Contents of issue # 11/2021

■ STATE AND LAW IN THE MODERN WORLD: PROBLEMS OF THEORY AND HISTORY

Modern Society Management Dynamics

Yu. A. Tikhomirov

Yuriy A. Tikhomirov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, office2@izak.ru

Abstract. Complex, dynamic and contradictory processes are taking place in the modern world. Every society and state strives to know their nature and directions, identify factors that affect the lives of people and society. This is served by management as a mechanism of organizational and legal influence on the ongoing processes in accordance with the established goals. At the same time, multilevel development lags behind the real pace of development, is characterized by weak implementation of laws and other acts, inaction and mistakes. The inconsistency of different levels of management also has a negative effect.
The article deals with the issues arising in the organization of management of society as a social system. It defines the most important objects of influence and the importance of a clear interaction of the components of the system. There are four main types of management: social management on the scale of society; management of state affairs; self-regulation as an element of public administration; and management of international affairs. In this regard, the importance of a systematic understanding of law is emphasized, when all branches of law are related to management, and not only administrative one. Law-based management becomes more effective in the context of digitalization, which contributes to the expansion of the information base, openness of procedures and speed of decision-making. But there are limits here, too. The state plays an important role as a political and governing system. The dynamics of the functions of the state in different spheres, as well as the concepts of “state affairs” and “needs of the state” are analyzed. Various analytical methods are used, including project and programtarget methods. Attention is paid to the improvement of the state apparatus, the system and status of public bodies, their relationships and performance criteria. The necessity of active participation of citizens in the management and activation of civil society institutions is indicated. Special attention is paid to self-regulation within organizations and other structures. The management of global processes, which is combined with the mechanisms of national governance, is of urgent importance. The forms of interaction between international and national bodies and ways to expand the legal space for solving such strategic tasks as preserving the climate and natural resources, ensuring security, coordinating technological parameters, protecting democratic values and institutions, using energy and other resources are described in detail.

Keywords: management, state affairs, international affairs, self-regulation, state, law

For citation. Tikhomirov Yu. A. Modern Society Management Dynamics. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 5—18. (In Russ.) DOI: 10.12737/jrl.2021.132

Constitutional Legal Understanding vs “Legal Epistemology”: Bjarne Melkevik and “Others”

V. I. Kruss

Vladimir I. Kruss
Tver State University, Tver, Russia, t-prava@yandex.ru

Abstract. The publication presents a doctrinal analysis of the main provisions of the concept of “legal epistemology” by the modern canadian philosopher and legal theorist B. Melkevik and some approaches that are methodologically consonant with it, presented in legal science and literature.
The purpose of the study is to test the hypothesis of the connection between the popularization of such ideas with the manifestations of the global crisis of law and the problem of falling authority of the theoretical component of professional legal education. “Devaluation” of its practical-oriented value against the background of inertia-driven scientific discussions about the essence of law and the priorities of its knowledge, which do not prevent the replication of traditional methodological materials.
The methodology of the published research is provided by the constitutional legal understanding, which has not yet received wide recognition among Russian legal theorists. Meanwhile, the assumption of the Constitution of the Russian Federation as a standard and matrix of domestic law is the only universal criterion for evaluating the claims and legitimation of scientific and legal judgments. The constitutional detail of the analyzed scientific developments reveals their deep connection, as well as the post-classical cognitive paradigm in general, with the apologetics of liberal-individualistic values. The rapid re-evaluation of the latter and the style of the analyzed statements encourage us to talk about possible critical consequences of the subordinating imposition of “progressive” epistemology on the sphere of legal theory and practice. Populist “socialization” and technocratic actualization of the right presuppose the renunciation of its identity. The postmodern “protest” against any attempts to Fund the idea and meaning of law actually implies professional support and ensures priorities that are foreign to the national cultural tradition. Russian legal science, education and practice correspond to their titles, while they are based on valid legal (“real”) basis of the Constitution, as the only and true prerequisites of the consolidated participation of legal scholars in the promotion of constitutional order and clarify the perspectives and techniques of constitutional modernization.

Keywords: post-classical methodology of law, legal epistemology, crisis of law, legal science, constitutional law understanding, communicative approach, modern constitution, human rights, constitutionalization, value bases of the rule of law

For citation. Kruss V. I. Constitutional Legal Understanding vs "Legal Epistemology": Bjarne Melkevik and “Others”. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 19—35. (In Russ.) DOI: 10.12737/jrl.2021.133

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

Digitization of Economy and Its Effect on Renovation of Civil Law Institutes

V. P. Emelyantsev

Vladimir P. Emelyantsev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, 6430668@mail.ru

Abstract. Implementation of digital technologies stimulates development of new markets of goods and services. Rights to technologies and results of their use become a valuable object of commercialization. This is accompanied by growing influence of digital platform owners on both international and regional markets. Simultaneously, the number of consumers (users) rises who suffer from online rooks in banking, medical, insurance, and other areas. The amount of damage from such crimes is comparable with incomes of a largest corporation. Qualification of such problems as a way to solve them using existing institutes of law does not yield the desired outcome. The political agenda of various states includes issues of finding an optimal way to update legal regulation. For this purpose, a complex problem must be solved by selecting between codification and differentiation of legal regulation, imperative and optional methods, perspective of flexible regulation, limits of using results of experimental appraisal (digital sandpits) that are already in practice in many regions and within areas of business activity (transport, industry, agriculture, etc.). Updating legal regulation must be correlated with the corporative practice of local rule-making of global economic leaders of the digital industry market.
Research methods include comparative-law, formal-legal and statistical.
The article analyzes the possibility of qualifying digital relations within conventional institutes of civil law by constructing new ones based on the systemization of regulations of a digital company, digital platform, artificial intellect and robotization in the digital code of regulations. Proposals are discussed concerning the possible update of anti-monopoly nature in the field of digital technologies and limits of preserving anti-monopoly immunities. The article proposes to update judicial statistics laws and a procedure to form and generate judicial statistics as an opportune measure to solve the issue of lack of data concerning the status of civil transactions.

Keywords: digital technologies, digital companies, digital platforms, robotization, artificial intellect, civil law, law, digital code, flexible regulation, liability, legal practice and statistics

For citation. Emelyantsev V. P. Digitization of Economy and Its Effect on Renovation of Civil Law Institutes. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 36—53. (In Russ.) DOI: 10.12737/ jrl.2021.134

Institute of Responsibility in the Regulation of Private Legal Relations in the Muslim Legal System

H. V. Idrisov, A. G. Kharekhanov

Hussein V. Idrisov1, 2, 3, Asvad G. Kharekhanov4
1Kadyrov Chechen State University, Grozny, Russia, huseyn23@rambler.ru, https://orcid.org/0000-0002-7008-8904
2Chechen State Pedagogical University, Grozny, Russia
3Millionshchikov Grozny State Oil Technical University, Grozny, Russia
4Russian Islamic University named Kunta-Khaji, Grozny, Russia, Asvad18@mail.ru

Abstract. Questions of the Muslim legal system, including aspects of legal responsibility, are of current interest to the researcher of these matters, based on the specifics of this legal family and the demand for its study, especially in recent times. Responsibility in the Muslim legal system is based on the provisions of its main sources — the Holy Qurʼan and the Sunnah of the Prophet (SAWS).
The aim of the work is to characterize the responsibility arising from private law relations in the system of Muslim law and to analyze the comparative legal principles (the principle of freedom of contract, good faith and prohibition of harm) of private law regulation in the Muslim legal system and other legal systems of our time.
The research is based on comparative legal method, deduction, formal legal method, synthesis.
In this paper, the author comes to the following main conclusions: in the private law sphere of relations in the Muslim and Western European (Anglo-Saxon and Romano-German) systems of law, there are diverse approaches to its formulation and implementation methods. This is natural due to the specifics of these legal systems. However, we can also talk about the points of contact of the systems. A striking example of this is the existing approaches to implementing the principles of freedom of contract, good faith and illegality of harm. Responsibility in the Muslim legal system is expressed in two forms: religious and, in fact, legal. From the religious point of view, responsibility is characterized as a punishment, the retribution of God for human, who violates the rules and prohibitions established by the main sources of Sharia — the Holy Koran and the Sunnah of the Prophet (SAWS). Such retribution awaits a person for sinful actions on the Judgment Day. From the legal point of view, responsibility is related to state coercion in the form of applying or threatening to apply sanctions to an individual as a result of violating the norms established by the Holy Koran, the Sunnah of the Prophet (SAWS) and other sources of the Muslim legal system. This is a very mundane punishment that the individual undergoes in worldly life.

Keywords: the Holy Qurʼan, the Sunnah of the Prophet (SAWS), the principle of freedom of contract, the principle of good faith, responsibility, the Muslim system of law

For citation. Idrisov H. V., Kharekhanov A. G. Institute of Responsibility in the Regulation of Private Legal Relations in the Muslim Legal System. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 54—72. (In Russ.) DOI: 10.12737/jrl.2021.135

■ LABOR LAW AND SOCIAL SECURITY LAW

Monitoring and Control in Labor Relations: Balancing the Rights and Interests of Employees and Employers

E. M. Ofman

Elena M. Ofman
South Ural State University (National Research University), Chelyabinsk, Russia, elena-ofman@yandex.ru, https://orcid.org/0000-0001-5456-1557

Abstract. Active and unsystematic use of digital technologies by employers in order to control the behavior of employees raises the problem of readiness of labor law to effectively regulate labor relations, while respecting the balance of rights and interests of employees, employers and the state. In modern conditions, the mechanism of exercising the subjective rights and obligations of employees and employers is transformed: the interaction of subjects of labor law is becoming more indirect; a striking manifestation of the digitalization of labor law is the use of numerous and diverse technical devices by the employer to monitor the behavior of employees, which often leads to surveillance (actually — to snooping) of the latter and the invasion into private life.
The author distinguishes the difference between the categories of “observation” and “control”. The use of digital technology allows the employer to exercise both control and observation of the employee, while the latter cannot control. The article indicates the basic attribute of biometric personal data: the scope of their content, which allows to characterize the physiological and biological characteristics of the person, making it likely to determine his identity, regardless of the purpose for which the employer processes them; sets limits on the use of digital technology for employee surveillance purposes.
The purpose of the study is to identify existing problems, gaps and contradictions of the legislative regulation of relations on control and supervision over the actions of the subjects of labor relations and to indicate ways of their possible overcoming. The tasks are: to analyze the current legislation, to study judicial practice on the stated topic, to establish the limits of the employerʼs right to monitor and control the behavior of the employee; to consider the right of employees to protect their rights with the use of digital, audio, photo and video recording capabilities of events.
The work is based on: formal-legal, comparative-legal and system-structural methods.
The author believes that in order to implement the objectives set by the Labor Code of the Russian Federation, the legislator needs to establish the limits of employersʼ use of digital technologies for surveillance of employees and recognize the data obtained by employees with high-tech means (audio, photo and video recordings) as relative, admissible, reliable and sufficient evidence at the level of a codified act.

Keywords: employee, employer, surveillance, monitoring, digital technology in the field of labor, labor relations, biometric personal data

Acknowledgments. The research was funded by RFBR and Chelyabinsk Region, project number 20-411-740013.

For citation. Ofman E. M. Monitoring and Control in Labor Relations: Balancing the Rights and Interests of Employees and Employers. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 73—87. (In Russ.) DOI: 10.12737/jrl.2021.136

■ ADMINISTRATIVE AND FINANCIAL LAW. INFORMATIONAL LAW

Responsibility of Civil Servants for Corruption Offenses: Problems of Model Optimization

M. B. Dobrobaba, S. E. Channov

Marina B. Dobrobaba1, Sergey E. Channov2, 3
1Kuban State University, Krasnodar, Russia, dobrobaba_mb@mail.ru, https://orcid.org/0000-0003-2119-947X
2Povolzhsky Institute of Management named after P. A. Stolypin, Russian Presidential Academy of National Economy and Public Administration, Saratov, Russia, sergeychannov@yandex.ru, https://orcid.org/0000-0002-3342-7487
3Saratov State University, Saratov, Russia

Abstract. The problem of mechanism correlation of disciplinary responsibility of civil servants and responsibility for corruption offenses is considered. The latter mechanism was introduced into the domestic service legislation in 2011, while the question of whether responsibility for committing corruption offenses is a type of disciplinary or an independent type of responsibility remains debatable.
The purpose of the work is to analyze the legal nature of responsibility for corruption offenses; to determine its features and opportunities to improve efficiency.
To achieve the tasks set, the authors use both the general scientific dialectical method, which makes it possible to clarify the duality of understanding the legal categories under consideration, and the methods of formal logic, the comparative method, the system-structural method, etc.
Conclusion: the disciplinary responsibility of civil servants and the responsibility for committing corruption offenses have a single legal nature, and are correlated as a part and a whole, but for a number of points they are currently separated in the official legislation. At the same time, the presence of two different mechanisms of responsibility generates in practice numerous problems associated with the uncertainty of the norms of official legislation. The uniform legal nature, the practically general system of disciplinary penalties, the identical procedure for carrying out disciplinary proceedings, with the exception of certain procedural features, indicate the inexpediency of differentiating the legal norms governing disciplinary responsibility for corruption offenses and the norms governing ordinary disciplinary responsibility, as well as the unjustifiability of the existence of certain types of disciplinary proceedings. In this regard, it seems expedient to unify terminology so that the acts currently referred to as corruption offenses are enshrined in official legislation as corruption disciplinary offenses. Responsibility for their commission should occur within the framework of the general procedure of disciplinary proceedings with separate procedural features objectively determined by the specifics of the offenses.

Keywords: public service, anti-corruption, disciplinary responsibility, corruption offense, disciplinary proceedings, effective accountability

Acknowledgments. The reported study was funded by RFBR, project number 20-011-00448.

For citation. Dobrobaba M. B., Channov S. E. Responsibility of Civil Servants for Corruption Offenses: Problems of Model Optimization. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 88—101. (In Russ.) DOI: 10.12737/jrl.2021.137

Administrative Responsibility of Control and Supervision Activities Entities

V. A. Seleznev

Vladimir A. Seleznev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, adm7@izak.ru

Abstract. The article considers the administrative responsibility of officials of federal executive authorities exercising state control (supervision). The relevance of the study is determined by the ongoing reforms of the legislation on control and supervisory activities and legislation on administrative offenses, as a priority direction for the development of administrative legislation.
The object of the study is the relations related to the application of administrative coercion measures against officials in the field of state control (supervision). The subject of the study is normative legal acts concerning the legal regulation of relations in the field of control and supervisory activities and administrative responsibility, as well as materials of law enforcement practice.
Research methods: formal legal method, methods of system-structural analysis, generalization, interpretation of law.
The author considers the problems of applying the norms on administrative responsibility of officials of control (supervision) bodies and identifies areas for improving this responsibility, taking into account the new regulatory and legal regulation of relations arising in connection with the organization and implementation of state control (supervision), municipal control. The conclusions and suggestions contained in the article can be used for further theoretical development of issues of improving the responsibility of officials of control and supervisory bodies, improving legislation on state control (supervision) and the practice of its implementation.

Keywords: administrative responsibility, administrative violation, disciplinary responsibility, officials, state control (supervision), municipal control, mandatory requirements

For citation. Seleznev V. A. Administrative Responsibility of Control and Supervision Activities Entities. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 102—116. (In Russ.) DOI: 10.12737/ jrl.2021.138

■ CRIMINAL LAW AND CRIMINOLOGY

Criminal Law Counteraction to Ideological Extremism

S. M. Kochoi

Samvel M. Kochoi
Kutafin Moscow State Law University, Moscow, Russia, sam.kochoi@bk.ru

Abstract. In the legal acts of recent years, as well as in the scientific literature, the concept of “ideological extremism” is actively used; previously, it was absent in the legislation. Moreover, in a number of important documents defining the main directions of the fighting against new challenges for the state and society, ideological extremism is named one of the main among such challenges.
The purpose of this article is to define this concept and characterize the criminal-legal forms of its manifestation.
Based on the analysis of the norms of the current legislation, the explanations of the Plenum of the Supreme Court of the Russian Federation on its application, the study of various opinions and positions of researchers, the definitions of the concepts of “extremism” and “ideological extremism” are formulated in present paper. The author came to a conclusion that the concept under study is not identical to the concept of “extremist ideology”, since it refers to the characteristic not of the ideology of extremism, but of extremism in ideology (in the field of ideology). The opinion is substantiated that the most dangerous, but not the only, criminal-legal form of ideological extremism should be considered religious extremism (acts prohibited by criminal law aimed at inciting religious hatred or enmity), primarily such a variety of it as Islamist (“Salafist”) extremism, which often precedes the practice of religious terrorism. It is shown that in the preservation of the terrorist and, in general, extremist threat, a significant role is played by the actions of persons who are not representatives of the peoples traditionally professing Islam, as well as prisoners of prisons and colonies, based on the ideology of radical currents of Islam (mainly the Salafist ideology of “pure Islam”). Countering this phenomenon, including by criminal legal means, should be recognized as one of the priority tasks of Russian law enforcement agencies.

Keywords: ideological extremism, extremism, terrorism, forms of extremism, counteraction to extremism, “prison Caliphate”, Salafist extremism, religious extremism, crimes of extremist orientation, extremist activity

Acknowledgments. The research was carried out within the state assignment 075-00293-20-02, 25 May 2020, No. FSMW-2020-0030.

For citation. Kochoi S. M. Criminal Law Counteraction to Ideological Extremism. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 117—132. (In Russ.) DOI: 10.12737/jrl.2021.139

■ PROCEDURAL LAW

Application of Antimonopoly Legislation by Arbitration Courts in Cases of Anticompetitive Agreements

O. A. Simvolokov

Oleg A. Simvolokov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, simvolokovo@mail.ru

Abstract. The tendency to increase the number of anticompetitive agreements in commodity markets directly affects the nature and features of Russian antitrust legislation and its practice. The modern practice of arbitration courts in cases of anticompetitive agreements was summarized in the decision of the Plenum of the Supreme Court of the Russian Federation of March 4, 2021 No. 2 “On some issues arising in connection with the application of antitrust laws by the courts” (hereinafter — Resolution of the Plenum of the Supreme Court of the Russian Federation of March 4, 2021 No. 2) which should have a significant impact on the development of uniform law enforcement and judicial practice in antitrust cases, including anticompetitive agreements.
The purpose of the article is to identify trends in the application by arbitration courts of antitrust legislation in cases of anticompetitive agreements.
Methodological basis: a general scientific (dialectical) method of cognition, methods and techniques of formal logic (analysis, synthesis, induction, deduction, etc.), as well as special methods of cognition (including formal-legal, comparative-legal, technical-legal, systemic, empirical, statistical).
The article analyzes the main provisions of antitrust legislation on anticompetitive agreements, the latest practice of arbitration courts on its application, gives a critical assessment of scientific views on the regulation of agreements restricting competition, formulated an author's definition of anticompetitive agreements, examined key problems of arbitration court practice on certain types of anticompetitive agreements, identified trends in judicial practice in cases of anticompetitive agreements.
Conclusion: The modern practice of arbitration courts is an expression of a compromise between the desired precise wording of antitrust laws, which make it possible to clearly establish which actions of business entities are legal and which are illegal, and the variety of factual circumstances revealed in the consideration of a particular case, taking into account the wisdom, usefulness, objectivity of the actions of the parties to the agreements. Legislation, law enforcement and jurisprudence reflect a trend modelled on the European antitrust system.

Keywords: anticompetitive agreements, horizontal agreements, vertical agreements, conglomerate agreements, coordinated actions, coordination of economic activities

For citation. Simvolokov O. A. Application of Antimonopoly Legislation by Arbitration Courts in Cases of Anticompetitive Agreements. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 133—149. (In Russ.) DOI: 10.12737/jrl.2021.140

Conciliation of the Parties at the Stage of Preparing the Case for Trial in Disputes about Children

I. N. Nadin

Ivan N. Nadin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, avt-j@yandex.ru

Abstract. Federal Law No. 197-FZ of July 26, 2019 has introduced large-scale changes to the Russian procedural legislation concerning conciliation procedures, which actualizes the conduct of scientific research of the institute of conciliation in relation to the goals and objectives of the civil process.
Within the framework of the article, using general scientific methods (comparison, analysis and synthesis) and methods of legal research (formal legal methods, the method of interpretation of legal norms), the peaceful settlement of a dispute and reconciliation of the parties as an independent goal of civil procedure and the task of the stage of preparing a case for trial, through the analysis of procedural norms, the existing competition of the goals of civil procedure in the implementation of law enforcement is revealed. Disputes about children are considered as the most suitable for reconciliation procedures. The shortcomings of the legal regulation of effective actions of the court within the framework of the implementation of the conciliatory functions assigned to it are revealed, and the passive attitude of the court and the parties to reconciliation is also noted.
The author concludes that the nature of substantive legal relations leaves an imprint on the sequence of the goals and objectives of the civil process, and suggests a justification for the primacy of the goal and objective — the settlement of the dispute and reconciliation of the parties at the stage of preparing the case for trial in disputes about children. In this regard, the “additional” actions of the court for conciliation of the parties are helping to realize the will for a peaceful settlement of the dispute.

Keywords: conciliation, dispute resolution, mediation

For citation. Nadin I. N. Conciliation of the Parties at the Stage of Preparing the Case for Trial in Disputes about Children. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 150—162. (In Russ.) DOI: 10.12737/jrl.2021.141

■ LAND LAW AND ENVIRONMENTAL LAW

Methodological Approaches to the Study of Environmental Management Law

E. V. Luneva

Elena V. Luneva
Kazan (Volga Region) Federal University, Kazan, Russia, vilisa_vilisa@mail.ru, https://orcid.org/0000-0001-6666-5353

Abstract. The author formulates the concept of the methodology of the law of environmental management, under which it is proposed to understand a system of methods, techniques, paradigms, foundations, principles of research of legal means, the implementation of which leads to ensuring and increasing the stability of natural ecological systems, components of the natural environment, natural and natural-anthropogenic objects. Based on the close interrelation and interaction of the norms of environmental and natural resource branches of law in the process of law enforcement, the author comes to the conclusion about the unity of their methodology, which also applies to the law of rational nature management.
The structure of the methodology of the environmental management law is considered, in particular: 1) a system of scientific research methods; 2) a system of scientific paradigms; 3) methodological foundations, principles and other elements. In the system of methods of research and cognition of the law of rational nature use, the following are highlighted: 1) the highest level; 2) the middle level (general scientific or interdisciplinary); 3) the lowest level (private scientific); 4) the transitional level (practically transformative). It is proved that each such level has its own cognitive capabilities and methodological significance for the study of the law of rational nature management.
In legal science, the “lowest” level of methodology is represented by a private scientific methodology, after which there is no further division of research methods into even more special methods. Methodological principles are used to identify the features of the study of legal relations of a specific industry affiliation. The place of ecological paradigms in the methodology of the law of rational nature management is determined.

Keywords: methodology, method of scientific knowledge, methodological principle, scientific paradigm, ecological paradigm, environmental law, natural resource law, the right of rational use of natural resources

For citation. Luneva E. V. Methodological Approaches to the Study of Environmental Management Law. Journal of Russian Law, 2021, vol. 25, no. 11, pp. 163—182. (In Russ.) DOI: 10.12737/jrl.2021.142

Contents of issues:

2022
2021
2020
2019
2018
2017
2016
2015
2014
2013
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997