits of the exercise of the right under consideration. The author explains the significance of the conscious-volitional element in the choice of behavior within the framework of the exercise of subjective family rights; draws attention to the formation of the child’s opinion and its significance in resolving any issues affecting the interests of the child in the family; highlights significant elements of hearing and taking into account the child’s opinion that affect the process of its formation. The author proposes a general rule that reveals the meaning of the opinion of the child, namely, the identification of the child’s interest in the consideration of family matters; special cases are considered when the child’s opinion has legally significant consequences. The author summarizes that the legal regulation in terms of consolidating the procedure for «hearing the child’s opinion during any court session or administrative proceedings» requires sectoral detail.
PUBLIC LAW / JUS PUBLICUM
The paper analyzes the process of interaction of various state authorities involved in state defense. In modern Russia, the National Defense Control Center has already been established. Although it coordinates the interaction between many law enforcement agencies, it itself constitutes a part of the Russian Defense Ministry and, respectively, in the hierarchy of subordination it reports to the military department. The current system of executive authorities does not allow any of these bodies to be given the authority to manage the structures of other federal executive authorities.
Based on the information about the mode of this kind of interaction, the author compares the directive and coordination models of interaction. The existing regime of information exchange between various law enforcement agencies does not mean the organization of management either from the point of view of the management theory or from the point of view of administrative law. The author comes to the conclusion that it is necessary to give power over other public authorities to the executive authority (military department) that is closely related to the resolution of the issue. In order to prevent the failure of the military command system in crisis regimes, this kind of empowerment requires appropriate legal formalization. Based on historical and foreign experience, the author makes suggestions regarding an organizational structure of such a «supranational» military command body and structural links between its elements. Moreover, the creation of this authority must be carried out even in peacetime, so that its activities are carried out in any crisis regimes without significant restructuring of its elements.
The analysis of strategic planning acts in the socio-economic, demographic, migration sphere, in the sphere of ensuring national security, regional socio-economic development allows us to determine three strategic goals of the state management impact on migration processes: their socio-economic goal, the goal of ensuring national security and spatial settlement goal. Achieving these goals is possible through strategic management of migration flows using the system of migration legal regimes. Based on the migration regime approach to strategic management of the implementation of the state migration policy of Russia in the field of educational migration, the paper substantiates the concepts and content of the migration flow of educational migration, which consists of educational, pedagogical and scientific immigration of foreign citizens and stateless persons. The paper analyzes the evolution of the administrative and legal regulation of educational migration in the Russian Federation. It is recognized that the formation of the administrative and legal regulation commenced after the adoption of the Federal Law «On the Legal Status of Foreign Citizens in the Russian Federation» and it concerned only educational migration. The author proposers the ways of improving an administrative and legal regulation of this migration flow through legislative consolidation of migration elements and legal regime of educational immigration of foreign citizens and the migration and legal regime of pedagogical and scientific immigration of foreign citizens in the Russian Federation. Proposals define the purpose, principles, tasks, priorities, rules, procedures and guarantees of regime regulation of migration law relationships. The approach described in the paper aims at the development of administrative and legal regulation of educational migration. It consists of educational immigration of foreign citizens and stateless persons and scientific (pedagogical) immigration of foreign citizens and stateless persons. This approach through the formation of regime legal regulation of this migration flow will effectively implement strategic management of the state migration policy in the area of territorial mobility of people.
The paper gives a general description of legal prohibitions and restrictions in the field of environmental protection and nature management, shows their objective and subjective meanings. The author determines the balance between legal prohibitions, restrictions, limits and requirements. «Environmental requirements» are defined as a legal means, the meaning of which is broader than legal «prohibitions» and «restrictions». Requirements in the field of environmental protection, in addition to mandatory conditions and restrictions, include other legal means: 1) prescriptions (positive obligations), 2) prohibitions and 3) permits with restrictive conditions. The main purpose of legal regulation in establishing prohibitions and restrictions in the field of ensuring rational use of natural resources is to restrain activities of economic entities within the assimilation capacity of the environment. An additional goal of legal regulation is to improve natural environment, restore its disturbed state, and increase the sustainability of ecological systems. The general prohibition as the first level of normative regulation makes it possible to ensure sustainable nature management as the initial stage of rational nature management. The legal means of the second level of normative regulation are also aimed at ensuring the use of the natural environment within its assimilation capacity. At the same time, at the second level, there are legal incentives that encourage and motivate nature users not just to fulfill their duties, supporting sustainable nature management, but to move to improving ecological systems’ sustainability. The third level of normative regulation consists of prohibitions aimed at improving sustainability of environmental systems. The author proves admissibility of legislative specification of various levels of the general restriction of rights in the field of ensuring rational use of natural resources enshrined in the federal legislation.
The subject matter of this research is the peculiarities of public administration in the Russian Federation. The purpose of the study is to analyze the essential characteristics of managerial relations that develop in the modern system of public administration, as well as the features of its construction. It is stated that there are serious changes in government control, in the economic and legal spheres, which have led to the evolution of state governance, namely: the transition from state to public administration, when not only state authorities, but also various types of state and non-state bodies and organizations are involved in the administration of the state and society, as well as the use of new technologies. At the same time, it is assumed that the current state of law and the state can be called the era of legal postmodernism, which is characterized by an increasing role of destabilizing factors in society and the state, which entails changes in approaches to the government control and the mechanism of legal regulation. The author draws attention to the fact that building only one type of management system can lead to a decrease in the effectiveness of the progressive development of the state. Therefore, at different periods or in crisis conditions, the public administration system should be rebuilt from hierarchical (centralized) to heterarchical (decentralized) and vice versa, including combining elements in the process of restructuring both systems of public administration. It is concluded that the system of public administration in the Russian Federation should have the ability to adapt to rapidly changing internal and external factors in a short time, therefore it should have a spherical character, not a pyramidal one. The author attempts to clarify the types of managerial relations included in the subject of administrative and legal regulation.
THEORY OF LAW / THEORIA LEX
The paper is devoted to the problem of sovereignty. In its original meaning, this word denoted the property of power. After a certain time, they started to interpreted sovereignty more as an element of the state. This approach has developed in the general theory of law and the state and in political studies in general. Sovereignty is usually understood as the independence of the state in internal affairs and in connection to international relations. An attempt is made to explain the reasons for the formation and development of the so-called concept of «limited sovereignty». The deep grounds of criticism of the national state as an independent political player as a product of the «Westphalian system», allegedly outdated in the modern period, are revealed. The illustration of different approaches to the problem of sovereignty is linked to the contradictory processes of globalization-deglobalization, which have become obvious.
The paper focuses on the political, legal, and mainly economic component of sovereignty. The degree of political independence of the state is shown, which is largely determined by the economic potential of the country. A narrow understanding of economic sovereignty is criticized, which is often reduced exclusively to the problem of import substitution. The paper proves that economic sovereignty is predetermined by the economic model that the state chooses for itself. In turn, economic models are understood as appropriate economic goal-setting, and not just a dilemma: the market vs. a plan. Thus, some states prefer to produce the maximum amount of goods on the domestic market, while others focus on the international «division» of labor. This factor is ultimately decisive in ensuring economic sovereignty.
The paper attempts to determine the place of the family in the social and legal field, justifies the need to determine the ability of the family to be the object of legal influence. Family is defined not only as an object of legal protection and protection, but also as an object of legal regulation. The author substantiates the feasibility for expanding the impact on family relations of both the protective and regulatory functions of law. The author defines the concept of legal characteristics of the family, which is a normative definition of the concept of a family as a social institution and as a specific organizational formation, that is, a small social group. According to the author, legal characteristics of the family include the concept of family, family members, grounds for creation and legal personality. This concept is formulated on the basis of an analysis of family legal acts of a number of states, primarily those that were part of the USSR, as well as legislative acts of a number of subjects of the Russian Federation containing norms defining the legal status of the family. Special attention is given to the problems of the legal personality of the family as a social institution and as a specific union of individuals. The legal personality of the family is understood as the legal possibility to have rights and bear obligations to society and the state within the social functions performed by the family. Based on generalized scientific data, legislative work in the Russian Federation in the early 1990s and the rule-making experience of certain foreign countries, it is concluded that at present Russian society is not ready to recognize the family as a subject of law, but in the future such a need will arise in connection with the adoption of measures of state protection, protection and support of the family in order to distinguish families from other unions of persons living together. It is proposed to consolidate the definition of the concept and other elements of the legal characteristics of family in a special chapter of the Family Code of the Russian Federation, taking into account the rule-making experience of neighboring states and constitient entities of the Russian Federation.
CYBERSPACE / CYBERSPACE
The paper is devoted to such a new threat to human rights arising amid digitalization as deepfake technologies. The author shows that the use of such technologies is a tool that can have both positive and negative effects. In particular, the use of dipfakes entails a threat to privacy, violations of the honor and dignity of citizens. In this regard, the legislator is faced with the task of developing and implementing a set of measures, the application of which will minimize the possibility of violation of citizens’ rights by deepfake technologies. It is proposed to direct the efforts of the state: to create automated tools for detecting deepfakes with the ability to determine the date, time and physical origin of their contents, and, if there are signs of potential danger, capable of stopping the placement and distribution of deepfakes; development of fact-checking services and tools; regulatory consolidation of requirements according to which mandatory marking of deepfake content should be carried out in social networks and messengers; formation of a regulatory framework providing for responsibility for the creation and distribution of deepfake materials that can damage business reputation, humiliate the honor and dignity of a person. From the standpoint of copyright, it is proposed to consider deepfakes through the prism of a derivative work, in which the use of the original work without the consent of its copyright holder will be illegal. Taking into account the threats of deepfake technologies to human rights, a set of measures has been proposed. Its use will minimize the possibility of violating citizens’ rights by means of these technologies. These measures are: the introduction of a fact-checking mechanism, the development of its services and tools; mandatory labeling of deepfake content in social networks and messengers; the creation of a regulatory framework providing for responsibility for the creation and distribution of deepfake materials capable of damage the business reputation, humiliate the honor and dignity of a person.
Today, in Russia and in the world, the workload on judges is growing, which affects the quality of legal proceedings. Due attention is not given to solving this problem, although its consequences may negatively affect the formation of the information society and the development of the digital economy. The workload per employee in some regional courts does not allow us to expect the quality of the administration of justice. So far, the problem has been local in nature, but the study made it possible to predict that in the near future the workload on all judges may begin to grow at a more significant pace. This will be facilitated by the development of the electronic justice system and the evolution of LawTech. Today, no more than half of social disputes come before the court. The development of information technologies in legal proceedings may motivate persons who have previously avoided the courts to apply to the state for dispute resolution. This process is already being observed in some countries.
Identifying the risk of overloading the judicial system requires finding ways to eliminate it. One of the most promising is the digital transformation of the alternative dispute resolution system (ADR). Today in Russia, the ADR is not of a mass nature, which means that the assistance from it to the judiciary is insignificant. The introduction of «end-to-end» digital technologies can significantly increase its efficiency. The analysis of foreign experience allowed us to identify variants of the digital evolution of the ADR. On its basis, it is proposed to form a domestic system of digital dispute resolution, which will not replace, but will protect the existing judicial system from overload. For this purpose, the creation of several innovative legal structures is justified: the rejection of artificial intelligence in court proceedings, the approval of the rule «first ADR», the introduction of Process Mining as a kind of ADR, the creation of temporary ADR algorithms, the introduction of ADR in social media.
The paper is devoted to the analysis of Internet media monitoring for the dissemination of destructive content and the comparison of the identified types of information of aggressive and (auto)destructive nature with legally fixed prohibitions and restrictions on the right to freedom of information dissemination. The author considers the issues of networking and decentralization of destructive communities in Runet and the development of radical movements using the Ingamasi technology. Taking into account the patterns of distribution of various types of destructive content revealed during the study, including the peculiarities of communication in network communities of different types, the refraction of the «Overton window» theory to the media field of the dissemination of destructive information in Internet media was scientifically justified.
Despite the existence of a regulatory framework for ensuring the information security of the individual, the realities of the development of communication in the digital environment demonstrate the presence of many gray areas. New communication and content risks require a systemic transformation and updating of the legal regulation of the digital environment in order to ensure the information and ideological security of the individual. Given the trends in the spread of new types of aggressive and depressive-suicidal content discussed in the paper, the author concludes that it is necessary to normalize new types of prohibited and restricted information by making systemic changes to the Federal Law «On Information, Information Technologies and Information Protection», the Federal Law «On the Protection of Children from Information that causes Harm their health and development», the Law of the Russian Federation «On Mass Media», as well as the improvement of administrative and criminal legislation, including through the introduction of new elements of offenses (crimes).
The paper studies the problem of defining the concept of fact in the conditions of digitalization of reality, consistently examines the stages of the formation of this concept and the dependence of conceptualizations corresponding to these stages on philosophical and scientific theories, as well as on the needs of their practical use. The advantages and disadvantages of considering facts in the horizons of classical and non-classical epistemology, in the context of physical and sociological theory, as well as in various practices related to the use of IT technologies are analyzed. The linguistic, perceptual and material-practical components of the concept of fact in modern science and technology of digital information processing are studied in detail.
The author summarizes that digitalization determines completely new difficulties for defining the concept of fact in both rule-making and law enforcement practices. With new difficulties, new opportunities are being born for rethinking the concept of fact itself and everything related to the sphere of fact. Cognitive sciences allow the use of information-theoretical models to explain the processes of thinking and activity. Researchers in the field of cognitive science are not content with abstractions, when things and phenomena were deliberately pulled out of the situation, out of real life, out of interaction with people and other things, out of context, because in these conditions perception and description becomes limited and unproductive. However, there is also a significant difference: the events that have occurred, situations, scenarios are considered as complex and even unique. It is not enough to notice them, to fix them: the facts need to be operationalized, that is, in preparation for processing by computer systems built with the use of artificial intelligence. Operationalization should be sufficient so that the computer can not only recognize facts, but also simulate their explanation and even understanding.
ISSN 2686-7869 (Online)