Y. K. Tolstoy
Yuriy K. Tolstoy
Saint-Petersburg State University, Saint Petersburg, Russia
Abstract. For a quarter of a century, the Russian legal order has accumulated considerable experience and materials that is necessary and useful to understand what are the results of codifying the Russian civil legislation. In order to avoid repetition and multiplication of the mistakes made in the course of further work on improving civil legislation, it is necessary to take into account the following negative factors that cause socio-economic instability and legal uncertainty when accompanying economic reforms and the transition to the market at the turn of the 20th—21st Centuries: the lack of logic and unsystematic development of civil legislation, discrepancies and inconsistency of sources of civil legislation, incompatibility and excessive influence of foreign doctrine on the development of national legal institutions, the narrow focus and subordination of Russian civil legislation mainly to the interests of big business, the complexity of a uniform understanding and application of civil legislation, the impossibility of a one-time cardinal transformation of the state and law when changing the course of political and economic development. The development of new directions for the development of civil legislation cannot be isolated and simultaneous, while requiring the involvement and consideration of the opinions of a wide range of experts. It is especially relevant in relation to real, corporate and intellectual property law.
Keywords: civil law reform, civil law institutions, civil law codification
For citation. Tolstoy Yu. K. Codification of Russian Civil Legislation: Tasks and Interim Results. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 5—7. (In Russ.) DOI: 10.12737/jrl.2021.001
S. A. Sinitsyn
Sergey A. Sinitsyn
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org
Abstract. The development of technologies, the growth of internet communications, the globalization of markets and the internationalization of big capital are objective factors in the development of socioeconomic relations. They set new tasks for civil law regulation, initially and at all stages of historical development and use flexible and universal means and tools of influence for civil circulation, while being focused on the conditions of material production. A gradual and non-simultaneous adaptation of the existing system and means of legal regulation to the new conditions of socio-economic development is required. The development of civil legislation should be adapted to the digital economy, and thus, it involves the formulation and resolution of the following issues: the sufficiency of the established regulation of the list and legal regime of objects of civil rights; the form of transactions concluded using digital and internet resources with an assessment of admissibility by applying to them general rules on the conclusion, validity and proper performance of obligations; legal regulation of constituent documents of legal entities in the digital economy and the development of supranational integration; the prospects for expanding the functionality of public registers of legal entities, real estate, rights to the results of intellectual activity and means of individualization; and the improvement of the legal regulation of copyright and patent rights in the context of the digital communication development. The choice of the new regulatory models should be based on the reality and objectivity of the perception that socio-economic relations are objects of legal regulation, and that it is evolutionary rather than revolutionary change in the instruments and methods of legal regulation.
Keywords: civil law, digital economy, legal regulation of digital commerce, intellectual property in a digital society, personal data protection
For citation. Sinitsyn S. A. Civil Law in Modern Socio-Economic Conditions. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 8—15. (In Russ.) DOI: 10.12737/jrl.2021.002
E. A. Sukhanov
Evgeniy A. Sukhanov
Lomonosov Moscow State University, Moscow, Russia, email@example.com
Abstract. The new and rapidly forming segments of socio-economic relations in the context of the digitalizing economy, the limitation of economic freedoms and social communications caused by the COVID-19 pandemic, the regulatory issues of financial markets in the context of global crises and sanctions and the internationalization of civil circulation do not negate the objective need to update Russian real estate legislation. The Civil Code of the Russian Federation establishes the regulatory characteristics of real estate and certain types of real estate. It constantly supplements them with new ones (parking lots, objects of construction in progress). Judicial practice expands the regulatory list of real estate features (independent economic purpose of an item, creation of a real estate object in compliance with all requirements and permits established by law, etc.) and also offers an understanding of real estate as a right to space. At the same time in the Russian reality 90% of land resources remain public ownership, and cases of private ownership of land plots are perceived as an exception, which is not typical for developed circulation and foreign law. In the conditions of non-recognition of the land plot as the only real estate object, distortion of the principle of superficio solo cedit in Russian law, the idea to form the concept of a single real estate object arises. The article analyzes the problems and prospects of development of legislation on real estate. Without this it is impossible to improve legislation on property rights.
Keywords: land plot, real estate, property rights
For citation. Sukhanov E. A. Real Estate in the System of Civil Rights Objects. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 16—22. (In Russ.) DOI: 10.12737/jrl.2021.003
G. P. Ivliev
Grigoriy P. Ivliev
Federal Service for Intellectual Property, Moscow, Russia, firstname.lastname@example.org
Abstract. The article discusses challenges and opportunities related to the adaptation of intellectual property rights to current changes in public and political realities in the Russian Federation.
The study aims at identifying general patterns in the concerned civil law subsector. The article highlights major recent and planned developments in intellectual property law.
The author uses historical and critical-legal methods, as well as general scientific methods, such as analysis, synthesis, induction, and deduction.
The outcomes presented in a chronological order highlight the main developments in intellectual property law and justifications for amendments in national and international regulations. Studied amendments illustrate the main trends setting directions for the future of intellectual property law. This case is especially important for Russia to integrate into international systems of registration and strengthen its role in digital technologies, including changes in terms of three-dimensional models and electronic documents of a title. Further development of legislation in the sphere of intellectual property is covered from the view point of the action plan (“road map”) on changes in implementation management system of the legal regulation of business — “Transformation of the business climate” and “Intellectual property”. It sets out the subsequent changes to the legislation in the sphere of intellectual property. In particular, the issues relates to determination of the ownership of exclusive rights to the results of intellectual activity. It is created during the performance of research, development and technological work under state contracts. It also fixes the possibility of registering trademarks in the name of citizens, including the self-employed and improves the system of providing public services by Rospatent with the involvement of the subordinate Federal Institute of industrial property. Finally, it analyzes the key innovations of the draft law aimed at improving the system of providing services to patent attorneys.
Keywords: intellectual property, patent granting, interim measures, interim protection of industrial design, international registration of intellectual property rights, prior patentability assessment, selfemployed, public services of Rospatent, three-dimensional models in intellectual property rights
For citation. Ivliev G. P. Modernization of Civil Legislation in the Field of Intellectual Property. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 23—30. (In Russ.) DOI: 10.12737/jrl.2021.004
G. A. Gadzhiev
Gadis A. Gadzhiev1, 2
1Constitutional Court of the Russian Federation, Saint Petersburg, Russia
2Saint Petersburg branch, National Research University “Higher School of Economics”, Saint Petersburg, Russia, email@example.com
Abstract. The development and inclusion of new technologies in the civil circulation is a powerful stimulus to develop legislation and clarify the approaches of law enforcement practice to the qualification of civil legal relations. In the current strengthening of entrepreneurial initiative and market principles in the Russian economy the issues of the implementation and protection of civil rights are especially relevant. If one resolves disputes, it is required to take into account the functions, the social and economic basis of specific types of subjective rights, the boundaries of the possible behavior of an authorized person in property turnover, the balance of private and public interests and assistance in preventing abuse of rights. In the world practice, exclusive rights to the results of intellectual activity and means of individualization are one of the most investment-attractive corporate assets. In the Russian economy, the legal regulation of their turnover is only at the stage of formation. The legal regime for the exercise and protection of exclusive rights harmonizes the interests of the individual, business, society, and the state. At the same time, the legislation on intellectual property belongs to the youngest. Legal doctrine and practice are in search of optimal and reasonable solutions, using the groundwork of sociological and philosophical schools that have proposed a worldview picture of the modern world and the conditionality of legal constructions by it. It is necessary to ensure the stable development of legislation, law enforcement practice and compliance with the principle of legality, as they require a comprehensive consideration of the concept and forms of “patent trolling”. It is timely when one must resolve disputes from exclusive rights in the face of the growth of unfair business practices.
Keywords: patent trolling, exercise and protection of exclusive rights, social and economic principles of civil rights
For citation. Gadzhiev G. A. Patent Trolling: Legal Qualification Issues (Part 1). Journal of Russian Law, 2021, vol. 25, no. 1, pp. 31—39. (In Russ.) DOI: 10.12737/jrl.2021.005
P. D. Bagryanskaya, M. O. Diakonova, T. A. Levonenkova, E. V. Yamasheva
Polina D. Bagryanskaya, Maria O. Diakonova, Tatyana A. Levonenkova, Ekaterina V. Yamasheva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org
Abstract. On October 21, 2020, the Institute of Legislation and Comparative Law under the Government of the Russian Federation held the XV Annual Scientific Readings in the memory of Professor S. N. Bratus on the topic “Modernization of Civil Legislation”. At the current stage of reforms Russian civil legislation (which regulates economic relations and trade in a free market with the norms and principles of private law) is one of the youngest in the European system of private law. It makes relevant the discussion of the most important theoretical and applied problems and trends in the further development of the domestic system of private law.
The article highlights the reports of the plenary session participants — leading representatives of Russian legal science and heads of state authorities: T. Y. Khabrieva, P. A. Kucherenko, E. N. Dybova, T. M. Moskalkova, E. A. Sukhanov, G. A. Gadzhiev, M. K. Suleimenov, G. P. Ivliev, S. A. Sinitsyn.
The review also outlines the main ideas expressed by the speakers and participants in the discussions at the following thematic round tables: “Law of Obligations: General Provisions and Certain Types of Agreements”; “Corporate Law of Russia: Formation and Development Issues”; “Forms of Protection of Civil Rights”, “New Areas of Legal Regulation: Expansion of the Interests of the Individual Protected by Law; Biomedicine; Robotics; Space; Nanotechnology”; “Current Problems of the Applying Private Law Institutions in Certain Branches of Public Law”; “Correlation of Private and Public Elements in Labor Law”; “Integration of Private Law in Europe and Eurasia: Experience of Supranational and International Legal Regulation”; “Judicial Practice and Legislation on Economic Activity”; “Problems of Legal Regulation of Entrepreneurial Activity”; “Renewal of the Reform of Real Law”; “Problems of Inheritance and Family Law”; “Intellectual Rights in the Modern World”; “Modern Development of Constitutional Values and Private Law”; “Digital Economy Through the Prism of the History of Law”.
Keywords: private law, interaction of private and public law, modernization of law of obligations, renewal of the real law reform, civil and natural resource legislation, corporate law, digitalization of civil law, biomedicine, robotics, intellectual rights, procedural protection of civil rights
For citation. Bagryanskaya P. D., Diakonova M. O., Levonenkova T. A., Yamasheva E. V. Review of the XV Annual Scientific Readings in the Memory of Professor S. N. Bratus on the Topic “Modernization of Civil Legislation”. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 40— 67. (In Russ.) DOI: 10.12737/jrl.2021.006
A. V. Bezrukov, I. V. Teplyashin
Andrey V. Bezrukov1, 2, Ivan V. Teplyashin3
1Research Center, Management Academy, Ministry of the Interior of the Russian Federation, Moscow, Russia, email@example.com
2South Ural State University, Chelyabinsk, Russia
3Law Institute, Siberian Federal University, Krasnoyarsk, Russia, firstname.lastname@example.org
Abstract. The article considers the main features of the modern model of constitutional law and order, which content and construction provide the most successful and civilized harmonization of the legal reality of Russian society and the state. The article deals with the classic institutions of the constitutional movement, which are systemic elements of the content of the constitutional legal order. The constitutional principles of humanism, democracy, separation of powers and the unity of state power and parliamentary control determine the establishment of qualitative guidelines for the constitutional legal order. Taking into account the legal doctrine, a classification of the constitutional-legal model is proposed, and the most optimal model in terms of constitutional construction is determined.
The concepts of “model” and “provision” of the constitutional legal order are correlated as components of its mechanism. The institutional and legal algorithm for the implementation of the institution under consideration in the context of digitalization of legal relations, the formation of new legal means of public participation in governance and the restoration of lost legal institutions in the field of democracy are determined. The authors of the article propose directions for the development of the model of constitutional law and order and the practice of ensuring it in the context of modernization of the state and social structure.
The article offers consideration of the constitutional legal order based on the combination of lawful and progressive interaction of public structures and state bodies. The necessity to improve the mechanism for ensuring constitutional law and order is substantiated. It can strengthen the state of constitutional legality, determine the real place of human rights in the legal system of society, and consolidate public participation in the technology of making managerial decisions by state bodies.
Keywords: constitutional law and order, model of constitutional law and order, constitutional system, state bodies, public formations, civil society, human rights, mechanism for ensuring constitutional law and order
For citation. Bezrukov A. V., Teplyashin I. V. The Modern Model of Constitutional Law: The Contours of the Formation. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 77—88. (In Russ.) DOI: 10.12737/jrl.2021.008
I. A. Kravets
Igor A. Kravets
Novosibirsk State University, Novosibirsk, Russia, email@example.com, https://orcid.org/0000-0001-5291-7177
Abstract. The article discusses the controversial issues of understanding human dignity as a subject of philosophical and legal existence, examines scientific views on human dignity in modern theory, philosophy and jurisprudence, the nature and essence of dignity, its polysemic and multifaceted nature in modern philosophical, legal and ethical discussion; modern theories of human dignity, their impact on the legal and social individual status, the doctrine of constitutionalism; forms of relationship between human dignity and human rights in the context of jurisprudence and philosophy of law; assessment of the philosophical-ethical and legal-existential value of human dignity; the problem of scientific and existential knowledge of human dignity as a cultural phenomenon and social reality. The paper critically assesses the perspectives of transhumanism, transformation and proliferation of human dignity in modern science and practice of state activity and discusses the problem of integrity and heuristic value of human dignity in the context the development of the ideas of constitutionalism as well as transhumanism and trans-humanitarian jurisprudence.
The purpose of the article is to reveal the forms of ethical, existential and legal dialogue between human dignity and human rights; the importance of the dignity of the individual as the core of modern constitutionalism, its influence on the legal forms of securing and ensuring human rights; the problem of combining the ontological integrity of human dignity and the plurality of forms of realization in social reality, the egalitarian universality of dignity and cultural diversity in the modern world.
The discursive approach and critical rationalism in legal research, the methods of dialectics, legal hermeneutics and legal engineering are used; they allow us to determine the meta-philosophical and meta-legal nature and polysemic significance of human dignity in modern philosophy of law, in Russian and modern constitutionalism.
Keywords: dignitatis humanae, human dignity, human rights, legal existence, self-esteem, selfworth, genetic equality, transhumanism, anthropological constitutionalism, rule of law, capacities, ontological integrity
Acknowledgements. The reported study was funded by RFBR, project No. 19-111-50149.
For citation. Kravets I. A. Dignitatis Humanae: Modern Theories, the Problem of Integrity for Philosophical and Legal Existence and Use by Constitutionalism. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 89—110. (In Russ.) DOI: 10.12737/jrl.2021.009
N. G. Zhavoronkova, G. V. Vypkhanova
Natalya G. Zhavoronkova, Galina V. Vypkhanova
Kutafin Moscow State Law University, Moscow, Russia, firstname.lastname@example.org; email@example.com
Abstract. The growth of global challenges and threats in the modern world actualizes the study of the effectiveness of organizational, economic, and legal measures to prevent natural and manmade emergencies, overcome and minimize the negative consequences of their occurrence. In the context of the growing economic, raw materials, environmental crisis, and COVID pandemic the legal science is faced with the task of reviewing the emergency law paradigm, searching for new conceptual approaches to the further development of existing legislation that meets the needs of the current state of society development, and developing proposals to optimize the regulation of relations in this area.
The aim of the study is to develop scientific and theoretical provisions on the factors and further directions of improving the legal regulation of relations in the field of protection of the population and territories from pandemic emergency situations. Objectives: assessment of legal measures of an “emergency” nature in the context of the relationship between the concepts of “efficiency”, “legality”, “legitimacy”; identification of trends that require a review of the concept of emergency situations and the development of legislation in this area.
The study was conducted on the basis of general scientific and private scientific methods, including system-analytical, logical, comparative-legal, formal-legal and other methods of cognition.
The authors show the trends of transformation of legal regulation of emergency, due to their characteristics and features, the formation of “emergency” legislation. The assessment of restrictive measures in high-alert, emergency, state of emergency regimes is given. The problem factors and conditions, as well as the main trends associated with the “emergency” regime, which need to be taken into account when taking organizational, legal and other measures, are identified. Proposals for improving legislation in this area are substantiated, including the elimination of gaps associated with the declaration of a dangerous disease epidemic as a source of emergency situations, information support, and improving the efficiency of public authorities.
Keywords: natural emergencies, infectious diseases, epidemics, pandemics, danger to others, legality, legitimacy, legality, effectiveness, legal measures, high alert
For citation. Zhavoronkova N. G., Vypkhanova G. V. Legal Problems of Improving the Effectiveness of Measures to Prevent and Eliminate Emergencies in Modern Conditions. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 111—126. (In Russ.) DOI: 10.12737/jrl.2021.010
O. O. Zhuravleva
Oxana O. Zhuravleva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-4211-0529
Abstract. The differentiation of legal regulation is traditionally accompanied by the emergence of benefits and preferences. However, the depth and detailing of their legal regulation, as well as their implementation in the branches of Russian law, differs significantly. The transformation of the legal regimes of tax benefits and the emergence of new benefits that has taken place in recent years presupposes a scientific understanding of these processes.
Therefore, the purpose of the study is to analyze such a phenomenon in the national legal system as the legal regime of tax benefits. This solved the following tasks: to define the legal essence of the legal regime of tax exemptions; to reveal the dynamics of doctrinal approaches to its definition, factors influencing it; to consider the normative embodiment, including the pilot regulation, to identify gaps and to propose ways of harmonizing the respective legal array.
As a doctrinal basis, the works of domestic researchers of general and sectoral orientation were taken. The regulatory framework consists of provisions of legislative acts on taxes and fees at the federal, regional and local levels, provisions of international treaties in the relevant field and the practice of their application.
With the help of general scientific methods, as well as the comparative legal method, the main features of the legal regime of tax benefits at the Federal, regional, local levels, features of regulatory consolidation and defects are revealed.
The results of the study is to define the legal essence category — “legal regime of tax concessions” as part of a tax legal regime, the conclusion about the impact of the doctrinal Genesis of the development of national legal science, including the fundamentals and also transformation of the Russian tax system. Proposals are made to improve the institution of the legal regime of tax benefits in order to increase the consistency and efficiency of the regulation of relevant social processes.
Keywords: principle of fairness, principle of equality, tax benefits, legal regime, legal regime of tax benefits, source of law
For citation. Zhuravleva O. O. Legal Regime of Tax Benefits. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 127—142. (In Russ.) DOI: 10.12737/jrl.2021.011
M. A. Kaufman
Mikhail A. Kaufman
Russian State University of Justice, Moscow, Russia, email@example.com
Abstract. The article examines “the exemption from criminal liability” as an institute of criminal law, which is in the stage of development and renewal. Special attention is paid to the grounds of exemption from criminal liability. Neither the criminal law nor the decisions of the Russian Supreme Court Plenum regulating the grounds and procedure for exemption from criminal liability contain a definition of this concept. In the criminal-legal doctrine, the basis of criminal liability also remains a debatable, indefinite concept. This affects the effectiveness of the application of this Institute.
The purpose of the study is to determine the true reason underlying the decision on exemption from criminal liability, to distinguish the conditions and grounds for exemption, to identify the principle on which the institution of exemption from criminal liability is built.
Research methods: formal-legal, linguistic, logical, comparative-legal.
Based on the analysis of the provisions consolidated in Chapter 11 of the Russian Criminal Code, decrees of the Russian Supreme Court Plenum of 27 June 2013 No. 19, many doctrinal positions, the author proposes to consider as grounds of exemption from criminal responsibility based on the principle of economy of criminal repression unreasonableness of its implementation.
Keywords: exemption from criminal liability, ground for the exemption from criminal liability, conditions for the exemption, positive post criminal behavior, unreasonableness, principle of the repression economy
For citation. Kaufman M. A. On a Ground for the Exemption from Criminal Liability. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 143—156. (In Russ.) DOI: 10.12737/jrl.2021.012
R. S. Dimitriev
Ruslan S. Dimitriev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org
Abstract. Federal law No. 44-FZ of 5 April 2013 “On the contract system in the field of procurement of goods, works and services for state and municipal needs” introduced the concept of a life cycle contract into Russian legislation. The market reacted enthusiastically to the normalization of this legal category: not only state (municipal) customers, but also legal entities that were not covered by this law, began to make transactions according to the life cycle contract model proposed by the law. At the same time, certain features of the legislative definition of the life cycle contract raised questions in the process of its practical application.
The purpose of the study is to analyze the legal definition of the “life cycle contract” term for the correctness of its formulation from the point of view of certain requirements of traditional logic to the operation of defining the concept. The tasks are: analysis of the prerequisites of the legal definition of a contract lifecycle in the Russian legislation; the disclosure of the content of the “life cycle contract” concept and review it for major and minor characteristics; identifying potential defects in the legislative definition of contract life cycle.
Research methods: formal-logical, historical-legal and system-legal.
Conclusion: the current legislative definition of the life cycle contract probably contains inaccuracies, and therefore options for their elimination are proposed. Alternative definitions of the "life cycle contract" term are formulated, and a definition of the “life cycle” term is proposed. Judgments are made on the expediency of legislative establishment of a broader scope of application of this legal structure-outside the scope of state (municipal) procurement.
Keywords: life cycle contract, life cycle, legislative definition
For citation. Dimitriev R. S. On the Definition of the “Life Cycle Contract” Concept in Russian Legislation. Journal of Russian Law, 2021, vol. 25, no. 1, pp. 157—169. (In Russ.) DOI: 10.12737/ jrl.2021.013
A. F. Nozdrachev, O. E. Starodubova
Aleksandr F. Nozdrachev, Olesya E. Starodubova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com; firstname.lastname@example.org
Abstract. The Institute of Legislation and Comparative Law under the Government of the Russian Federation held a scientific and practical seminar on topical issues of domestic legislation modernization in the framework of the “regulatory guillotine” reform as the main direction of the current stage of the state control (supervision) reform, which requires the creation of new legal structures, the use of other regulatory methods, the use of new positive and jurisdictional procedures.
During the seminar were discussed: the mechanism of implementation of the “regulatory guillotine” legal risks in the implementation of reforms in different spheres of government, the problems of formation of regulatory control structure for each type of state control (supervision), the ratio of strategic planning and regulatory policy, development trends of the Russian regulatory policy, as well as international approaches and experience of implementation of “regulatory guillotine” and other measures of deregulation. The review highlights the results and main conclusions reached by the participants of the seminar.
Keywords: regulatory guillotine, reform of the system of state control (supervision), administrative law, deregulation, regulatory policy, public administration
For citation. Nozdrachev A. F., Starodubova O. E. Review of the Scientific and Practical Seminar «“Regulatory Guillotine” as a Decisive Factor in the Effectiveness and Resulting Quality of State Control (Supervision)». Journal of Russian Law, 2021, vol. 25, no. 1, pp. 170— 175. (In Russ.) DOI: 10.12737/jrl.2021.014