Contents of issue # 8/2022

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

Juridical Activity in the Postclassical Perspective

I. L. Chestnov

Ilia L. Chestnov
Saint-Petersburg Law Institute (branch), University of Prosecutor’s Office of the Russian Federation, St. Petersburg, Russia, ichestnov@gmail.com, https://orcid.org/0000-0003-2083-5876

Abstract. This article is about juridical activity in the postclassical perspective. The activity approach is an actual direction in the methodology of modern jurisprudence, which is more perspective then the dominant positivist (normativist) approach.
The purpose in this research is to obtain new theoretical knowledge about the prospects of using activity methodology in modern legal science. To achieve this goal, the author analyzes the traditional concept of legal activity and its changes in the late 20th and early 21st Centuries in the postclassical theory of law.
The conclusions are based on the postclassical methodology. It involves the study of legal activity in the anthropological dimension and socio-cultural context, in the interaction of law with other social phenomena and processes. The article substantiates that the “legal” property is attributed to the type of activity that is endowed with legal significance by the authorities in the broad sense of the word (the elite and the main reference groups of this society); and is perceived by society in cultural practices as having legal consequences. The author pays special attention to the analysis of the subject of juridical activity and the process of its construction and reproduction. The dialogicity of the subject of juridical activity is shown.

Keywords: activity, juridical work, the structure of juridical work, the subject of juridical work, dialogicity of juridical work

For citation. Chestnov I. L. Juridical Activity in the Postclassical Perspective. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 5—21. (In Russ.) DOI: 10.12737/jrl.2022.080

Regional Exceptions in Urban Planning Regulation in the Russian Empire (Based on the Material of the Siberian Governors General)

I. G. Pirozhkova

Irina G. Pirozhkova
Tambov State Technical University, Tambov, Russia, 0_1_23456789@list.ru

Abstract. The article presents an analysis of the normative material underlying the legal urban planning policy of the Russian Empire in the Siberian governors general through the analysis of exceptions and exemptions to legal regulation. It is compared with the all-Russian town-planning legislation of the period of validity of the codifications of Russian law, within the framework of the Complete Collection of Laws, an updated base of current legislation, not included in the systematized Code of Laws of the Russian Empire.
The research methodology is based on a comparative analysis of legal phenomena of urban planning regulation of an all-Russian and regional character, while the comparison is carried out in accordance with the periodization of the development of urban planning legislation. Identification of sources in the array of normative material, systematized in the Full Collection of Laws and Code of Laws of the Russian Empire, is based on content analysis of content and selection of meaning-making units reflecting regional urban planning regulation.
The scattered normative material of the town planning legislation of the 19th Century is highlighted, which is both large acts of a subordinate nature and short one, which is highly approved resolutions on the reports of responsible officials, created on special occasions. A comparative analysis of all-Russian and special (regional) rule-making, organization and activities of bodies and officials carrying out urban planning, architectural and artistic, technical and financial supervision is given. The main trends in the development of urban planning administration — perceived by contemporaries and the generalized legislator as problematic — are analyzed: personnel problems associated with a lack of technical specialists; the remoteness of the region and lack of communication; the impossibility of following high urban planning and artistic standards approved by the general norms of legislative documents.
Conclusions are made about the tendency of decentralization of legal urban planning policy, expressed in softening the norms-requirements for the developer and in establishing wider decision-making opportunities for responsible persons. The author notes the higher quality of the legal technique of the regional normative material, the connection between the development of urban planning administration and the process of the entry of new territories into the Russian Empire and their development.

Keywords: Eastern Siberia, urban planning activities, urban planning policy, Western Siberia, Siberian general governorships, Building Charter

For citation. Pirozhkova I. G. Regional Exceptions in Urban Planning Regulation in the Russian Empire (Based on the Material of the Siberian Governors General). Journal of Russian Law, 2022, vol. 26, no. 8, pp. 22—32. (In Russ.) DOI: 10.12737/jrl.2022.081

■ CONSTITUTIONAL AND MUNICIPAL LAW

Personal Security in Constitutional and Legal Dimensions

E. E. Nikitina

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

Abstract. The article is devoted to the problem of determining the legal nature of the category of “personal security” and its relationship with the system of human and civil rights and freedoms in the constitutional law of the Russian Federation. The article presents the analysis of international legal documents defining the content of this term and its transformation during the modern period. According to above mentioned documents the concept of personal security is based on the human right to live without need, fear and humiliation. The author concludes that security cannot be perceived as a new human right due to the breadth and uncertainty of the content of this term. At the same time, the right to personal security — as it was originally formulated in international legal documents on human rights as “the right to liberty and security of person” — is guaranteed by the current legislation of the Russian Federation. However, its content seems to be excessively narrow and does not correspond to the modern concept of personal security. From the point of view of constitutional and legal theory, “personal security” is a constitutional and legal value that expresses a close ontological relationship between security and human rights. Human rights and security are interrelated at the constitutional level: the exercise of fundamental human rights as guarantee of the security of the individuals (including guarantees against non-interference in freedoms and guarantees needed for existence and development of the individual); security as the basis for restrictions on human rights and the exercise of human rights as the basis of international security. At the level of branch legislation, the relationship between human rights and security are also identified. Additionally, general issues related to the regulation of personal, public and state security are considered. The article substantiates the thesis that the exercise of the basic constitutional rights of man and citizen is to ensure the personal security of a person.

Keywords: human and civil rights and freedoms, security, human rights system, personal inviolability, personal security

For citation. Nikitina E. E. Personal Security in Constitutional and Legal Dimensions. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 33—46. (In Russ.) DOI: 10.12737/jrl.2022.082

Modernization of Regional Legislation in the Context of the 2020 Constitutional Reform

I. V. Bondarchuk, A. V. Rudenko

Ilia V. Bondarchuk1, Artem V. Rudenko2
1, 2Crimean Branch, Russian State University of Justice, Simferopol, Russia
1State Council of the Republic of Crimea, Simferopol, Russia, sim.just@mail.ru
2RudenkoCrimea@yandex.ru

Abstract. The constitutional reform of 2020 defines new vectors of development of the state and society; causes large-scale changes in federal legislation and legislation of the subjects of the Russian Federation. In the last two years, the pace of legislative activity of the constituent entities of the Russian Federation has increased in connection with bringing their legislation into line with the changes provided for by the constitutional reforms. However, the degree of urgency of unresolved problems in reforming the regional legal framework for individual blocks is of maximal importance within the framework of a large-scale process of reviewing the array of legislation at the federal level.
The work is devoted to the study of the legislative activity of the constituent entities of the Russian Federation related to updating legislation in order to implement constitutional reforms at the regional level, identifying problems in the dynamics of legislative regulation of various spheres of public relations and optimizing the processes of modernization of regional legislation. The factors that contribute to the effectiveness of regional legislation are analyzed.
Using the methods of synthesis and comparison, as well as the formal legal method, the authors distinguish two models of the development of legislation of the constituent entities of the Russian Federation. Considerable attention is paid to the rule-making policy in the regions and the role of the decisions of the Constitutional Court of the Russian Federation in improving regional legislation is determined.
Conclusion: the process of reviewing the current array of regional legislation takes place in several stages in two directions: vertical and horizontal. Each of these directions makes it possible to identify conceptual guidelines for making changes to the basic law of the region (constitution, charter) in the constitutional and legal mechanism for reviewing existing provisions of regional legislation.

Keywords: constitutional reforms, constitutional legislation, regional rule-making, legislative activity, legislative acts, implementation of the Constitution, law-making models

For citation. Bondarchuk I. V., Rudenko A. V. Modernization of Regional Legislation in the Context of the 2020 Constitutional Reform. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 47—61. (In Russ.) DOI: 10.12737/jrl.2022.083

■ LABOR LAW AND SOCIAL SECURITY LAW

Models of Legal Regulation of New Forms of Employment

S. Yu. Golovina, A. V. Serova

Svetlana Yu. Golovina1, Alena V. Serova2
1, 2Ural State Law University named after V. F. Yakovlev, Yekaterinburg, Russia
1golovina.s@inbox.ru, https://orcid.org/0000-0003-0975-3861
2a.v.serova@icloud.com, https://orcid.org/0000-0002-7444-9690

Abstract. In recent years a notable trend at the labor market is: the gradual narrowing of the sphere of formal employment based on traditional employment contracts; and at the same time the increase in the number of people working on digital platforms or in other forms of self-employment.
Labor activity in new forms of employment is characterized by a low level or even lack of social and labor protection. The need to address the shortage of decent work faced by platform workers and the self-employed has already been recognized internationally. For this reason, states face the task to adopt effective legal solutions aimed at vesting these workers with social and labor rights and providing them with appropriate guarantees.
The aim in this study is to analyse foreign legal practices for regulating new forms of employment on the example of platform employment and dependent self-employment. This goal is achieved by solving the following tasks: to identify and analyse cases of adoption of special legal decisions regarding the determination of the legal status of platform workers and dependent self-employed to classify them; to determine their advantages and disadvantages; and to formulate proposals for reforming the relevant Russian legislation.
The methodological basis of the study is the general scientific dialectical method of cognition of objective reality. The collection, processing, analysis and interpretation of the information necessary for the study, the formulation of conclusions are carried out using various general scientific logical methods, such as analysis and synthesis, induction and deduction, ascent from the abstract to the concrete and content analysis. Also, various private scientific methods of cognition are used in the study: formal-legal, comparative-legal, system analysis.
The results of the study allow identifying three models of legal regulation of platform employment and dependent self-employment. Proposals are formulated in the direction of reforming legislation optimal for Russian conditions.

Keywords: platform employment, platform workers, digital labour platforms, dependent selfemployment, independent self-employed, dependent self-employed

For citation. Golovina S. Yu., Serova A. V. Models of Legal Regulation of New Forms of Employment. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 62—76. (In Russ.) DOI: 10.12737/ jrl.2022.084

The Right of Citizens to Fair Social Security

E. G. Azarova

Elena G. Azarova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, labour3@izak.ru

Abstract. The Constitution of the Russian Federation (preamble) says that the Russian people accept it, “revering the memory of ancestors who have conveyed to us the belief in the good and justice”. When updating the text of the Constitution, the requirement of justice was presented to the pension system, which is formed on the basis of the principles of universality, justice and solidarity between generations. In connection with the constitutional novel, the question arises of both understanding the principle of justice in relation to the pension rights of citizens, and the possibility of its attribution to other rights in the field of social security.
The purpose of the article is to investigate the legal concept of the principle of justice, its refraction in the legislation on social security, to substantiate the relationship of this principle with the regulation on the policy of the Russian Federation as a welfare state. The purpose of the article is to show that many problems of social security have not yet been solved, including from the standpoint of justice.
Research methods: systematic, comparative-legal, historical-legal, formal-legal.
Conclusions. In the event of social risks, every person has the right to predict on fair and decent social security, equal in the same position with other people and differentiated depending on his personal contribution to the development of society and the demographic development of the country. This contribution should be determined not only by inclusion in the compulsory social insurance system. Such a contribution is also the upbringing of young children, the care and supervision of them, as well as the care and supervision of disabled and elderly family members in need. A number of persons, due to their age (children), state of health or physiology (disabled people, pregnant women, nursing mothers), have the right to claim fair and decent social security even in the absence of their previous contribution to the development of society. The level of social security should correspond to the needs of vulnerable categories of citizens and meet objectively established standards.

Keywords: targeting, decent life, constitutional requirements, inequality, need, pension system, welfare state, social justice, social security, the principle of justice, living wage, vulnerable categories of citizens

For citation. Azarova E. G. The Right of Citizens to Fair Social Security. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 77—92. (In Russ.) DOI: 10.12737/jrl.2022.085

■ PROCEDURAL LAW

Proceedings on the Application of Compulsory Medical Measures: Problems of the Procuring Evidence Regulation

E. V. Mishchenko, A. A. Pogorelsky

Elena V. Mishchenko1, Andrey A. Pogorelsky2
1, 2Orenburg State University, Orenburg, Russia
1map_1234@mail.ru
2Аndorp95@gmail.com

Abstract. The article analyzes the specifics of the proceedings on the use of compulsory medical measures, the relevance of the study of which is due to the presence of certain difficulties in the procuring evidence.
The purpose of the study is to identify the specifics of the procuring evidence in the proceedings on the use of compulsory medical measures and formulate scientific recommendations for improving the criminal procedure law. The specifics of the subject of evidence, the circle of participants in the procedural actions and the means of evidence used are due to the mental characteristics of the person in respect of whom the proceedings are being conducted.
In the course of the research, general scientific methods of analysis and synthesis were used. On the basis of a theoretical and legal analysis, some shortcomings of the regulation are identified, and with the help of a terminological analysis, the term “doubt” used in paragraph 3 of Part 1 of Article 196 of the Russian Criminal Procedure Code is critically evaluated, requiring replacement with the term “reasonable doubt”, since the decision to appoint any type of examination is made with the conviction of its necessity and if there is grounds. The need for greater exactingness to the grounds for the appointment of a forensic psychiatric examination is emphasized, which should be sufficient data indicating that it was this person who committed a socially dangerous act.
Conclusion: the interpretation of Part 2 of Article 434 of the Russian Code of Criminal Procedure should not assume its own subject of evidence, but only necessary, based on the characteristics of the person in respect of whom it is carried out, its addition, therefore, clarification of the circumstances listed in Article 73 of the Russian Code of Criminal Procedure is not excluded. The ways of improving and specifying some norms of the criminal procedure law are proposed. In particular, it is indicated that the reliable establishment of the circumstances provided for in paragraph 5 of Part 2 of art. 434 of the Russian Code of Criminal Procedure, objectively cannot take place without establishing such a circumstance as “the behavior of a person before and after the commission of an act”, since only on the basis of this basis can one judge the potential public danger of a person.

Keywords: criminal proceedings, proceedings on the use of compulsory medical measures, forensic psychiatric examination, subject of evidence, means of evidence

For citation. Mishchenko E. V., Pogorelsky A. A. Proceedings on the Application of Compulsory Medical Measures: Problems of the Procuring Evidence Regulation. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 93—107. (In Russ.) DOI: 10.12737/jrl.2022.086

Realization of the Right to Indirect Participation in a Court Session in Administrative Proceedings

S. V. Tetyuev

Stanislav V. Tetyuev
South Ural State University, Chelyabinsk, Russia, stas_tetyuev@list.ru

Abstract. The article analyzes the provisions of the Code of Administrative Procedure of the Russian Federation regulating participation in a court session through the use of video conferencing systems and a web conference system.
The purpose of the study is to characterize the indirect ways of participation of the parties and interested persons in the court session on an administrative case, to identify problems in legal regulation and to propose options for their elimination.
Using general scientific and private scientific methods of cognition (analysis, synthesis, comparison, system-structural, formal-legal), the author comes to the conclusion that the right to participate in a court session is included in the content of the right to a fair trial, and the ways provided by the Code of Administrative Proceedings for the participation of parties and interested persons in a court session can be divided into direct (by appearing in the court considering the case) and indirect (without appearing in the specified court, using video conferencing systems or a web conference system). The right to participate in a court hearing on an administrative case using video conferencing systems and a web conference system is not absolute, and its implementation may be denied in the absence of conditions provided for by law, especially in courts of cassation and supervisory instances, where the correctness of the application of the law is checked, factual circumstances are not established, evidence are not investigated. A person applying for indirect participation in a court session on an administrative case must submit to the court evidence confirming the existence of objective reasons preventing personal presence at the court session.
The author substantiates the need for amendments to the Russian Code of Administrative Proceedings aimed at improving the regulation of participation in a court session through the use of video conferencing systems and a web conference system.

Keywords: court, court session, indirect methods of participation in the court session, video conferencing, web conference, administrative proceedings

For citation. Tetyuev S. V. Realization of the Right to Indirect Participation in a Court Session in Administrative Proceedings. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 108—118. (In Russ.) DOI: 10.12737/jrl.2022.087

■ INTERNATIONAL AND INTEGRATION LAW

Convergence of Legal Systems: the Role of International Justice

Kh. I. Gadjiev

Khanlar I. Gadjiev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, khanlar9999@gmail.com, https://orcid.org/0000-0001-6002-6075

Abstract. The examination of convergence of modern legal systems shows that, despite the long history of coexistence, not all the nuances of their interaction and intersection have been sufficiently studied. The phenomenon of legal convergence between two or more legal systems takes place at the substantive, institutional and procedural level and most often consists of a combination of these elements. The mutual interference of legal cultures often occurs at a less obvious level and does not depend on whether a country is under the jurisdiction of an international body. The penetration of progressive concepts, ideas, approaches in methods of legal interpretation is based on common values and constant desire to have such regulatory procedural and material norms that would ensure the effective functioning of the national legal system. A special role in this process belongs to judicial law enforcement, which requires the implementation of judicial functions for the purpose of legal argumentation. The appeal to the decisions of international courts and courts of various legal systems not only strengthens the legal argumentation, but also acts as its dialectical element. When analyzing the problem, attention is always drawn to the special contribution of the European Court of Human Rights to the integrative process under consideration. This is the result of the role played by two leading schools of common and civil law in its fruitful work.

Keywords: convergence of legal systems, international and national courts, mutual relations and mutual interference, legal argumentation, supranational system of protection, legal certainty and rule of law, system of common and continental law

For citation. Gadjiev Kh. I. Convergence of Legal Systems: the Role of International Justice. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 119—134. (In Russ.) DOI: 10.12737/jrl.2022.088

■ YOUNG SCIENTIST’S TRIBUNE

Problems of Divorce Proceedings in the Presence of Children Dispute

I. N. Nadin

Ivan N. Nadin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, avt-j@yandex.ru

Abstract. The institution of divorce in relation to disputes about children has always been the subject of special attention and control from both the state and society. The increase in the number of requests for judicial protection on the subject under consideration has revealed a number of problems in the legal regulation.
Within the framework of the article, using general scientific methods (comparison, analysis and synthesis) and methods of legal research (formal legal method and method of interpretation of legal norms), the provisions concerning the court’s going beyond the stated requirements in cases of divorce, as well as the practice of applying paragraph 2 of Article 24 of the RF IC are considered. According to the results of the analysis of judicial practice, an ambiguous interpretation of the above norm by the courts has been revealed. The essence of the claim for determining the procedure for exercising parental rights is investigated, in connection with which it is proposed to include this requirement in the range of issues on which the court is obliged to go beyond the stated requirements. The advantages of such a proposal are considered.
The author concludes that it is necessary to improve the institution of jurisdiction of divorce cases in the absence of a dispute about children in connection with the institution of the court exceeding the limits of the stated claims, because with formal compliance with the requirements of art. 23(2) of the Civil Procedure Code of the Russian Federation, including to the contradictory practice of interpreting the term “absence of a dispute about children”, the provisions art. 24(2) of the Family Code of the Russian Federation are violated. In this regard, the author proposed a new version of art. 23(2) of the Civil Procedure Code of the Russian Federation.

Keywords: children dispute, divorce, going beyond the stated requirements, the procedure for exercising parental rights

For citation. Nadin I. N. Problems of Divorce Proceedings in the Presence of Children Dispute. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 135—147. (In Russ.) DOI: 10.12737/jrl.2022.089

■ TOWARDS THE 100th ANNIVERSARY OF ILCL

Issues of Criminal Policy in the Works of Professor Mikhail N. Gernet  Pdf 16

A. V. Fedorov

Aleksandr V. Fedorov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, crim@izak.ru

Abstract. The scientific life of the Institute of Legislation and Comparative Law under the Government of the Russian Federation is inextricably linked with the large-scale and diverse activities of an outstanding representative of the Russian school of legal theory, Professor Mikhail N. Gernet. His creativity is of particular interest precisely on the eve of the anniversary of the Institute, since he was the ideologist of its creation, devoted his entire life to it and worked in it in a variety of positions. The versatility of the professor’s scientific achievements is reflected in the works of his students, like-minded people and colleagues both in Russia and in the legal science of foreign countries. This article focuses on the study of trends in the development of criminal policy in the works of M. N. Gernet, which had a significant impact on the understanding and study of crime and the criminal. His scientific ideas are still in demand by research scientists and law enforcement officers, serve as a support and reference point for further research in the field of criminology, criminal and penal enforcement law, and other branches of science.
The purpose of this study is to identify the directions of development of criminal policy on the example of the scientific creativity of M. N. Gernet. To achieve this goal, the article examines the works of professor Gernet related to this strategic direction of his research, which unites all the others.
It is concluded that the interdisciplinary approach to the study of criminal policy developed by M. N. Gernet allowed taking a fresh look at many issues of crime and other forms of deviant behavior, to comprehend and study various facets of the state’s criminal policy, which subsequently acquired the status of independent branches of scientific knowledge.

Keywords: Mikhail N. Gernet, criminal policy, the study of the criminal and crime, the 100th anniversary of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

For citation. Fedorov V. A. Issues of Criminal Policy in the Works of Professor Mikhail N. Gernet. Journal of Russian Law, 2022, vol. 26, no. 8, pp. 148—161. (In Russ.) DOI: 10.12737/jrl.2022.090

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