Contents of issue # 9/2022

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

Main Sources (Forms) of Judicial Law

V. V. Lazarev, Kh. I. Gadjiev

Valeriy V. Lazarev1, Khanlar I. Gadjiev2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
1lazarev@izak.ru, https://orcid.org/0000-0003-0910-0609
2khanlar9999@gmail.com, https://orcid.org/0000-0001-6002-6075

Abstract. Judicial law is not officially considered as law in the Russian legal system. However, the doctrine and practice recognize its role as a mandatory guideline for resolving legal cases. Case-law includes a set of legal acts under different names issued by various authorities. However what is in common is that they are generally binding and normative, even if they are issued in connection with specific circumstances. According to the authors, the following judicial acts may be considered as a source of law in Russia: precedent decisions resulting from the examination of a particular case; decisions of cassation and supervisory authorities elaborating legal provisions and overcoming gaps in law; resolutions adopted by the Plenary Supreme Court of the Russian Federation; rulings and resolutions of the Constitutional Court of the Russian Federation. A precedent is typical among well-known sources of judicial law. But in the contemporary context, judicial customs and judicial contracts require thorough consideration. There are certain grounds to qualify judicial law as a separate branch of law. Therefore, we should analyze the way the content of the relevant acts is determined; in what specific clothes they are dressed; in what internal and external structures they fit; how, in what forms they are systematized.
The concepts of “form” and “source” are correlated and are often used as identical. But for a deeper understanding, we should focus on the volitional nature of law. Then it becomes clear that any will, the will of any subject is expressed externally in certain forms — in the form of a law, in the form of an executive or judicial act, in the form of a guiding explanation or an official review of practice, in the form of a doctrine. The word “source” may be used for designating where the norm or the legal position substituting it is contained, where knowledge about them is reflected, where their interpretation is made. Everything has its own internal structure, its verbal or even visual form of expression.
The authors proceed from the fact that the living conditions of society and the attitude of people towards them are constantly changing and, accordingly, taking into account the dynamism of legal forms and sources of law, they focus on the development of judicial precedent, tracing the evolution of its idea and its implementation not only in the Anglo-Saxon system of law, but also in the continental countries. They come to the conclusion that the law develops thanks to the creative efforts of judges, who must penetrate into the essence of law and fact and make the right choice of precedent or formulate a new one. The appeal to the precedent does not affect the principle of independence of judges, but, on the contrary, enriches it. The article analyzes the Russian sources of judicial law, in particular, it is stated that the precedent nature of the decisions of the Constitutional Court of the Russian Federation is considered a generally accepted achievement for the country’s legal system. The precedent has an intermediary role between practice and the law, when the realization of the right is expressed in the accompanying law-making function of the court. A comparative approach to the use of judicial precedent in different countries shows great creativity in upholding the value of the precedent.

Keywords: judicial law, source of law, form of law, precedent, doctrine, primary and secondary sources of law, independence of judges

For citation. Lazarev V. V., Gadjiev Kh. I. Main Sources (Forms) of Judicial Law. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 5—22. (In Russ.) DOI: 10.12737/jrl.2022.091

Approaches to Understanding the Unity of Law and Its Dynamics

A. A. Zavgorodnyaya

Anastasia A. Zavgorodnyaya
Donbass Law Academy, Donetsk, Donetsk People’s Republic, nastacija@mail.ru

Abstract. The article considers the opinion that today the methodological approaches of the domestic legal science reflect the current directions of research. The purpose of the article is to generalize the factors of the social reality of law that affect the legal genesis and legal understanding. At this stage of the development of jurisprudence, it is urgent to search for alternatives that correspond to modern globalization trends and the level of development of epistemology and ontology of law in the information society. Various modern theories of legal understanding — which form a complex with the methodology of various sciences — have made attempts to explain the essence of law taking into account various criteria and its multidimensional nature.
In the course where the theory of law science develop, researchers go beyond their subjects, which determines the unity, complexity, dynamics and inconsistency of social and legal reality. Under the influence of globalization, modern theoretical legal science faces the need to transform the methods of understanding as the most complex processes affecting legal reality, as well as (1) to find approaches to understanding the role of law in society and, above all, (2) means that can be guaranteed to them to ensure the fair realization of the interests represented in society.
Attention should be paid to the unity of law in its descriptive and prescriptive elements, the balance, which should be achieved through the legal discourse of interests, defining law as an instrument of their coordination. In turn, considering the unity of the dynamic and static components of law within the framework of socio-legal interaction through the unity of its content and form, it is worth noting that the preponderance towards the form or content as well as towards the static or dynamic component contributes to the emergence of an imbalance in the legal system.
Analyzing the diversity of theories and approaches, concepts of understanding of law, it is necessary to talk about the unity of its “fragments”. It is a mean to form, reproduce and act in intersubjective relationships about certain benefits, among which there are both more static and fundamental benefits and more dynamic one. The substantive and ideal component of law is based on interests expressed in needs, which are reflected in legal values, ideas, norms, and, by virtue of their morality and universal recognition, are legitimate. Therefore, law can be considered as a system with dynamic characteristics (elements, “fragments”) and as an instrument of social and legal interaction and development of optimal solutions for the coordination of various types of interests in order to implement them in a balanced manner.

Keywords: law, types of legal understanding, law enforcement, statism and dynamism of law, unity of law, dualism of law, interest, discourse, equilibrium

For citation. Zavgorodnyaya A. A. Approaches to Understanding the Unity of Law and Its Dynamics. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 23—34. (In Russ.) DOI: 10.12737/jrl.2022.092

■ CONSTITUTIONAL AND MUNICIPAL LAW

Development of Remote Electronic Voting in Russia: Constitutional and Legal Aspect

A. A. Larichev, V. A. Rzhanovskiy

Aleksandr A. Larichev1, Valeriy A. Rzhanovskiy2
1National Research University “Higher School of Economics”, Moscow, Russia, alexander.larichev@gmail.com, http://orcid.org/0000-0002-6452-6787
2Moscow Bar Association, Moscow, Russia, v.rzhanovskii@rambler.ru, https://orcid.org/0000-0001-7430-913X

Abstract. The article discusses the main regulatory provisions in the field of Remote electronic voting (further — the Remote e-Voting). The legislative changes regarding the procedure for Remote e-Voting, information systems and other Remote e-Voting institutions should be theoretically conceptualized. A specific characteristic of Remote e-Voting is a digital environment during voting. This concerns the drawing up of voter registers, the voting process and the tabulation of results. Special software is used during Remote e-Voting without using a paper ballot, unlike voting at a polling place. Therefore, the Remote e-Voting process is unavailable for ordinary human perception. Thus, the problems of ensuring the secrecy of voting, non-interference in elections and objective tabulation of results become more relevant. Remote e-Voting is one of forms of voting. It must comply with the basic principles of elections.
The experience of Remote e-Voting in Russia creates conditions for the development of legal regulation. However, the technical development of the Remote e-Voting is ahead of the legal regulation in this area. The law contains only basic provisions related to Remote e-Voting. The procedure for Remote e-Voting is determined on sub-legislative level. The authors analyze the main legal acts regulating Remote e-Voting, as well as the implementation of constitutional principles of elections regarding the Remote e-Voting in contemporary legal regulation, as well as point on the need for the enhancement of respective norms.

Keywords: remote electronic voting, legal regulation, constitutional principles of elections, law, voting, technical development

For citation: Larichev A. A., Rzhanovskiy V. A. Development of Remote Electronic Voting in Russia: Constitutional and Legal Aspect. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 35—52. (In Russ.) DOI: 10.12737/jrl.2022.093

A New Concept of Proportionality of Universal and National Values in Russian Legislation

V. Yu. Lukyanova

Vlada Yu. Lukyanova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, analytics1@izak.ru

Abstract. The challenges of the modern era, including economic, financial, socio-environmental crises, international terrorism, the pandemic of a new coronavirus infection, increase the relevance of new strategies for the development of the Russian Federation, the search for its role and place in the changing global economic and political system. One of the cornerstones on which such a strategy should be built is the new concept of proportionality of universal and national values, reflected in the Constitution of the Russian Federation, updated during the Russian Constitutional Reform — 2020. The article explores the reasons that led to the need to update this concept; its individual elements, some features of the reflection of these elements in Russian legislation.
The purpose of the study is to identify in the Russian legislation the features of reflection of the updated concept of proportionality of universal and national values.
Research methods: to achieve this goal, both general scientific methods (analysis and synthesis, generalization, dialectical) and special scientific methods are used: the formal logical method, methods of comparative jurisprudence and legal and technical analysis, as well as legal monitoring.
Results: the practice of changes in Russian legislation is considered in the context of the formation of a socio-value model of the Constitution of the Russian Federation and the reflection in the Constitution of the Russian Federation of the updated concept of proportionality of universal and national values. The data of monitoring the reflection in the Russian legislation and the legislation of the constituent entities of the Russian Federation of the constitutional novelties of 2020, improving the mechanism for implementing the principle of supremacy of the Constitution of the Russian Federation throughout its territory and the novelties forming an updated “catalog” of the values of the Basic Law, are presented.

Keywords: globalization, Russian Constitutional Reform — 2020, Russian legislation, the concept of proportionality of universal and national, the principle of supremacy of the Constitution of the Russian Federation, the value component of the Constitution, legislative activity, legal monitoring

For citation. Lukyanova V. Yu. A New Concept of Proportionality of Universal and National Values in Russian Legislation. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 53—69. (In Russ.) DOI: 10.12737/jrl.2022.094

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

Humanism as the Principle of Russian Civil Law in the Settings of New Technological Challenges

E. V. Bogdanov

Evgeniy V. Bogdanov
Plekhanov Russian University of Economics, Moscow, Russia, Bogdanov.de@yandex.ru

Abstract. The implementation of digitalization and robotization into public practice aggravates the problem of protection of personal non-proprietary human rights and interests, which can be solved through the humanization of civil legislation.
The purpose of the study is to substantiate the need to change the paradigm of civil law regulation to ensure human interests. From the same positions, it is necessary to consider the issues of legal regulation of relations that develop in the process of using artificially intelligent devices, compensation for harm, etc.
The research methods are the general scientific interdisciplinary methods and specific civil methods.
The results of the research are the following conclusions: the scope of civil law norms based on humanism is significant, which is why there is every reason to believe that humanism is a principle of civil law, which should be included in paragraph 1 of Article 1 of the Civil Code of the Russian Federation. An artificially intelligent device cannot be recognized as a legal personality. For others, an artificially intelligent device is not an increased danger (Article 1079 of the Civil Code of the Russian Federation), but a particularly increased danger. In this regard, the owners of such devices should be responsible for the fact of causing harm, i.e. it will be the actual responsibility. Considering that several persons may take part in the processes related to the manufacture of artificially intelligent devices, their adjustment, etc., they should all be jointly and severally responsible.

Keywords: humanism principle, human, person, personal non-proprietary rights, source of high threat, liability, artificial intelligence

For citation. Bogdanov E. V. Humanism as the Principle of Russian Civil Law in the Settings of New Technological Challenges. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 70—87. (In Russ.) DOI: 10.12737/jrl.2022.095

Theoretical and Practical Aspects of Legal Regulation of Vertical Agreements Restricting Competition

Valeriy G. Istomin

Valeriy G. Istomin
Institute of Philosophy and Law, Ural Branch, Russian Academy of Sciences, Ekaterinburg, Russia, 5555VS@rambler.ru, https://orcid.org/0000-0001-8313-356X

Abstract. Vertical agreements restricting competition are one of the fairly common violations of antimonopoly legislation. Their legal regulation should be based on both the experience of practical implementation of the relevant regulations, and based on the conclusions of economic science analyzing the possible consequences of these agreements for competition relations. In the theory of modern competition law, there are different ideas about the impact of such agreements on competition relations, the possible formulations of their legislative prohibition, as well as the attribution to the vertical of certain agreements concluded by participants in economic turnover or the terms of such agreements.
The purpose of the study is to analyze the specific features of vertical agreements restricting competition, the content of their regulatory prohibition and possible directions for the development of legal regulation of this type of agreements. Research objectives: characteristics of the dynamics of the economic and legal assessment of the impact of vertical agreements on competition relations, their specifics as a type of anticompetitive behavior, consideration of individual contracts and their terms from the point of view of the possibility of qualification as vertical agreements, analysis of Russian and foreign practice of applying relevant norms.
The research methods are the method of formal and logical interpretation, systematic and comparative analysis.
Based on the results of the consideration of the issues raised in the work, it is noted that currently economic theory and law enforcement practice proceed from the need to establish a certain anticompetitive effect as a condition for the illegality of a vertical agreement, since these agreements may be dictated by the objective economic interests of their participants and not be a consequence of their unfair behavior. Due to the fact that some agreements may combine the features of both vertical and horizontal anticompetitive agreements, it is proposed in the work to classify such agreements as mixed, to which both the rules on cartels and the provisions on vertical agreements should be applied in the relevant part. The author notes that in the legislation of many developed countries there is no separate prohibition of concluding vertical agreements, but there is a general prohibition of concluding agreements restricting competition, which can be taken into account by the legislator in the further development of antimonopoly regulation.

Keywords: antimonopoly regulation, vertical agreement, restriction of competition, mixed anticompetitive agreement, legal construction of prohibition

For citation. Istomin V. G. Theoretical and Practical Aspects of Legal Regulation of Vertical Agreements Restricting Competition. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 88—100. (In Russ.) DOI: 10.12737/jrl.2022.096

■ CRIMINAL LAW AND CRIMINOLOGY

Criminal Policy in the Field of Energy Security

S. L. Nudel, E. V. Gorenskaya

Stanislav L. Nudel1, Elena V. Gorenskaya2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, crim@izak.ru
1https://orcid.org/0000-0001-6699-5694

Abstract. The article analyzes the current trends in the formation and implementation of the criminal policy of the Russian Federation in the field of energy security in the context of the need to protect the country’s energy sector from criminal encroachments on the basis of doctrinal approaches to the definition of criminal policy.
The purpose of the study is to develop conceptual provisions of the theory of ensuring energy security through criminal legal influence and to prepare a set of scientifically based proposals for improving criminal policy in this area of ensuring financial security of the Russian Federation. In order to achieve this goal, tasks related to the analysis of the concept and legal foundations of energy security, the definition of the concept and directions of the criminal policy of the Russian Federation in the field of energy security, as well as the consistent criminalization of socially dangerous acts in the context of energy security were solved.
The methodological basis of the study was the dialectical method of cognition, as well as general scientific methods of abstraction, analysis and synthesis, deduction, concretization, etc. The systematic approach contributed to the identification of the main directions of the criminal policy of the Russian Federation in the field of energy security.
The article argues the conclusion that the type of criminal policy under consideration is both a means of preventing and deterring crime in this area and a means of responding to modern challenges and threats to energy security, thereby ensuring the necessary level of national and economic security in the energy sector. The combination of the institutional and situational nature of the criminal legal impact on crime in the field of energy contributes to improving the effectiveness of countering crimes in the fuel and energy complex.

Keywords: energy security, state, law, criminal policy, criminal liability, crime

For citation. Nudel S. L., Gorenskaya E. V. Criminal Policy in the Field of Energy Security. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 101—114. (In Russ.) DOI: 10.12737/jrl.2022.097

Criminal Responsibility of the Terrorists’ Wives: Problems of Application

S. M. Kochoi, R. S. Kochoi

Samvel M. Kochoi1, Ron S. Kochoi2
1, 2Kutafin Moscow State Law University, Moscow, Russia 1sam.kochoi@bk.ru
2ron_kochoi@mail.ru

Abstract. The article is devoted to an almost unexplored topic in Russian legal science — the criminal responsibility of women who illegally arrived from Western and Russian states in Syria and Iraq in order to join the militants of the terrorist organization “Islamic State”, after it announced in 2014 the creation of a “caliphate” in part of the territories of these countries. Most of these women, as well as their children born in the “caliphate”, are currently being held in prisons of the Syrian organization “Democratic Forces”, which opposes official Damascus, and the Republic of Iraq on charges of participating in an illegal armed organization (terrorist organization) and illegal border crossing. Most of the countries of the world whose citizens are these women refuse to take them back, although there are States that are ready to take them to their territory.
The purpose of the study is to substantiate and provide an answer to the question posed in the title.
Using the example of the German legislation and the practice of its application in a specific criminal case, it is shown how the courts of this state solve the problem of the responsibility of the terrorists’ wives — accomplices of their crimes committed in Syria and Iraq. A parallel is drawn with the criminal legislation of Russia, the norms of which do not allow such persons to be held accountable due to the absence of the principle of universal jurisdiction of crimes committed outside the Russian Federation.
Proposals and conclusions are formulated that can eliminate the emerging gap in Russian legislation, as well as in the practice of countering crimes committed by terrorists and their accomplices against international law (the crime of genocide, crimes against humanity, war crimes). In particular, it is proposed to provide for universal jurisdiction in the Criminal Code of the Russian Federation in relation to the most serious crime under international law — genocide.

Keywords: terrorism, terrorist organization “Islamic State”, the crime of genocide, international crimes, crimes against humanity, Yezidis, International Criminal Code of Germany, Criminal Code of the Russian Federation, universal jurisdiction

Acknowledgments. The part of research was carried out by S. M. Kochoi within the state assignment 075-00293-20-02, 25 May 2020, No. FSMW-2020-0030.

For citation. Kochoi S. M., Kochoi R. S. Criminal Responsibility of the Terrorists’ Wives: Problems of Application. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 115—125. (In Russ.) DOI: 10.12737/jrl.2022.098

■ TOWARDS THE 100th ANNIVERSARY OF ILCL

Young Scientists in the Scientific Life of the Institute: Creative Heritage and Emerging Opportunities  Pdf 16

S. B. Balkhaeva, I. V. Plyugina, O. I. Sakaeva

Sayana B. Balkhaeva1, Inna V. Plyugina2, Olesya I. Sakaeva3
1, 2, 3
Institute of Legislation and Comparative Law Under the Government of the Russian Federation, Moscow, Russia
1sayanabb@gmail.com
2inna_wp@mail.ru
3olsakaeva@gmail.com

Abstract. Each scientific institution develops special traditions of scientific communication aimed at ensuring the continuity of knowledge, contributing to the growth of a new generation of scientists who are ready to contribute to the existing scientific groundwork, to enrich the ideas and concepts of formed scientific schools. The scientific path of many well-known both in Russia and abroad legal scholars is connected with the Institute of Legislation and Comparative Law under the Government of the Russian Federation, which is preparing to celebrate its centennial anniversary in 2023. The unique culture of scientific communication that has developed within its walls, which involves supporting young professionals and promoting their professional growth, largely determines the decision of young people to connect their lives with legal science. The specifics of the Institute’s activity, which assumes as the main task the implementation of scientific and legal support for the activities of the Government of the Russian Federation and other higher state authorities, allows young scientists to be involved in key events and activities in legal life.
The purpose of this article is to reflect the format of participation of young scientists in the scientific life of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, the transformations of recent decades aimed at stimulating their professional development and expanding scientific initiatives.

Keywords: Institute of Legislation and Comparative Law under the Government of the Russian Federation, jurisprudence, researcher, young scientists, young scholar, international school-practicum for young legal scientists

For citation. Balkhaeva S. B., Plyugina I. V., Sakaeva O. I. Young Scientists in the Scientific Life of the Institute: Creative Heritage and Emerging Opportunities. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 126—140. (In Russ.) DOI: 10.12737/jrl.2022.099

Adobe pdf 24  Full text in Russian

■ LEGAL LIFE. CHRONICLE

Law and Technologies of the Future: XVII International Practice School of Young Legal Scientists  Pdf 16

D. A. Pechegin

Denis A. Pechegin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, crim5@izak.ru

For citation. Pechegin D. A. Law and Technologies of the Future: XVII International Practice School of Young Legal Scientists. Journal of Russian Law, 2022, vol. 26, no. 9, pp. 141—168. (In Russ.) DOI: 10.12737/jrl.2022.100

Adobe pdf 24  Full text in Russian

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