PRIVATE LAW / JUS PRIVATUM
The analysis of subjective civil rights doctrines allows us to conclude that there are several levels in their structure. Some theories initiate the process of acquiring the right, others finalize it. Most concepts (the concept of general and specific prerequisites for the emergence of the right, the concept of a legal fact structure, the concept of juridical composition, the concept of facts-states) are based to some extent on this division. From these positions, the author differentiates between the concepts of «emergence» and «acquisition» of a right, as well as the grounds and methods of acquiring property rights, where the basis is a prerequisite for the emergence of a right, and the method means actions aimed at acquisition. Grounds and methods cannot independently generate rights and obligations.
A critical assessment of new grounds and methods of acquiring ownership of real estate from these theoretical standings made it possible to exclude the possibility of recognizing the «right of claim» enshrined in the law as a method of acquiring ownership to a land plot. Attention is drawn to the appearance of a number of categories that the law-maker fails to explain (the relevant real estate, the formation of an immovable thing, etc.), but the content of which has serious legal consequences. An attempt is made to differentiate the concepts of creation and formation of an immovable thing on the basis of the originality and derivation of the acquisition of ownership, where creation is the original method, and formation is a derivative, which entails not only the emergence of ownership of a new object, but also the termination of rights to the existing right. An assumption is made about the possibility of distinguishing the categories of creation and formation depending on its physical and legal element where creation is characterized by the appearance of an object in physical (material) embodiment, and formation means a legal separation (spinning-off0. The author argues that it is not possible to differentiate these categories without adjusting the legislation. The author justifies amendments to the Civil Code of the Russian Federation, as a result of which formation can be considered as a new derivative method of acquiring real estate ownership.
The paper is devoted to the issue that is one of the most significant in law and that is subject to clarification in cases of protection of the subject of personal data — the composition of the claimant’s personal data determined during the court proceedings on the basis of judicial discretion. The purpose of the paper is to interpret the concept of personal data as a legal category and an integral part of the gardener’s right to privacy through the analysis of the concepts of the right to privacy and inviolability of private life in relation to the gardener, to formulate rules and principles for determining the composition of personal data of the gardener as a special subject of the institute of personal data. The author comes to the conclusion that the very fact of acquiring a garden plot of land intended for the recreation of individuals generates an absolute relationship in the form of a passive obligation of everyone to respect the privacy of the gardener, to refrain from any encroachment on this right, on the one hand, and the right of the gardener to demand from anyone and everyone its intangible benefits of an absolute nature acting erga omnes (against all), on the other hand. The above allows the author to conclude that, based on the peculiarities of the legal status of a gardener acting as the owner of a garden plot of land intended for recreation, it should be stated that all relations related to recreation are included in the concept of private life inviolability of which refers to intangible benefits that are absolute and protected also with the help of the institute of personal data.
The study is devoted to the legal status of clinical guidelines as a technical and legal act in modern Russia. The purpose of the study is to substantiate and update in modern legal science the consideration of clinical guidelines as one of specific regulators of medical care in the Russian legal system. The study uses the method of comparative jurisprudence to study the legal status of clinical guidelines in foreign countries. The article examines the main historical periods of the formation and development of clinical guidelines in the system of technical and legal regulation of medical care in Russia. The definition of the concept of «clinical guidelines» is formulated, by which it is proposed to understand official enactments — documents with a standard structure and issued in a special order by specially authorized entities containing a system of scientifically grounded technical and legal norms aimed at regulating the activities of medical workers in the process of providing medical care to patients, secured by legal responsibility. Mainly through the application of a special legal method of jurisprudence, the binding nature of clinical guidelines in the Russian legal system is justified. By means of the formal legal method, the place and significance of clinical recommendations among other normative acts regulating the provision of medical care in Russia is determined. The article highlights two research plans for the functions of clinical guidelines: specific legal and socio-legal. The specific legal functions include: regulatory, protective and evaluation functions; the socio-legal functions include security, control, supervisory and methodological functions. Based on the conducted research, the authors determine the purpose of clinical guidelines, which consists in rationing medical activities in the process of providing medical care in modern Russia.
CRIMINAL LAW SCIENCES / JUS CRIMINALE
The potential of the business community directly affects the economic development and economic security of society. This question is especially relevant in connection with the global challenges that have arisen before the society. Implementation of business opportunities is significantly limited by illegal acts against business entities, the extent of which the statistical data indirectly helps to asses. In our legal system, the rights of entrepreneurs are comprehensively protected by legislation, which is confirmed by a large number of safeguards provided during the investigation of criminal cases and discussed in the article, as well as institutions and tools for protecting the rights of business entities. However, the business community still needs protection both from false entrepreneurs and from illegal actions of the personnel of the preliminary investigation bodies. Domestic legal science faces not only the issue of large-scale transformation of criminal law in order to realize the potential of Russian business — a qualitative change in criminal law will not be able to correct all existing problems of law enforcement in the absence of a detailed legal study of the prerequisites for the formation of entrepreneurship in Russia and the formation of law enforcement practices that it seems necessary to eradicate.
The responsible role of business representatives is expressed in high-tech and generating economic benefits of entrepreneurial activity. At the same time, the rights of entrepreneurs need to be protected also from illegal actions of the officers of the preliminary investigation bodies. The problem under consideration and other problems identified in the work, along with statistical data, allow us to conclude that it is important to organize protection of the rights of business entities during the investigation of crimes to ensure the economic security of the state, a stable economy and business environment.
The paper raises the question of the possibility of applying a paradigmatic approach to social knowledge in a way similar to natural science. And if such an approach is applicable, then the problem lies in allocation of paradigms, in particular, in relation to criminal law. Scientific knowledge, of which criminal law knowledge is a part, should be considered in unity with the ideological foundations of society. As far as the worldview changes, so do the socio-cultural foundations of scientific knowledge. The ideological basis determines the necessary connection between natural science and social cognition. The position is substantiated, according to which the paradigm in the social sciences should not depend on discoveries, as in natural science, but on changes occurring in the very structure of human thinking. The division of paradigms into classical and non-classical is taken as a basis, which corresponds to scientific attitudes, namely, realism and constructivism. This methodology allowed us to associate ontological types of legal understanding with realism, which are based on metaphysical entities (God, reason, cosmos, nature), and with constructivism — a modern postmodern type of legal understanding that does not appeal to ontology. Considering the key concept of a crime through the prism of the designated paradigms (classical and non-classical), the author shows how, along with the evolution of attitudes towards a person, the view of the goals and objectives of criminal law changes, how the classical paradigm (the paradigm of responsibility) changes to the non-classical paradigm (the paradigm of security). Both of these paradigms determine the vector of development of criminal law and criminal policy formed as the result of development of the concept of man and society.
The paper analyzes the current state of violent juvenile delinquency in our country and gives the data of official statistics. The analysis of the data shows that, along with the decreasing juvenile delinquency, there is an alarming increase in the commission of serious violent crimes by minors. Summary indicators of juvenile delinquency are demonstrated, justifying such a conclusion.
The authors consider the point of view of scientists on social factors that are determinative for the manifestation of violence in the adolescent environment. In this regard, the authors conclude that in general the main factors include the demonstration of violence in the media and the Internet, its habitual manifestation in the immediate environment, social deviations and mental anomalies in minors, as well as significant disadvantages of leisure activities. Attention is given to the situational nature of crimes committed by minors, as well as the impact on the commission of certain types of crimes of the personality and behavior of juvenile victims. It is concluded that there is an urgent need to develop comprehensive preventive measures that involve coordinated activities of various institutions (educational, sports, cultural and leisure institutions, law enforcement agencies). At the same time, according to the authors, the main vector of our state’s policy in this area should be the further strengthening of measures for the moral and ideological education of minors, the organization of accessible leisure activities for them, since excessive behavioral activity of minors due to age should not be suppressed, but reoriented.
The authors conclude that the state’s youth policy should aimed at increasing the value of a healthy lifestyle, education and culture, and its main vector in this area should be strengthening measures for the moral and ideological education of minors.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
Modern criminal procedure tends to employ the increasing number of various kinds of agreements, arrangements, which results, in the practical sphere, in the facts that special procedures displace ordinary investigation and the subsequent ordinary procedure of judicial proceedings. In the Russian criminal procedure, special procedures for making a court decision are becoming increasingly common with the consent of the accused with the charge brought against him or when concluding a plea agreement. In the American criminal procedure, the conviction of the accused based on his plea has become regular, and a full trial by the court is an exception. The Russian criminal procedure by its nature tends more towards the continental criminal procedure and historically German and French criminal procedures have had a great influence on its formation, thus, it seems interesting and informative to familiarize yourself with foreign experience, in particular with the German one. Russian and German criminal trials are based on the principle of legality, or lawfulness, where the investigation and consideration of the case are subordinated to one of the principles of the process: the comprehensiveness, completeness and objectivity of the investigation of the circumstances of the case. Recently, both Russian and German criminal trials have started using arrangements and agreements more. In contrast to the Russian criminal procedure, the German one faced the problem of arrangements and agreements much earlier. Therefore, Germany has already developed a well-established practice of their application and theoretical justification and it seems important to consider the German experience in terms of the application of arrangements and agreements in criminal proceedings in order to comprehend the designated problem.
INTERNATIONAL LAW
The paper notes the attempts that are being made to doctrinally substantiate a broad approach, according to which the «international law of cultural property» was formed as a special (autonomous) legal framework. Without sharing such views, the author justifies the existence of an intersectoral institute for the international legal protection of cultural property, and also notes that the protection of cultural property in the actual situation of armed conflict is a branch institute of international humanitarian law (IHL), characterized by the presence of special principles and established scope of application (ratione materiae and ratione temporis). For the purposes of IHL, the definition of «cultural property» is formulated. It implies movable and immovable objects of the material world (objects) that are subject to identification and have no military purpose. They are of fundamental importance for the cultural heritage of not only a single people, but also the entire international community, included in the relevant register/list and under common, special or enhanced international legal protection, including their storage sites or concentration centers.
A reasonable proposal has been made to introduce the concept of the «1954 Hague Convention system» into scientific circulation. The central part of it is formed by the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, including the Executive Regulations as an integral part of it, and additional Protocols to it (Optional Protocol I and the Second Protocol of 1999), as well as three resolutions attached to the Final Act of the 1954 Conference. It is emphasized that the Second Protocol of 1999, which Russia has not ratified, provided for the creation of institutional structures designed to complement the system of implementation of the Hague Convention of 1954. Based on the analysis of the «1954 Hague Convention system», three conventional regimes for the protection of cultural property in the actual situation of armed conflict (general, special and enhanced) have been established and their features have been analyzed.
CYBERSPACE / CYBERSPACE
The paper deals with the current problems of the realization of the individual’s right to reliable information in the modern information society. In order to ensure the reliability of conclusions and proposals, the author analyzes the problems in various aspects using an interdisciplinary approach: 1) in the context of the causes and risks of unreliability of information; 2) from the standpoint of the philosophy of postmodernism and the theory of consumer society; 3) in the context of ensuring information security and countering information influence; 4) based on the analysis of international acts, legislation of the Russian Federation, documents of a doctrinal nature; 5) in the light of the possibilities of self-regulation in the field of information relations; 6) in relation to the complex of information rights; 7) from the point of view of using the legal mechanism of «information security» and the approval of the right to erasure. Considering the issues in this way allowed the author to show how the risks of the development of a digital society increase the status of information rights, bringing new meanings to them, and give rise to new rights or legal mechanisms for their implementation. In the implementation of the entire complex of information rights, the main difficulty, according to the author, is the balance in the implementation of the principle of individual freedom in the sphere of information circulation and the use of a mechanism to protect certain content from information in order to ensure the interests of the individual, society, and the state. The latter, according to the author, should be justified by the nature and scale of the threats. Therefore, in order to confirm the legitimacy of raising the issue of an individual’s right to reliable information, the author subjected to a detailed analysis of the causes and threats emanating from the growing scale of unreliability of information, and pointed out the need for legal consolidation of the concept of reliability and its signs. The result of the study was the conclusion that the right to reliable information formed in modern conditions can be fully realized only on the basis of an integral system of measures: socio-political, socio-moral, legal, information and technological.
FUNDAMENTAL PROBLEMS OF THE LEGAL SCIENCE / PROBLEMA PRINCIPALE
The paper examines the main theoretical approaches to understanding the phenomenon of the rule of law and determining its essential characteristics, identifies the advantages and disadvantages of the most common points of view of scientists within the framework of scientific discourse devoted to the idea of building a rule of law and the possibility of its real implementation. The author concludes that in a state governed by the rule of law, the binding of power by legislative prescriptions cannot and should not be an end in itself, such a restriction is necessary to fully ensure the rights and freedoms of a citizen, when the state itself really recognizes the highest value of human rights, recognizes their priority. At the same time, attention is drawn to the fact that even the availability of the widest possible range of opportunities for a person to exercise his rights and freedoms does not guarantee the emergence of a desire, an aspiration to actually implement them, is not a guarantee of proactive, responsible legal behavior of citizens.
The author proposes to introduce another essential characteristic of the rule of law: its citizens are self-determined, aware of themselves as bearers of positive legal responsibility. The main aspects of the scientific discussion about its essential characteristics and place both within the framework of legal responsibility and in the legal plane as a whole are investigated. The point of view is substantiated, according to which its positive component occupies a rightful place in the structure of legal responsibility: this is the driving force for bona fide participants in legal relations, while it is tied to the legal plane through legal awareness, it relies on it here. It is proposed to consider positive legal responsibility as a form of realization of a developed, mature legal consciousness of a person and its practical significance is shown by the example of a trial with the participation of jurors.
ISSN 2686-7869 (Online)