Contents of issue # 6/2021

Ilia L. Chestnov
Saint-Petersburg Law Institute (branch), University of Prosecutor’s Office of the Russian Federation, St. Petersburg, Russia, ichestnov@gmail.com, https://orcid.org/0000-0003-2083-5876

Abstract. The article is devoted to the study of the modernization of law in a post-modern society. Understanding this process is an important and topical issue for modern legal science.
The aim of the research is to obtain new theoretical knowledge about the transformation of law in the era of post-modern society. To achieve this goal, the author analyzes the traditional concept of modernization of law and its changes in the late 20^th and early 21^st Century.
The conclusions of the article are based on the post-classical methodology. It involves the study of the process of modernization of law in the historical and socio-cultural context and in the interaction of law with other social phenomena and processes. This article is about evaluating the modernization of law in postmodern society. Main theme is about analysis of modernization changing in the end of 20th — beginning 21^st Century. The article considers obsession with the classical theory of modernization and modernization of rights. Based on M. Veber’s ideas, main characteristics of law modernization of early 20^th Century are: formal rationality, autonomy, technical complexity, predictability. In the second half of the 20^th Century, modernization demonstrates adverse side effects associated with increased social and technological risks, social inequality, deviant behavior, alienation of the population from politics, etc. In the field of law, the negative and critical moment of its modernization is the juristic process — the uncontrolled growth of law. As a result, the classical theory of modernization in a global risk society is revised. Changes in the classical theory of modernization of law follow the path of post-modernization, and post-post-modernization. The law of post-modern society is distinguished by its versatility, human dimension, sociologization and cultural content. In legal science, the paradigm shift is manifested in the formation of the theory of legal metamoderna, developed by V. D. Zorkin.

Keywords: modernization, modernization of law, legitimation, metamoderna

For citation. Chestnov I. L. Modernization of Law in a Post-modern Society: a Paradigm Shift. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 5—13. (In Russ.) DOI: 10.12737/jrl.2021.069

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Alexey V. Egorov
House of Representatives, National Assembly of the Republic of Belarus, Minsk, Belarus, egorof@yandex.ru

Abstract. The Union State of Belarus and Russia forms a unified legal system as one of its main goals. This goal is enshrined in the Treaty on the Establishment of the Union State of December 8, 1999. To date, the Union State has not defined the concept of system interaction of elements within its common legal system. In the framework of the adopted Action Program for Russia and Belarus on the implementation of the provisions of the Treaty on the Creation of the Union State, only the normative part of the proposed unified legal system is updated. Moreover, it is in a rather narrow form, i.e. as the unification of civil and tax legislation. Other components — that determine the unity of the created legal system — are law-making, law enforcement and legal awareness, to what national legislator doesn’t pay attention.
The article discusses the concepts of the most normative component of a unified legal system.
The main method used to study the patterns of the formation of a general legal system is the comparative reception of the provisions of the corresponding national character components. In addition, general techniques of scientific knowledge are used.
The results of the study allow us to speak about the doctrine of the formation of a unified legal system of the Union State. The main idea of the theory is to use all the functions of a single component of a general system. The article presents the provisions regarding each of the system-forming components, including legal consciousness as an independent element of the unified legal system of the Union State.

Keywords: the Union State of Belarus and Russia, the unified legal system, the law of the Union State, law-making, law enforcement, legal awareness

For citation. Egorov A. V. On the Formation of the Legal System of the Union State of Belarus and Russia. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 14—26. (In Russ.) DOI: 10.12737/ jrl.2021.070

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Saria B. Nanba
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, snanba83@gmail.com, https://orcid.org/0000-0002-3655-9143

Abstract. The article examines how the constitutional model of local self-government has been modified. The author presents a scientific comprehension of a certain provisions of the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation of March 14, 2020 No. 1-FKZ “On Improving the Regulation of Certain Issues of the Organization and Functioning of Public Authority”. The role and place of local self-government in the structure of public authority, as well as the legal contours of the constitutional category “system of public authority” are outlined. The article substantiates the position that the functioning of the general system of authority directly follows from the principle of democracy (Article 3 p. 1 of the Constitution of the Russian Federation). It is the unity of this system that gets at the heart of functioning of the entire mechanism of authority and its components (federal, regional, municipal). The article analyzes the constitutional approach to the competence interaction of public bodies. The author’s analysis also focuses on the territorial organization of local self-government. It demonstrates the dynamics in legal regulation concerning the territorial reorganization of local self-government, including the experience of creating new types of municipalities. The conclusion points that there is a need to form legislative mechanisms that ensure the functioning of local self-government bodies in the system of public authorities.

Keywords: Constitution of the Russian Federation, local self-government, public authority, competence, municipal formation, constitutional modernization

For citation. Nanba S. B. Constitutional Transformations: Reconfiguring Russian Local Self-Government. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 27—36. (In Russ.) DOI: 10.12737/ jrl.2021.071

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Nataliia Yu. Turishсheva
Kuban State University, Krasnodar, Russia, dom0023@mail.ru, https://orcid.org/0000-0003-1032-4271

Abstract. In July 2020, changes in the organization of the voting procedure were made to the Federal Law “On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation”, which became one of the most popular technologies in the modern electoral process. The federal legislator provided, along with the traditionally used subsidiary forms of voting (early voting and voting with absentee ballots), which have become part of the electoral practice by voting at the location (mobile voter) and remote electronic voting, also multi-day voting, including a range of various formats. Various forms of multi-day voting were tested during the voting on amending the Constitution of the Russian Federation on July 1, 2020, as well as in the elections on a single voting day on September 13, 2020. Voting in the context of the need to comply with the epidemiological safety of its participants and the freedom to choose organizational forms made it possible to use unregulated mechanisms that met the principles of rationality and expediency of voting.
The objective of the study is to assess fundamental innovations in electoral legislation, to analyze a new approach in defining the goals and nature of the development of active suffrage, the depth and quality of its transformation in the context of the correlation between the mandatory and declarative procedures for voter registration.
The research methods are based on an analysis of the legal framework for organizing and holding elections.
The author comes to the conclusion that multi-day voting is a new institution of the modern domestic electoral system, reasonably included by the legislator in the list of current forms of exercising active suffrage. Despite the external procedural similarity with the institution of early voting, the new forms of voting have a number of characteristic distinctive features. Organization of multi-day voting does neither require a voter to submit an application for the opportunity to vote, or provide for legal confirmation of the validity of reasons as a necessary basis for voting, nor provide for the possibility of denying a voter to vote. The development of active suffrage is characterized by a combination of traditional methods of organizing voting and modern political instruments and innovative technologies. Multi-day voting as the most important stage of the electoral process has a significant impact on the electoral process as a whole. Considering that this mechanism affects the rights of the main participants in elections, the author makes a proposal to consolidate multi-day voting as an obligatory element of the exercise of active suffrage, which is implemented by virtue of law, and not by virtue of the discretion of the election commission.

Keywords: elections, voter, active suffrage, voter registration procedure, basic and additional forms of voting, early voting, remote voting, voting within a few days, voting outside the constituency

For citation. Turishсheva N. Yu. Active Suffrage: Expanding Forms of Implementation. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 37—47. (In Russ.) DOI: 10.12737/jrl.2021.072

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Oleg V. Gutnikov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, oleg_gutnikov@mail.ru, https://orcid.org/0000-0003-4596-5669

Abstract. The separation of corporate liability into a separate type of civil liability is clearly confirmed when corporate disputes are considered by the courts. The article analyzes the main features of corporate liability, identified when it considers the relevant categories of corporate litigation, as well as problems of law enforcement that arise in practice. The study determines the most common and significant types of corporate responsibility, which are: liability of directors and other controlling persons for losses caused to a legal entity by violation of “duty of care” and “duty of loyalty”; subsidiary “security” liability to the creditors of the legal entity; subsidiary liability of controlling persons in bankruptcy; liability of controlling persons for the obligations of a liquidated legal entity; liability in the form of exclusion of a participant from a legal entity. Current corporate legislation of the Russian Federation develops under the influence of reforming Chapter 4 of the Civil Code of the Russian Federation on legal entities, carried out in 2014. This also determines the main current trends in the development of corporate law, for the most part aimed at bringing special laws in conformity with the provisions of the Civil Code of the Russian Federation and not bringing anything new to the legal regulation of corporate relations.
The purpose of the article is to identify the main directions of the judicial practice of corporate litigation on bringing to corporate liability, as well as problems of law enforcement.
The methods of research are general methods of study (analysis and synthesis, induction and deduction, system analysis) and methods of legal science (methods of literal, systematic, teleological and historical interpretation of legal norms).
The issue of corporate liability in judicial practice is considered taking into account the provisions of the current legislative acts, which regulate corporate relations in business companies and in other types of legal entities. In practice, many unresolved problems of legal regulation of corporate liability are revealed, including those, which require amendments to the current legislation.
It is concluded that the doctrinal separation of corporate liability as one of the types of civil liability in a separate category is clearly confirmed in judicial practice and allows more targeted and systematic identification and resolution of relevant problems.

Keywords: legal entity legislation, ccorporate litigation, corporate liability, court practice, corporate relations

For citation. Gutnikov O. V. Development of Corporate Liability in Judicial Practice. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 48—65. (In Russ.) DOI: 10.12737/jrl.2021.073

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Igor I. Shuvalov
State Development Corporation “VEB.RF”, Moscow, Russia, pr_shuvalova@veb.ru

Abstract. The activity of all subjects of law enforcement at any historical stage is associated with a certain measure of discretion. Entrepreneurial activity, whose implementation is accompanied by a constant choice of one or another model of behaviour in a particular situation, is not an exception. The freedom to choose one among several options for decisions is limited by the frames enshrined in law, which gives the law enforcement officer the opportunity to use the instruments of law — taking into account the prevailing life circumstances — on legal grounds. At the same time, when the limits of the margin of appreciation established in the norms of law are unjustifiably “blurred” and do not allow defining clear boundaries of discretion, favourable opportunities are created for various kinds of abuse. Unlimited discretion might also lead to violations of the rights and legitimate interests of third parties, while an excessive restriction of the discretion of business entities might become one of the constraining factors of the country's economic development.
The article is devoted to identifying common problems of determining the discretion of the subjects of entrepreneurial activity. The limits of discretion of business entities are mainly mediated in the norms of public law, including norms of financial, administrative, and antimonopoly law. By establishing restrictions, the state, on the one hand, determines the “rules of conduct” of market entities, on the other hand, implements control over their implementation. In this regard, the author pays special attention to the institutions of licensing, market self-regulation, as well as antimonopoly legislation.
Conclusion: the problems of legislative determination of the limits implied on discretion enjoyed by subjects of entrepreneurial activity are caused by the violation (in certain cases) of the balance of public and private interests.

Keywords: limits, restrictions, discretion, entrepreneurial activity, licensing, self-regulatory organizations, antitrust legislation, control, private and public interests

For citation. Shuvalov I. I. Issues Related to Determining the Limits of the Discretion Enjoyed by Business Entities. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 66—74. (In Russ.) DOI: 10.12737/jrl.2021.074

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Andrey Yu. Kopylov
Law Institute, Tomsk State University, Tomsk, Russia, akop67@mail.ru, https://orcid.org/0000-0002-7140-1245

Abstract. The article examines the legal nature and qualifications of a complex object. It is established that the consolidation of a complex object in civil law without its legal definition and its absence in the list of objects of intellectual rights give rise to discussions regarding its legal nature and place in the system of protected results of intellectual activity, as well as the completeness of the list of complex objects fixed in the law. The lack of certainty in these matters and an unambiguous interpretation of the relevant norms give rise to the practice of ambiguous court decisions.
The study aims at determining the location of a complex object in the system of intellectual property, its relationship with the composite and derivative results of intellectual activity and their subsequent qualification. There are analyses of the opinions and opinions expressed by various authors regarding the nature and qualifications of the investigated legal phenomenon and the approaches of judicial practice in resolving relevant disputes. The article rises the questions of correspondence of the features of a complex object to the criteria for the eligibility of a work as an object of copyright and the possibility of an expanded interpretation of the list of these objects enshrined in law. The author analyses individual complex objects for their compliance with the signs enshrined in law.
Conclusion: a complex object is not just one of the types of works protected by copyright, but an artificial formation, the result of “synthetic creativity” of the activities of several persons, united by the will of the organizer of its creation. Therefore, not any of the complex objects named in the closed list is relevant to this. It indicates the conditionality of this list and the need to exclude it from paragraph 1 of Art. 1240 of the Civil Code of the Russian Federation with the simultaneous inclusion in the content of this norm the qualifying signs of this phenomenon.

Keywords: creative activity, composite works, databases, derivative works, audiovisual work, complex objects, multimedia products, theatrical and entertainment performances

For citation. Kopylov A. Yu. Problems of Qualification of Complex Objects of Intellectual Property Rights. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 75—90. (In Russ.) DOI: 10.12737/jrl.2021.075

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Larisa A. Sannikova¹, Julia S. Kharitonova^2
1State Academic University for the Humanities, Moscow, Russia, 7718609@mail.ru, https://orcid.org/0000-0002-7250-5062
²Lomonosov Moscow State University, Moscow, Russia, sovet2009@rambler.ru, https://orcid.org/0000-0001-7622-6215

Abstract. The article explores the challenges of transforming the legal profession and legal education in the digital age. Many lawyers lack the digital experience and skills that would enable them to solve specific legal problems for companies and clients.
Methods: during the study, both general scientific and specific scientific research methods were used: dialectical, comparative legal, historical, formal legal, linguistic.
Conclusions: it is substantiated that new digital technologies, such as artificial intelligence and blockchain, threats to the legal profession in its traditional form. In these conditions, professional will be in demands, who has not only legal knowledge and skills but also knowledge of digital technologies and skills in working with them. However, legal education does not fully meet the challenges of the labour market, as it is focused primarily on the formation of students’ theoretical knowledge about new digital technologies, and not the formation of digital competencies. To develop common approaches to the selection and typification of digital competences of a lawyer, it is necessary to create a framework of digital competencies of a lawyer. To improve the digital skills of law students, it was proposed to use virtual simulators, a demo of popular digital platforms and LegalTech hackathons as part of the educational process

Keywords: lawyers’ digital competencies, legal education, legal tech, blockchain

Acknowledgments. The reported study was funded by RFBR, project number 18-29-16145 мк.

For citation. Sannikova L. A., Kharitonova J. S. Modern Scientific and Educational Space and Legal Education: a Paradigm Shift in the Context of Digitalization. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 91—103. (In Russ.) DOI: 10.12737/jrl.2021.076

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Lyubov A. Lomakina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, labour@izak.ru

Abstract. The article is devoted to the problems of ensuring the balance of interests of employees, employers and the state in the field of labor relations. The creation of the necessary legal conditions for achieving optimal coordination of the interests of the parties to the employment contract is caused by the fact that the employer and the employee have opposite socio-economic interests on the basis of which the corresponding contradictions arise. To achieve their goals, both parties to the employment contract make compromises, as they are interested in the stability of labor relations. The study of the problem of optimal coordination of the interests of the employee, the employer and the state is of practical importance, related to the prospects for further improvement of labor legislation and the achievement of social peace.
Research methods: the general methodological basis of this research is the general scientific dialectical method of cognition, as well as special legal methods: historical-legal, legal-dogmatic, comparative-legal and the method of legal modeling.
The article analyzes the law enforcement practice related to the terms of warning an employee about the termination of a fixed-term employment contract, and makes a judgment about its excessive loyalty, since the cancellation of the term of warning about the termination of a fixed-term employment contract belongs to the competence of the legislator. The author makes proposals for improving the legislation regulating the indexation of wages and concludes that it is necessary to establish minimum guarantees for the indexation of wages at the legislative level, regardless of the organizational and legal forms and forms of ownership of the employer.

Keywords: balance of interests, social peace, state guarantees, goals, objectives, the role of the state, private and public interests, contractual and state regulation, wage indexation, fixed-term employment contract, judicial practice

For citation. Lomakina L. A. Balance of Interests in Labor Relations. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 104—116. (In Russ.) DOI: 10.12737/jrl.2021.077

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Valentin I. Mikhailov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, vim2007@yandex.ru, https://orcid.org/0000-0002-5871-2612

Abstract. In order to combat corruption and other crimes and other threats, the possibility of secret wiretapping of telephone conversations, the deprivation of liberty of persons suspected of committing a crime, the movement within the controlled supply of goods and items whose turnover is illegal, the use of physical force, special means, weapons, special and military equipment by regulatory legal acts regulating the activities of the relevant activities is provided. As a result, there is an invasion of the constitutional rights of citizens, they can be harmed. At the same time, wiretapping, deprivation of liberty, causing harm to health, and the movement of goods and objects whose turnover is illegal are prohibited by criminal law and are recognized as crimes. Norms-permits and norms-prohibitions in relation to the same subject of regulation should be coordinated not only from the point of view of balancing the interests of citizens and organizations and the interests of combating crimes, but also legally and technically. However, at present, there is no theoretical justification for the principles (rules, methods) of legal and technical coordination of norms-prohibitions and norms-permits.
The purpose of the study is to establish the methods used by the legislator to coordinate normsprohibitions and norms-permits, to open gaps and show ways to eliminate them. This goal was achieved as a result of comparing the permits provided for by normative legal acts to commit acts that are superficially similar to crimes and actually cause harm, with the prohibitions to commit such acts enshrined in the Criminal Code of the Russian Federation.
Scientific research methods (dogmatic, formal-logical, comparative) were used when considering the institutions of criminal law and the provisions of normative legal acts regulating the relevant types of activities within a single system.
Conclusion: to develop the principles (methods, methods) of legal and technical coordination of norms-prohibitions and norms-permits, comprehensive interdisciplinary research is necessary, and the author also makes specific proposals to eliminate the gaps that have been discovered.

Keywords: crime, prohibitions, permits, criminal law regulation, operational and investigative activities, lawful harm, the balance of prohibitions and permits, circumstances that exclude the criminality of the act

For citation. Mikhailov V. I. Coordination of Prohibitions and Permits Established for the Purpose of Combating Corruption as an Interdisciplinary Problem. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 117—130. (In Russ.) DOI: 10.12737/jrl.2021.078

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Larisa A. Krushanova
Institute of History, Archaeology and Ethnology of the Peoples of the Far East, Far Eastern branch, Russian Academy of Sciences, Vladivostok, Russia, larrie@list.ru, https://orcid.org/0000-0002-7521-2628

Abstract. The article examines the trends in the development of crime in the context of the social transformation of the Far Eastern society in the post-Soviet period.
The purpose of the study is to reveal the specifics of the changes in the Far Eastern crime in the context of the transformation of the regional society.
Within the framework of an interdisciplinary approach, transformational theory, coupled with the method of statistical analysis, the trends of crime in the Russian Far East, certain types of crimes (organized crime, drug trafficking crimes, etc.) are considered.
The social transformation of Russian society has become the subject of scientific discourse as a result of the reform of the system of the late 1980s — early 1990s. The emergence of private property, the decriminalization of speculation, moonshine, drug use and prostitution have had a negative impact on social processes and have become factors in the growth of crime. In the Far East, organized crime, violent and economic crimes, including tax crimes, grew at the fastest pace. No less dangerous was the trend of increasing bribery. The third dangerous trend was the increase in drug trafficking crimes.
Conclusion: within the framework of the period under review, three stages can be distinguished: 1991—1994 — the growth of crime both in the Far East and in Russia as a whole; 1994—2003 — the stabilization of the crime rate; 2003-2009 — the general decline both in the region and in Russia as a whole. A distinctive feature of Far Eastern crime was a higher crime rate.

Keywords: crime, society, social transformation, organized crime, bribery, drug crime, the Far East of Russia

For citation. Krushanova L. A. The Transformation of Crime in Russia in the 1990s—2000s (on the Example of the Far East). Journal of Russian Law, 2021, vol. 25, no. 6, pp. 131—147. (In Russ.) DOI: 10.12737/jrl.2021.079

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Khanlar I. Gadjiev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, khanlar9999@gmail.com, https://orcid.org/0000-0001-6002-6075

Abstract. Legal argumentation, which has become an important interdisciplinary field of scientific research in the last few decades, draws its data, assumptions and methods from various disciplines: legal theory, philosophy of law, sociology, logic, argumentation theory, and rhetoric. Legal argumentation is one of the significant functions of a judge while administering justice. It allows the judge to resolve matters of fact and law in order to deliver a reasoned, convincing and fair judicial decision. Judge always correlates the general legal doctrines that he/she applies and the facts of the case under consideration as well as evaluates the nature and significance of the available arguments deciding on their application with regard to the norms of law, the principles of law, the rules of morality and moral values. A crucial task in resolving a case is not just to maintain a fair balance of arguments, but also a dynamic attitude to legal argumentation in the context of current changes. Such an evolution is possible when using methods of comparative and integrative argumentation in order to harmonize the approaches of international and national courts to solving complex legal issues. Coherence, strength, consistency of legal argumentation and its modern approach serve not only the effectiveness of the legal system, but also promote the ideas of judicial development of law.

Keywords: comparative argumentation, rhetoric, coherence, interpretation, justice, law and order

For citation. Gadjiev Kh. I. The Impact of Legal Argumentation on the Effectiveness of International and National Justice. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 148—161. (In Russ.) DOI: 10.12737/jrl.2021.080

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Elena L. Minina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, elmi-dom@mail.ru, https://orcid.org/0000-0003-1978-5330

Abstract. Legislation on the protection and use of natural resources is currently being developed within the framework of individual industries dedicated to each of the resources; general principles and directions of nature management have not been developed and have not found their legal confirmation, based on which further improvement of legislation on land, forest, water, subsoil and the animal world would take place.
The purpose of the article is to identify the main fundamental provisions in the field of regulation of the use and protection of natural resources, and the possibilities of their legislative consolidation. Research objectives: determining the place of natural resource legislation in the system of branches of Russian legislation, identifying trends in its development, the possibilities of codification and the problems arising in this connection; analysis of current legal norms and available statistical data, as well as the views of Russian scientists on the concept of natural resource law and the methods of legal regulation it uses.
Research methods: general scientific methods — generalization, system analysis, synthesis, induction and deduction, and methods of legal science — methods of grammatical, historical, systemic, logical interpretation of legal norms.
It is concluded that the natural resource legislation as a single branch is in the process of its formation. Independent branches of land legislation, forestry legislation, water legislation, subsoil legislation and legislation on wildlife have significant differences in approaches to regulating a number of issues; however, the general tasks of preserving the country's natural resources, their comprehensive, careful use require the development of general principles of nature management. At the same time, the fundamental principle should be the priority of the protection of natural resources over their use, which has not yet been fully embodied in legislative acts. Equally important is the normative definition of priorities in the directions of use of each of the natural resources.

Keywords: natural resources, natural resource legislation, ecological legislation, environmental legislation, land legislation, nature management, principles of legislation

For citation. Minina E. L. Normative Consolidation of Principles of Natural Resource Legislation. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 162—177. (In Russ.) DOI: 10.12737/ jrl.2021.081

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