Contents of issue # 5/2022

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

Systematics in Law in Conditions of Global Instability

Yu. A. Tikhomirov

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

Abstract. In the modern world the volume of regulatory and legal arrays increases. In this regard difficulties arise with overcoming legal conflicts and some conservative legal phenomena. In order to solve these problems the article examines the nature of law in the light of the theory of social systems, which makes it possible to identify clear links between the elements of the legal system, on the one hand, and to have mobile reaction to the changing relationship of the national legal system and various international legal institutions and regulators.
There is a characteristic of legal communications. The article proposes the means to prevent subjectivity in the definition of legal acts based on a systematic choice of legal regulators. It is conducted by taking into account scientific criteria, changing spheres of public life and the response of legal entities. The analysis of the legal principles' flexibility and structures is a contribution for studying the dynamics of legal and other interests. The proposal for the effective reflection of stable and mobile interests in the legal sphere and the resolution of legal conflicts is substantiated. This is relevant in connection with the aggravation of various crisis situations.
The dialectical method of scientific cognition, a systematic analysis of the processes of legal regulation, management and control, an interdisciplinary approach to the study of legal and social regulators, a comprehensive analysis of modern legal problems are used.
Attention is focused on the role of the new systematics in law and in the development of legal management. It is concluded that the role of such systematics in overcoming the inconsistency of institutions, disputes and contradictions between subjects of law and legal conflicts.

Keywords: law, systems theory, systematics, legal regulators, law-based management, overcoming crisis situations

For citation. Tikhomirov Yu. A. Systematics in Law in Conditions of Global Instability. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 5—18. (In Russ.) DOI: 10.12737/jrl.2022.048

M. M. Speransky’s Codification Technique: Reform or Compilation?

T. V. Shatkovskaya

Tatiana V. Shatkovskaya
South-Russian Institute of Management, Russian Presidential Academy of National Economy and Public Administration, Rostov-on-Don, Russia, shatkovskaya.tv@gmail.com, https://orcid.org/0000-0002-1574-4702

Abstract. The implementation of the scientific and technological strategy for the development of Russia actualizes the problem of educating a socially responsible creative person who is looking for truthful meanings in national history for making everyday decisions. An example of such behavior is the motivation. The life and work of prominent Russians who managed to influence the way of thinking of their contemporaries and descendants with their ideas and actions. In the field of domestic lawmaking, such a person is M. M. Speransky - whose 250th birthday anniversary is a good reason to understand his contribution to the development of domestic codification technology - is the purpose of this article. In addition, the work is aimed at identifying some gaps, problems and contradictions associated with the study of the technique of codification works in the first half of the 19th Century. The study is carried out based on the historical method developed by the German historical school, enriched by the French Annales school, and successfully applied to the Russian history of law by V. O. Klyuchevsky, S. F. Platonov, V. I. Sergeevich, S. M. Solovyov, F. V. Taranovsky, A. N. Filippov and others. As a result of the study, the stages of the codification works of M. M. Speransky are identified and analyzed. Based on his works, techniques, basic rules, and novelties of codification - that have remained relevant for modern lawmaking - are identified. The author concludes that no legal reform is possible without a solid legal basis in the form of systematically processed national laws, customs, legal knowledge, and experience. Speransky managed to realize this first step on the path of domestic codification and develop a plan for subsequent transformations. Its critical comprehension even today reveals new prospects for the legal development of Russia.

Keywords: Russian law, codification, M. M. Speransky, rules of codification, methods of codification, Code of Laws, history of Russian lawmaking

For citation. Shatkovskaya T. V. M. M. Speransky’s Codification Technique: Reform or Compilation? Journal of Russian Law, 2022, vol. 26, no. 5, pp. 19—30. (In Russ.) DOI: 10.12737/jrl.2022.049

■ CONSTITUTIONAL AND MUNICIPAL LAW

On the Limits of the Bylaw Regulation of Citizens’ Electoral Rights

A. E. Postnikov

Alexander E. Postnikov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, const@izak.ru

Abstract. Both in Russia and in foreign countries, along with the law, certain relations related to the organization and conduct of elections may also be regulated by subordinate regulatory acts (acts of the head of state, executive authorities, election commissions, etc.). In some cases, it is possible to observe a more extensive regulation of elections by bylaws, which is more common for emergency circumstances. Modern Russian electoral legislation always empowers the Central Election Commission of the Russian Federation and some other election commissions - which organize elections on certain election-related issues - by the rulemaking authority. Such acts of election commissions (instructions, explanations, regulations, procedures, etc.), as a rule, specify certain provisions of election legislation and regulated institutional aspects of electoral commissions' activity as well as organizational, methodological, technological support for the implementation of these provisions. At the same time, recently the practice of autonomous regulation of certain electoral procedures (video surveillance during the elections, remote electronic voting) by the Central Election Commission of the Russian Federation - which are not directly provided by the law or provided in reference manner - has become widespread.
Based on the results of the study of mentioned rulemaking activity and the relevant law enforcement practice, the author concludes that there is a need to establish limits, the procedure for using video surveillance, remote electronic voting in the electoral process that should take the form of a federal law and provide comprehensive guarantees of the relevant electoral rights of citizens. Such an approach does not exclude further specification of statutory provisions by subordinate regulation of election commissions. Offered structure of legal regulation can increase the confidence of voters in the results of the expression of will in elections obtained using modern electronic contemporary digital technologies.

Keywords: elections, citizens’ electoral rights, electoral legislation, by-laws, election commissions, video surveillance, remote electronic voting

For citation. Postnikov A. E. On the Limits of the Bylaw Regulation of Citizens’ Electoral Rights. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 31—42. (In Russ.) DOI: 10.12737/jrl.2022.050

Digitalization of Electoral Actions and Procedures in Russia: Legal Issues

A. I. Lopatin

Anton I. Lopatin
Central Election Commission of the Russian Federation, Moscow, Russia, lopatin@cikrf.ru

Abstract. Digital technologies open up wide opportunities for the implementation of electronic public administration, penetrating directly into political processes, including elections. They can be qualified as a natural and necessary reflex of technogenic support of the information society. This determines the purpose and objectives of the author, which consist in generalizing the experience of introducing electronic voting technology into the practice of electoral democracy in Russia. This required a thorough understanding of the history of the introduction of this technology in Russia and the generalization of the practice of such voting at various levels of elections.
The digitalization of electoral democracy is accompanied by certain risks - technical and social - associated with ensuring universal and equal suffrage, freedom of voting and its secrecy. The electronic voting system itself does not guarantee that voting will not be forced or purchased. There are also many people who are convinced that electronic voting is unsafe, as well as people who either do not use gadgets or applications, etc. In this regard, attention is focused on ensuring proper transparency of voting, improving monitoring mechanisms, reliability and security of the voting system, etc. It is important to keep in mind that the election infrastructure, i.e. polling stations, paper ballots, etc., will be destroyed by the hasty universalization of electronic voting. Accordingly, in the foreseeable future, both forms of voting - traditional and electronic, improved with the accumulation of experience - should be preserved.

Keywords: digital technologies of public administration, automation of the electoral process, electronic remote voting

For citation. Lopatin A. I. Digitalization of Electoral Actions and Procedures in Russia: Legal Issues. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 43—55. (In Russ.) DOI: 10.12737/jrl.2022.051

Value Interpretation: The Role of the Constitutional Court of the Russian Federation

A. A. Pushkina

Anastasia A. Pushkina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, pushkina-a.a@yandex.ru

Abstract. In the theory of law, the concept of value has been studied for a long time. One of the directions for the development of values in law has become the theoretical understanding and practical application of constitutional values. As a result of the 2020 constitutional reform, the Constitution of the Russian Federation is replenished with new norms-values. The further development of these norms depends on their interpretation, concretization and direct application. Considering that the Constitutional Court of the Russian Federation is the official body for interpreting the Constitution of the Russian Federation, it seems appropriate to consider the grounds and practice of referring to the concept of value, generating constitutional values through interpretation, and also maintaining a balance of constitutional values.
The purpose of the article is to analyze the activities of the Constitutional Court of the Russian Federation in interpreting the Constitution of the Russian Federation in modern conditions of development of national and international law, while taking into account the growing role of values in law enforcement.
The analysis uses system-structural, comparative-legal and formal-legal methods.
It has been established that the use of a value approach in the interpretation of the Constitution enriches legal hermeneutics and expands its boundaries.

For citation. Pushkina A. A. Value Interpretation: The Role of the Constitutional Court of the Russian Federation. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 56—69. (In Russ.) DOI: 10.12737/jrl.2022.052

■ ADMINISTRATIVE AND FINANCIAL LAW. INFORMATIONAL LAW

Information Security of the Russian Federation and Prospects for Internet Legal Regulation

A. S. Emelyanov

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 development of the Internet legal regulation has passed through several stages due to a change in its mission. If initially this regulation was very limited and had an exclusively departmental character (the Internet developed from the project of the Office of Advanced Research Projects of the US Department of Defense to create a reliable means of military communication), then in modern conditions it increasingly acquires a universal character and features of a developing legal system (a global cyclical legal array). However, this process is not devoid of numerous contradictions, the overcoming of which actually ensures its dynamism. One of these contradictions is expressed in the fact that the Internet's desire for universality creates various challenges and threats to the information security of national states, including the Russian Federation. This contradiction is permanent, giving rise to various structural crises. The most famous of them was called the “DNC war”, which ended in 1998. The creation of such an organization as the Internet Corporation for Assigned Names and Numbers (ICANN), which served as the basis for the formation of a modern institutional platform for transnational information law and order. Currently, we are witnessing another aggravation of this contradiction, and the tools that will be used to resolve it will determine the main direction of the development of legal regulation of the Internet information and communication network. The author of the article considers certain aspects of this process in the context of ensuring the information security of the Russian Federation.

Keywords: Information Security, Internet, Universal Legal Systems, National Legal Systems, Information Legal Order, National Domain Zone

For citation. Emelyanov A. S. Information Security of the Russian Federation and Prospects for Internet Legal Regulation. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 70—78. (In Russ.) DOI: 10.12737/jrl.2022.053

Judicial Review of the Administrative Acts’ Legality: French Approach

P. A. Kuryndin

Pavel A. Kuryndin
Saint Petersburg State University, Saint Petersburg, Russia, p.kuryndin@spbu.ru, https://orcid.org/0000-0002-0133-3953

Аbstract. In the Russian legal reality, there are practically no works on the nature and problems of administrative proceedings, especially those based on original sources. Most often, only individual examples of judicial practice or general features concerning the methodology of judicial verification of the legality of administrative acts are considered. At the same time, there is a rich French experience of judicial verification of the legality of administrative acts, dating back to the second half of the XIX century, which can be applied in Russia, which is in many ways close to France in terms of having a strong administration and constant search for means of protecting a private entity.
The purpose of the study is a detailed explanation of the French experience of judicial proceedings in disputes between administrative bodies and private entities; the objectives of the study are to disclose this experience in terms of criteria for verifying the legality and limits of judicial intervention.
The main research methods are formal-logical, comparative-legal, system analysis and scientific modeling.
The conducted research should help the qualitative development of the Russian administrative theory and legal proceedings. Otherwise, the practice of adopting judicial acts will continue, which replace the decisions of administrative bodies or confirm the legality of their actions on external grounds. Courts are often limited only to checking the legality of the powers of an administrative body. In practice, it is important not only to establish that the administrative body acted within its competence, but also to check it if there is a competition of legislative requirements, as well as to establish the goals and motives for the adoption of an administrative act, which can radically change its fate.

Keywords: assessment of the motives and goals, illegality, administrative act, administrative proceedings, limits of judicial intervention

For citation. Kuryndin P. A. Judicial Review of the Administrative Acts’ Legality: French Approach. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 79—91. (In Russ.) DOI: 10.12737/jrl.2022.054

■ LABOR LAW AND SOCIAL SECURITY LAW

Retirement-Age Increase: A Legal Analysis

D. А. Storozhuk

Denis А. Storozhuk
Siberian Law University, Omsk, Russia, oms_dest@mail.ru, https://orcid.org/0000-0002-2506-9210

Abstract. An important stage in the development of the Russian pension system was the adoption of Federal Law No. 350-FZ of October 3, 2018 “On Amendments to Certain Legislative Acts of the Russian Federation on the Pension Awarding and Payment”, which summed up a long public discussion on raising the retirement age in our country. Despite the wide coverage of the social, economic, demographic and other aspects of this decision, there is a shortage of publications that consider this issue from the formal legal side, which is no less significant. Retirement-age increase is associated with the introduction of a large number of changes to the legislation, many of which generate contradictions, violate the consistency of the legal matter. Also, the legal consequences of retirement-age increase are not limited to the sphere of pension legal relations and have an intersectoral nature. All this determines the relevance of the issues studied in the article.
The purpose of the study is to conduct a detailed legal analysis of individual legislative changes related to retirement-age increase. To achieve this goal, the following tasks are solved: the contradictions arising in connection with the separation of the age of awarding of an old-age insurance pension and a funded pension are considered; the problem of uneven age increase in relation to early old-age insurance pensions is investigated; a legal assessment of the validity of maintaining the same conditions for most of the grounds for early retirement is given; the issues of the impact of retirement-age increase on relations related to the calculation of insurance pensions are touched upon; the legal consequences that retirement-age increase entails for related relationships are revealed.
Research methods: historical, dialectical (analysis, synthesis, generalization, classification), formal-legal, logical, systemic.
The conducted research made it possible to identify a number of contradictions caused by the changes made to the pension legislation, to identify violations of the systemic relationship of regulatory requirements and to outline ways to improve legal regulation.

Keywords: retirement age, retirement-age increase, old-age insurance pension, funded pension, early insurance old-age pension

For citation. Storozhuk D. A. Retirement-Age Increase: A Legal Analysis. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 92—107. (In Russ.) DOI: 10.12737/jrl.2022.055

Availability of Higher Education as a Principle of State Educational Policy: Prospects for Institutionalization

A. A. Kirillovykh

Andrey A. Kirillovykh
Vyatka State University, Kirov, Russia, kirillovykh2014@yandex.ru, https://orcid.org/0000-0002-0035-9035

Abstract. The article analyzes the organizational and legal problems of providing citizens with access to higher education within the framework of ensuring the constitutional guarantee of everyone's right to education.
The objectives of the study are to analyze the organizational and legal problems and prospects of the mechanism for ensuring accessibility of higher education, taking into account various criteria and factors, to note possible directions for improving this mechanism.
Research methods: analytical, formal-legal, comparative-legal.
The right to education is at the heart of the educational function of the state, is a defining element in the implementation of the state educational policy, designed to effectively implement private and public interest in the educational sphere. Through the prism of the principles of state policy in the field of education, the implementation of the socio-economic function of the state, measures are proposed to increase the level of accessibility of higher education, as well as the institutionalization of this basic principle in the current educational legislation. The author believes that at present the availability of higher education can be considered and ensured in several aspects: the availability of an optimal network of educational organizations, including their separate units providing services in the field of higher education, in terms of their total number and territorial location; the availability of educational organizations of educational programs of higher education of the appropriate level (bachelor-master) and forms (technologies) of training that can meet the demand of consumers of educational services; the availability of economic opportunities for applicants and their parents (legal representatives) to ensure academic mobility (payment of expenses related to living in another locality, travel costs, etc.); the availability of legal implementation mechanisms for expanding access rights in the current educational legislation, including the regulation of conditions and procedures for targeted admission, deduction, restoration of students to educational organizations. Consistent implementation of the principle of availability of higher education should be reflected in by-laws and regulations, including at the level of targeted educational development programs aimed at the practical implementation of economic and organizational tools to ensure its availability.

Keywords: education, law, guarantee, citizen, state, society, benefit, availability

For citation. Kirillovykh A. A. Availability of Higher Education as a Principle of State Educational Policy: Prospects for Institutionalization. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 108—123. (In Russ.) DOI: 10.12737/jrl.2022.056

■ PROCEDURAL LAW

Subjects of Substitution in Civil Proceedings: Indirect (Derivative) Claim

A. Yu. Tomilov

Alexander Yu. Tomilov1, 2
1Uralian branch, Russian State University of Justice, Chelyabinsk, Russia, 79043059405@yandex.ru, https://orcid.org/0000-0002-9551-3524
2Institute of Law, Chelyabinsk State University, Chelyabinsk, Russia

Abstract. According to the civil procedure legislation, in cases stipulated by law, a person has the right to apply to the court to protect the rights and legitimate interests of another person. This legal order is a manifestation of the right of subject substitution, in which one person (the holder of the corresponding right) is replaced in civil proceedings by another person exercising in the interests of the first the right to judicial protection of his rights, freedoms and legitimate interests. In civil proceedings, an indirect (derivative) claim is distinguished as an independent type of procedural claim, which can be considered as a manifestation of the right of subject substitution. To determine the place and role of an indirect (derivative) claim in the right of subject substitution, to identify its main procedural features in the protection of other people's property rights, as well as to determine its design features, it is necessary to clarify the procedure for its procedural implementation in civil proceedings.
The study of the stated problems requires the use of various methodological approaches, primarily integrative and hermeneutic.
The right of subject substitution is based on a legally defined possibility of initiating a case by a court at the request of a third person in defense of someone else's property rights. The main criteria determining such a possibility are the relationship of a person with the owner of a substantive right and the admissibility of such a claim by law. The legal structure of an indirect (derivative) claim within the framework of legal substitution has an independent structure, which allows the division of the named claim into two types: 1) a derivative claim arising from corporate relations; 2) a derivative claim arising from property relations. In the first type of derivative claim, the main subject of consideration is a claim based on property compensation for damage caused to the corporation, and in the protection of someone else's right, it is the restoration of the property rights of the proper owner.

Keywords: subject substitution right, indirect (derivative) claim, third partie

For citation. Tomilov A. Yu. Subjects of Substitution in Civil Proceedings: Indirect (Derivative) Claim. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 124—134. (In Russ.) DOI: 10.12737/jrl.2022.057

■ TOWARDS THE 100th ANNIVERSARY OF ILCL

On Scientific Heritage of E. G. Shirvindt and the State Institute for the Study of Crime and the Criminal Headed by Him  Pdf 16

L. I. Belyaeva, Yu. V. Truntsevsky

Larisa I. Belyaeva1, Yuri V. Truntsevsky2
1Management Academy of the Ministry of the Interior of the Russian Federation, Moscow, Russia, beliaeva_055@mail.ru
2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, trunzev@yandex.ru, https://orcid.org/0000-0002-8425-2533

Abstract. The Institute of Legislation and Comparative Law under the Government of the Russian Federation - the oldest research institution in the country - turns 100 years old next year. The history of the Institute is one of the bright pages of the formation and development of not only domestic legislation, but also legal science. The staff of the Institute made a great contribution to science at all stages of the activity of this institution. This article is dedicated to the memory of the first head of the State Institute for the Study of Crime and the Criminal (now the Institute of Legislation and Comparative Law under the Government of the Russian Federation) Yevsey Gustavovich Shirvindt, a highly educated, energetic person, always striving to implement the best scientific ideas, ideas of humanism, legality and social justice.

Keywords: institute, science, legislation, criminal policy, correctional labor policy, Correctional Labor Code, Criminal Code

For citation. Belyaeva L. I., Truntsevsky Y. V. On Scientific Heritage of E. G. Shirvindt and the State Institute for the Study of Crime and the Criminal Headed by Him. Journal of Russian Law, 2022, vol. 26, no. 5, pp. 135—144. (In Russ.) DOI: 10.12737/jrl.2022.058

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