E. E. Nikitina, Zh. A. Gaunova
Elena E. Nikitina1, Zhanna A. Gaunova2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
Abstract. One of the consequences of growing civil activity is that in the Russian Constitution new categories appears, i. e. “civil society”, “civil society institutions”, “non-profit organizations”, “voluntary activities”. The authors note that the most important result of constitutional modernization is the identification and consolidation in the Constitution of the Russian Federation of the main forms of interaction between civil society institutions and public authorities.
The article examines the civil society institutions involved in the implementation of the state national policy and the forms of their interaction with public authorities. Special attention is paid to the involvement of civil society institutions in this interaction that do not have their own organizational and legal forms, for example, the diaspora and the home-town associations. The authors believe that the issue arising in regulating the interaction of civil society institutions and public authorities of the Russian Federation in the implementation of state national policy is the lack of effectiveness of legally established organizational and legal forms in which civil society institutions themselves can function. The paper draws attention to the difference between civil society institutions and institutions that contribute to the development of civil society, which are forms of interaction between it and public authorities.
The authors’ analysis of the current regulation of interaction between civil society institutions and public authorities allows us to conclude that the problems of choosing the appropriate organizational and legal form for an ethnic organization lead to a distortion of the representation of civil society institutions in the dialogue with public authorities.
Keywords: state national policy, interethnic relations, civil society institutions, public authorities, national and cultural autonomy, diaspora, home-town associations
For citation. Nikitina E. E., Gaunova Zh. A. Interaction of Public Authorities with Civil Society Institutions in the Implementation of the National State Policy of the Russian Federation. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 5—19. (In Russ.) DOI: 10.12737/jrl.2021.119
A. G. Repev
Artem G. Repev
Management Academy, Ministry of the Interior of the Russian Federation, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0003-0718-698X
Abstract. The hypothesis of the study is the thesis that modern legislation, law enforcement practice, as well as the scientific community unreasonably move away from consideration of the substance of the phenomenon of “reservation”, while actively using it, without offering an appropriate definition, mixing with other technical and legal techniques and means: supplement, note, etc. The current situation predetermined the need to study the modern laws and shortcomings of the technical and legal consolidation of the legal reservation on the example of the “in case” lexical unit.
The purpose of the study is to determine the legal nature, content and place of the reservation in the system of techniques and means of law-making. The tasks of the work are: an attempt to generalize and study scientific material on a legal reservation; to form the copyright definition of “reservation in law”; to identify main patterns of legislative use of reservations.
Using a set of general scientific and special legal methods of cognition, the provision on the evolutionary development of the “reservation” phenomenon is argued: from a negative assessment by Soviet legal scholars to a modern positive perception. The formal legal approach establishes the normative basis for the use of legal reservations, proves their functional significance in the legal regulation mechanism by individualizing the effect of the rule.
The author concludes that the reservation performs a prognostic function; gives rise to variability in legal effects; ensures that the requirements are specified; promotes the consolidation, linking an atypical, alternative rule with a general legal norm; plays a significant role in the process of individualization and differentiation of legal regulation. It is concluded that the reservation increases the universality of the legal norm; gives the necessary flexibility to legal regulation; and gives the law enforcement process breadth and humanity and thus strengths the functions of the law, its social and moral value. However, reservations should be resorted to in accordance with the exact reflection of the textual expression and the objective need for their use for the law enforcement process. It must include establishing the limits of a legal reservation, the rigor of the legal and linguistic style and exclude homonymy and ambiguous interpretation.
Keywords: precept of law, legal technique, legal reservation, case, exclusion, advantage
For citation. Repev A. G. Concretization of the Law through a Technical and Legal Clause (Using the Phrase “In Case”). Journal of Russian Law, 2021, vol. 25, no. 10, pp. 20—34. (In Russ.) DOI: 10.12737/jrl.2021.120
A. I. Abramova
Aleksandra I. Abramova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com
Abstract. In conditions of accelerating digitalization processes in various spheres of life that Russian society faces and transformation under the influence of these processes of the existing legal reality, the legal classification issue is actualized, acquires a new sound and causes academic and practical interest.
The goals and objectives of the research are to analyze scientific approaches to understand: legal classification; criteria for its construction; the role and significance of classification in the context of the development of new digital technologies; ways to optimize this legal tool.
In the research, the formal legal method, methods of legal modeling and intersectoral analysis, the system-structural method are used.
The classification of legal acts is considered as a necessary condition for maintaining the legal system in an orderly state, its convergence with other social instruments and regulators. The article focuses on the functions and rules of using the classifier of legal acts, the variety of its fields of application. The objective grounds of the classification principles determined by the content of the classified object are revealed.
The analysis of various points of view allows us to draw certain conclusions. In particular, the main difficulty arising from classifying legal acts is that there are many aspects that affect its characteristics, which is why the classification can be carried out by distinguishing different classification groups taking into account the “unit” of the classification and its primary component element. The degree of influence of classification on the processes of systematization of legal acts carried out with the help of automated tools is shown. The article also identifies modern trends in the development of this legal direction.
Keywords: classification, legal act, classifier of legal acts, systematic incorporation, legal information, digital technologies
For citation. Abramova A. I. Classifying Legal Acts in the Context of the Development of New Digital Technologies. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 35—45. (In Russ.) DOI: 10.12737/jrl.2021.121
M. A. Andrianova, S. K. Stepanov
Maria A. Andrianova1, Semyon K. Stepanov2
1, 2Moscow State Institute of International Relations (University), Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia
Abstract. The doctrine of private necessity remains insufficiently studied in the domestic literature. At the same time, the corresponding prerequisites have been formed long ago. The problems arising in practice related to the award of insufficient compensation necessitate a theoretical understanding of the corresponding legal structure. An appeal to foreign sources shows the relevance of guilt and wrongfulness in the study of the private necessity doctrine. This circumstance raises even more questions, since the domestic doctrine recognizes that the doctrine of private necessity is a kind of cases where damages are caused by lawful action. Nevertheless, by rethinking the content of wrongfulness, it is possible to change the approach adopted in the doctrine. Moreover, the methodology of economic analysis of law gives an answer to the question of the incentives that the doctrine of private necessity creates. Since the incentives are addressed not only to the injurer, but also to the injured party.
The main purpose of the article is to illustrate the relevance of guilt and wrongfulness in the doctrine of private necessity.
The results of the study show that wrongfulness and guilt can (and in practice are applied) be used as auxiliary criteria in determining the damages. To achieve this goal, we change the content of wrongfulness, using the approach of the Swiss scientist M. Cartier, which is based on a comparison of the interests of the injurer, injured party and society.
This circumstance predetermines the use of the comparative legal research method.
Keywords: private necessity, guilt, wrongfulness, tort law, M. Cartier’s theory of interests
For citation. Andrianova M. A., Stepanov S. K. Challenges to the Doctrine of Private Necessity in the Theory of Tort Law. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 46—60. (In Russ.) DOI: 10.12737/jrl.2021.122
V. V. Gruzdev
Vladislav V. Gruzdev
Novosibirsk State University of Economics and Management, Novosibirsk, Russia, gruzvlad@ rambler.ru
Abstract. The Civil Code of the Russian Federation — in the course of the last “big” reform — contains rules on decisions of meetings of civil law communities. In this regard, the problem of these solutions is quite logical in the orbit of close attention of modern civil science.
However, a proper understanding of the legal communities’ meetings decisions depends on identifying the last entity, what is a purpose of the present study.
In order to achieve this goal, specific features of the civil society are named, which allows formulating the definition of its concept, and the scientific classification of civil society is carried out using various criteria.
Using formal-logical and historical research methods, the author generalizes the concept of civil law community, covering this concept any group of subjects of property turnover, which by virtue of the law or an agreement reached between them for the joint implementation of common (common or identical) subjective civil rights and civil law obligations form a single (mutual or codirected) will.
It is proved that it is wrong to restrict civil law communities only to such groups of people who make decisions at their meetings. In fact, civil law communities form a common will in different ways, including at a meeting whose decision is notable for extending its legal force to those community members who do not vote for its adoption.
It is concluded that the formation of a common (including codirected) will by participants in the course of autonomous regulation is moving to the first place in the civil law community, without which it is unthinkable for them to carry out joint activities. Then the nature of the legal community’s meetings decisions becomes clear — they express the consensual will of several persons, aimed at the realization of common subjective civil rights and (or) civil obligations. Such implementation usually involves various actions, both legal and actual, by members of the community or by some of them.
Keywords: civil community, the decision of the meeting of legal community, plurality of persons in civil matters, collective body of the legal entity, joint realization of subjective civil rights and obligations
For citation. Gruzdev V. V. Civil Law Communities: Concept and Types. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 61—71. (In Russ.) DOI: 10.12737/jrl.2021.123
N. L. Lyutov
Nikita L. Lyutov1, 2
1Kutafin Moscow State Law University, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-7498-9734
2School of Industrial Psychology and Human Resource Management, Potchefstroom Campus, North-West University, Potchefstroom, Republic of South Africa
Abstract. The development of genetic technologies in recent decades has led to the fact that with the help of the analysis of human genetic data, it is possible to obtain quite extensive information about the predisposition of their carrier to hereditary diseases, the ability to perform a particular job or the employee’s resistance to certain types of loads. In society, fears began to spread that when receiving “problematic” genetic data, the carriers of these “low-quality” genomes will be victims of discrimination and will be perceived by employers and insurance companies as inferior people who can be restricted in their rights.
In a comparative legal context, the legal problems related to the approaches to the definition of the concept of genetic data, the rules governing the protection of genetic information as personal data of employees, as well as anti-discrimination legislation that has been formed in the United States and some other countries aimed at protecting against discrimination in the field of work on the basis of genetic grounds are considered.
Conclusions are formulated regarding the prospects of modifying the Russian labor legislation as a response to the identified new technological challenge. Since genetic data includes information related not only to a particular employee, but also to his or her blood relatives, the legal regime for protection against the unlawful processing and dissemination of such personal data should be broader than for other types of personal data. Countering discrimination based on the employee’s genetic background is also inextricably linked to the protection of personal data. This is due to the fact that protection against discrimination on this basis should begin with the introduction of measures to counteract the collection by employers of genetic information related to an employee or a candidate for employment, except in cases where such collection is necessary to prevent danger to human life and health.
Keywords: genetic data, genetic technologies, discrimination in employment, genetic discrimination, protection of personal data, employment relations
Acknowledgments. The research was funded by the Russian Science Foundation, research project No. 19-18-00517.
For citation. Lyutov N. L. Prohibition of Genetic Discrimination and Protection of Genetic Personal Data: Prospects for Modification of Labor Law Norms. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 72—84. (In Russ.) DOI: 10.12737/jrl.2021.124
M. D. Napso, M. B. Napso
Marianna D. Napso1, Maryana B. Napso2
1, 2North Caucasian State Academy, Cherkessk, Russia
Abstract. The article considers separate legal aspects of digital transformation of a society in a context of maintenance of information security and the changed ideologically-social paradigm. The problem has a special urgency owing to obvious vulnerability of persons, their rights and legitimate interests in an information stream.
Proceeding from it, authors aim to reveal the most actual problems of protection of the rights of individuals in information sphere. The tasks are: consideration of a problem of legal regulation of functioning of databases, including time; characteristics of the risks of freely plying information of false content, distorted and modified information; study of the most promising options for solving the problem of legal regulation of the movement and use of information.
The methodological basis of the study is formed by the principles of comprehensiveness, integrity, consistency and objectivity. An interdisciplinary approach is used.
Conclusions: there are significant risks from arbitrary handling of information, mainly its use in isolation from the original situational and meaningful context. The risks cover also its distortion on the basis of this free construction, as well as from its accumulation in numerous databases. The variety of types of false information, the reality of information attacks, information bullying, information provocation and infodemics require multiple legal instruments to classify certain phenomena and facts in the information space as illegal acts. To ensure the safety and protection of the legitimate interests of persons, the formation and functioning of large amounts of information, databases should be carried out on the basis of advanced technological and legal support. The operation of databases without notifying persons and without coordinating with them the content of information in the process of its accumulation, modification and deletion is unsafe.
Keywords: digitalization, information society, information technologies, fake, distortion of the information, database, information legal regime, protection of digital media, rights of individual
For citation. Napso M. D., Napso M. B. Digital Transformation Trends in a Society: Actual Problems Arising in Realization of the Rights of the Individual in Information Sphere. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 85—97. (In Russ.) DOI: 10.12737/jrl.2021.125
V. I. Kuznetsov
Vladimir I. Kuznetsov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com
Abstract. The problem of official discipline of state inspectors working in control and supervisory bodies is considered through the prism of definitions of this concept existing in the current legislation and proposed in scientific research. Official discipline is a complex legal phenomenon, immanent to the legal status of a civil servant. Its specific features are determined by its functional content.
The purpose of the study is to identify the criteria of official discipline used by the legislator and researchers of the official discipline of servants working in state control and supervision bodies in the public service system in the Russian Federation.
Research methods: general scientific methods of cognition (analysis and synthesis).
The official discipline of state inspectors working in control and supervisory bodies has an essential organizational significance. It is a unifying principle, a stabilizing factor of successful and effective public administration. It is important to stipulate an integrative normative concept of service discipline in federal legislation.
Keywords: public service, public administration, state inspector, state control (supervision), official, control and supervisory body, official discipline
For citation. Kuznetsov V. I. Official Discipline of the State Inspector. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 98—107. (In Russ.) DOI: 10.12737/jrl.2021.126
O. A. Zaytsev
Oleg A. Zaytsev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-8706-903X
Abstract. The article exams the problematic issues of the development of criminal procedural guarantees for ensuring the rights and legitimate interests of entrepreneurs in cases of crimes committed in the field of entrepreneurial and other economic activities. The author focuses on the study of trends in the legal regulation of a special procedure for considering a report of a crime and initiating a criminal case; applying a measure of restraint; recognition of documents and objects as material evidence; exemption from criminal liability and termination of criminal prosecution in cases of crimes in the field of entrepreneurial activity. Special attention is paid to the analysis of the main trends in the development of criminal and criminal procedure legislation, as well as the legal positions of the Supreme Court of the Russian Federation.
The purpose of the study is to identify the most acceptable directions for the development of legal regulation of criminal procedural relations between officials engaged in the proceedings and entrepreneurs involved in the sphere of legal proceedings, as well as additional guarantees of the rights and legitimate interests of business entities. Research objectives: to determine the specifics of legislation containing criminal procedural mechanisms aimed at protecting entrepreneurs brought to criminal responsibility; presentation of the scientific research results; justification of the development of substantive and criminal procedural guarantees for ensuring the rights and legitimate interests of entrepreneurs.
Research methods: dialectical method of cognition, general scientific methods of analysis and synthesis, abstraction, special legal methods.
Conclusion: it is necessary to further develop the construction of an intersectoral institution of criminal prosecution for crimes in the field of entrepreneurial and other economic activities. A forecast of further events regarding the legal regulation of the relations under consideration is proposed. It is necessary to conduct in-depth intersectoral research in order to develop a set of theoretical provisions aimed at solving the problem.
Keywords: criminal proceedings, criminal procedural guarantees, criminal procedural mechanisms, protection of the rights and legitimate interests of entrepreneurs, the Supreme Court of the Russian Federation
For citation. Zaytsev O. A. Procedural Guarantees of Ensuring the Rights and Legitimate Interests of Entrepreneurs in Criminal Proceedings. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 108—126. (In Russ.) DOI: 10.12737/jrl.2021.127
M. A. Alieskerov
Mizamir A. Alieskerov1, 2
1Kaluga Institute (branch), All-Russian State University of Justice, Kaluga, Russia, alieskerov@ yandex.ru
2Kaluga Regional Court, Kaluga, Russia
Abstract. Judicial reforms carried out in various countries are accompanied by a change in the ratio of the principles of competition and the active role of the court in civil proceedings.
In this regard, the author sets the task to analyze the development of civil procedure in Russia, as well as in a number of common law countries and countries of the continental legal system, in order to identify the nature of these changes and their impact on the concept of adversarial civil procedure.
Historical, comparative-legal, structural, functional and other research methods were used in this work.
As a result of the research, the author comes to the conclusion that at all stages of the development of Russian society, there were two components in the Russian civil process that should have contributed to the establishment of the truth: the adversarial nature of the parties and assistance to the parties in exercising their rights, which could be expressed in the provisions of the law and in the actions of the court. This indicates the predisposition of society to this form of legal proceedings and serves as a guide for further improvement of civil proceedings. However, this requires approaches that exclude excessive paternalism and exempt the persons involved in the case from the legal obligations imposed on them and the need to prove the circumstances relevant to the case. The author formulates the concept of competitive civil procedure taking into account the fact that the trends in the development of civil procedure in the countries of the continental legal system and common law countries, as well as in the Russian civil procedure, lead to a change in this concept, which becomes inextricably linked with the provision of assistance by the court to persons participating in the case in the exercise of procedural rights. As a result, prerequisites are created for the recognition of civil proceedings as an adversarial type of civil proceedings, which is currently called a mixed investigative-adversarial type. This also applies to the Russian civil procedure.
Keywords: civil procedure, competitiveness, active role of the court, assistance of the court
For citation. Alieskerov M. A. Development of Competitive Civil Procedure: Foreign Practice and Russian Experience. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 127—142. (In Russ.) DOI: 10.12737/jrl.2021.128
M. V. Ponomarev
Mikhail V. Ponomarev1, 2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com, https://orcid.org/0000-0001-6917-9801
2Moscow State University of Geodesy and Cartography, Moscow, Russia
Abstract. The relevance of environmentally safe management of subsurface use waste is primarily due to the fact that the development of the Arctic zone of Russia and the development of economic activity within its borders is due to the special geostrategic significance of the territories included in it, and the natural resource potential of the Russian Arctic is of great importance for the further development of both the fuel and energy complex and the entire Russian economy as a whole.
The purpose of the article is to identify and scientifically study the environmental and legal problems of dealing with subsurface use waste in the Arctic zone; the tasks are to consider the main priorities of the Russian state policy in relation to the natural resources of the Arctic zone, the goals of the state environmental policy in the Arctic zone in the field of waste management, in particular, with subsurface use waste, to determine the composition of subsurface use waste and the specifics of legislative regulation of activities for handling them.
The article analyzes the peculiarities of the realization of the ownership right to subsurface use waste, the peculiarities of the legal regime of objects of their placement with their possible assignment to objects of movable or immovable property, as well as possible prospects for legislative regulation of relations on waste management, taking into account the specifics of the Arctic zone.
Research methods: special legal methods of cognition, the method of legal forecasting.
Conclusions: the distribution of responsibilities regarding the content of drilling waste should be carried out exclusively within the framework of contractual relations between the subsurface user and the drilling contractor, while questioning the possibility of applying in this case the legal structure of a mixed contract; it is necessary to take into account the peculiarities of the Arctic zone in the mechanism of compensation for damage caused to the environment, in particular, the placement of subsurface waste, by making changes to existing taxes and methods of compensation for damage in the form of the application of appropriate increasing coefficients.
Keywords: waste, production waste, subsurface use, subsoil use, exploration and extraction of minerals, subsurface use waste, environmental protection, environmental safety, environmental and legal problems, the Arctic, the Arctic zone
For citation. Ponomarev M. V. Environmental and Legal Problems of Subsurface Use Waste Management in the Arctic Zone of the Russian Federation. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 143—156. (In Russ.) DOI: 10.12737/jrl.2021.129
R. Sh. Shafeev, O. S. Smotrina
Ruslan Sh. Shafeev1, Olga S. Smotrina2
1, 2Orenburg State Agrarian University, Orenburg, Russia
Abstract. In modern Russian society, the problem of countering corruption at the lowest level is quite acute. The fight against “petty” corruption is significantly complicated by the historical aspect of its origin. The existence of a system of “gifts” to officials for a long historical period as an absolutely legitimate phenomenon led to the emergence of the so-called “collective consciousness”, in other words, corruption has acquired a mental character.
The purpose of the study is to analyze the attitude of the population of the Orenburg region to the problem of “petty” corruption and the effectiveness of measures to prevent it. The researchers had the following tasks: to identify the actual parameters of the assessment of “petty” corruption at the regional level; to assess the effectiveness of measures taken in the Orenburg region aimed at countering “petty” corruption; to analyze the causes and conditions of the manifestation of “petty” corruption in the Orenburg region.
Research methods: individual formalized interview; online questionnaire; descriptive analysis; communication analysis.
Within the framework of the sociological research, the attitude of the population to the problem of “petty” corruption in regional authorities and local self-government bodies was determined; the effectiveness of measures taken by local authorities to counter corruption was assessed. Conclusions: it is necessary to adjust the anti-corruption policy at the local level, taking into account the formed pressure points.
Keywords: sociological research, corruption, anti-corruption policy, petty corruption, anti-corruption
For citation. Shafeev R. Sh., Smotrina O. S. Doctrinal Characteristics of “Petty” Corruption in the Regions of Russia: Features and Patterns of Reproduction, Promising Ways of Prevention. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 157—173. (In Russ.) DOI: 10.12737/jrl.2021.130
Ya. D. Avilov
Yaroslav D. Avilov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org
Abstract. The article deals with the peculiarities of regulating the procedure for exercising passive suffrage by the charters of political parties in various types of elections.
The purpose of the study is to determine the essence of the charter of a political party as a normative document and its role in regulating the procedure for implementing the passive electoral right of candidates nominated by political parties in various elections, as well as the actual powers of political parties that affect the rights of candidates, to formulate proposals for legislative consolidation of the grounds for recalling candidates in order to strengthen guarantees of their electoral rights.
Based on the analysis of the 16 charters of political parties having the right to nominate federal lists of candidates for elections to the State Duma of the Federal Assembly of the Russian Federation without collecting signatures, the author concludes that the charters of political parties are normative acts containing norms that entail legally significant consequences for candidates nominated by parties in elections, namely, the issues of recalling these candidates on the grounds established in these charters. It is also concluded that there is an extremely wide discretion of the party bodies, which are the bodies of the collective subject of the electoral process, to determine the fate of the nominated candidates as individual subjects of the electoral process. The above-mentioned charters of political parties contain a large number of grounds for recalling candidates, many of which, according to the author, contain the risk of arbitrary and discriminatory interpretation and application against candidates, which violates their electoral rights. It is proposed, by analogy with the institute of recall of elected officials of the subjects of the federation and local self-government bodies, to establish in the law an exhaustive list of grounds for recalling candidates from the elections by the political party that nominated them in order to prevent arbitrariness against them.
Keywords: passive suffrage, electoral process, elections, recall of candidates, political parties
For citation. Avilov Ya. D. The Charter of Political Party as a Normative Basis for Implementation of Passive Suffrage. Journal of Russian Law, 2021, vol. 25, no. 10, pp. 174—185. (In Russ.) DOI: 10.12737/jrl.2021.131