Contents of issue # 3/2021

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

Dynamics of the Competence of Public Authorities in Normal and Critical Situations

Yuriy A. Tikhomirov

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

Abstract. Competence is a constant companion of a person in all his affairs. The activities of authorities and organizations are always related to competence. However, in practice, there are many problems in regulating the competence of authorities and their implementation. Therefore, the article analyzes the competence of public authorities that perform a certain part of state functions according to the “mandate of the society”. The main thing here is the expression of public interests and ensuring effective management of public affairs. Therefore, the stage of preparation of normative characteristics of competencies is very important. In the process of development, the implementation of competencies is associated with the solution of traditional and new tasks in the field of politics, economics, ecology, social sphere, science and technology. Flexible adaptation of competencies allows to maintain the mechanisms of sustainable organizational and legal impact on social, natural and technical processes. Violations of the law and “failures” in the work of the authorities should be eliminated, but this is not always the case. The situation is aggravated in critical situations, when the spread of pandemics, economic crises, natural anomalies, etc., create objective obstacles to the normal implementation of competencies. It is necessary to take prompt measures and restructure the work of public authorities, change the modes of work and serve citizens. This often leads to a hasty change of laws. Therefore, it is necessary to develop and use mechanisms for anticipating and minimizing risks in critical situations; and for providing support to citizens, businesses and the service sector. All this creates the need to make better use of the social potential of the competencies of public authorities.
The article examines the use of social resources of society, the regulation of competencies based on standard and other types of models, and the reasonable use of new information technologies. Some new types of competencies that arise in the process of development are considered. All this raises new challenges for the legal and other sciences, including also education.

Keywords: public authorities, competence, legal regulation, critical situations, modeling

For citation. Tikhomirov Yu. A. Dynamics of the Competence of Public Authorities in Normal and Critical Situations. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 5—16. (In Russ.) DOI: 10.12737/jrl.2021.030

V. V. Borisov’s Theory of Law and Order in the Modern Russian Context: Significance and Prospects

Vladimir N. Sinyukov

Kutafin Moscow State Law University, Moscow, Russia, vnsinyukov@msal.ru

Abstract. 2020 marked the 95th Birth Anniversary of the prominent Soviet and Russian theorist of law, an outstanding organizer of legal education V. V. Borisov. The article discusses the key points of his theory of law and order. The context of the analysis is the modern theoretical achievements of Russian and foreign jurisprudence, as well as the practice of legal regulation. The article highlights aspects of the theory of V. V. Borisov, which allow us to rethink the important elements of modern Russian law and order. It is concluded that the distinguishing feature of Borisov's theory is the presentation of the rule of law as a structure of the legal space, which is significantly different from the understanding of the rule of law as the only normative system according to foreign doctrine. It is shown that the meaning of Borisov's theory is that the basic values of national law, expressed in historical tradition, constitutional requirements, and political organization, realize their relevance only in a system of coordinated legal definitions that reflect the integrity of the social environment. The rule of law provides its own corridor of opportunities for the legislator and law enforcer. It creates conditions or restrictions for one or another version of decision-making.
The article reveals the correlation of the categories of law and order and the legal system and space and temporality of the rule of law. It is characterized by its static and dynamic properties. The article also shows the specificity of the ideological basis and subjective composition. The importance of ideas about the isolation and identity of the rule of law, the specificity of its normativity and excess normality as an organization is demonstrated. The sources and causes of the crisis of the normative model of law and order are revealed. The ways of overcoming it, the role and limits of codification in the normative model of law and order are substantiated; variants of modern searches for normative management are indicated.
It is concluded that the theory of law and order creates opportunities for the conceptualization of the domestic legal space. Borisov's theory substantiates the institutional understanding of the rule of law as the basis of a post-normative model of legal regulation. A general conclusion is made about the theory of V. V. Borisov as a new normative constructivism, where the doctrine of a syncretic legal structure is opposed to the doctrine of a hierarchy of norms.

Keywords: V. V. Borisov, law, law and order, legal system, norm of law, legal relations, legislation, normativity, codification, the doctrine of H. Kelsen, the identity of law, structure of law, space law, subjects of law

Acknowledgments. The study was carried out within the framework of GZ 075-00293-20- 02, 25 May 2020, FSMW-2020-0030.

For citation. Sinyukov V.N. V.V. Borisov’s Theory of Law and Order in the Modern Russian Context: Significance and Prospects. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 17—32. (In Russ.) DOI: 10.12737/jrl.2021.031

The Enforcement of Military Legislation by Russian Authorities in 1725—1734 (on the Example of the Siberian Ober-bergamt)

Elena V. Borodina

Ural Federal University, Yekaterinburg, Russia, e.v.borodina@urfu.ru, https://orcid.org/0000-0002-8128-5698

Abstract. The article is devoted to the problem of enforcement of the military codes of Peter the Great in the Russian Empire in the second half of the 1720s — early 1730s. There are two conflicting positions on the military law enforcement in the practice of authorities vested with judicial powers. Most researchers — who are of the opinion that the norms of military law should be extended to the entire population of the country — usually refer to the Tsar's Decree 1716. Another group disputes this claim, noting the absence of other legislative acts that would have implemented this idea of Peter in the subsequent years of his reign. They mention the lack of relevant extracts in the documents of the court and investigation.
The purpose of the article is to study the issue on the example of a single territory. Since a number of scientists have already tried to reconstruct the organization of the judicial process in the administrative and judicial institutions of the European part of Russia, the author focuses on the districts of the Middle Urals that are more remote from the capital of the Empire.
The work is based on an interdisciplinary approach. The article uses the research methods of the legal science and history. Among them are general scientific methods (system analysis and comparative studies) and special scientific methods (formal legal and historical legal methods, methods of classical primary source studies).
An analysis of the documents of the Siberian Ober-bergamt and its subordinate representatives show that in the region there are frequent cases, which mention military laws when considering the cases of craftsmen and working people, as well as representatives of other social groups living in the Urals. The research concluded that the enforcement of military law depends on the specifics of the territory.

Keywords: Russian Empire, history of the XVIII Century, reforms of Peter I, Military Code, Military Articles, Naval Code, Siberian Ober-bergamt, legal proceedings, army

Acknowledgments. The study was funded by RSF, project No. 20-18-00233 (Ekaterinburg in 1733: historical and antropological, architectural and spatial reconstruction).

For citation. Borodina E. V. The Enforcement of Military Legislation by Russian Authorities in 1725—1734 (on the Example of the Siberian Ober-bergamt). Journal of Russian Law, 2021, vol. 25, no. 3, pp. 33—48. (In Russ.) DOI: 10.12737/jrl.2021.032

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

Patent Trolling: Legal Qualification Issues (Part 2)

Gadis A. Gadzhiev

G. A. Gadzhiev1, 2
1Constitutional Court of the Russian Federation, Saint Petersburg, Russia
2Saint Petersburg branch, National Research University “Higher School of Economics”, Saint Petersburg, Russia, ggadzhiev@hse.ru

Abstract. The development and inclusion of new technologies in the civil circulation is a powerful stimulus to develop legislation and clarify the approaches of law enforcement practice to the qualification of civil legal relations. In the current strengthening of entrepreneurial initiative and market principles in the Russian economy the issues of the implementation and protection of civil rights are especially relevant. If one resolves disputes, it is required to take into account the functions, the social and economic basis of specific types of subjective rights, the boundaries of the possible behavior of an authorized person in property turnover, the balance of private and public interests and assistance in preventing abuse of rights. In the world practice, exclusive rights to the results of intellectual activity and means of individualization are one of the most investment-attractive corporate assets. In the Russian economy, the legal regulation of their turnover is only at the stage of formation. The legal regime for the exercise and protection of exclusive rights harmonizes the interests of the individual, business, society, and the state. At the same time, the legislation on intellectual property belongs to the youngest. Legal doctrine and practice are in search of optimal and reasonable solutions, using the groundwork of sociological and philosophical schools that have proposed a worldview picture of the modern world and the conditionality of legal constructions by it. It is necessary to ensure the stable development of legislation, law enforcement practice and compliance with the principle of legality, as they require a comprehensive consideration of the concept and forms of “patent trolling”. It is timely when one must resolve disputes from exclusive rights in the face of the growth of unfair business practices.

Keywords: patent trolling, exercise and protection of exclusive rights, social and economic principles of civil rights

For citation. Gadzhiev G. A. Patent Trolling: Legal Qualification Issues (Part 2). Journal of Russian Law, 2021, vol. 25, no. 3, pp. 49—62. (In Russ.) DOI: 10.12737/jrl.2021.033

Quality Guarantee of a Product: General Characteristics

Ruslan S. Zardov

Khabarovsk State University of Economics and Law, Khabarovsk, Russia, ruslanzard@mail.ru

Abstract. The article is devoted to the study of a quality guarantee. To this end, it has become a universal mechanism that is not limited to the framework of individual state systems. This practice in Russia leads to numerous disputes and problems. Existing circumstances determine the relevance of the research topic.
The purpose of the article is to reveal general characteristics of the quality guarantee of a product. The objectives are to identify existing points of view, to disclose legal and guarantee obligations, to formulate the main functions and types of guarantees, to pay attention to problems requiring warranty service that requires further study.
The article uses the methods of comparative legal and economic analysis, which allow us to identify similarities and excellent conditions for warranty service in Russia and other countries, to identify individual problems that require further study.
The author outlines the existing points of view that reveal the legal nature of guarantee. It is proved that the value of this legal remedy is not limited solely to the protection of the property interests of buyers. It is noted that traditionally there are three main functions of quality guarantee: insurance, information and stimulation. Special attention is paid to some controversial aspects related to warranty service. The arguments for and against legal guarantees are considered. Special attention is paid to the scope of the warranty provided, which includes, firstly, a list of rights available to the buyer in connection with the discovery of defects in the goods during the established warranty period, and secondly, the nature and essence of the occurrence of defects, in connection with the identification of which it is possible to present warranty claims.

Keywords: quality guarantee, consumer, replacement and repair of goods, product information

For citation. Zardov R. S. Quality Guarantee of a Product: General Characteristics. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 63—75. (In Russ.) DOI: 10.12737/jrl.2021.034

■ LABOR LAW AND SOCIAL SECURITY LAW

Ensuring the Rights of Citizens to Labor Protection in the Context of Innovative Economic Development

Larisa V. Seregina

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, labour@izak.ru, https://orcid.org/0000-0003-4389-1053

Abstract. The right of everyone to just and favorable conditions of work is proclaimed in the Universal Declaration of Human Rights. The Russian Federation respects the work of citizens and protects their rights. Under the Constitution of the Russian Federation one of the basic rights among them is the right to work in conditions that meet the requirements of safety and hygiene. It is the legislation, which is meant to implement this right. It regulates labor protection, regardless of the form chosen by the citizen to exercise their abilities to creative or productive work. At the same time, the current legal regulation of labor relations does not always meet the requirements for labor protection in the conditions of innovative development of the economy.
The aim of the study is to search for legislative solutions that would ensure everyone the opportunity to exercise the right to labor protection, regardless the form of exercising their abilities to creative or productive work.
The study establishes that the current model of legal regulation in the sphere of labor protection lacks a special Federal law, which would reflect the purpose, principles and specific legal means to ensure the right of everyone to the protection of labour, regardless of the chosen form of employment. We believe that such a legislative act can be the federal law “On the basics of labor protection in the Russian Federation”.

Keywords: labor protection, ensuring the right, labor protection guarantees, labor safety management, atypical forms of employment

For citation. Seregina L. V. Ensuring the Rights of Citizens to Labor Protection in the Context of Innovative Economic Development. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 76—91. (In Russ.) DOI: 10.12737/jrl.2021.035

Labour Law in the Transition to a Digital Society: Ongoing Changes and Outlines of the Future

Irina A. Filipova

Lobachevsky State University of Nizhny Novgorod, Nizhny Novgorod, Russia, irinafilipova@yandex.ru, https://orcid.org/0000-0003-1773-5268

Abstract. Wage labour is widespread in society, and its legal regulation affects the vital interests of billions of people. The labour legislation of most countries was formed in the XX century and corresponds to the conditions of industrial society. As a result of the intensive development of technology, modern society is changing: the level of automation of production processes is gradually increasing, the structure of production is being transformed, and the communication system is being rebuilt. The introduction of new “end-to-end” technologies into the economy and society leads to the construction of a digital economy and the digitalization of society as a whole.
The purpose of the study is to analyse the ongoing socio-economic changes, identify key indicators of these changes and formulate proposals that contribute to the adaptation of labour law to the conditions of a digital society. To achieve this goal, the author examines the processes taking place in society in connection with the development of digital technologies, demonstrates the impact of these processes on the sphere of work, considers new legal structures, and identifies trends in the development of legal regulation of labour.
Research methods: comparative legal method, methods of analysis and synthesis, functional and system approaches, as well as formal legal method, methods of legal modeling and legal forecasting.
The author comes to the conclusions about structural changes in the scope of work under the influence of digitalization of the economy, serious reforms needed in labour law to meet the changes of the production environment and intelligent process automation. Given the fact that the national laws of most countries, including Russia, began to enter the legal norms, fostering digitalization of society for labour law is critically important to track the changes and promptly respond to them. At the same time, consistency in shaping the image of the future in labour law is crucial.

Keywords: labour relations, labour regulation, Internet platforms, end-to-end technologies, artificial intelligence, robotics, data mining

Acknowledgments. The reported study was funded by RFBR, project number 19-011-00320.

For citation. Filipova I.A.Labour Law in the Transition to a Digital Society: Ongoing Changes and Outlines of the Future. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 92—105. (In Russ.) DOI: 10.12737/jrl.2021.036

■ CRIMINAL LAW AND CRIMINOLOGY

Positions of the Plenum of the Russian Supreme Court on Mediation in Bribetaking and Commercial Bribery: Conflicts, Gaps and Ways to Overcome Them

Petr A. Skoblikov

Institute of State and Law, Russian Academy of Sciences, Moscow, Russia, skoblikov@list.ru, https://orcid.org/0000-0001-7875-7036

Abstract. The author presents a critical analysis of a number of important and ambiguous provisions of the Resolution of the Plenum of the Russian Supreme Court “On judicial practice in cases of bribetaking and other corruption crimes” of July 9, 2013 No. 24 on liability for mediation in bribetaking and commercial bribery, which are relatively new elements of crimes for the Russian legal system. At the end of 2019 significant changes and additions were made to this resolution, which determines the research task of a comprehensive study of the new version of the document within the framework of the stated topic.
To solve this problem, the author used the rules and techniques of formal and dialectical logic; abstraction and generalization; comparative legal and formal legal research methods; methods of interpretation of legal norms; study of documentary sources; ideal experiment; legal forecasting, etc.
Based on the results of the study, the author comments on both new and modified or unchanged explanations of the Supreme Court's Plenum, formulates recommendations to law enforcement officers, and also puts forward and justifies his proposals for making adjustments to the Resolution of the Plenum in connection with the gaps, ambiguities, inaccuracies and conflicts that exist in it. At the same time, the conducted research provides the basis for certain proposals on amendments to the current legislation and on improving the modern criminal policy.

Keywords: criminal policy, corruption crimes, subject of bribery, subject of commercial bribery, mediation in bribetaking, fraud, embezzlement or embezzlement of entrusted property, public danger of the act, objective imputation, truncated crime, set of crimes

For citation. Skoblikov P. A. Positions of the Plenum of the Russian Supreme Court on Mediation in Bribetaking and Commercial Bribery: Conflicts, Gaps and Ways to Overcome Them. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 106—116. (In Russ.) DOI: 10.12737/jrl.2021.037

■ ADMINISTRATIVE AND FINANCIAL LAW

Issues of Investment Legislation Codification: Financial and Legal Aspect

Oganes A. Akopyan

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, fin@izak.ru

Abstract. The adoption of the next new law regulating certain areas of investment activity from year to year traditionally raises questions about whether the investment legislation finally requires revision for its coordinated development.
The purpose of the study is to assess the consistency and effectiveness of the provisions of investment legislation in terms of financial and legal support for the development of investment activities. The purpose of the study was to analyze various aspects of the current legal regulation for the quality, consistency and uniformity of the legislator's approach to the matters of financial and legal support for investment activities.
Research methods: analysis, synthesis and comparison, literal and systematic interpretation of the current legislation and draft regulations.
Conclusion: the examples of the current regulation indicate the need for a systematic revision of the regulatory framework, without which the financial and legal mechanisms for supporting investments will not be put into effect.

Keywords: investments, investment code, codification, Budget Code of the Russian Federation

For citation. Akopyan O. A. Issues of Investment Legislation Codification: Financial and Legal Aspect. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 117—125. (In Russ.) DOI: 10.12737/jrl.2021.038

Prospects for the Development of the Institute of Individuals’ Tax Residency in the Russian Federation

Liliya Sh. Yulgusheva

FBK Legal LLC, Moscow, Russia, lilia.yulgusheva@gmail.com

Abstract. The article examines the domestic and foreign approach to determining the tax residency status of individuals and assesses the feasibility of changing the Russian approach against the background of changing socio-economic conditions.
The purpose of the study is to identify the prospects for the development of the institute of individuals' tax residency in the Russian Federation. Objectives of the study: to identify the tax and legal essence of the concept of “residency”; to analyze foreign approaches to determining the status of individuals' tax residency; to suggest ways to develop the institute of individuals' tax residency in the Russian Federation.
The methodological basis of the research is based on the principles of the dialectical approach. To solve these problems, general scientific methods of cognition were used: analysis, synthesis, generalization, induction.
The author substantiates the feasibility of introducing a combined approach to determining the tax residency status of individuals in the Russian Federation. In addition to the criterion of the place of preferential stay, it is proposed to introduce the criterion of the center of vital interests, which should be applied by individuals on a voluntary basis in the application procedure.

Keywords: tax residency, personal income tax, foreign experience

For citation. Yulgusheva L. Sh. Prospects for the Development of the Institute of Individuals’ Tax Residency in the Russian Federation. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 126— 137. (In Russ.) DOI: 10.12737/jrl.2021.039

■ LAND LAW AND ENVIRONMENTAL LAW

Environmental and Legal Risks as a Universal Criterion for Evaluating Environmental Legislation

Nikolay V. Kichigin

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, kichigin@mail.ru, https://orcid.org/0000-0002-0635-1878

Abstract. Environmental and legal risk is a type of legal risk which means the possibility of negative legal consequences for subjects of environmental law as a result of violations of environmental requirements, public environmental interests and environmental human rights. Environmental and legal risks are a universal criterion for evaluating environmental legislation, which can be applied both at the stage of developing draft laws in the field of environmental protection and at the stage of their application in order to identify legal gaps, conflicts and legal uncertainties. At the stage of development of a draft normative legal act, environmental and legal risks can be identified by designing concepts of Federal laws, preparing explanatory notes to them, and assessing the regulatory impact. At the enforcement stage, environmental and legal risks can be identified through monitoring of law enforcement, as well as applying such mechanisms as environmental audit, environmental insurance, environmental and legal consulting, assessment of the impact of planned activities on the environment, environmental expertise, explanations of public authorities, judicial practice, project financing.

Keywords: legal risk, legal uncertainty, environmental and legal risk, risk assessment, effectiveness of legislation, environmental assessment, environmental audit, environmental insurance

For citation. Kichigin N. V. Environmental and Legal Risks as a Universal Criterion for Evaluating Environmental Legislation. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 138—151. (In Russ.) DOI: 10.12737/jrl.2021.040

■ INTERNATIONAL AND INTEGRATION LAW

Issues of the Legitimacy of Restriction by Countermeasures of Extraterritorial Jurisdiction of the State

Maria V. Keshner

Kazan Federal University, Kazan, Russia, mvkeshner@gmail.com, https://orcid.org/0000-0003-3649-2206

Abstract. The national legitimization of extraterritorial sanctions policy by a number of states is currently a problematic narrative in the development of a number of significant issues of international law: the exercise of jurisdiction, the implementation of international responsibility, and the application of coercive measures. In addition, the content of the regime of extraterritorial sanctions is a way of exerting pressure on other states to join the regime of unilateral sanctions in order to ensure significant international isolation of the object of sanctions.
The aim of the study is the response to such maximum expansion of national jurisdiction on a longterm basis, contained in the blocking legislation adopted by a number of states and integration entities. In parallel, the question on the legality of the extraterritorial extension of national jurisdiction is raised.
Based on the analysis of international law (through the prism of the provisions of the Articles on the responsibility of states for internationally wrongful acts), acts of the European Union, the laws of Canada, Australia and other states, the legal nature of measures aimed at the possibility of canceling extraterritorial laws as jurisdictional countermeasures is determined. At this stage in the development of the practice of applying jurisdictional countermeasures, the author poses a key question of their legitimacy in accordance with modern international law: can the restriction of the extraterritorial jurisdiction of the state be the object of countermeasures; compliance of such countermeasures with the conditions of lawfulness, regulatory framework and implementation mechanism. Special attention is paid to the problem of establishing the presence of opinio juris in relation to jurisdictional countermeasures.
As a result of the study, the author argues the conclusion that the use by states of jurisdictional countermeasures does not contradict the norms of international law, the law of international responsibility, subject to the conditions for the legitimacy of the application of countermeasures.

Keywords: unilateral sanctions, extraterritorial sanctions, sanctions escalation policy, state jurisdiction, state sovereignty, countermeasures, jurisdictional countermeasures, blocking statute, legitimacy of jurisdictional countermeasures, ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)

For citation. Keshner M. V. Issues of the Legitimacy of Restriction by Countermeasures of Extraterritorial Jurisdiction of the State. Journal of Russian Law, 2021, vol. 25, no. 3, pp. 152— 171. (In Russ.) DOI: 10.12737/jrl.2021.041

■ LEGAL LIFE. CHRONICLE

To the Memory of L. A. Trakhtengerts  Pdf 16

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