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Vol 76, No 1 (2023)
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PRIVATE LAW / JUS PRIVATUM

9-19 1009
Abstract

Testing of a digital ruble platform conducted by the Bank of Russia actualizes the problem of determining the legal nature of a digital ruble and features of its civil law regime. Based on fundamental provisions of the civil law doctrine, the author explores an economic concept of the digital ruble presented by the Central Bank of the Russian Federation; from a civilistic standpoint, the author examines the relationship between the concepts of «digital ruble», «digital money», «currency», «cryptocurrency», «digital financial asset». The paper justifies the fallacy of legal judgments in the interpretation of the digital ruble as a new form of money — as a form of the ruble and as a form of the Russian national currency. Comparing provisions of the Concept with the prescriptions concerning digital currency under Federal Law No. 259-FZ dated 31 July 2020, the author substantiates a number of conclusions: the digital ruble exists in a special material form as digits and other signs on a special material carrier — special computer systems controlled by special programs in the form of a digital platform; in the legal sense, digital rubles mean digital non-cash funds — rights of claim arising on the basis of an agreement for opening and maintaining a digital wallet and acting as an element of the content of the legal relationship between the bank and the customer — a holder of a digital wallet for cashless settlements. The approach proposed by the Bank of Russia to introduce the digital ruble into property circulation has much in common with the model of settlements implemented in practice using electronic wallets and prepaid smart cards. The digital ruble as a non-cash monetary means (in digital form) acts as a property (obligation) right and falls under the civil law qualification of a digital right and its varieties.

20-32 724
Abstract

The works of the first Russian jurists on the problem of compensation for damages in civil law are not sufficiently used in scientific works on this topic. This article can fill in the gaps and be of interest to specialists in this field of research. The author has studied and compared the main works on civil law compensation published before the revolution of 1917. It was found that the science of civil law has moved away from the consideration of universal claims for damages as a remedy and focused on the interpretation of damages as a sanction for an offense. Modern authors repeat the four-level structure of consideration of compensation cases adopted and developed in the Soviet period and the influence of the following conditions: illegality, causality, guilt, proven material damage, lost profit. The author comes to the conclusion that it is necessary to return to the ideas that existed before the Russian Revolution and use them to improve the existing theory of compensation for damages and losses.

Russian pre-Soviet civil law initially proceeded from the concept of responsibility only for behavior, since the category of «illegal actions» was introduced in Article 684 of the Code of Laws of the Russian Empire. Due to the developing industry, separate laws provided for payment as the equivalent of property losses for any material damage from dangerous activities, that is, for the materialized risk. In the Draft civil code of the Russian Empire, branched norms on responsibility for lawful actions appeared. A proper scientific generalization of this approach and phenomenon has not yet been made. The Civil Code of the Russian Federation has a norm on compensation for damage due to lawful actions, when it is specified in the law, but not on recovery of damages.

33-52 715
Abstract

The paper analyzes prerequisites for the formation, content, types, methods of ensuring and protecting traditional family values that have been consolidated at the constitutional level with their subsequent implementation in the principles of family legislation, as well as in its key institutions and structures, namely: marriage, family, parenthood, childhood. Within each of them, the author determines gaps, unsettled relations, as well as decisions that do not meet the meaning of the latest constitutional amendments. The paper provides an assessment of typical and atypical doctrinal approaches to the diversity of significant family values, in particular the idea of auxiliary (peripheral) elements, including elements that are located in the «gray zone». Particular attention is paid to the compliance of the normative-legal structure of marriage and the family union related to it (actual marriage), parenthood, and the status of the child. The latter, taking into account the constitutional provision on the need to educate children in respect for elders, explicitly requires the addition of its content with elements of their duty (duties) under family law. It is suggested that there is a need to return to the idea of judicial specialization in family cases based on the actualization of attention to family problems, the state’s attitude to system protection and protection of its interests. The paper examines the problems of implementing the principle of family autonomy, protecting its sovereignty from arbitrary interference, ensuring the possibility of self-regulation, and emphasizes the need to maintain harmony between the independence of the family union and public control (prevention of deviant family development and response to factors and actions that destroy it).

PUBLIC LAW / JUS PUBLICUM

53-62 279
Abstract

The paper is devoted to the study of peculiarities of legal regulation of providing restricted access information to third parties contained in state information systems for monitoring the turnover of goods and circulation of medicines. The paper provides an overview of legal acts regulating the functioning of these information systems from the moment of their creation. This made it possible to trace stages of legislative development and demonstrate that the systems under examination were launched as an experiment when a state body acted as an operator. Then there was a change in the approach to determining the operator, and the Government of the Russian Federation, without conducting competitive procedures, defined a commercial organization as an operator of the relevant state information systems.

Based on the results of the legal regulation analysis, the authors determined some pecularities of the procedure applied for providing restricted access information stored by the systems monitoring turnover of goods and circulation of medicines. In particular, a closed circle of subjects is entitled to receiving such information; third parties have access to information only to the extent that it relates directly to their activities. Another feature is that the list of mandatory information to be entered into these state information systems by participants in the turnover of goods is quite wide. It is argued that the volume and nature of information contained in information systems indicate their high commercial value. Also, the operator of state information systems is prohibited to provide commercial services to third parties using the restricted access information contained therein. In addition, attention is drawn to the fact that the revision of the current approach prohibiting the monetization of these data will require amendments to federal laws.

63-75 605
Abstract

The analysis made it possible to identify a number of current features of the Russian model of control and supervisory activities that are significant in the context of constitutional law. The first involves building a modern domestic model of control and supervisory activities based on a fully updated legislative foundation. The second includes the focus on the full-fledged formation of the service and partner model of control and supervisory activities (in fact, it acts as generic feature defining the meaning and having value-semantic, axiological significance and explained through a whole group of interrelated features of the Russian model of regulation and development of control and supervisory activities). The third means expanding the use of a risk-based approach as one of central principles of organization of control and supervisory activities (a full-fledged interested feedback from business and the expert community constitutes an invaluable tool in determining risks). The fourth refers to the focus on the priority of a preventive approach in implementation of control and supervisory activities (non-responding to the damage caused, but a proactive position, expressed in ensuring prevention of any possible damage to protected values; it serves as a priority and deserves further development of mechanisms facilitating its broad implementation). The fifth means active digitalization of control and supervisory activities and ensuring openness (accessibility) of information. The sixth involves constant focus on the introduction of new technologies and approaches to organizing control and supervisory activities. The author demonstrates a number of important steps that are advisable to encourage positive development of the features of the domestic model. It is emphasized that at the new stage of the reform of state control (supervision) and municipal control, development of new scientifically and practically grounded approaches to the implementation of specific mechanisms and tools that will result in uncovering the potential of the partner and service model of control and supervisory activities in the Russian Federation will be in great demand.

CRIMINAL LAW SCIENCES / JUS CRIMINALE

76-84 401
Abstract

The paper analyzes the qualification procedure for obtaining illegal property benefits by officials through the use of their powers or office. Performing administrative and economic functions in relation to the entrusted property, the perpetrators pay for work that has not been completed or has not been completed in full, for undelivered goods, unproven services, or they steal funds and property of organizations. The author focuses on cases when the listed crimes are committed in conjunction with a bribe. The paper explores contradictory court practice of considering cases of embezzlement and bribery committed by officials. The author determines the rules for qualifying «official embezzlement» involving bribery, clarifies complex issues of interrelationship between embezzlement and appropriation of other people’s property, and explains the distinction between the crime provided for in Article 160 of the Criminal Code of the Russian Federation and fraud. In particular, the author justifies the possibility of receiving a bribe by an official at the expense of a part of the property stolen by him earlier, and explains the absence of signs of bribery in cases when the person to whom the embezzled funds were transferred was not interested in the embezzlement committed by the official. Actual examples from judicial practice show that a bribe can be received not for any embezzlement committed by an official misusing his office, but only if it would be implemented in abuse of administrative and economic powers. The paper argues the author’s opinion regarding the possibility of an official receiving a bribe for complicity in fraud.

85-97 689
Abstract

Bioprinting is one of the newest scientific developments in the NBICS convergence (convergence of nano-, bio-, information and cognitive technologies), which is a global phenomenon on a global scale. Research in the field of 3D tissue and organ printing is of a complex interdisciplinary nature, and is projected onto the biomedical landscape of organ transplantation issues. The paper deals with the legal issues of bioprinting as a technology in the field of biomedicine amid innovative activities in the healthcare system. The stages of bioprinting (preprocessing, processing, postprocessing) successively pass into each other, forming a trace complex of unresolved legal issues. There is a new phenomenon of objective reality, expressed in actions aimed at creating a new biogenetic product, while no norm of the current positive legislation can describe the process of creating and applying a reprint organ (biomaterial). The need to develop and systematize Russian legislation on the use of the results of innovative technologies in healthcare is justified taking into account the high criminal risk of harm to the human embryo. The paper identifies two groups of criminogenic threats depending on the use of biosafety and bioinsecure technologies in the field of bioprinting. The current criminal legislation makes it possible to classify criminal acts in the field of 3D technologies using the general bodies of crimes in the Special part of the Criminal Code of the Russian Federation. However, the mechanisms of criminal legal protection need to be improved by developing special norms that block harm to biogenetic human rights. Since the common element in all crimes related to bioprinting technologies is the object of the crime, it is necessary to determine that the moment when criminal legal protection of human life begins is from the moment of fertilization of an egg by artificial or natural means. It is important to use the general term «human embryo», which includes all stages of embryonic and fetal development.

98-109 1522
Abstract

The paper is devoted to the consideration of topical issues related to the essential characteristics of such categories of evidentiary law as «evidence» and «proof», due to the ambiguity of approaches that researchers apply to disclose their nature.

The study purports to identify the conformity of the actual proof procedure with its definition reflected in the law, and to formulate scientific recommendations for improving the law in this part. Scientists’ ideas that the legislative definition of evidence does not reflect the requirement of their reliability are critically assessed, and the absence of grounds for such a conclusion is demonstrated.

In the course of the research, scientific methods of analysis, synthesis, formal-logical and legal interpretation were used. Based on the terminological analysis, in contrast to the opinion of scientists who believe that such an element of proof as gathering should be replaced by the concept of «formation», the author substantiates the position that all elements of proof, and not just gathering, represent the process of evidence formation. Therefore, the most accurate characteristic of criminal procedural proof is the process of transformation of the information obtained during the proceedings into evidence to substantiate the presence or absence of circumstances to be proved, i.e., the process of forming evidence.

In this regard, the author concludes that for a more accurate reflection of this process in a number of norms of Chapter 11 of the Criminal Procedure Code of the Russian Federation, it would be necessary to replace the concept of «evidence» with the concept of «information that can be used as evidence». According to the author, the legislative definition of criminal procedural proof should reflect not only the actual process of evidentiary activity, covering the initial stage of criminal proceedings, but also its target orientation. For this purpose, the author proposes the following wording of Article 85 of the Code of Criminal Procedure of the Russian Federation: «Proof consists in gathering, verifying and evaluating information in order to obtain evidence substantiating the presence or absence of circumstances provided for in Article 73 of this Code for the correct resolution of a criminal case.»

110-125 379
Abstract

Modern society is undergoing a period of transformation that affects all fundamental spheres, including the sphere of criminal policy and criminal law. The state of instability and uncertainty of social development is reflected, among other things, in the fact that the practice of current rule-making in the field of constructing criminal law prohibitions often demonstrates a clear contradiction to the rules and principles of criminalization that have developed in the domestic legal doctrine at the turn of the 20th and 21st centuries. This phenomenon receives a predominantly negative assessment in the scientific literature. Without denying the substantive criticism, at the same time, it is necessary to raise the question that the steady nature of deviations from the usual standard rules of criminalization indicates the gradual formation of a new theory of criminalization, the contours and content of which have not yet been recognized by science to the proper extent. Based on the study of the materials of the legislative process, the authors substantiate the idea that the modern practice of criminalization is based on a coherent system of doctrinal ideas that go back to the theory of psychological coercion of criminal punishment, the theory of criminal education of the individual, the theory of legal moralism, the theory of preventive criminalization and the theory of social constructivism. In their unique configuration, these theoretical concepts constitute a coherent doctrine that allows for the free, unrestricted construction of criminal law prohibitions in order to ensure the safety of the process of social transformation from any minimum possible and potential threats. It is possible to achieve that by means of the formation and maintenance through the threat of criminal punishment of the necessary moral status of individuals and the moral solidarity of society based on the values that are meaning-forming actors of social transformation.

IIMPROVEMENT OF LEGISLATION / NOVUS LEX

126-141 510
Abstract

The paper explores the conceptual and instrumental aspects of a family law concept, namely «persons in loco parentis». The culture of its normative and theoretical use is not well-established. The scientific incentive for this discourse was the proposed legislative replacement of this concept with a new one — «persons in the care of a child» (Bill No. 157281-8). The author raises a theoretical and methodological question about what can be done theoretically to achieve legal completeness and clarity in understanding the legal meaning that is embedded in the already existing concept of «persons in loco parentis». It is important to prevent the incomplete legal awareness accompanying it from passing to the new concept proposed for introduction into the Family Code of the Russian Federation, replacing its definition. The final conclusions of the paper reflect the author’s scientific views on the problem posed by her and consist in the following. The scientific description of the legal concept of «persons in loco parentis» requires reliance not only on its linguistic designation, but also on such methodological positions as: the purpose of the presence of this concept in the normative text in the form of the need to separate persons recognized by law parents, from other persons who, on other legal or factual grounds, are in close relationship with the child; the concept of «persons in loco parentis» is secondary in its normative meaning, its essential side is predetermined by the derivation from the main term «legal parents of the child». Hence, the legal meaning of this group concept cannot be known through its scientific description as a concept that exists «by itself». It is necessary to compare it both with the concept from which it originated — legal parents, and with other ordained group (other persons in whose care the child is — Article 77 of the Family Code of the Russian Federation; other relatives; legal representatives of the child) and personalized (stepfather/ stepmother, actual caregiver, grandmother/grandfather) legal concepts.

DISCUSSION PANEL / PRO ET CONTRA

142-156 491
Abstract

The paper is devoted to the analysis of family and demographic policy in the context of determining the legal status of a pregnant woman under the Russian legislation, as well as the impact of a set of social support measures on the attractiveness of having many children in family planning. The author states that the absence of an established form of a woman’s pregnancy certificate is a huge disadvantage, since the issuance of a document is a legal fact with which the law connects the emergence, modification and termination of legal relations, the basis when a woman acquires a special social and legal status of a subject with a privileged position, reflected in various branches of Russian legislation. The paper analyzes judicial practice regarding the filing of claims by men for compensation for moral damage in connection with the termination of pregnancy by women without reaching a general agreement on the issue of family planning. In the transport sector, there is no uniform practice of providing transportation services to pregnant women by airlines. Regarding the legislation on sports, the author draws attention to the fact that the hormone released in the pregnant woman’s body is deemed doping. However, restrictions on access to competitions are discrimination, so it is not uncommon for a pregnant woman to receive an Olympic gold medal being heavily pregnant. The state of pregnancy is also of legal importance for criminal legislation, since a significant number of criminal law norms take into account the special status of a pregnant woman as a characteristic of the defendant’s personality, as well as as a circumstance that gives great public danger when the victim is the expectant mother. The granting of a special privileged status to a pregnant woman is also subject to consideration in housing legislation: the expectant mother should have the right to additional state support, including in terms of meeting housing needs. The author summarizes that for the Russian legislator, a pregnant woman is unconditionally a value whose rights and interests are protected as much as possible. The principle of state support for motherhood is reflected in the entire system of Russian legislation.



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