Contents of issue # 8/2021

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

Prospects of Reengineering of Legal Regulation, Legal Science and Education

Vladimir B. Isakov

National Research University “Higher School of Economics”, Moscow, Russia, visakov@hse.ru

Abstract. The article is an overview of current trends in the development of law, legal regulation, legal science and education. Attention is drawn to changes in the very basis of law, the emergence of new objects and subjects of legal regulation and the related development of means and methods of legal regulation. It is suggested that the main direction of the development of law isn’t turning legal norms into figures, but the socio-legal reengineering of public relations in changing conditions. The necessity to create “digital codes” and the transition from periodic systematization to a system of continuous codification is emphasized. The realities of the coming digital era pose new challenges for legal science. They require not a formal, but a real modernization of legal education.

Keywords: legal regulation, the subject of legal regulation, system of law, legislation, codification of legislation, systemization of legislation, legal equipment, legal science, legal education

For citation. Isakov V. B. Prospects of Reengineering of Legal Regulation, Legal Science and Education. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 5—19. (In Russ.) DOI: 10.12737/ jrl.2021.095

Ontological, Gnoseological and Axiological Basis of Legislative Forecasting: Philosophical and Legal Paradigm

Karen V. Agamirov

Institute of State and Law, Russian Academy of Sciences, Moscow, Russia, agamirow@yandex.ru

Abstract. The study is relevance due to the increasing uncertainty and multiplicity of the formation of all spheres of social life both within the borders of individual states and global scale. Thus, there is an increasing significance of prognostic function of social sciences. Modernizing public administration is unthinkable without developing its predictive component and strengthening the link between forecasting and current, medium- and long-term planning. The article justifies the role of the prognostic function of modern social philosophy. It is designed to summarize the main conclusions of its descriptive and explanatory functions and to build capacity for balanced solutions to utilitarian tasks of social and historical practice.
The research methods are: system-structural analysis, historical and logical methods, method of climbing from abstract to concrete, method of analogy, method of comparative law, formal-legal method, content analysis, legal modeling, extrapolation method.
Brief conclusions: the general-theoretic approach to legal forecasting is based on the concept of scientific foresight, which reveals logical and gnoseological patterns of the future and identifies the potential of a substantive approach to the study of causal relations in the sphere of social relations. Philosophical and legal features researching ontological, epistemic and axiological predicates of legal prediction as a methodological basis for obtaining stochastic characteristics of the future state of statelegal phenomena, The establishment of the future legal system from the perspective of predetermined parameters and its reflection in the structure of knowledge in terms of truth and value for improving the legal system and ensuring the rights and freedoms of the individual, and fixing the limitations of scientific foresight and legal forecasting related to the multi-dimensional nature of the future and alternative models of development, taking into account external factors, determine the role and importance of forecasting as an integral function of social philosophy and the gnoseological function of legal science.

Keywords: legal system, legal forecasting, social philosophy, theory of scientific foresight, dialectic, ontology, epistemology, axiology, verification

For citation. Agamirov K. V. Ontological, Gnoseological and Axiological Basis of Legislative Forecasting: Philosophical and Legal Paradigm. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 20—35. (In Russ.) DOI: 10.12737/jrl.2021.096

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

The Mechanism of Protecting the Rights of Bona Fide Depositors: Its Current State and Prospects for Improvement

Tatiana S. Yatsenko

Southern Federal University, Rostov-on-Don, Russia, tsyacenko@sfedu.ru, https://orcid.org/0000-0002-0876-2224

Abstract. The use of off-balance sheet deposit schemes by Russian banks has led to the emergence of a mechanism in civil law to protect the rights of bona fide depositors. The mechanism that provides that a refund of the deposit in the absence of information about it in the bank accounting system, performs an important social function to protect the weak side of the bank deposit agreement, i.e. the person. However, judicial practice today demonstrates the vulnerability of the mechanism of protecting the rights of off-balance sheet depositors — due to its internal shortcomings — which lead to negative consequences, including the possibility of using this mechanism to commit offenses in the banking sector.
The purpose of the article is to study the risks that accompany the application of measures to protect the rights and legitimate interests of bona fide depositors, to identify ways to overcome them, including foreign experience in this area.
To achieve the necessary theoretical result, the article uses such general scientific methods as analysis, induction and deduction; the composition of private scientific methods includes comparative analysis and a systematic approach to the study of the problem.
In order to solve the problem of off-balance deposits it is necessary to unify in law the requirements for documents confirming the fact of depositing a sum of money to the bank, while establishing an exhaustive list of them and excluding the discretion of the parties. It is also necessary to transfer the function of determining the list and their form to the Bank of Russia, which should ensure uniformity of legal regulation in the field of bank deposits and the possibility of rapid introduction of new technologies — including electronic ones — in this area.

Keywords: bank deposit agreement, off-balance deposit, bona fide depositor, Constitutional Court of the Russian Federation, objective criterion of good faith, subjective criterion of good faith, bad faith, Bank of Russia

For citation. Yatsenko T. S. The Mechanism of Protecting the Rights of Bona Fide Depositors: Its Current State and Prospects for Improvement. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 36—48. (In Russ.) DOI: 10.12737/jrl.2021.097

Formation of “Non-Corporate” Entities During the Perestroika

Dmitry A. Lukashevich

Moscow, Russia, kremlin2024@mail.ru

Abstract. The issue concerning collapse of the USSR has been repeatedly covered in scientific literature, but usually through the prism of the elimination of the state mechanism and the form of state unity. The problem of legal aspects of fundamental economic changes during perestroika is practically not analyzed. It is impossible to imagine the existence of market relations without — primarily — the emergence of commercial organizations. Therefore the expansion of the range of legal entities is of particular interest. Commercial organizations are usually considered as joint-stock companies, which are the most popular legal forms in the market economy, and other legal forms of commercial organizations are often excluded from the attention of researchers.
The purpose of the article is a historical and legal analysis of the formation of non-active commercial organizations during the period of perestroika. To do this, it is necessary to solve the following tasks: to determine the types of non-active non-profit organizations that appeared in the USSR during the period of perestroika; to analyze the legal status of these organizations; to study the practice of their formation.
The study is conducted on the basis of historical-comparative method, it analyzes not only the evolution of the legal status that existed in the USSR legal entities with the most common legal forms — state enterprises (associations) and cooperatives — but also the legal status of introduced non-equity commercial organizations, both at the level of legal acts of the USSR and the Union’s republics.
During the perestroika inactive commercial organizations have been created not only by establishing, but also by changing the legal status of existing legal entities, including state-owned enterprises and cooperatives. There are also new organizational and legal forms of commercial organizations: business partnerships, holdings companies, consortiums and others. A special feature here is that many forms of business associations — which are not currently subjects of law (for example, concerns) — received a legal identity during the period of perestroika. In General, commercial organizations during perestroika period are means of “denationalization” of the economy.

Keywords: commercial organizations, “perestroika”, privatization, holding companies, consortiums, business partnerships and societies

For citation. Lukashevich D. A. Formation of “Non-Corporate” Entities During the Perestroika. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 49—60. (In Russ.) DOI: 10.12737/jrl.2021.098

■ ADMINISTRATIVE AND FINANCIAL LAW. INFORMATIONAL LAW

Monitoring and Control in the Strategic Planning Mechanism

Alexander S. Emelyanov

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, adm1@izak.ru, https://orcid.org/0000-0002-1613-2898

Abstract. The experience of economically developed countries shows that one of the necessary conditions for successful socio-economic development is the presence of an effective strategic planning system. In turn, such a system cannot be implemented without monitoring and control elements integrated into it, which should permeate all stages of state (public) administration and social reproduction. The need for a comparative legal analysis of individual implementation aspects of monitoring and control in the mechanism of strategic planning is due to the fact that an effective system of domestic strategic planning cannot be built without taking into account foreign experience. It should be emphasized here that its formation is obviously “stalling”, which causes the need for new approaches that can be borrowed from abroad.
This study is aimed at establishing individual patterns that reflect the interdependence and interaction of monitoring and strategic planning. The establishment and analysis of these patterns allows us to substantiate the conclusion that strategic planning is one of the basic tools for social consolidation and ensuring trust between society and the state. Since this feature is the one through which the current and prospective processes of social integration and differentiation are revealed, it determines the predictability of the state in the eyes of society. In turn, monitoring and control primarily serve as a means to establish a correspondence between the stated goals of the state’s activities for the relevant period and the results achieved.
Research methods are: general cognitive means (observation, abstraction, induction and deduction, analysis and synthesis, ascent from the abstract to the concrete); formal legal, historical and legal, comparative legal (comparative) methods; logical, structural-functional and factor analysis.
The structure of this article is conditioned by the purpose of establishing individual laws that reflect the interdependence and interaction of monitoring and control in the mechanism of strategic planning, which requires consideration of state and public monitoring, control of the implementation of strategic planning documents, monitoring of indicators of socio-economic development and ensuring national security of the Russian Federation and monitoring the effectiveness of the participants in strategic planning.

Keywords: strategic planning, monitoring, strategic forecasting, monitoring the implementation of strategic planning documents, monitoring of indicators of socio-economic development, and ensuring the national security of the Russian Federation, monitoring the effectiveness of the participants in strategic planning, sphere of trust

For citation. Emelyanov A. S. Monitoring and Control in the Strategic Planning Mechanism. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 61—75. (In Russ.) DOI: 10.12737/jrl.2021.099

The Security Function of Public Finance in the Context of the Constitutional Principles of the Social State

Natalia V. Omelekhina

Novosibirsk State University, Novosibirsk, Russia, n.onv@yandex.ru

Abstract. Issues and threats faced by modern states and the limited financial resources pose a challenge to modern financial law and legislation to form criteria for building an accumulative and distributive legal mechanism of public funds for both stable conditions and crisis situations. In turn, the financial-legal doctrine should be given the task to form the axiological essence of the financial-legal branch, which would constitute permanent value guidelines in dynamically developing social relations both in the conditions of their progressive development and decline, as well as crisis phenomena, which could become part of a single powerful legal architecture of sustainable development of the modern state.
The article uses formal-logical, concrete-historical, structural-functional and other method.
Conclusion. The axiological essence of public finance as an instrument of material support for the tasks and functions of the state is realized through ensuring the balance of constitutional principles, the harmonization of various interests. In financial-legal regulation, this is achieved through the formation of priorities, the hierarchy of provided needs, the rationing of costs for such needs and determining their volume and size. On the one hand, such a function of the financial activity of the state and, as a result, the principle of financial law can be designated as social investment, implemented through positive commitment, the formation of property obligations and obligations of the human to the state and the state to the human. On the other hand there are counter-claim, the formation of property rights, the rights of the state to the human and the rights of the human to the state. This is seen as the essential basis and value of financial law as an independent branch of law in the system of branches of Russian law, as an instrument for resolving and preventing social conflicts by providing material balance of interests. At the same time, being included in the system of branches of Russian law, in turn, it is impossible to exclude the counter-impact of financial law on the system of constitutional values and principles, especially in terms of the formation of their hierarchy and balance, and possibly their subsequent modification and transformation. This approach should be formulated as one of the principles of legal regulation of the industry, which would find its implementation in the institutional structures of financial law, taking into account the specifics of the regulated types of public relations.

Keywords: social state, socially oriented market economy, functions of the state, constitutional principles, principles of financial law

For citation. Omelekhina N. V. The Security Function of Public Finance in the Context of the Constitutional Principles of the Social State. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 76—85. (In Russ.) DOI: 10.12737/jrl.2021.100

■ CRIMINAL LAW AND CRIMINOLOGY

Implementation of the Economic Security Strategy of the Russian Federation until 2030 and Its Role in Ensuring National Security: Criminal and Legal Aspect

Oleg A. Zaytsev, Stanislav L. Nudel

Oleg A. Zaytsev1, Stanislav L. Nudel2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, crim@izak.ru
1https://orcid.org/0000-0002-8706-903X
2https://orcid.org/0000-0001-6699-5694

Abstract. The transformation of the modern criminal policy of the Russian Federation is directly related to the economic support of state sovereignty, the stability of the legal regulation of economic relations, the formation of a fair law enforcement system that allows creating appropriate conditions for conducting entrepreneurial and other economic activities. The implementation of the key priorities, goals, and objectives of strategic planning of the country’s socio-economic development, formulated in the national security concept and other doctrinal documents, requires further improvement of the existing structures of economic crimes in conjunction with the procedural forms of criminal proceedings.
The purpose of the study is to identify the special role of the Economic Security Strategy of the Russian Federation until 2030 in ensuring national security and the specifics of its implementation in the field of countering economic crimes.
Research methods: 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.
Conclusion: the development of conceptual theoretical foundations that perform methodological functions in relation to the problems of ensuring economic security is a necessary condition for the implementation of the Economic Security Strategy of the Russian Federation until 2030. This will make it possible to significantly update the strategic planning documents in the future, modernize the means of criminal legal influence and the procedures of criminal proceedings, considering national interests and the emergence of new threats and challenges arising during socio-economic transformations.

Keywords: economic security, national security, criminal policy, criminal law, criminal procedural law, measures of criminal legal impact

For citation. Zaytsev O. A., Nudel S. L. Implementation of the Economic Security Strategy of the Russian Federation until 2030 and Its Role in Ensuring National Security: Criminal and Legal Aspect. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 86—103. (In Russ.) DOI: 10.12737/jrl.2021.101

■ INTERNATIONAL AND INTEGRATION LAW

International Judicial Interpretation of an International Treaty: Current Trends

Anatoly Ya. Kapustin

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

Abstract. The article describes the international judicial interpretation of an international treaty as an independent type of international interpretation activity. It is noted that the practice of interpreting an international treaty has a long history, dating back several millennia, and the doctrine of interpreting an international treaty begins to form in the XVII—XVIII centuries. In the second half of the XX century, interpretative provisions were codified in the Vienna Convention on the Law of Treaties. The treaty legitimation of the rules of interpretation did not eliminate the doctrinal discussions about the scope of its application, the international legal nature of these rules, the list of subjects of interpretation of an international treaty.
The article examines the doctrinal positions on the recognition of the Vienna Rules as norms of customary international law. The article analyzes the legal position of the International Court of Justice on the perception of the Vienna Rules as norms of customary international law, as well as the treaty practice of individual states and international organizations, in particular the EU, which identifies the Vienna Rules as ordinary rules of interpretation of public international law. Reference to the practice of the CIS and the EAEU, as well as their member states, including the treaty practice of the Russian Federation, does not currently allow us to find confirmation of the trend of universal recognition of the Vienna Rules as customary norms of international law. The article concludes that the practice of the International Court of Justice and the EU and its member states indicates the development of the Vienna Rules in the direction of the formation of prerequisites for the formation of a universal standard for the interpretation of an international treaty.

Keywords: international treaty, interpretation, Vienna Convention on the Law of Treaties, Vienna Rules, International Court of Justice, customary rules of international law

For citation. Kapustin A. Ya. International Judicial Interpretation of an International Treaty: Current Trends. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 104—117. (In Russ.) DOI: 10.12737/ jrl.2021.102

Legal Bases and Integration Trends in the Caspian Region. The Caspian Five: History and Prospects

Talia Y. Khabrieva, Rashad A. Kurbanov

Talia Y. Khabrieva1, Rashad A. Kurbanov2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
1office@izak.ru, https://orcid.org/0000-0002-6190-6338
2Kurbanov.RA@rea.ru

Abstract. The article analyzes the legal basis of cooperation between the states of the Caspian region — Russia, Azerbaijan, Kazakhstan, Turkmenistan, and Iran. With the signing of the Convention on the Legal Status of the Caspian Sea in 2018, relations between the five countries have reached a qualitatively new level. If with the collapse of the USSR, the search for mutually beneficial forms of cooperation has only just begun to be identified, especially after the former republics of the USSR gained independence, then recent years have been characterized by a centripetal orientation, which has led to a comprehensive international legal regulation of cooperation between the Caspian states, the central place in which is occupied by the 2018 Convention, which unites several multilateral and bilateral treaty formats. The implementation of international legal acts that form the core of cooperation between the Caspian states is accompanied by the harmonization of their national legislation, which suggests the formation of a complex regulatory legal complex that includes both the norms of international law (the 2018 Convention and related agreements) and the norms of the domestic legislation of the Caspian states, which is defined as "Caspian law". A comparison of the concept of “Caspian law” and “Arctic law” shows that the development of "Caspian law" has not yet reached a sufficient degree of maturity to manifest the characteristics of a new legal “formation”. Research methods: general scientific methods of cognition (dialectical, analysis, synthesis, etc.), sociological, historical, comparative legal, formal legal, etc.

Keywords: Caspian region, convention, scientific and technical cooperation, legal status, Caspian five, economy, military-political cooperation, Caspian law

For citation. Khabrieva T. Y., Kurbanov R. A. Legal Bases and Integration Trends in the Caspian Region. The Caspian Five: History and Prospects. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 118—130. (In Russ.) DOI: 10.12737/jrl.2021.103

■ SCIENTIFIC FUNDAMENTALS OF COUNTERING CORRUPTION

The Legal Nature of the Register of Persons Dismissed Due to Loss of Confidence

Ekaterina V. Cherepanova, Vladimir V. Matveev

Ekaterina V. Cherepanova1, Vladimir V. Matveev2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, anticor@izak.ru
1https://orcid.org/0000-0002-0964-1002
2https://orcid.org/0000-0002-0480-9101

Abstract. The article deals with legal and organizational issues related to the functioning of the register of persons dismissed due to loss of confidence, which was introduced and integrated into the federal state information system in the field of public service, created to ensure transparency of the public service management system, in 2017. The reasons for introducing the register of persons dismissed due to loss of confidence into the legislation, the current state of legal regulation, as well as the place and role of the register in the system of measures aimed at preventing and combating corruption are investigated. According to the results of the study, the authors conclude that the register of persons dismissed due to loss of confidence plays an important role in preventing corruption offenses. At the same time, it is necessary to define its legal nature more clearly to understand what consequences will be borne by persons included in the designated register. The informing component of the registry is clearly not enough to ensure its preventive function. It seems that the use of the register of persons dismissed due to loss of confidence for committing a corruption offense will be more effective if the entry of a person into such a register is accompanied by the deprivation of his right to hold positions of state and municipal service for a certain period.

Keywords: corruption, register, loss of confidence, information, state civil service, municipal service, anti-corruption restrictions, prohibitions, and obligations

For citation. Cherepanova E. V., Matveev V. V. The Legal Nature of the Register of Persons Dismissed Due to Loss of Confidence. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 131—139. (In Russ.) DOI: 10.12737/jrl.2021.104

■ DISCUSSION

The Imbalance of the Quantitative Ratio of Legal Research: Causes and Consequences

Vladimir A. Boldyrev

Perm State National Research University, Perm, Russia, vabold@mail.ru, https://orcid.org/0000-0002-1454-6886

Abstract. Modern observation of the practice of applying the norms of private law is carried out from an unproductive angle. Researchers do not so much identify objective patterns of law enforcement, as they formulate their subjective opinion about them. Examples (frequent cases) are substituted for deep analytical work.
The purpose of the study is to determine the reasons for the different frequency of using statistical methods for different specialties.
Research methods: formal-logical, statistical, comparative. An index of the objective conditionality of the use of statistical methods in legal research is proposed. The ratio of indices for the most popular scientific specialties is demonstrated.
Conclusion: the choice of statistical methods of conducting scientific work by a particular researcher is determined by two main quantitative parameters of conducting research work by the entire scientific community in the relevant specialty: a) the breadth of the sector of the analyzed legal reality, including the volume of legislation regulating public relations; b) the number of researchers working in the relevant field. Increase in enrollment for postgraduate and doctoral studies in legal scientific specialties that are not related to the criminal cycle, i.e., shifting priorities in research will have a natural consequence of the humanization of society, law and law enforcement. The application of minimal efforts to influence society during the period of training of specialists, which precedes the definition of the boundaries of the scientific community according to a formal criterion (awarding academic degrees), can bring a great positive effect for a significant, but foreseeable distance of time. A proposal is made to stimulate the use of statistical methods in conducting legal research by clarifying the formulas of specialties and areas of research in the passports of scientific specialties.

Keywords: humanization of law, civil law, criminal law, criminal procedure, legal statistics, statistical methods, scientific specialty, rubricator, big data

For citation. Boldyrev V. A. The Imbalance of the Quantitative Ratio of Legal Research: Causes and Consequences. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 140—155. (In Russ.) DOI: 10.12737/jrl.2021.105

■ LEGAL LIFE. CHRONICLE

Health Protection in the Focus of Medical Legislation  Pdf 16

Fatima V. Tsomartova

Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, social3@izak.ru

For citation. Tsomartova F. V. Health Protection in the Focus of Medical Legislation. Journal of Russian Law, 2021, vol. 25, no. 8, pp. 156—160. (In Russ.) DOI: 10.12737/jrl.2021.106

Adobe pdf 24  Full text in Russian

The Works of Professor I. Ragimov as the Basis of the Modern Understanding of the Doctrine on Criminality and Punishment  Pdf 16

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