L. Yu. Grudtsina
Ludmila Yu. Grudtsina
Northwestern Institute (branch), Kutafin Moscow State Law University, Vologda, Russia, email@example.com, https://orcid.org/0000-0001-7731-724X
Abstract. The article analyzes the conceptual idea expressed by the scientists of the Institute of Legislation and Comparative Law under the Government of the Russian Federation on “cyclic legal arrays”, proposed by T. Y. Khabrieva and N. N. Chernogor. The author of the article explores issues arising due to transformation of law in the new digital reality. She justifies her understanding of the potential directions of law development through possible application of the concept of additive technologies and a multidisciplinary approach to the problem of determining a new place and role of law in the world as an alternative to the concept of “cyclic legal arrays”. The essence and meaning of the author’s idea of additive technologies in law is to connect together elements (norms of law, institutions, and even branches of law) that previously did not form a single system and did not interact comprehensively or interacted fragmentally, if the conditions are “ripe” for this and if their synthesis can give a big breakthrough for the new system in which they are united. It can give new qualitative characteristics to the united elements themselves. For many years, Russian legal science has followed the path of splitting the “legal platform” into separate sectors, separating them into branches of law, sub-sectors and institutions. Digitalization changes the “coordinate system”. The question of the possible application of divergence (along with convergence) in law is investigated. This paper attempts to answer the questions: how long will the “tops of cyclic arrays” (legal supremacy) last; what role does the “speed” of the digitalization of law and the economy play and what threats do it pose? The author offers some original reflections stating that convergent branches of law are an intermediate stage to the unification of the socio-humanitarian sphere, a stage to the mature and well-thought-out unification of branches, sub-sectors and institutions of law under the influence of the accelerating processes of digitalization.
Keywords: law enforcement, cyclical legal array, divergence of law, branch of law, digital economy, additive technologies, rule of law
For citation. Grudtsina L. Yu. The Digital Future of Law: On the Issue of Additive Technologies. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 5—14. (In Russ.) DOI: 10.12737/jrl.2021.082
M. Yu. Osipov
Michail Yu. Osipov
International Police Academy, International Police Association Russian Section, Tula, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-6982-3668
Abstract. The article discusses the features of assessing the methodological potential of some concepts of legal thinking.
The purpose of the study is to determine the characteristics and main components of assessing the methodological potential of some concepts of legal thinking in modern legal science. The research tasks are: to define the concept of “methodological potential” of the concept of understanding law; to determin the features and criteria for assessing the methodological potential of the concepts of legal thinking; to determin the nature of the concepts of understanding law; to analyze the concepts of understanding law from the view of their verifiability (confirmation of these concepts by empirical facts, as well as the ability to explain the laws of the phenomena of the legal world).
The article uses various research methods: system analysis, functional analysis, synthesis, induction, deduction, abstraction, generalization, etc.
During the study the following conclusions — which have elements of scientific novelty — are made: 1) the methodological potential of the concepts of understanding law should be understood as the ability, with the help of any given concept of understanding the law, to solve a certain range of research problems facing modern legal science; 2) assessment of the methodological potential of any given concept of understanding law involves clarifying the range of tasks that modern legal science faces and which can / cannot be solved using the provisions of a particular concept of understanding law; 3) none of the existing concepts of law can claim universality, because, being a theoretical and philosophical basis for a particular methodology for the study of law and legal reality, it defines a class of problems that can be solved with the help of any given methodology for the study of legal reality; at the same time, there is another class of research tasks that require the use of a different methodology for the study of law with a different theoretical and philosophical basis and a different concept of understanding law.
Keywords: science, postmodernism, jurisprudence, philosophical foundations, concepts of legal understanding, substantial aspect, functional aspect, discursive aspect, substantial-functionaldiscursive analysis, legal regulation, methodological potential, open and closed theories, dialogue, modern science
For citation. Osipov M. Yu. On the Assessment of the Methodological Potential of Some Concepts of Legal Thinking in Modern Legal Science. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 15—30. (In Russ.) DOI: 10.12737/jrl.2021.083
A. E. Postnikov
Alexander E. Postnikov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com
Abstract. The voters and candidates for official positions are the main participants of any elections. In this regard the overarching aim of electoral laws is to regulate their rights and obligations, as well as the procedures for their participation in elections. At the same time, the democratic potential of the election cannot be achieved automatically as a result of actions made by civil society representatives only. Holding latter-day elections requires the involvement of significant material, financial and information resources and organizational and technical efforts. These tasks cannot be solved without the participation of public authorities. The preparation of elections by public authorities is socially justified and constitutionally conditioned. At the same time, the electoral practice of many countries, and especially those that are in the process of democratic transformation, shows that public authorities can not only create equal conditions for the election activities of candidates, political parties, including safeguards for the expression of the will of voters and counting votes, but also make certain and often very effective efforts that affect the results of election campaigns. The less developed civil society and its institutions are, the greater the role of public authorities in the electoral process. Therefore, it is crucially important to determine what role public authorities should play in the electoral process with the intent that civil society is well positioned to determine the agenda, content and course of election campaigns. Based on the study of the previous experience — collected by Russian legislation on elections — and taking into account the criteria of free elections established in international legal documents, the article evaluates the current state of Russian electoral legislation in this context. It is pointed to the need for the creation of additional guarantees aimed at the inadmissibility of the influence of public authorities on the election results. Measures to that end should be aimed both at improving the legal and political system of the country, and optimizing the electoral legislation and responsibility for its violation.
Keywords: free elections, self-organization of voters, civil society, political system, public authorities, election commissions, taking advantages of official status, political corruption, deregulation of elections
For citation. Postnikov A. E. Public Authorities as Participants of the Electoral Process. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 31—40. (In Russ.) DOI: 10.12737/jrl.2021.084
S. V. Gunich
Sergey V. Gunich
Far Eastern Law Institute, Ministry of Internal Affairs of the Russian Federation, Khabarovsk, Russia, firstname.lastname@example.org
Abstract. In the article, on the example of the consistency and accuracy of legal terminology, the requirements for the law-making activity of a modern state are subjected to scientific understanding. Through the analysis of constitutional and legal norms, the author points out the discrepancy between the terms and definitions used in the regulation of public relations and their literal meaning, both in form and in content. Cases of violation of their interconnection, interaction and consistency in the legal system of Russia are noted. Particular attention is paid to the consideration of certain norms of the Constitution of the Russian Federation, the procedure for introducing amendments into it, as well as some areas of development of its provisions in national legislation. An assumption is made about the inadmissibility of the terminological imbalance achieved through a hasty updating and modernization of the provisions declared in it. Attention is drawn to certain inconsistencies in the legal terminology used in the normative legal acts of public authorities, whose activities are aimed at security and protection of the constitutional order, human and civil rights and freedoms, and ensuring the coordinated functioning of the state apparatus. A tendency that manifests itself in this way is characterized from the position of a constraining factor on the path of the development of Russia as a legal democratic state that ensures the functioning of civil society institutions. The author expresses his opinion and describes the ways to eliminate the identified contradictions. It is concluded that in the current conditions, as never before, all rule-making activities in the state should be focused on the ability of any member of a society to perceive correctly the instructions addressed to him without any semantic discrepancies used as a result of the conflicting formalization of legal categories.
Keywords: lawmaking, legal system, rule of law, consistency, accuracy, categorical apparatus, definition, legal structure, constitutional reform, senator, legislative process, executive power, public associations, referendum, civil society
For citation. Gunich S. V. Consistency and Accuracy of Juridical Terminology in the Sphere of Constitutional-Legal Regulation. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 41—53. (In Russ.) DOI: 10.12737/jrl.2021.085
V. G. Istomin
Valery G. Istomin
Institute of Philosophy and Law, Ural Branch, Russian Academy of Sciences, Ekaterinburg, Russia, 5555VS@rambler.ru
Abstract. In modern conditions it becomes important to protect violated private property interests of individual economic entities and consumers, which can be carried out, first of all, through the use of appropriate civil-legal methods of protection. Agreements restricting competition, being a fairly widespread violation of competition law, nevertheless, often do not entail those adverse property consequences for their participants, which they, like any other illegal actions, should have entailed. This becomes possible due to the insufficiently effective practical implementation of the provisions of civil legislation in relation to them. These circumstances necessitate the analysis of the legal nature of anticompetitive agreements, as well as the civil and legal consequences of their conclusion and execution.
The purpose of this study is to analyze the application of civil law norms to agreements restricting competition and the subsequent actions of their participants to implement the terms of these agreements, including the possibility of using certain methods of protecting civil rights. The objectives of the study are: characterization of the agreement restricting competition as an invalid transaction, an analysis of transactions and other actions made on the basis of this agreement by its participants, consideration of certain methods of protecting the rights of subjects affected by its conclusion and execution.
Research methods are the method of formal-logical interpretation, systemic and comparative analysis.
Based on this study the author concludes that the agreements restricting competition are classified as invalid civil-legal transactions. What is more, closing a transaction in pursuance of such contracts is also void. At the same time, it is noted that both the anticompetitive agreement itself and the actions committed in pursuance of its conditions serve as grounds for the application of appropriate methods of protecting the civil rights of victims. We are talking about the return of the parties to their original position, the recovery of unjust enrichment or losses from the party to the anti-competitive agreement. Also, the work offers some approximate options for determining the losses caused to the victims and justifies the possibility of bringing the participants of the anti-competitive agreement to joint liability. Finally, it makes proposals to improve legislation in the direction of protecting the private interests of subjects.
Keywords: agreement restricting competition, invalid transaction, losses, unjust enrichment, civil liability
For citation. Istomin V. G. Civil Consequences of Making and Execution of Agreements Restricting Competition. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 54—68. (In Russ.) DOI: 10.12737/jrl.2021.086
A. A. Kuznetsov
Alexander A. Kuznetsov
Moscow, Russia, AAKuznetsovlaw@yandex.ru
Abstract. One of the fundamental rights of creditors is the right to receive information about the debt reorganization, as this allows them to effectively protect their rights. At the same time, Russian law is characterized by an almost complete lack of requirements for disclosure of information on such reorganization (Article 60 of the Civil Code). In order to understand the correctness of the Russian approach, the article studies foreign experience in regulating the right of creditors to be informed on the reorganized debtor.
As a result, it is concluded that foreign countries is characterized by a very different approach on this issue. Further, based on studying the Russian doctrine, the author comes to the conclusion that the Russian regulation is adequate in general and the main problems should be solved not at the level of rule changes, but by developing technical means of information distribution. At the same time, in order to achieve a more complete possibility for the creditors to use their rights, the article supports the proposal that the moment of notifying the creditors should be postponed to the date before the decision on reorganization is made, so that the creditors can declare their claims before the decision on reorganization is made, which can allow the company to know in advance about potential claims, and which in turn is favorable for the participants who make a decision with a fuller understanding of its financial consequences.
Keywords: company law, reorganization of companies, protection of creditors, right to information
For citation. Kuznetsov A. A.The Right of Creditors to Information on Reorganisation. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 69—80. (In Russ.) DOI: 10.12737/jrl.2021.087
S. L. Nudel
Stanislav L. Nudel
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com, https://orcid.org/0000-0001-6699-5694
Abstract. Based on doctrinal approaches to the definition of criminal policy, the article analyzes the current trends in the formation and implementation of the criminal policy of the Russian Federation in the field of financial security.
The aim of the study is to develop conceptual provisions of the theory of ensuring financial security through criminal law impact and to prepare a set of scientifically substantiated proposals for improving criminal policy in order to ensure the financial security of the Russian Federation. When this goal is being implemented, special attention is paid to solving problems related to the issues of criminalization and penalization of socially dangerous acts in the context of ensuring financial security, determining the direction of these processes, as well as determining the forms of criminal policy in the field of financial security and measures to improve it.
This study is based on the dialectical method of cognition, general scientific methods of abstraction, analysis and synthesis, comparison and generalization, as well as special legal methods: comparative legal, logical legal, etc.
The article substantiates the conclusion that financial security, as a necessary level of national security in the financial sphere, that is, the state of stability (sustainability) and protection of national finances and financial institutions from internal and external threats, ensuring the development of the economy and the achievement of the vital goals of the individual, society and the state, should be provided also by criminal-political measures as a reaction to the most dangerous threats.
Keywords: financial security, criminal policy, crime, criminalization, decriminalization, penalization, depenalization
For citation. Nudel S. L. Criminal Policy of the Russian Federation in the Field of Ensuring Financial Security. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 81—93. (In Russ.) DOI: 10.12737/ jrl.2021.088
V. K. Andrianov, Yu. E. Pudovochkin
Vladimir K. Andrianov1, Yury E. Pudovochkin2
1, 2Russian State University of Justice, Moscow, Russia
Abstract. The Russian legislator showed a certain consistency in terms of the development of declarative prescriptions provided for in Part 2 of Article 2, Part 1 of Article 6, Part 2 of Article 7 of the Criminal Code of the Russian Federation, when he renamed Section VI of the Criminal Code of the Russian Federation into “Other measures of a criminal legal nature”. At the same time, there is no definition of measures of a criminal legal nature, inconsistency of terminology (their application for the commission of crimes and their application to persons who have committed crimes) and legislative decisions (regarding confiscation), as well as inconsistency of the provisions of criminal legislation (part 2 of Article 2 and paragraph “a” of Part 1 of Article 97 of the Criminal Code of the Russian Federation), caused more questions than answers. A reflection and evidence of such uncertainty is the growing scientific controversy on most issues of the legal nature of criminal law measures, as well as a variety of proposals for the modernization of their system. Under these conditions, understanding the nature and development of criminal-legal measures from the standpoint of exclusively special-legal and, moreover, technical-legal content seems clearly insufficient. The importance of the problem, which determines the overall configuration of the branch of criminal law, requires the identification of sociolegal patterns that express the development and functioning of a differentiated system of criminal law measures.
The methodological basis of the research is the principles of the dialectical method of cognition (objectivity and comprehensiveness of the consideration of the object, historicism, the universal connection of phenomena, systemicity), as well as general scientific (analysis, synthesis, induction, deduction, description, classification) and private scientific (historical-legal, sociological, systemstructural and formal-logical) methods.
The conducted research made it possible to identify a set of laws characterizing the socio-political and special-legal genesis, as well as the functioning of the system of criminal-legal measures that allow a deeper understanding of their nature, current state and development prospects. Keywords: patterns of criminal law, punishment, measures in criminal law, alternatives to criminal repression, probation, confiscation of property, court fines, mandatory medical measures, mandatory educational measures
For citation. Andrianov V. K., Pudovochkin Yu. E. Patterns of Development and Functioning of the System of Criminal Law Measures. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 94—109. (In Russ.) DOI: 10.12737/jrl.2021.089
L. K. Tereshchenko
Lyudmila K. Tereshchenko
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, LKtereshenko@yandex.ru
Abstract. The directions of development of the legislation in the field of rendering state and municipal services on the basis of the register model in the conditions of transition to the digital economy are considered. The analysis of the sequential transition to the maintenance of registers and the registration actions performed in the registers in digital form without their duplication in documentary form, the legal consequences of such a transition is carried out.
The purpose of the study is to analyze the measures for the transition to the register model of public services and the legal consequences of such a transition. The general trend and direction in the development of the provision of electronic services is their provision without the need for personal visits to government agencies, which is provided by the registry model. The national Program “Digital Public Administration” provides for the transition to electronic interaction of citizens and organizations with state bodies, including robotization, and the Program also contains a position on the implementation of a register model for the provision of state and municipal services in electronic form. Currently, such a transition is already underway; first of all, we are talking about the transition to the registry model of licensing procedures in a number of areas of activity, next in line — a large-scale transition to the registry model when obtaining permits for certain actions. The transition to the register model does not apply to state and municipal services, the result of which is not the emergence, change, termination of the rights and obligations of the applicant and other persons. The main point is that the information about the availability of licenses placed in the license registers is open and publicly available to any entity.
The methodology is based on classical general scientific and traditional methods of legal science.
The key issue of the functioning of the register is a clear definition of the purpose of its creation and maintenance, and the establishment of the legal consequences of entries in the register. The article analyzes the procedure for providing information, the conditions for obtaining information from registers, and the legal validity of records. It is shown that these issues are not always clearly resolved and their solution differs significantly, which depends on the goals of information collection, which is primarily focused on ensuring the performance of the functions of state bodies.
Keywords: registry model, public services, digital economy, registers, state information systems, licensing, electronic form, data management
For citation. Tereshchenko L. K. The Register Model of Rendering State and Municipal Services. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 110—120. (In Russ.) DOI: 10.12737/ jrl.2021.090
M. O. Diakonova
Maria O. Diakonova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0001-7528-0981
Abstract. The harmonization of procedural legislation of various legal systems is one of the modern trends in the development of justice. One of the newest manifestations of such harmonization is the Model European Rules of Civil Procedure, developed in 2020 by the European Institute of Law together with the International Institute for the Unification of Private Law (UNIDROIT). The Model Rules accumulate the best legislative practices implemented in European jurisdictions, including in terms of regulating the institute of evidence. It is in this area that the differences in different legal systems — Anglo-Saxon and continental — are most acute, which complicates the process of universalization of legal proceedings and the convergence of various legal systems. The article analyzes the attempt to unify the norms on the distribution of the evidential burden implemented in the Model Rules, which is designed to assess the possibility of implementing individual rules into the national system of procedural law.
Based on the comparative legal method of research, the norms on the distribution of the burden of proof included in the Model Rules and similar approaches used in Russian legislation and judicial practice are analyzed. The use of the formal legal method of research allowed us to identify the features of procedural institutions and sub-institutions, to classify them and interpret the content of legal regulations, in particular: the right to access evidence held by the other party, the differentiation of the burden of presenting evidence (onus proferendi) and the burden of proof (onus probandi), ways of distributing the burden of proof by the parties themselves.
The author comes to the conclusion that it is useful to implement the rules on granting each party the right of access to the evidence held by the other party or by persons not participating in the case, if the evidence is relevant to the case, can be reasonably identified and is not confidential. At the same time, it is not consistent for a developed law and order to refer to the fact that the party to the trial is not obliged to contribute to the success of his opponent’s case.
Keywords: harmonization of procedural legislation, Model European Rules of Civil Procedure, burden of proof, burden of proof, burden of proof distribution, standards of proof, agreement on the circumstances of the case
For citation. Diakonova M. O. Harmonization of the Rules on the Distribution of the Evidential Burden on the Example of the Model European Rules of Civil Procedure. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 121—136. (In Russ.) DOI: 10.12737/jrl.2021.091
M. M. Nenashev
Maksim M. Nenashev
Volgograd, Russia, email@example.com
Abstract. The article is devoted to issues related to changing the elements of the claim. Using practical examples, the gap between the current legislation and the practice of its application is justified. It is necessary to distinguish and further develop such institutions as “changing the claim” and “clarifying the claim”. In some cases, the clarification of the claim may constitute an abuse of the right. Evasion from clarifying an unclear claim should also be qualified as an abuse of the right on the part of the plaintiff. In this regard, it is proposed to fix in the civil procedural legislation a mechanism that could encourage the plaintiff to clarify the vaguely formulated requirements. The procedure of actions is also proposed in cases when the plaintiff, under the guise of clarifying the claim, actually changes its element or reduces the claims, refuses part of the claims. The ban on changing the claim in the appellate instance generally meets the requirement of rigidity of the procedural form. However, in some cases, this prohibition objectively violates the rights of the plaintiff and prevents the correction of judicial errors made by the court of first instance. In this regard, it is proposed to expand the possibilities of changing the claim in the appellate instance.
Keywords: claim elements, claim amend, clarification of the claim, procedural abuse, court of appeall
For citation. Nenashev M. M. Changing the Claim: Some Practical Questions. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 137—149. (In Russ.) DOI: 10.12737/jrl.2021.092
V. V. Frolov
Vasiliy V. Frolov
Pskov State University, Pskov, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-4182-3703
Abstract. By the Decree of the Presidium of the Supreme Soviet of the USSR on May 24, 1955, the Regulation on Prosecutor’s Supervision in the USSR was approved. It officially placed the activities of state security bodies during the investigation and preliminary investigation under the supervision of the prosecutor’s office.
The purpose of the study is to consider and analyze the features of the prosecutor’s office’s supervision of the investigative and rehabilitation activities of the USSR state security bodies in the late 1950s — early 1960s in the Pskov region. The main attention in this article is paid to the supervision of the prosecutor’s office over the activities of KGB investigators at the regional level to consider complaints about the rehabilitation of Soviet citizens convicted during the “great terror” (1937—1938).
The work is written on the basis of archival sources first introduced into scientific circulation. At the same time, most of the archival files and materials that contain information about the activities of state security agencies, their cooperation with other law enforcement agencies, are currently classified.
Conclusion: the supervision of the Prosecutor’s Office over the investigative and rehabilitation activities of the KGB bodies in the late 1950s — early 1960s was of great importance for the entire legal system of the Soviet Union. During the “thaw”, the prosecutor’s office and state security agencies, despite a number of contradictions among themselves, managed to establish such cooperation on the issue of considering complaints about the rehabilitation of Soviet citizens convicted during the “great terror”, which allowed for the rehabilitation of a large number of people who were innocently injured in 1937—1938 as a result of Stalin’s repressions.
Keywords: Prosecutor’s Offices, state security agencies, rehabilitation, totalitarian regime, the “Thaw”
For citation. Frolov V. V. Supervision of the Prosecutor’s Office over the Investigative and Rehabilitation Activities of the State Security Bodies of the USSR in the Late 1950s — Early 1960s (Based on the Materials of the Prosecutor’s Office of the Pskov Region). Journal of Russian Law, 2021, vol. 25, no. 7, pp. 150—165. (In Russ.) DOI: 10.12737/jrl.2021.093
T. Yu. Sataeva
Tatiana Yu. Sataeva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com
Abstract. Currently, one of the main mechanisms for implementing the state policy in the field of environmental development is the state environmental monitoring. The result of the organization and conduct of state environmental monitoring is to obtain information about the state of the environment, which is used in the implementation of environmental protection measures, the implementation of state environmental supervision, making forecasts of socio-economic development, as well as when making decisions on the implementation of planned economic and other activities.
The lack of unified approaches to the interpretation of the concept of state environmental monitoring, its functions and legal characteristics makes it necessary to study the legal nature of this process. The article considers the content of the concept of state environmental monitoring, its main functions and legal characteristics, which allow us to understand the place and role of state environmental monitoring in the mechanism of environmental law.
Keywords: legal nature, state ecological monitoring, ecological monitoring, functions of state ecological monitoring, legal characteristics of state ecological monitoring
For citation. Sataeva T. Yu. The Legal Nature of State Ecological Monitoring. Journal of Russian Law, 2021, vol. 25, no. 7, pp. 166—177. (In Russ.) DOI: 10.12737/jrl.2021.094