PRIVATE LAW / JUS PRIVATUM
The paper describes the results of the study of the concept of liability under the civil law of Russia as it is reflected in the current legislation of the Russian Federation. The authors proceed from the fact that such an approach to the study of civil law phenomena, including liability, is constructive, since the phenomena under examination are investigated first in the context of de lege lata, and then in the context of de lege ferenda. Research in the aspect of de lege lata involves identification of the legislator’s understanding of the content of the category of liability under civil law that is expressed in the current civil legislation. It is emphasized that the interpretation of liability in the aspect of de lege lata can be used in the interpretation and application of current legislation. The understanding of liability expressed in the legislation should be mainly used in the interpretation of the truth before the purely theoretically cognizable essence of responsibility under civil law, and the theoretical essence of responsibility should be taken into account when making amendments and additions to the current legislation. The paper critically assesses the tendency to cumulate liability measures by introducing such new types of liability as fair compensation (Article 65.2 of the Civil Code of the Russian Federation) and compensation for damage (Article 16.1 of the Civil Code of the Russian Federation). The authors criticize the attempts of the judiciary to legalize such a type of liability as compensation for causing reputational damage to legal entities through its own practice (and not through the legislative process). The authors conclude that it is possible to distinguish between liability measures and other civil law methods provided for by the current legislation of the Russian Federation, which does not exclude the need for its further improvement both in terms of the development of general provisions and in relation to the regulation of individual civil liability measures
The paper examines the phenomena that in the legal vocabulary are called «separation of a parent and a child» and «taking children away from parents». The author proceeds from the fact that in the family upbringing of a child by his parents is carried out through direct personal communication between each of the parents and the child during their family life. Therefore, the subjective right to upbringing should have legally significant guarantees of such communication. Based on the analysis of the norms of law and law enforcement practice, the author gives definitions of the legal phenomena under consideration.Separation on their own initiative is the most widespread in the relationship between parents and children, the need for which is predetermined by the conditions of their social life in the family and beyond, which in a number of cases directly established by law requires legal formalization. The termination of family ties and the loss of the possibility of family communication between parents and children on the initiative and with the participation of bodies performing public functions should be regarded as an exception, be temporary in nature and comply with legal parameters. The ultimate goal of the measures under consideration should be to improve the health of the family rather than to distroy it. In this regard, special attention is paid by the author to individual cases of taking children away from the family provided for in the Family Code of the Russian Federation, as well as guarantees established by specific Russian legislation for the preservation of interpersonal contacts between parents and children in various situations. In the aspect of the need for maximum preservation of child-parent relations, the paper gives the assessment of family legal regulation and indicates the conflicts and gaps existing in the legal regulation. The author examines the measures taken in recent years and aimed at reducing the number of unjustified and illegal selections associated with the application of Article 77 of the RF Family Code on the immediate selection of children with an immediate taking children away from the family if there is a threat to their life and health.
The paper provides a theoretical justification of some substantive constructions that have constituted the civilistic heritage of the past periods and have laid the basis for the modern interpretation of legal relations concerning unjustified enrichment. The paper analyzes the continuity in the development of legal relations regarding the concept of unjustified enrichment. The author has shown that legal relations on unjustified enrichment are of systemic importance for the current law and order. They are located in a very extensive legal field of claims aimed at compensation for damage, and they represent civil law relations of a protective type. Being a real social phenomenon and, at the same time, a civilistic category, legal relations in unjustified enrichment can be analyzed: a) from the standpoint of economics; b) from a legal standpoint; c) from the standpoint of justice (they should coincide with legal standings, which in practice is not always achievable). Continuity in the interpretations of legal relations concerning unjustified enrichment expressed in the dynamics of their historical and legal development provides variability, gradual complication of forms and, at the same time, the constancy of the basic ethical and legal idea of the prohibition of unjustified enrichment. Markers of continuity include: 1) the general principle underlying the corresponding obligation; 2) formal and substantive criteria for determining the groundlessness in the enrichment process; 3) possible tools (forms, methods and means) for the protection of violated rights. Defining each of the listed elements in relation to a particular stage of the economic and legal development of society, we get a general picture of continuity, which for prognostic purposes can be extrapolated to the perspective of the development of the institution of a version claim in the domestic legal system.
The issues of applying the rules for moral damage compensation as a way to protect the rights of victims of crimes are traditionally among the most controversial. The problems of establishing the grounds for compensation, as well as determining its size, corresponding to the degree of fault of the offender, the nature of the victim’s suffering and other noteworthy circumstances, throughout the validity of the norms of the updated Civil Code of the Russian Federation, attracted the attention of not only representatives of civil doctrine, but also of higher judicial instances. In most cases, the conclusions formulated by the latter were in full compliance with the norms of civil legislation, they did not contradict each other and in their entirety ensured uniformity in the application of provisions on compensation for moral damage and due protection of the rights of injured citizens. However, an analysis of the acts of the Supreme and Constitutional Courts issued over the past two years indicate that there are significant contradictions in their approaches to determining the grounds for the admissibility of compensation and the specifics of its application, which is increasingly reflected in regional and appellate judicial practice. Thus, in contradiction with the established positions of the Supreme Court are the provisions formulated by the Constitutional Court in Resolution No. 45‑P of 26.10.2021, where the latter, in essence, defined the presumption of moral suffering in a person when the crime against him is committed, as well as in Resolution No. 7‑P of 02.03.2023, where the Constitutional Court provided for the possibility of compensation of moral harm in favor of a person who, by definition, is not able to bear these sufferings — a child who was not born at the time of his parent’s death. Such a narrative, of course, cannot be evaluated positively and needs a thorough doctrinal assessment.
The paper examines the legal nature of the estoppel principle, applied both as a result of unfair actions of the party and because of the party’s inconsistent behavior. The paper analyzes the possibility of applying the German principle of protestatio facto contraria (objection to the actual expression of will) and compares estoppel and the continental law principle venire contra factum proprium.The study classifies the rules of law regulating the application of the estoppel principle; two categories of norms are distinguished, namely, the norms related to the prohibition of unfair actions and the norms aimed at preserving the contract. The author compares the norms of the Russian civil legislation regulating the application of the estoppel principle and highlights the conditions under which its application is allowed. The paper discusses the possibility of applying the principle of estoppel in the absence of the party’s intentions to harm the counterparty. The author analyzes the court practice related to the prohibition of contradictory behavior. In particular, the author analyzes legal disputes caused by the parties’ references to the non-conclusion or invalidity of the contract, as well as related to the inconsistent refusal of the party from the contract. Additionally, the author identified the circumstances to be proved when referring the parties to the need to apply the estoppel principle. Based on the results of the analysis, the author proposes options for improving legislative regulation of the application of the estoppel principle. In particular, the author proposes to introduce the following criteria for analyzing the need to apply the estoppel principle: the degree of validity and reasonableness of expectations of the counterparty’s behavior; analysis of the counterparty’s behavior; a causal relationship between an inconsistent behavior of the party and the damage caused to the relying party; the degree of damage caused to the party as a result of the counterparty’s unscrupulous behavior.
PUBLIC LAW / JUS PUBLICUM
Foreign interference in Russia’s internal political processes is almost always disguised as the constitutional right of citizens to ideological diversity, forming public opinion, provoking panic, as well as influencing the attitude of society towards governmental authorities. The influence of individuals who form public opinion on the basis of their recognition and pseudo-authority has significantly increased. A large-scale spread of social networks has caused a dramatic increase in the popularity of artists, musicians, public figures, whose statements can encourage society to make certain decisions. The study is conducted in order to identify signs of foreign influence, as well as criteria for classifying individuals as foreign agents. Based on a comparative analysis of the legislation on foreign agents in Russia and the United States, the authors establish the conditions for the need to restrict the constitutional rights of citizens in order to maintain a balance of private and public interests. In the preparation of the article, formal and logical methods were used, as a result of which the authors analyze socio-legal phenomena that allowed to identify the relationship between increased foreign influence and consolidation of domestic legislation on foreign agents as a response. The authors come to the conclusion that in order for an individual to be acknowledged as a foreign agent under Russian law, three elements are needed: the presence of foreign influence, the participation of an individual in political activity and direct or indirect influence on state bodies or state policy. At the same time, the main problem of law enforcement is the distinction between real foreign agents and unpatriotic citizens who actively oppose the policy of the state, which can be used «blindly». In this regard, a wide application of the provisions of the Law on Foreign Agents is justified, and the assignment of the status of a foreign agent is subject to individualization.
CYBERSPACE / CYBERSPACE
The paper discusses the use of digital technologies in the relationships between the state and an individual. One of the directions of such relationships is the control of the population over the work of government bodies providing services. Control capabilities are significantly increased with the use of digital technologies. Their introduction into the practice of public authorities and use to expand communication with the public increase the objectivity of assessing the quality of services provided by governmental authorities. The relevance of the topic is determined by two main factors. Firstly, digitalization is an invariable stage of human development, including public authorities. Secondly, digitalization expands the possibilities of monitoring the activities of public authorities, minimizes the risks of corruption-causing factors, and increases the transparency of public administration. The study of the issue of digitalization was carried out both from the point of view of approaches to the formation of the concept, and from the point of view of the practical implementation of the phenomenon in the context of the relationship between the state and the population. The method of system analysis made it possible to identify the main theoretical provisions on digitalization in general. The formal legal method made it possible to adapt various approaches of researchers to the concept of digitalization in a broad sense and to the issues of digitalization of public authorities. Consideration of the regulatory framework for the consolidation of digital technologies gives grounds to come to the conclusion about the wide coverage of public relations by digital communication, which allows the use of various forms and methods of public control over the work of public authorities. The main obstacle in the development of communication in the digital sphere is the insufficient preparation of aging groups of the population for the use of modern information resources.
DISCUSSION PANEL / PRO ET CONTRA
The paper considers the phenomenon of legal impact as a socio-psychological legal phenomenon. The subject of law is in the core of the epistemological analysis of the psychological aspect of legal impact. The subject is the only component able to actively respond to legal impact. An active reaction is expressed as participation in legal impact, obtaining and processing legal information, modeling one’s own behavior in accordance with the information received. In the paper, the author reviews some research in this field and concludes that there is a need to strengthen interdisciplinary interaction between the theory of law and psychological sciences in a quantitative and qualitative way. The absence of such studies determines the relevance of this study. The main personality traits determining the strategy of its behavior, the influence of external and internal factors are determined. In the system of social communication, a person is an active self-organizing entity that transmits and transits legal information to subjects of other levels of social interaction. The assessment of the significance of legal information and the choice of a decision on its use is carried out by the subject independently, using their own social experience and psychological properties. The mechanism of psychological legal impact has been studied. Within the framework of the paper, the author substantiates the need to introduce the concept of «directed behavior» into scientific circulation, which should be understood as the state of the subject experiencing legal influence, as well as the consequences in the form of certain acts of the subject mediated by legal impact, the process of exchange of significant legal information between participants in social communication. The role of legal awareness and legal information in the mechanism of psychological legal impact is determined.
The paper deals with the problem of the correlation of law, morality and morals in a number of works of Russian classical literature. It is shown that this problem is characteristic of Russian literature, which is unconditionally recognized as one of the highest achievements of world literature. The peculiarity of Russian and then Soviet literature is that it pays increased attention to the inner world of a person, the motives of their behavior. This is how the phenomenon that has been called the «Russian psychological novel» arose. Russian writers have repeatedly raised the problem of the discrepancy between the content of laws and generally accepted ideas about morals, especially morality. The paper talks about the continuity of Soviet and Russian literature, which was often denied both in domestic and foreign literary studies. Sociological, philosophical, and often legal problems were initially raised in the literature. And only then they became the subject of discussion in special branches of knowledge. Many pre-revolutionary jurists have established themselves as writers. Such examples took place in the Soviet period. The discrepancy between moral and legal assessments remains one of the urgent problems. The author justifies his belief that literature should educate. Without morality, the law loses its value, as Russian writers have repeatedly drawn attention to. The return of the habit of reading classical (and not only) literature, which will make it possible to regain the status of the most reading country of the world, will resolve the conflict of law and morality; the author proves a similar position in the framework of this paper.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
The Law of the People’s Republic of China «On Higher Education» is the main regulatory act in the field of higher education in China. It was adopted in 1999, had a significant impact on the education sector as a whole, and made it possible to solve a number of key problems at that time.The paper analyzes the relevant data on the achievements of the implementation of the Law of the People’s Republic of China «On Higher Education» for a period of more than 20 years since its entry into force. The quality of staff training has steadily improved; the efficiency, scale and structure of higher education have achieved significant success. The law effectively guaranteed the right of citizens to receive higher education, gradually rationalized the internal and external management structures of higher education institutions. The causes of fundamental problems are also disclosed. The author proposes ways to improve the current legislation and ways to solve emerging problems. For example, it is suggested creating a more scientific and effective assessment and control system in order to strengthen the role of the academic council of universities; improving channels for resolving academic disputes, expanding the categories of disputes between professors and universities, subject to courts; ways of disclosing information on the assessment of the level of higher education; accelerated deep integration of modern information technologies and teaching in the field of education, etc.The Law of the People’s Republic of China «On Higher Education» gives clearer answers to a number of important issues of the development of higher education, such as the relationship between the state (government) and universities, the autonomy of universities and the internal management system of universities. However, taking into account the rapid development of society, its democratization and the growing interest in the mechanisms of protection of individual rights, the institute of higher education in China, largely built on the basis of the analyzed normative act, is hardly able to continue to fulfill its role in the conditions of modern times.
FUNDAMENTAL PROBLEMS OF THE LEGAL SCIENCE / PROBLEMA PRINCIPALE
The recent history of Russian state building is directly connected with numerous, and not always successful, attempts to formulate state ideology. Such attempts at «ideological search» intensified with the adoption of amendments to the Constitution of Russia in 2020. Despite a number of scientific works devoted to the problems of the formation of state ideology, today in the Russian legal doctrine the polarity of opinions regarding the content of state, national, constitutional ideology has not been eliminated, which, in turn, affects the process of development of the state and law. The purpose of this work is to identify the reasons for the consolidation in Part 2 of Article 13 of the Constitution of the Russian Federation of the prohibition on the establishment of any ideology as state or mandatory. It also aims to formulate a number of terms related to the research topic, resolve the competition between state ideology, national, constitutional and ideology of the ruling group.The paper uses such methods of scientific research as synthesis, abstraction, generalization. The author analyses the works of E. Y. Barkhatova, V. I. Yakunin, P. A. Astaficheva, N. S. Bondar, E. E. Barinov, V. V. Lazarev, B. S. Ebzeeva, and other authors.The results of the study consist in the formulation of the author’s interpretation of a number of terms: national ideology; state ideology; constitutional ideology; ideology of the ruling group. The interrelation of the state ideology and the national ideology, as well as the ideology of the ruling group, is shown. Separately, the principles of the formation of national ideology are disclosed, the features of the state ideology in the USSR are shown. The results of the research can be used in the science of constitutional law, the general theory of state and law, political science.
PHILOSOPHY OF LAW / PHILOSOPHIA LEX
The relevance of machine readable law, the significance of which is confirmed by both the general trend and the need to consider law in the context of the development of information technologies, and the adoption of significant legal acts, including the Concept of the Development of machine readable law technologies, implies the need to form an appropriate theoretical basis and develop methodological support for relevant processes. The general problem of the «methodological insufficiency» of ensuring the processes of digital transformation of law, as well as the relevance of the development of machine reading technologies of law, predetermine the need to address, among other things, the results and achievements of natural science knowledge.The paper analyzes the correctness of the transfer of K.Godel’s conclusions in their gnoseological (epistemological) context to the legal field. Considering law as an object of machine reading in the context of «Godel’s undecidable proposition» and based on Godel’s conclusion about the inability of the system to describe itself by its own means (to prove its consistency), the author concludes that the «supra-legal» basis is culture, and law itself is seen in the system hierarchy: culture--law--legislation.It is proposed to consider the machine reading of law in the context of a semiotic paradigm, based on the widest possible coverage of sign systems reflecting the diversity of regulatory systems, and not limited only to religion, morality, ethics, law and legislation, but referring to culture as a «mega-source of a sign set» reflecting a whole complex of regulatory systems. Based on the analysis of K. Godel’s conclusions, as well as the principles of «complementarity» by N. Bohr and «uncertainty» by V. Heisenberg in their gnoseological (epistemological) aspect, a number of conclusions are drawn. These can be significant both for the methodological basis of machine reading of law and the law and for the problems of legal understanding and legal perception in general. In particular, it is concluded that of high importance is the topic of the transformation of scientific disputes on theories of legal understanding into the process of complementarity of such theories in order to achieve a state of their constructive contradiction (contradictority).
ANNIVERSARY / LIBER AMICORUM
The author analyzes K.D. Ushinsky’s views on personality, its numerous and multifaceted interests, cameralism and civil law from the little-known legal works written by K.D. Ushinsky in the first years after graduating from the Faculty of Law of Moscow University, namely three years of his serving as a professor of the Demidovsky Law Lyceum in Yaroslavl. In this regard, the general conditions of teaching at that higher educational institution and the range of disciplines taught, the few surviving sources of Ushinsky’s lecture activity of this period and his speech «On cameral education» at the solemn meeting of the Demidovsky Lyceum are briefly considered. Special attention is given to Ushinsky’s astute conclusion that convenient rules took the place of laws in German cameralistics of that time. This opinion is especially relevant today, because it shows that the desire of Western countries to start living not according to the norms of international law, but according to the rules established by them, did not arise today. The modern political, diplomatic, legal, and economic reality is literally oversaturated with facts of illegal sanctions, asset freezes, property seizures, and other illegal actions of the United States and a number of other Western countries against Russia and other independent states, as well as citizens of these states. Ushinsky’s analysis of German cameralism clearly shows that the use by Western countries of «rules convenient for them» instead of laws is by no means a modern «invention», but a constantly developing process, the foundation of which was laid by Western political and legal thought several centuries ago.
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