Contents of issue # 6/2022

■ 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 II)

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 II of the article analyzes the problem concerning: individual's bioethical integrity and the right to new rights in the bioneurosphere; functions of human dignity in bioneuroconstitutionalism, i.e. the role in promoting cultural diversity, ensuring human vulnerability, the principle of human solidarity, justifying new human rights, bioethical well-being, genetic equality; and dignity as a universal principle of global and national bioethics and biomedicine. The article also proposes the discussion of the concept of “cognitive dignity” in neuroethics and neurolaw.
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 II). Journal of Russian Law, 2022, vol. 26, no. 6, pp. 5—31. (In Russ.) DOI: 10.12737/jrl.2022.059

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

Legal Issues of the Legal Status of Artificial Intelligence and Products Created by Artificial Intelligence Systems

G. P. Ivliev, M. A. Egorova

Grigory P. Ivliev1, Maria A. Egorova2, 3
1Eurasian Patent Office, Moscow, Russia
2Kutafin Moscow State Law University (MSAL), Moscow, Russia, maegorova@msal.ru
3Center for Scientific and Expert Analytics, IP International Competence Center, Russian State Academy of Intellectual Property, Moscow, Russia

Abstract. The article deals with topical issues of legal regulation of the Institute of intellectual property.
The research aims to develop legal tools to solve legislative regulation issues concerning the legal status of artificial intelligence systems and the results of intellectual activity created on their basis.
In this context, it is important to keep in mind the legal aspects of the legal personality of artificial intelligence units: its comparability with the legal personality of both an individual and a legal entity, since this is of fundamental importance in determining the rights to objects (results of intellectual activity) created by artificial intelligence. A detailed study and comparison of various legal positions regarding the legal personality of artificial intelligence in the context of intellectual property law allows us to state that at this stage the legal regulation of artificial intelligence is insufficient and fragmented, and that there are no universal rules for regulating artificial intelligence systems. The authors study and summarize foreign experience in terms of a risk-based approach to the legal regulation of artificial intelligence systems, justify the complex nature of the problems concerning legal status of products created on the basis of artificial intelligence technologies.

Keywords: legal status, artificial intelligence, legal personality, legal responsibility, intellectual property

For citation. Ivliev G.P., Egorova M.A.Legal Issues of the Legal Status of Artificial Intelligence and Products Created by Artificial Intelligence Systems. Journal of Russian Law, 2022, vol. 26, no. 6, pp. 32—46. (In Russ.) DOI: 10.12737/jrl.2022.060

On the Exclusion of Diagnostics and Treatment from Patient Protection

A. V. Latyntsev

Alexander V. Latyntsev
Institute of Comprehensive Legal Studies and Scientific Research, Moscow, Russia, info@niilex.ru

Abstract. Despite the well-established Russian system of protection of intellectual property rights, there is a need to improve it, due to the consideration of a number of social requirements in civil law relations, in particular, related to aspects of ensuring accessibility, quality and safety of medical care. In this context, a comprehensive analysis of the need to exclude the possibility of obtaining patents for methods of diagnosis and treatment of humans and animals - which is provided for by the Agreement on Trade-Related Aspects of Intellectual Property Rights, but not implemented in the domestic legal system - deserves attention.
The article examines foreign experience of the leading countries of Europe, Asia and America in terms of regulation of these legal relations and justifies the need to make appropriate changes to Russian civil legislation. Attention is focused on the practice of obtaining patents for treatment methods in the reprofiling of medicines, which can be considered as an abuse of the right that requires an appropriate legislative response.

Keywords: patents, diagnostics and treatment methods, patient protection cases, the TRIPS agreement, the conversion of medicines, intellectual outputs

For citation. Latyntsev A. V. On the Exclusion of Diagnostics and Treatment from Patient Protection. Journal of Russian Law, 2022, vol. 26, no. 6, pp. 47—59. (In Russ.) DOI: 10.12737/ jrl.2022.061

■ ADMINISTRATIVE AND FINANCIAL LAW. INFORMATIONAL LAW

Problems of Ensuring Legality in the Functioning of the Permission System

N. V. Subanova

Natalya V. Subanova
University of the Prosecutor’s Office of the Russian Federation, Moscow, Russia, agp@agprf.org

Abstract. Ensuring the rule of law in the licensing sphere is of particular importance for society, given the wide practical distribution of the licensing system, which includes a complexly organized mechanism of regulatory authorities that affects non-powerful subjects. The implementation of the licensing procedure has always been enclosed by typical law enforcement problems associated with excessive administrative discretion and the lack of proper regulation of licensing procedures. Until now, the level of theoretical study of the relevant issues cannot be considered satisfactory.
The study aims to identify theoretical and applied problems of ensuring the rule of law in the sphere of the functioning of the licensing system, to determine the directions for counteracting the deformations of the rule of law, and a brief forecast of the development of the situation.
Research methods are: general scientific, private scientific and special methods. In particular, specific sociological research methods (analysis of documents and official materials), the method of statistical analysis, the historical and legal method, the logical and legal method, the method of interpreting legal norms, the method of legal forecasting, etc. are used.
The conducted research allows us to conclude that there are multidirectional dynamics of the state of legality in many areas of the licensing system. The implementation of permissive powers is generally recognized as a zone of “increased corruption activity”. An improvement in this case can be expected in connection with the development of forms of electronic implementation of licensing activities, the introduction of a risk-based approach and a registry model of permits into the practice of regulatory regulation of licensing activities. There are certain grounds for predicting positive trends in the state of legality, given the serious preventive potential of the updated legislation on state control (supervision). At the same time, one cannot ignore the need to ensure the principle of consistency and unity of approaches in the implementation of crime prevention. A significant contribution to the strengthening of the rule of law will be the further identification of the regularities in the implementation of its special guarantees, the typology of violations of laws, the analysis of the state of law and the determinants of its dynamics.

Keywords: licensing system, permission, responsibility, public administration, security, law, body, licensing

Acknowledgments. The article was prepared with the informational support of the SPS “ConsultantPlus”.

For citation. Subanova N. V. Problems of Ensuring Legality in the Functioning of the Permission System. Journal of Russian Law, 2022, vol. 26, no. 6, pp. 60—77. (In Russ.) DOI: 10.12737/jrl.2022.062

Discretionary Administrative Acts: Problems of Determination and Judicial Review

O. N. Sherstoboev

Oleg N. Sherstoboev
Novosibirsk State University of Economics and Management, Novosibirsk, Russia, sherson@ yandex.ru, https://orcid.org/0000-0001-6972-8241

Abstract. Adoption and operation of a discretionary administrative act is always a very sensitive issue in the theory of administrative law. On one side, the effective activity of administrative bodies would be impossible without such acts, but, on the other side, if these acts in the practice are presented in big quintets, administrative arbitrariness may arise. Therefore, judicial review over discretionary administrative acts is the very important part of the theory of administrative law.
The author of the article tries to analyze the current state of the theory of administrative discretion, highlight the main stages of its formation, summarize the available methods of checking discretionary administrative acts, and draw conclusions about their improvement. To achieve the purpose of the study, the author conducts a brief analysis of the definition of administrative discretion. The article also presents its differentiation from administrative arbitrariness; investigates the criteria for checking discretionary administrative acts; and summarizes the methods of such verification.
The main method of research is the comparative legal method. The doctrinal sources and materials of practice of Russia, Germany, France, Italy and Great Britain are analyzed.
Conclusions. The ways of development of the doctrine of administrative discretion in different legal systems and the main legal families are identical. The Russian theory is considered as part of the continental legal tradition. However, each tradition has its own specifics due to the historical conditions of the development of public administration, which is reflected at the doctrinal level. At the same time, all doctrines deny free discretion and recognize the need for judicial control, but each country has its own mechanisms for evaluating discretionary acts. The main criteria for their assessment are invariably the legitimate purpose and the limits of the powers in which the body that adopted such an act operates.

Keywords: administrative law, administrative discretion, administrative act, judicial review, administrative justice

For citation. Sherstoboev O. N. Discretionary Administrative Acts: Problems of Determination and Judicial Review. Journal of Russian Law, 2022, vol. 26, no. 6, pp. 78—90. (In Russ.) DOI: 10.12737/jrl.2022.063

■ CRIMINAL LAW AND CRIMINOLOGY

The Patterns of Developing and Functioning the Institution of the Discharge from the Criminal Punishment

V. K. Andrianov

Vladimir K. Andrianov
Russian State University of Justise, Moscow, Russia, andrianov_vk@mail.ru, https://orcid.org/0000-0003-2270-2145

Abstract. The institution of the discharge from the punishment serves as a necessary dialectical complement to such a fundamental institution of criminal law as a punishment. And since the nature and inviolability of the formula “crime and punishment” has a very substantial legal basis, the foundation and functioning of the institution of the discharge from the punishment also suppose the presence of equally important social grounds. The derivative nature of the institution of the discharge from the punishment and its dependence on the institution of the punishment cause the presence of close links between them, which predetermines the importance of identifying the conformities of the discharge from the punishment as essential and necessary links that generate this institution and determine the experience of its modern functioning. Despite the urgency and significance of this methodological approach - which makes it possible to reveal the historical roots and development trends, social foundations and intra-industry connections of the institution of the discharge from the punishment - there are no attempts in the scientific literature to study its socio-legal nature in the context of the category “conformity”.
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, universal connection of phenomena, system), as well as general scientific (analysis, synthesis, induction, deduction, description, classification) and private scientific (historical-legal, sociological, system-structural and formal-logical) methods.
The conducted research allows us to identify and formulate three groups of the conformities of the institution of the discharge from the criminal punishment: 1) socio-political conformities of its development; 2) conformities of its special-legal genesis; 3) conformities of functioning of this institution.

Keywords: criminal policy, conformities of criminal law, punishment, alternatives to criminal repression, discharge from the punishment, conditional conviction, parole system, respite of serving a sentence

For citation. Andrianov V. K. The Patterns of Developing and Functioning the Institution of the Discharge from the Criminal Punishment. Journal of Russian Law, 2022, vol. 26, no. 6, pp. 91—104. (In Russ.) DOI: 10.12737/jrl.2022.064

■ LABOR LAW AND SOCIAL SECURITY LAW

Legal Basis for Employment of Citizens with Health Restraints

L. V. Seregina

Larisa V. Seregina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, labour@izak.ru, https://orcid.org/0000-0003-4389-1053

Abstract. With the rapidly changing labor environment, job cuts due to economic sanctions and, as a result, increasing competition in the labor market, it is difficult, and in some cases impossible, for citizens with health restrictions to find a suitable job without the support of the state. This makes it necessary to improve legislation regulating relations to assist citizens with disabilities in finding employment.
The purpose of the study is to identify and eliminate obstacles to the employment of citizens with disabilities, including improvement of the legal regulation mechanism aimed at facilitating the employment of such citizens. To achieve the goal, the following tasks were set: firstly, to formulate the concept of persons with health disabilities based on the study of international acts, the legislation of the Russian Federation, doctrinal approaches to the term “disability”; secondly, to determine the ways of assisting citizens with health disabilities in employment; thirdly, to identify problems that arise when providing public services to citizens with disabilities in employment process, and, finally, to propose a legislative solution to eliminate them.
The study revealed some problems of difficulties for citizens with disabilities to find employment (poor-quality completion of an individual rehabilitation and habilitation program for a disabled person; the presence of health-related difficulties in applying and receiving public services provided by the employment service bodies; low activity of employers in choosing candidates to fill vacant jobs from among persons with disabilities; allocation by employers of obviously unsuitable vacancies for disabled people; difficulties in adaptation, special equipment of workplaces, etc.), and proposed ways to eliminate them, including through the improvement of employment legislation in terms of expanding services to assist citizens with disabilities in employment and employers who employ such citizens.

Keywords: employment, persons with health disabilities, disabled persons, employment, employment assistance

For citation. Seregina L. V. Legal Basis for Employment of Citizens with Health Restraints. Journal of Russian Law, 2022, vol. 26, no. 6, pp. 105—125. (In Russ.) DOI: 10.12737/jrl.2022.065

On the Application of a Systematic Approach in the Legal Regulation of Telemedicine Technologies

M. А. Vinokurova, T. V. Pashnina

Mariya А. Vinokurova1, Tatyana V. Pashnina2
1South-Ural State Humanitarian Pedagogical University, Chelyabinsk, Russia, marysy_1108@mail. ru, https://orcid.org/0000-0002-9574-7865
2Uralian branch, Russian State University of Justice, Chelyabinsk, Russia, pashninatv_chel@mail. ru, https://orcid.org/0000-0003-4314-2124

Abstract. The article substantiates the prospects of a systematic approach to the theoretical understanding of the legal nature of telemedicine and the improvement of the legal regulation system of the use of telemedicine technologies in Russia.
With the help of a complex of general scientific methods of theoretical cognition (analysis, synthesis, abstraction, etc.), as well as a set of private law and special methods (historical-legal, formal-legal, comparative-legal, statistical), which made it possible to achieve a systematic approach in solving research problems, a circle of researchers who have made a significant contribution to the study of the topic has been identified the analysis of the legal essence and various approaches to the formulation of the concept of “telemedicine” is carried out, the author's classification of the sources of legal regulation of telemedicine is proposed.
The increasing importance of the technology under consideration in the context of the coronavirus pandemic and the need for an early digital transformation of the healthcare sector is proved. The legal problems of the application of telemedicine technologies in Russia are outlined. From the standpoint of a systematic approach, recommendations are given aimed at creating a standardized, integrated and regulated system of telemedicine care in Russia.

Keywords: systematic approach, digitalisation of the healthcare system, telemedicine, telemedicine technologies, telemedicine services, legal regulation in telemedicine, medical law, administrative law, information law

For citation. Vinokurova M. A., Pashnina T. V. On the Application of a Systematic Approach in the Legal Regulation of Telemedicine Technologies. Journal of Russian Law, 2022, vol. 26, no. 6, pp. 126—139. (In Russ.) DOI: 10.12737/jrl.2022.066

■ YOUNG SCIENTIST’S TRIBUNE

Implementation of the Constitutional Principle of Equality of Citizenship in the Legislation of the Russian Federation

N. E. Piryazeva

Natalia E. Piryazeva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, natalieko97@gmail.com, https://orcid.org/0000-0001-6930-5636

Abstract. Citizenship is a special element of a person's legal status. The state of citizenship determines the ability to fully exercise their rights. Lack of citizenship entails restrictions on the exercise of rights in the sphere of political life, social security, medical care, and spiritual development. The proclamation in Article 6 of the Constitution of the Russian Federation of the principle of equality of citizenship means granting citizens an equal set of powers, regardless of the grounds for acquiring citizenship. At the same time, the Federal Law “On Citizenship of the Russian Federation” provides for the possibility of canceling decisions on admission to citizenship in the event that the fact of providing false information or forged documents is established. The application of this procedure is possible only in relation to naturalized or restored Russian citizenship, but is not possible in relation to persons who have acquired citizenship on the basis of filiation.
According to the author, the possibility of annulment of citizenship status exclusively for naturalized or restored citizens leads to vulnerability of their legal status, which distinguishes it from the legal status of citizens by birth. The absence of a ban on the application of cancellation of decisions on admission to citizenship in respect of citizens who, prior to naturalization, renounced their previously owned citizenship and who have the only Russian citizenship, may lead to their acquiring the status of stateless persons. The norms of legislation establishing the possibility of revoking decisions on admission to citizenship cannot be applied to citizens by birth, despite the commission of illegal actions by them, for which naturalized citizens may be restricted in their right to citizenship.
Conclusion: the application of a measure in the form of cancellation of decisions on admission to citizenship exclusively in relation to naturalized or restored citizens leads to a violation of the principle of equality of citizenship, regardless of the grounds for its acquisition.

Keywords: citizenship of the Russian Federation, equality of citizenship, cancellation of decisions on admission to citizenship, termination of citizenship

For citation. Piryazeva N. E. Implementation of the Constitutional Principle of Equality of Citizenship in the Legislation of the Russian Federation. Journal of Russian Law, 2022, vol. 26, no. 6, pp. 140—147. (In Russ.) DOI: 10.12737/jrl.2022.067

■ TOWARDS THE 100th ANNIVERSARY OF ILCL

Issues of the Theory of Law in the Scientific Work of A. V. Mickiewicz (to the 100th Anniversary of the Scientist’s Birth)  Pdf 16

N. V. Putilo, D. A. Pashentsev

Natalia V. Putilo1, Dmitry A. Pashentsev2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
1social2@izak.ru, https://orcid.org/0000-0001-7148-5875
2theory@izak.ru, https://orcid.org/0000-0002-6789-9175

Abstract. The article analyzes the main directions of A. V. Mickiewicz’s scientific work related to important and problematic issues of the theory of law. The article is dedicated to the centenary of the birth of the scientist who worked for many years at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, as well as to the approaching centenary of the Institute. The main directions of A. V. Mickiewicz’s scientific research are revealed, his contribution to the development of theoretical and legal science is shown. Special attention is paid to the contribution of the researcher to the development of such scientific areas as subjects of law and legal personality, acts of the highest state bodies and their hierarchy, the theory of law, complex formations in law. A. V. Mickiewicz substantiates the holistic concept of the legal nature of normative legal acts. He formulated an important provision for his time that the legal status, and therefore the content of legal personality, includes not the specific subjective rights and obligations themselves, but the legal possibility of having them. The article concludes that many of the scientist's ideas have withstood the successful test of time, they form the basis of important areas of modern legal theory, including the theory of lawmaking actively being developed at the Institute.

Keywords: acts of the highest state bodies, complex legal education, theory of law-making, subjects of law, legal status, regulatory prescription

For citation. Putilo N. V., Pashentsev D. A. Issues of the Theory of Law in the Scientific Work of A. V. Mickiewicz (to the 100th Anniversary of the Scientist’s Birth). Journal of Russian Law, 2022, vol. 26, no. 6, pp. 148—160. (In Russ.) DOI: 10.12737/jrl.2022.068

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