Contents of issue # 2/2022

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

Bioneuroconstitutionalism and Dignity: Theoretical Foundations, Dialogue of Ethical and Legal Requirements and Prospects for Interaction (Part I)

I. A. Kravets

Igor A. Kravets
Novosibirsk State University, Novosibirsk, Russia, kravigor@gmail.com, https://orcid.org/0000-0001-5291-7177

Abstract. The article examines bioconstitutionalism and neuroconstitutionalism as theoretical and constitutional-legal categories in modern multifaceted jurisprudence; scientific approaches to understanding dignity in bioethics, bio-law and neuro-law, its role in the formation of the humanistic, existential and bioethical core of modern bioneuroconstitutionalism; conceptual, international legal and constitutional aspects of the formation of a complex meta-legal and intersectoral institution of bioneuroconstitutionalism. The author undertakes the research to critically evaluate the ethical and legal foundations of bio-law and neu-rolaw; it reveals the problem of the limits and significance of the constitutionalization of bio-rights and neuro-rights in the modern doctrine of constitutionalism and human rights.
The aim in this article is to study the meaning and prospects of the formation of bioneuroconstitutionalism as a legal dialogue focused on new human rights (biosocial and bioethical living creatures) between human dignity and human personality, on the one hand, and the achievements of bioethics, biomedicine, and neuroscience, on the other hand. The article considers dignity as a humanistic, existential, and bioethical core in the structure of bioneuroconstitutionalism.
Part I of the article considers bioneuroconstitutionalism as strategic constitutionalism in the context of the convergence of law with new technologies and practices, the development of human civilization during the Anthropocene period; the article also analyzes the bioethical, neuroethical and legal foundations of bioneuroconstitutionalism, the relationship between individual autonomy and the principle of solidarity, and suggests the doctrinal concepts of “bioconstitutionalism” and “neuroconstitutionalism”.
The author uses the discursive approach and critical rationalism in legal research, methods of dialectics, legal hermeneutics, and legal engineering, which allow to reveal the legal, biosocial, and bioethical nature of human dignity and constitutionalism in the context of the risks associated with posthumanism and transhumanism.
The conclusions are: the nature of bioconstitutionalism and neuroconstitutionalism is formed under the influence of the ideas of bioethics, posthumanism and transhumanism, new bioneurotechnologies; it involves the creation of regulatory requirements and restrictions for the use of such technologies, as well as for the establishment, guarantee and possible constitutionalization of new bioethical and neuroethical human rights.

Keywords: bioconstitutionalism, dignity, dignitatis humanae, neuroconstitutionalism, neuro-law, bio-law, legal biomedicine, bioethics, human rights, dignity and patient rights

For citation. Kravets I. A. Bioneuroconstitutionalism and Dignity: Theoretical Foundations, Dialogue of Ethical and Legal Requirements and Prospects for Interaction (Part I). Journal of Russian Law, 2022, vol. 26, no. 2, pp. 5—22. (In Russ.) DOI: 10.12737/jrl.2022.013

Stipulative Definitions as New Tools in Jurisprudence

V. V. Ogleznev

Vitaly V. Ogleznev1, 2
1Saint Petersburg State University, Saint Petersburg, Russia, ogleznev82@mail.ru, http://orcid.org/0000-0003-0287-6543
2North-West Branch, Russian State University of Justice, Saint Petersburg, Russia

Abstract. The article presents the nature of stipulated and legislative definitions in modern jurisprudence, namely their epistemological and ontological similarity.
The purpose of the study is to show that the theory of legislative definitions can be supplemented and enriched by the theory of stipulated definitions. To achieve this goal the following tasks should be solved: firstly, to clarify the content of the concept of legislative definitions; secondly, to consider their nature and epistemological significance; thirdly, to get legal science acquainted with a new type of definition — stipulated definitions — in the form in which they are developed in philosophy of science and logic; and fourthly, to prove that between these types of definition there is not just a certain analogy, but a genetic connection and thematic unity.
As a result, it is shown that there is indeed a striking similarity between stipulated and legislative definitions, at least in six parameters, namely: normativity; elimination of ambiguity; simplification of the language that expresses these concepts; arbitrary nature; subjectivism; and rules of construction and consequences of their violation. The analysis of these parameters leads to the conclusion that “stipulated definitions” and “legislative definitions” can take a part-to-whole relationship in the sense that under certain circumstances, stipulated definitions can be legislative (legal). But this does not mean that the former exhaust the latter. If this conclusion is correct, then it is quite possible to say that legal technology has a new interesting tool that — if certain rules are observed — is ready for use.

Keywords: definition, content and scope of concept, legal norm, legal construction

Acknowledgments. The work on this paper has been supported by the Council for Grants of the President of the Russian Federation for State Support of Young Russian Scientists (Award Number MD-137.2020.6).

For citation. Ogleznev V. V. Stipulative Definitions as New Tools in Jurisprudence. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 23—35. (In Russ.) DOI: 10.12737/jrl.2022.014

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

Theoretical Issues of Legal Regulation Concerning Entrepreneurship in Conditions of Digitalization

V. K. Andreev

Vladimir K. Andreev
Scientific Center for the Study of Justice Problems, Russian State University of Justice, Moscow, Russia, andlaw@mail.ru

Abstract. The introduction of information technologies into civil circulation is impossible without studying the impact on the legal regulation of entrepreneurship, business models built on digital platforms and ecosystems. It is important to determine how artificial intelligence — a complex of technological solutions — is reflected in the norms of law, how the experimental legal regime allows using digital innovations to create new or significantly improved goods, works, services.
Multilevel regulation of legal relations in the field of entrepreneurship — when new relations and spheres of activity are presented as already known objects of civil law — comparing them with a thing as a “piece of unreasonable nature” ignores reality, which is primarily a set of objects created by human works, including those created with the use of digital technologies. The information itself is not so much information, regardless of the form of their presentation, but a service that is an indispensable element of entrepreneurship and is expressed in digital rights, digital currency, electronic document management and other forms of digitalization.
A transaction and its invalidity as an institution of the General Part of the Civil Code of the Russian Federation is not combined with an obligation, which is also a general concept for a contract. At the same time, the rule on the invalidity of the contract restricts the application of paragraph 2 of Chapter 9 of the Civil Code of the Russian Federation, while it includes into this concept the elements of contract performance and which is unusual for the institution of the invalidity of the transaction. In these conditions, when the written form of a transaction made using electronic or other technical means is considered to be observed, and taking into account the role of the rules of the information system, it would be necessary to develop and adopt a federal law on the procedure for making and executing contracts for the provision of services and for the provision of information, there is a need for significant development of the provisions of Article 7831 of the Civil Code of the Russian Federation in the direction indicated in the article.

Keywords: legal regulation, experimental legal regime, information technologies, artificial intelligence, digital law, civil turnover, transaction, obligation, invalidity of the contract

For citation. Andreev V. K. Theoretical Issues of Legal Regulation Concerning Entrepreneurship in Conditions of Digitalization. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 36—46. (In Russ.) DOI: 10.12737/jrl.2022.015

On the Concept of Development of Legal Regulation Concerning the Hydrogen Power Industry in Russia

K. S. Semenovich

Kristina S. Semenovich
Saint-Petersburg State University, St. Petersburg, Russia, enlcenter@spbu.ru, https://orcid.org/0000-0003-2271-4234

Abstract. In August 2021 the Russian Government approved the Hydrogen Energy Development Concept, a strategic planning document that sets the direction for the development of the promising sector of the fuel and energy industry in Russia, which emerged at the beginning of the new “postParis era” in power industry and climate. The hydrogen power industry is tasked with developing hydrogen production and consumption, making the Russian Federation one of the world leaders in hydrogen production and export, with plans to increase exports to 0.2 million tons by 2024, and to 2 million tons by 2035. In order to achieve these objectives, there is a need for a specific and sufficient legal and regulatory framework governing hydrogen circulation. Current legislation neither contains the concept of “hydrogen”, nor allows it to be classified as a renewable energy source. In the legal field, the industry virtually is getting formed from the ground up. Today the specifics of the legal regime of hydrogen as an object of social relations are not clear. The system of relations between the subjects of hydrogen power industry is not formed. There are no relevant conceptual apparatus, while the state pricing policy in the industry is sparks concerns. It is currently difficult to predict the scale of future consumption of hydrogen and the profitability of its mass use as an energy resource, though it is prosperous. And it seems that the legislation that would form the basis of the hydrogen power industry could be the impetus to change the entire legal framework of the Russian Federation governing the use of alternative energy sources and to accelerate the energy revolution.

Keywords: energy resource, hydrogen, energy strategy, Russia’s new branch in the power industry

For citation. Semenovich K. S. On the Concept of Development of Legal Regulation Concerning the Hydrogen Power Industry in Russia. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 47—56. (In Russ.) DOI: 10.12737/jrl.2022.016

The Main Legal and Scientific Approaches to the Essence (Criteria) of Abuse of the Right in Modern Russian Civil Law

S. V. Musarskii

Sergei V. Musarskii
JSC “Assets Development”, Moscow, Russia, 10@musarsky.com

Abstract. One of the most difficult issues of civil law is the definition of the essence of the abuse of the right, prohibited by Article 10 of the Civil Code. Both in judicial practice and in legal science there is an extremely large number of conflicting points of view on this matter. Meanwhile, no one has yet been able to make a complete review of these points of view, or even list the main approaches on the issue under consideration.
The purposes of the article are: to identify and summarize the main points of view of Russian courts on the essence (criteria) of abuse of the right in modern Russian civil law, correlate them with existing scientific approaches in this regard.
The research methods are: description, comparison, analysis, synthesis, formalization, generalization.
The conclusions are: according to the established judicial practice of the application of Article 10 of the Russian Civil Code — which generally corresponds to the numerous points of view on this matter available in Russian civil law science — the criteria for abuse of the right can be: 1) the attitude of the entitled person to his action to exercise the right, which consists in: the exclusive intent to harm another person; the presence of an unlawful interest or in the pursuit of an unlawful goal; dishonest or unreasonable exercise of their rights; 2) the very act of exercising the right, if it: violates the purpose of the exercised right; violates morality (ethics, morality); is an offense; 3) the result of an action to exercise the right, if: it represents negative consequences for third parties; they violate the principle of justice; it comes into conflict with the goal that the legislator tried to achieve by adopting the rule of law. At the same time, from the view point of the place of abuse of the right in the system of legal facts, it can be: 1) violation of the limits of the exercise of subjective rights; 2) violation of the boundaries of subjective law; 3) an unlawful specific form of behavior within the framework of a general type of behavior permitted by law. Keywords: abuse of the right, limits of implementation of civil rights, Article 10 of the Civil Code of the Russian Federation, lack of uniformity of judicial practice

For citation. Musarskii S. V. The Main Legal and Scientific Approaches to the Essence (Criteria) of Abuse of the Right in Modern Russian Civil Law. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 57—70. (In Russ.) DOI: 10.12737/jrl.2022.017

■ CRIMINAL LAW AND CRIMINOLOGY

Criminal Attacks on Digital Financial Assets and Digital Currency: Qualification and Legal Regulation Issues

K. V. Obrazhiev

Konstantin V. Obrazhiev
University of Prosecutor’s Office of the Russian Federation, Moscow, Russia, okv79@mail.ru

Abstract. The article discusses the problems of qualification of criminal encroachments on cryptoassets (digital financial assets and digital currency). The key issue on which the qualification of the facts of unlawful seizure of cryptoassets depends is the criminal law interpretation of the corresponding digital objects (they can be recognized as property or the right to property). When solving this issue, the civil law regime of the corresponding digital objects, by and large, fades into the background. It is of paramount importance that instrumental law enforcement considerations force the recognition of cryptocurrency and digital financial assets as property in the criminal law sense, i.e. the subject of theft. This conclusion is confirmed by the results of the analysis and generalization of judicial practice in cases of encroachment on cryptocurrency, which are qualified as theft. Such a qualification becomes possible thanks to the “autonomous” criminal law interpretation of the concept of “property”, which expands the content of this concept without limiting it to bodily things. This interpretation of property makes it possible to adapt the traditional norms on liability for theft — originally intended to qualify the unlawful seizure of a bodily thing — for the criminal-legal assessment of encroachments on incorporeal things and liability rights (including those that are recorded in digital form). Thus, it creates the prerequisites for the successful solution of specific industry problems.
At the same time, the article notes that the interpretive adaptation of the concept of “property” to the demands of law enforcement practice entails negative consequences — the process of mismatching civil and criminal law deepens, the concept of embezzlement is deformed. The “new” subject of theft (or rather, its new broad interpretation) does not fit into the framework of its “old” objective side. It is no longer possible to ignore these contradictions, the whose volume only grows over time and makes it inevitable to reform the criminal legislation in terms of regulating liability for encroachments on property relations.

Keywords: cryptocurrency, digital currency, digital financial assets, crypto assets, theft, property crimes, qualification of crimes

For citation. Obrazhiev K. V. Criminal Attacks on Digital Financial Assets and Digital Currency: Qualification and Legal Regulation Issues. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 71—87. (In Russ.) DOI: 10.12737/jrl.2022.018

■ PROCEDURAL LAW

Protection of Financial Service Consumer’s Rights: Choosing a Competent Judicial Jurisdiction

A. I. Schukin

Andrew I. Schukin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, pil@izak.ru, https://orcid.org/0000-0002-4539-6876

Abstract. In modern conditions of free movement of goods, services and financial resources, the protection of consumers of financial services is of particular importance. The increase in the number of financial transactions with a foreign element with the participation of consumers is a direct consequence of the active development of the innovative digital world, technologies (FinTech) that significantly simplify cross-border access to financial services. Now, it is important to guarantee the security of the financial services market, including by providing a high level of consumer protection. At the same time, the study of judicial practice allowed the author to identify some problem in access to consumer protection, which is associated with the choice of a specific forum among the many jurisdictions of sovereign states. In a number of cases, consumers were denied consideration of the merits of their claims against foreign financial service providers, based on non-compliance with the rules of international jurisdiction when applying to Russian courts. The issue turned out to be difficult, including due to difficulties in understanding the rules provided for in Article 402 (Paragraph 2, Part 3) of the Code of Civil Procedure of the Russian Federation. According to the author, this article of the Code refers, by and large, to Russian consumers of advertising goods and services. This rule of international jurisdiction applies not only to disputes involving consumers in the meaning given to this category of persons by the Law on Consumer Protection. The accelerated development of new forms of meeting the needs of citizens due to digital financial innovations, their financial activity require a rethinking of the traditional idea of who the consumer is. For example, such a consumer may be a wealthy housewife using an online platform on the Internet to trade bitcoin futures, or a student placing an order on such a platform to buy and sell a base currency. At the same time, the establishment of sovereign jurisdiction for the protection of citizens should contribute to the promotion of fundamental state policy, according to which the rule of law should be above technological determinism.

Keywords: consumer protection, financial services marketplace, investor, online investment platforms, contract for difference (CFD), financial literacy, educational impact of a court decision, international jurisdiction, Foreign Exchange Market (Forex)

For citation. Schukin A. I. Protection of Financial Service Consumer’s Rights: Choosing a Competent Judicial Jurisdiction. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 88—105. (In Russ.) DOI: 10.12737/jrl.2022.019

Criminal Procedure Costs and Legal Costs in Civil, Arbitration and Administrative Proceedings: Applicable Analogies

A. R. Sharipova

Aliya R. Sharipova
Bashkir State University, Ufa, Russia, Nord-wind23@mail.ru, https://orcid.org/0000-0003-3254-5577

Abstract. The article compares similar institutions of procedural costs in criminal proceedings and court costs in other types of legal proceedings. The need for their comparison is explained by the needs of the institutional convergence of procedural law, the purpose of which is to reject the unjustified industry-specific differences in the legal regulation of universal and similar legal relations in different industries. The study of the normative consolidation of a similar intersectoral institution and the practice of its application was carried out according to several criteria, among them — the name, the place of the institution in the structure of the procedural law, the list of types, the procedure for filing a claim for compensation (collection), the procedure for considering the relevant issue, principles for the distribution of costs, forms of compensation expenses.
The aim of the study is to determine the possibilities of convergence of the criminal process with civil, arbitration and administrative in terms of the universalization of the norms of the institution of procedural costs. To do this, it is necessary to identify the existing differences in regulation and subdivide them into “random” and justified by industry specifics.
The main research method is comparative legal, in addition, general and special methods are applied (analysis and synthesis, logical, special legal).
According to the results of the study, the mechanism of reimbursement and recovery of costs, a wider list of their types are attributed to the differences due to the specific nature of criminal procedure. In the second group of differences, the following are named: insufficient normative elaboration and isolation of the institution in the criminal procedure law, the lack of an established procedure and deadlines for filing an application to the court for reimbursement (collection) of costs, the absence of an indication of the “reasonable limits” of reimbursement of expenses for the payment of representatives providing legal assistance , and undeveloped criteria for such limits.

Keywords: criminal procedure, judicial law, convergence of law, procedural costs, court costs

For citation. Sharipova A. R. Criminal Procedure Costs and Legal Costs in Civil, Arbitration and Administrative Proceedings: Applicable Analogies. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 106—120. (In Russ.) DOI: 10.12737/jrl.2022.020

■ LAND LAW AND ENVIRONMENTAL LAW

Legal Protection of Surface Water Bodies from Microplastics in Russia

E. V. Luneva

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

Abstract. The article examines the legal and regulatory understanding of microplastics in Russia as a special pollutant.
According to the author, it is necessary to develop an independent direction of the state environmental policy for the protection of surface water bodies from microplastics. The legal consolidation of the concept of microplastics is required, indicating the types of polymers, the size range and other characteristics of the particles related to it, which will be subject to appropriate environmental and legal regulation. It is advisable to expand the legal definition of “polluting substance” by adding microplastics to its content. It is necessary to independently regulate the protection of surface water bodies from microplastics, since the latter is not covered by the term “suspended substances”. The article presents different units of measurement of the concentration of microplastics in the treated wastewater of some countries. Large microplastics, which can be collected by mechanical wastewater treatment, are proposed to be classified as waste, and small microplastics are normalized as the concentration of a contaminant in the composition of wastewater. According to the same principle, the rates of payment for the corresponding type of negative impact on the environment should be fixed. The necessity of introducing in Russia bans on the production and sale of personal hygiene items, cosmetics, abrasive cleaning products containing microplastics, by analogy with foreign legislation, as well as legal incentives and restrictions aimed at reducing the formation of plastic waste is shown.

Keywords: microplastics, plastic, polymers, microbeads, pollutant, suspended matter, waste water, waste, water bodies, cosmetics, state environmental monitoring, state social and hygienic monitoring, regulation in the field of environmental protection, payment for negative impact on the environment, state environmental supervision, sanitary and epidemiological supervision

For citation. Luneva E. V. Legal Protection of Surface Water Bodies from Microplastics in Russia. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 121—137. (In Russ.) DOI: 10.12737/jrl.2022.021

■ JUDICIARY AND LAW ENFORCEMENT

Ensuring the Openness and Publicity of the Court as a Guarantee of the Justice Independence

V. K. Mikhailov

Viktor K. Mikhailov
National Research University “Higher School of Economics”, Moscow, Russia, vmikhaylov@hse.ru, https://orcid.org/0000-0001-7324-5082

Abstract. The article is devoted to the study of individual forms of implementation of the constitutional principle of openness and piblicity of justice, affecting the independence of judges. The author examines some general problems of confusion of the concepts that define the publicity of justice, and makes an attempt to delimit them meaningfully. He also analyzes the forms of public control over public authorities used today in Russia and comes to a disappointing conclusion about the overly formalized procedure for forming the subjects of such control. Based on the results of the review of the American practice of court and justice publicity based on active actions and programs of courts, it is proposed to borrow its best manifestations. Based on this, attention is drawn to the order of interaction with the society of Russian judges and the opinion is expressed on the need for their rapprochement. The paper contains a negative assessment of the established procedure for publishing financial information of judges, in which once again a significant role is given to the judicial leadership. Special attention is paid to the problems of organizing online legal proceedings initiated in connection with the pandemic, and at the same time the need for the legislator to take into account the interests of the publicity of justice.

Keywords: court, judge, principles of justice, independence of judges, openness and transparency of justice, public control, publicity, chairman of the court, information about income, responsibility of judge

For citation. Mikhailov V. K. Ensuring the Openness and Publicity of the Court as a Guarantee of the Justice Independence. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 138—151. (In Russ.) DOI: 10.12737/jrl.2022.022

■ YOUNG SCIENTIST’S TRIBUNE

Legal Means of Protecting the Results of the Expression of the Voters’ Will in a Pandemic

A. V. Rybin

Aleksey V. Rybin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, alexey.rybin.2016@gmail.com

Abstract. The article examines the trends of electoral legislation in Russia and foreign countries related to the coronavirus pandemic. New forms of voting in Russia under the conditions of a pandemic are being investigated. All forms of voting are divided into basic and derivative. The main form is assessed as the least risky in terms of falsification of the results of the expression of the will of voters. Derivative forms are classified as more risky, and therefore in need of additional legal protection measures. The existing means of protecting the results of the will of voters are analyzed.
Conclusion: new forms of voting require new adequate means of protecting the results of voting. Among these means, the emphasis is on improving the monitoring of voting and expanding the circle of its participants. The debatable problem of the adaptation of judicial protection of the results of the expression of the will of voters to the conditions of widespread use of new forms of voting is raised separately. Keywords: pandemic, elections, forms of voting, multi-day voting, remote voting, observation, results of the will of voters, legal protection

For citation. Rybin A. V. Legal Means of Protecting the Results of the Expression of the Voters’ Will in a Pandemic. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 152—166. (In Russ.) DOI: 10.12737/jrl.2022.023

■ TOWARDS THE 100th ANNIVERSARY OF ILCL

Professor O. N. Sadikov: Patriot, Scientist, Poet  Pdf 16

S. A. Sinitsyn

Sergey A. Sinitsyn
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, synss@mail.ru

Abstract. The scientific heritage of Professor O. N. Sadikov, an outstanding Russian legal scholar who connected all his life and work with the Institute of Legislation and Comparative Law under the Government of the Russian Federation, is inscribed in the golden pages of Russian legal science. Even during his lifetime, he was rightfully considered a classic of Russian civil law. Extraordinary thinking, exceptional creative abilities, profound knowledge and experience largely predetermined the high results achieved by the scientist in the profession. The works of O. N. Sadikov are distinguished by the depth and scale of the research, the clarity of the presentation of the author’s thought, while maintaining a practical orientation and connection with the problems of socio-economic development of the country. The article tells about the personality, military merits, scientific achievements, poetry of O. N. Sadikov, who did a lot to protect the interests and maintain the prestige of the Fatherland both in peacetime and in wartime.

Keywords: creative heritage of O. N. Sadikov, history of Russian and Soviet civil law, civil lawyers of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

For citation. Sinitsyn S. A. Professor O. N. Sadikov: Patriot, Scientist, Poet. Journal of Russian Law, 2022, vol. 26, no. 2, pp. 167—175. (In Russ.) DOI: 10.12737/jrl.2022.024

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