PUBLIC LAW / JUS PUBLICUM
The paper is devoted to issues related to the analysis of lawmaking and law enforcement activities in the context of the theory of correlation between subjects of constitutional law developed by the author of this study. Based on the standings of reputable researchers, the author systematically proves the thesis that the entire law-making process at any level must be based on the real needs of the society based on the relations between subjects that already exist. The author considers it impractical and ineffective to change established ties by creating new documents and applying organizational measures on the part of the public authorities. Working for the federal executive authority, the author faced with the fact that creating new rules of conduct is planned in advance, and after a certain period of time a relevant report is issued. A planned nature of rulemaking also seems to be a vicious practice, since it generates unnecessary requirements and norms for persons on a daily basis engaged in certain activities the stability of which only increases its effectiveness. In addition, a well-established strict positivist approach to the implementation of legislation has positive sides and allows ensuring legality and law and order, but citizens should have at their disposal tools to influence legal acts in the event that the current norms do not work or do not work as initially intended. The paper provides the reader with some suggestions with regard to the issues under consideration.
The paper examines the issue of the lawmaking development in the Republic of Crimea as a subsystem of lawmaking in the Russian Federation in modern conditions. The author analyzes historical stages of development of the Crimea legislation from the 1991 Referendum to the adoption of the new Constitution of the Republic of Crimea in 2014 and the factors contributing to the effectiveness of lawmaking technologies.
Using the methods of synthesis and comparison, as well as the formal legal method, the author identifies two models of development of lawmaking in the constituent entities of the Russian Federation. The author draws attention to the rule-making policy in the regions and determines the role of the RF Constitutional Court decisions in improving regional legislation.
From the standpoint of the theory of organization, the author considers lawmaking as a higher stage of development of lawmaking activity and a peculiar form of legal activity. Considerable attention is paid to the study of the concepts of interaction between lawmaking systems of the Republic of Crimea and the Russian Federation.
Lawmaking in the constituent entities of the Russian Federation is an integral part of the unified law-forming process of the federal State. The Republic of Crimea, like other constituent entities of Russia, is endowed with lawmaking competence. At the same time, regional lawmaking should be a logical continuation of the federal one with due regard to regional peculiarities. And in no case it can confuse, complicate, contradict, duplicate federal rule-making.
The purpose of the study is to develop recommendations aimed at eliminating shortcomings of the modern international monetary system. The author suggests a draft of its reform. The draft provides, firstly, an objective reflection of the economic state of the issuing state in compliance with the exchange rate of the national currency and, secondly, allows eliminating disproportionate use of the US dollar in international trade. When developing the draft of the reform, the author proceeded from the assumption that the reform of the international monetary system based on consensus is impossible: «beneficiaries of the modern monetary order» will actively defend their national interests to the detriment of the interests of the majority of members of the international community. Under the current conditions, the only way to transform the international monetary system is to take unilateral actions of individual States. At the same time, the «engine of the reform» should include the commercial benefit of private participants of foreign economic activity: it is unrealistic to adjust the international monetary system by establishing new rules that do not ensure additional (at least minimal) profit for international trade agents. Based on these prerequisites, the author formulates a model of unilateral modernization of the settlement system and the system of customs and tariff regulation when importing goods that can be applied by an individual state. Implementation of this model should generate demand on the domestic foreign exchange market for the national currency of the importing state proportional to its share in international trade. A consistent increase in the number of states using this model will allow, based on market principles, creating a new international monetary system, eliminating its main drawbacks, including reducing the role of the US dollar in international trade to an adequate value reflecting the current state of the American economy. The author relied in the study on analytical and statistical methods, the method of economic and legal modeling.
The paper examines actual problems concerning administrative responsibility for advertising services in the field of preparation and writing papers provided for by the state scientific certification system In recent years, there has been an increase in the number of organizations engaged in illegal preparation of term (year) papers and theses, research articles and Cand. Sci. dissertations. Unfortunately, as practice shows, territorial bodies of the Federal Antimonopoly Service of the Russian Federation (FAS territorial bodies) do not always identify the elements of the crime in the activities of such organizations.
FAS territorial bodies refer to the lack of a high level of experts in the field, difficulties associated with conducting linguistic forensic expertise mandatory for fixing and detecting hidden advertising, the lack of a well-developed mechanism for bringing to administrative responsibility. The authors propose measures necessary to eliminate these problems and improve the work of law enforcement agencies.
In particular, the authors are convinced that in a separate letter, the Federal Antimonopoly Service of the Russian Federation should oblige its territorial authorities to identify elements of illegal advertising during their inspections aimed at checking compliance with the Federal Law on Advertising and to bring to administrative responsibility citizens, officials and legal entities advertising services for writing scientific papers. The police bodies, as well as the Federal Tax Service agencies should also be involved in this work, and they should be given the appropriate powers.
It is advisable for the Prosecutor General’s Office of the Russian Federation to instruct subordinate prosecutor’s offices of constituent entities, cities, districts to carry out monitoring regarding situations when antimonopoly authorities impose or fail to impose administrative responsibility on citizens, officials and legal entities for advertising services for writing papers provided for by the state system of scientific certification.
To identify signs of veiled advertising, it is proposed to use clarifications of the Presidium of the Supreme Arbitration Court of the Russian Federation, according to which courts can take into account information that consumers associate with goods in circulation. In relation to the problem of advertising services for the implementation and writing of scientific papers, antimonopoly authorities can use the data of sociological surveys of students and teachers and the conclusions of linguistic expertise.
PRIVATE LAW / JUS PRIVATUM
Parallel imports as a tool for the international trade development and better availability of goods in different countries and in some sense an instrument of international competition, give rise to a number of legal issues, the solution of which depends on the stability of trade relations, availability of goods in the markets of different states, compliance with the intellectual rights of copyright holders. The authors analyze legal approaches to parallel import and the problem of exhaustion of rights in the states of the Eurasian region using Russia, Armenia, Kazakhstan, Azerbaijan and the EAEU as case studies. It is noted that there is no normative consolidation of the concept of «parallel import» at the level of international level. There are no international legal grounds allowing the right holder to prevent introduction of the international principle of exhaustion of rights in full in a particular State. The standards of significant difference in the implementation of the international principle of exhaustion of rights seem permissible for regulatory consolidation only in cases where significantly different goods are distributed by the rightholder in at least two States and have ever been imported by the rightholder or with his consent for distribution to the State introducing parallel imports. Even in this case, introduction of the standards of significant difference remains at the discretion of the State introducing the international principle of exhaustion of rights.
The regional principle of exhaustion of exclusive rights within the EAEU, can serve as an important mechanism for completing the markets of goods and services in the EAEU member states, filling in the missing goods on the market of the EAEU member states, increasing competition and optimizing prices for goods in the region At the same time, it is necessary to provide for the possibility of using the international principle of exhaustion of exclusive rights, clearly establishing the list of goods (trademarks) subject to its operation.
Theoretical ideas about the balance between private law and public law in the activities of autonomous institutions today are not obvious, which often generates biased scientific judgments on many relevant issues. In the doctrine, the issue concerning the search for the optimal balance between public and private legal aspects and their correlation in relation to autonomous institutions has not actually been raised and has not been resolved. The ability to independently provide property for their current activities through participation in civil law relations, as a rule, is studied separately from the norms of public law, creating an unmistakable scientific idea of the exclusively civilistic content of the normative rules that determine the legal personality of autonomous institutions. The author addresses the problem of dualism in determining their status, making a theoretical attempt to coordinate public and private law in this area.
In the course of the study, the author demonstrates systemic interweaving of private and public principles when analyzing the status of autonomous institutions. At the same time, there is a lack of well-established theoretical guidelines for the study of relations in which the analyzed entities participate. This, according to the author, is the main reason for the negative nature of scientific research in recent years devoted to the study of such a subject of legal relations.
At the same time, realizing that the purpose of any research is to detect advanced and progressive problems, the author sees it necessary to take into account the dichotomy and convergence of the provisions of public and private law in the subsequent analysis and study of such a subject of legal relations as an autonomous institution.
CYBERSPACE / CYBERSPACE
Digitalization of various spheres of public relations, including their legal regulation, has recently become the talk of the town. More than a dozen works, many of which are of a rather fundamental nature, address the problems of digital development of law in general and criminal procedure in particular. However, it is difficult to deny that the issues of the influence of artificial intelligence on the development of justice have become the subject of widespread discussion relatively recently. As for predictive technologies, in comparison with foreign countries, there are many times fewer works of Russian legal researchers studying the issues under consideration. Basically, the legal personality of artificial intelligence is perceived as something negative, although it would be wrong to completely deny the idea of gradual penetration of this high technology into legal reality. The study attempts to participate in the discussion concerning admissibility of the use of predictive technologies and artificial intelligence in the administration of justice in criminal cases.
The paper substantiates the thesis that rapid digitalization in the field of criminal justice should not go against implementation of the citizens’ right to access justice, but should serve as an important means of achieving transparency of the criminal process.
Based on the basic postulates of the construction of the Russian criminal process, the author critically comprehends the place of artificial intelligence and predictive technologies from the standpoint of auxiliary elements or a fullfledged replacement of a human judge, discusses the search for an optimal balance of their application in order to improve the quality of justice in criminal cases. Despite certain conservatism of the criminal process and the seeming surrealism of thinking about full-fledged coexistence of criminal justice with predictive technologies and artificial intelligence, the author considers this direction to be very promising, requiring further study and reflection for the benefit of human development, society and the state.
The paper analyzes the formation and development of the EU Digital Single Market, as well as the specifics of online platforms regulation in the EU, taking into account the judicial practice formed by the EU Court. It is concluded that EU regulatory legal acts do not always provide sufficient regulation from the point of view of harmonization of national rules in the field of the digital market. In this regard, a special role is assigned to the EU Court of Justice in interpreting EU regulatory legal acts and elimination of gaps in the law. The author concludes that the European Commission on the Digital Single Market quite often uses the message format to broadcast its decisions, which indicates that it does not have executive powers at the EU level. The same is true for the EEC, which operates at the EAEU level. The EU legal acts regulating the activities of online platforms and the digital market as a whole are more detailed, unlike those legal acts that operate in the EAEU and are essentially programmatic, denoting topical issues and common vectors of development. The Treaty on the Eurasian Economic Union creates a regulatory legal framework for the implementation of the program to create a Digital Single Market of the EAEU. In this regard, the EAEU should increase the intensity of interaction within the legal framework of the common market of goods, services, capital and labor, create universal concepts and models based on the experience of the E, in particular, the concept of «know your business client». It is necessary to take into account the specifics of the EAEU region increasing the role of the EAEU Court in the formation of the general legal model of the functioning of the Digital Single Market. Given the new reality of political and economic relations, the creation and development of the EAEU Digital Single Market is an important point for ensuring digital and economic sovereignty.
HISTORY OF LAW
The paper examines the normative foundations and theoretical views of pre-Soviet and modern scholars on the concept and content of a criminal charge (criminal prosecution) as a function of the Prosecutor ‘s Office of the Russian Empire after the judicial reform of 1864. The author shows the correlation between this function and supervising function in the prosecutor’s office activities. The paper analyzes legal terminology related to criminal prosecution and shows that there is a dual approach of researchers to the concept of this function as a certain «requirement» or «activity». The author considers the content of the initial and final charges and related controversial issues, in particular on the implementation of prosecutorial criminal prosecution at the stage of preliminary investigation. The connection between pre-Soviet and modern science in approaches to the analysis of the accusation function is shown.
The author concludes that due to the judicial reform of 1864, the prosecutor’s office was assigned a new function of making charges, which became the main one in its activities. The legislation included «detection of crimes and prosecution of perpetrators» in the content of the prosecution function, but did not define the concept of prosecution. In this regard, the science and departmental regulations of the Prosecutor’s office in the content of criminal prosecution in a broad sense included almost all the activities of the prosecutor in the criminal process. The prosecutor initiated such prosecution by initiating criminal cases and during the preliminary investigation carried it out through prosecutorial supervision. The prosecutor initiated criminal prosecution against particular persons either directly at the initiation of a criminal case, or indirectly during the supervision of the investigation, or directly at the stage of trial in cases in which the investigation was not conducted. Despite the fact that the prosecutor did not initiate the initial charge in all criminal cases, at the stage of bringing to court he formulated his final charge in all cases in which he considered the guilt of the accused proven.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
The science of constitutional law lacks universal theoretical approach to constitutional legal relations; each state independently determines the goals, object and subject of constitutional legal relations. At the same time, the same subjects in different conditions existing in different national legal systems can act as objects and subjects of legal relations. The constitutional legal relations constructs under consideration do not consider a nation as an equal participant in these legal relations. Their role in all of the presented constructs is limited both in terms of the circle of persons and the possibilities to enter into constitutional legal relations as a subject. It can be argued that, despite the difference in approaches to the object and subject composition of legal relations, in Germany, Great Britain and France, such legal relations between public authorities can exist only in a normally developing state (a state that is not under pressure from any crisis or epidemic).
The author draws her conclusion based on an analysis of the basic constructs of legal relations, which in Russian legal science are usually referred to as constitutional legal relations. The author’s choice of constructs developed in Germany, Great Britain and France is due to the wide spread in the world of scientific views formed within the framework of the national scientific schools of these states, as well as the influence of the philosophy of law of Germany and France on the formation of constitutional legal relations in Russia.
The author pays special attention to the prevalence of Karl Schmitt’s views on the formation of constitutional legal relations in Europe and North America in terms of intolerance of dissent, the assumption of constitutional dictatorship, the strengthening of executive power at the expense of the legislature.
FUNDAMENTAL PROBLEMS OF THE LEGAL SCIENCE / PROBLEMA PRINCIPALE
The dilemma that human-beings are in is that; while they are aware that the sustainment of their own living fully depends on the sustainment of the natural-beings’ living, on the one hand, they also want to use (usus), exploit (fructus), and even abuse (abusus) them, on the other. This dilemma has emerged after the viewing of the natural-beings as «resources» has proved that they are not endless by causing the extinction of many of them. It is an undeniable fact that natural-beings are the only sources for the sustainability of all beings’ life. However; this, by no means, means that they can be used, exploited, and abused as one wishes. For, there is a miraculous circulation in nature that can be summarized as the «butterfly effect»: The planet we live on is like a closed circuit; that is, no being vanishes but just rots, dissolves and transforms into another being. Let’s take a look at the water: it drops from a cloud onto the earth in its pure form; it forms the rivers, lakes, seas, and oceans; it is absorbed by the soil; after being absorbed from there by a plant, via the roots thereof, it is mixed up with other chemicals therein and been stored thereby in the form of a fruit appetizing for animals and humanbeings; it turns into the blood after being digested in these beings’ bodies; it travels through the veins within their bodies; it returns back to the nature through the excretion and sweating processes or their burial upon the death of these beings; from where it evaporates to form another cloud. Let’s take a look at the oxygen: it exists in, in addition to the air, all the places mentioned above wherein exists the water, of which it is a component, together with a pair of hydrogens — which is such a miraculous composition: a couple of flammable gas together with a burner gas, instead of creating a fire, creates a fire-extinguisher liquid-; it flies all around along with other gases; as a result of being inhaled by animal and human-beings at all-times and by plants only at night-times, it couples with another oxygen and one carbon and turns into a carbon-dioxide; returns back to its original form as a result of the photosynthesis process of plants during daytime.
Therefore; the soil formed by minerals and organic materials, the Sun, the air, and the water, all together make the living of plants, animals, and human-beings possible. Plants make it possible for almost all animals and humanbeings to live, and animals make it possible for most human-beings and some plants to live. These two naturalliving-beings, besides water, should be consumed as the only source of food for the continuation of human life. The exact same particles in these beings, just in the same way they have been doing so since the beginning of time, do also compose the bodies of human-beings that consume them by eating and drinking; and they will again transform back to their original states in order to form a new corpse that will host a new soul after the death of these human-beings too.
The natural-beings that we now see in their form of the meal are only unvanishable in their particle form as clearly seen in the extinct-natural-living-beings’ case of both plants and animals. This reality brings us to the conclusion that; we must protect them, i.e., stop destroying them, at least for our own sake. The mostly used legal tool for this protection is a punishment-based method, in which the foreseen actions are prohibited as a rule by the legislator, and those who violate them are punished with the penalties prescribed by the courts. Two of the most important shortcomings of this method are to impose sanctions on unforeseen acts and to ensure that the foreseen sanctions serve to compensate the damaged natural-beings. There is an alternative method, that is in use in a few countries, fulfilling the above-mentioned shortcomings: attributing legal personality to natural-beings. According to this; first, an action may be brought for compensation for damage to a natural-being, whether foreseen by the legislator or not; secondly, the court considers the actual damage done to the naturalbeing instead of a predetermined fixed amount as in the case of a fine; thirdly, the compensation determined by the court serves to compensate the damages of the natural-being. Such a change of perspective towards them would make a huge difference in simplifying and effectuating their protection method.
In this paper, we will examine a new legal personality status, which we define as «legal deal with the meal» by analogy with «social contract», under the name of «natural personality», which will enable natural-beings to have their own rights.
DISCUSSION PANEL / PRO ET CONTRA
The Russian social protection system of recent years has been characterized by the chaotic nature of the ongoing reforms, which sometimes have the main task of solving momentary economic problems. An increase in the level of social benefits or the introduction of new ones occurs, as a rule, for the most active and dissatisfied part of the population. Thus, in 2019, under the influence of public associations of parents of disabled children, the compensation payment for this category of citizens was increased to 10,000 rubles, while the payment to caregivers for other categories of people in need (for example, elderly relatives) remained at the level of 1,200 rubles per month.
The obvious lack of general principles for the provision of state aid based on ethical norms understandable to society causes discontent and distrust of the population. The paper attempts to point out the inconsistency of legislation with moral and ethical standards in the field of long-term care, identify shortcomings and develop some proposals for improving the current legislation.
The author suggests the following: 1) to support the idea implemented in pilot projects of a number of subjects of the Russian Federation to endow persons caring for relatives with the status of social workers; 2) to raise the amount of payments to unemployed able-bodied caregivers to the minimum wage, since compensation payments by their nature are designed to replace missing earnings; 3) to eliminate unjustified differentiation of payments depending on the status of persons in need of care; 4) to provide for the possibility of working on a part-time basis when providing care, setting fair limits taking into account the amount of compensation payments and income received, etc.
The paper presents the results of a study of the most important changes in the activities of the Department of Internal Affairs (Police Service) after the 2011 reform. The success of the implementation of the principles of openness and publicity of police activities, building trust between the police and society, improving the image of the Department of Internal Affairs is characterized, the intensification of information and propaganda work is noted. The opinion of police officers on the prevalence of illegal and illegal behavior among employees is analyzed. Noting the downward trend in the facts of such behavior, among its determinants, the author names more active detection of violations of official discipline and offenses. An important advantage of modern police activity is the introduction and development of electronic document management, improvement of the regulatory framework, tightening control over budget spending. An increase in the level of education of police officers is also recognized as a positive trend, but the active introduction of distance learning significantly reduces its quality. The system of medical and pension provision for employees of internal affairs bodies remains satisfactory. Among the main problems that reduce the effectiveness of the professional activities of police officers are excessive document flow, imperfection of legislation, weak material and technical base, poor interaction of departments and services among themselves, insufficient number of employees and their heavy workload. The latter, according to the employees of the internal affairs bodies, is the most serious factor, which is expressed in the inconsistency of the official load with the established norms, in the performance of official duties during the vacation period, in the unjustified distribution of official duties. The solution of the problems of organizing and carrying out the professional activities of police officers indicated in the paper is necessary for effective crime prevention and increasing the authority of the police in society.
ISSN 2686-7869 (Online)