Contents of issue # 9/2021

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

Judicial Activism in the Formation of Legal Framework

V. V. Lazarev

Valeriy V. Lazarev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, lazarev@izak.ru, https://orcid.org/0000­-0003-­0910­-0609

Abstract. The article records that a number of scientists depart from the classical ideas about the content and limits of legal regulation. It is relevant, in particular, to include the laws of nature and new biological and virtual human states in the subject of legal regulation. By way of discussion, the author suggests to refer to the understanding of the legal framework in relation to other concepts, to the classification of framework and the role that courts play in their formation. For example, it seems that the sphere of legal regulation is not identical to the concept of the legal sphere; since the latter includes all forms of legal influence (not only forms of regulation). As a result of the use of forms of regulation and forms of legal influence, a legal environment is created; into which non-legal factors invade to one degree or another. A planar view of the entire set of factors gives the concept of “legal field”. For the most complete coverage of the use of all these concepts, the concept of “legal space” seems suitable. Unlike “planar” concepts, it is multidimensional, voluminous and comprehensible on the basis of a reductive methodology. The central point (a neb) in the space of law is legal responsibility. The need to impose a fair measure of responsibility determines the activism of the court in law enforcement, in the concretization of law and judicial law-making. It has always been believed that the right is not subject to consciousness and feelings, that the right is not able to penetrate the subconscious. Today, all this needs a thorough analysis in connection with the discussions about electronic justice.

Keywords: judicial activism, legal framework, cyberspace, sphere of legal regulation, legal environment, digital space, personal space, space of the past, space of the future, judicial law

For citation. Lazarev V. V. Judicial Activism in the Formation of Legal Framework. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 5—17. (In Russ.) DOI: 10.12737/jrl.2021.107

Comparative Digital Law: Its Rise and Prospects

E. V. Talapina

Elvira V. Talapina
Institute of State and Law, Russian Academy of Sciences, Moscow, Russia, comparative_law@ igpran.ru, https://orcid.org/0000-0003-3395-3126

Abstract. At the present stage of digitalization a set of relations on the use of digital technology gets isolated. In this regard, the task of theoretical understanding of digital law, especially in the comparative legal aspect, becomes relevant.
The purpose of this study is to identify the features of digital law and trends in its development on a global scale.
Using traditional methods of legal research, especially comparative ones, the author concludes that the diversity of opinions on the independence and subject matter of digital law reflects the stage of formation of this new phenomenon. The originality of digital law is seen in two multidirectional trends — the internal unity of the new emerging discipline (1), and in the fact that the legal regulation of digital technology permeates all branches of law (2). The peculiarities of digital law include: the absence of exclusive method; the emergence of the threat of erasing the boundaries between public and private law; the idea of the balance of public and private elements; the presence of specific sources, among which a large role belongs to self-regulation acts and technical norms; its own conceptual apparatus.
The author proposes to distinguish a general part of the comparative digital law whose task is to identify universal trends in the technologies use and regulation, and a special part, devoted to both national and sectoral peculiarities of technology regulation. Two cases illustrate the construction of the special part. Legal protection of personal data well illustrates the differences between the continental and Anglo-Saxon approaches, with a gradual convergence of positions and the development of a certain universal solution. The second case (the Blockchain applications in different countries of the world) demonstrates the different manifestations of universal and neutral technologies in each legal system. This analysis convinces us that digital law is in its active formation stage, and the global parallels show the promise of comparative legal research in this area, which has a significant impact on the theory of law in general.

Keywords: comparative law, digitalization, blockchain, personal data, digital law

For citation. Talapina E. V. Comparative Digital Law: Its Rise and Prospects. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 18—32. (In Russ.) DOI: 10.12737/jrl.2021.108

■ CIVIL AND FAMILY LAW. ENTREPRENEURIAL LAW

Problem of Characterization in Private International Law

V. A. Kanashevsky

Vladimir A. Kanashevsky
Kutafin Moscow State Law University, Moscow, Russia, vladimir@kanashevsky.ru

Abstract. The author researches the problem of characterization of legal notions of conflict law rules.
The purpose of this article is the description of three main approaches for solving the characterization problem — characterization by lex fori, characterization by lex causae andcharacterization by reference to universal and independent concepts (autonomy characterization) on the basis of the analysis of the Russian and foreign doctrine, statutory law and case law.
The author uses the general research methods of formal logic one, such as the analysis and synthesis, and also uses the specific methods such as method of comparative jurisprudence and formal legal interpretation.
The author concludes that the modern doctrine and practice of private international law follows the approach that characterization of the notions of conflict law rules should be done by applying the lex fori. However, the lex fori approach is not only the one which exists in our era of globalization, because the courts frequently face with notions which do not have analogies in domestic legal system. In addition, the Russian practice proves that the courts tend to perform characterization by the lex fori also in cases which require characterization by the lex causae for the interests of fair settlement of a case. Furthermore, address of the courts to universal and independent concepts(autonomy characterization doctrine) is more spontaneous process than intentional action.Notwithstanding that the unification processes is currently slowing down, the doctrine of universal characterization shall play a key role in the settlement of characterisation problem in future.

Keywords: characterization, lex fori, lex causae, applicable law, property relations between spouses, limitation period, lex loci contractus, real estate, offshore company, trust, beneficiary, beneficial rights

For citation. Kanashevsky V. A. Problem of Characterization in Private International Law. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 33—46. (In Russ.) DOI: 10.12737/jrl.2021.109

Russian Paternity: “Defeat in Rights”

S. V. Zykov

Sergey V. Zykov
Institute of Philosophy and Law, Siberian branch, Russian Academy of Sciences, Novosibirsk, Russia, zykovsv@yandex.ru

Abstract. The article examines the problem of gender discrimination in connection with the resolution of disputes by courts on the determination of the child’s place of residence when the parents live apart, which also violates the rights and legitimate interests of children. The purpose of the article is to identify the legal mechanisms for the formation of this discriminatory practice, and investigates the problems of exercising the rights of a separate parent. The task is to find solutions that provide a balanced solution to the problem of determining the child’s place of residence when parents live separately, taking into account his interests. The work uses special methods of cognition: comparative legal, systemic, empirical, statistical, as well as general scientific (analysis, synthesis, comparison) method.
The methods of formation by the Supreme Court of the Russian Federation of discriminatory judicial practice in determining the place of residence of a child are revealed. Thearticle demonstrates that at present the law enforcement practice diminishes the rights (already initially limited) of the separately living parent, who is most often the father: often his interests are ignored when determining the order of communication; mechanisms for holding accountable the person who creates obstacles for him to communicate with the child (despite the fact that this sometimes leads to a court decision on the restriction of parental rights). Russian legislation does not even contain the prerequisites for taking into account the interests of the separately living parent when moving the child within the country, as well as any control over the spending by the other parent of funds intended to support the child. As one of the solutions to the problem, a regime is proposed, referred to in relation to foreign law as “joint custody”, the regulation of which (in conjunction with the place of residence of the child) is considered on the example of several Western European states. It is emphasized that the establishment of residence for both parents in a post-divorce situation is a relatively recent trend associated with objective changes in society. Since such changes are taking place in Russia, it seems justified to apply a similar legal regime in it.

Keywords: fatherhood, motherhood, equality of parents, divorce, joint custody, child-parent relationship, responsible fatherhood, rights of fathers

For citation. Zykov S. V. Russian Paternity: “Defeat in Rights”. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 47—60. (In Russ.) DOI: 10.12737/jrl.2021.110

■ LABOR LAW AND SOCIAL SECURITY LAW

Legal Characteristics of Medical Errors and Minimizing the Risks of Their Commission

M. S. Mateykovich, E. A. Mateykovich

Maxim S. Mateykovich1, Elena A. Mateykovich2
1Second Cassation Court of General Jurisdiction, Moscow, Russia, mat-maxim@yandex.ru
2Tyumen State Medical University, Tyumen, Russia, https://orcid.org/0000-0002-2612-7339

Abstract. The search for ways to minimize adverse health outcomes has been ongoing for many years. In recent years, along with medical professionals, lawyers are actively involved in solving this problem. Medical errors are becoming one of the most common causes of severe complications of the disease. The problem of significantly reducing such errors is of a multidisciplinary nature, including issues of law, medicine, biomedical ethics, medical sociology, psychology.
The research aim is to consider the problem of reducing the risk of medical errors from a legal perspective. The objectives are: to summarize the existing approaches to solving the problem in the scientific literature, to determine the place of medical errors in the structure of defects in the provision of medical care, to analyze judicial practice and identify patterns in the consideration of relevant cases.
The literature, evaluated in this article,is the regulatory legal acts of the Russian Federation, clinical recommendations (protocols) for the treatment of diseases, court decisions, considered through the analysis of their content, comparison, generalization, statistical processing of digital data.
The author comes to the conclusion that the prevention of medical errors is a complex medical, social and legal problem. The main idea of the article: the role of healthcare in the life of society, the demographic policy of the state, the emergence of new threats in the form of the spread of previously unknown dangerous infectious diseases, a serious public demand for affordable and safe medical care require a qualitative revision of the legal regulation of the provision of medical activity, including on the basis of ideas laid down in the current edition of the Constitution of the Russian Federation.

Keywords: medical errors, medical care, clinical guidelines (protocols), trial, defects in medical care

Acknowledgments. This work was supported by the Russian Foundation for Basic Research, project No. 19-011-00316/20.

For citation. Mateykovich M. S., Mateykovich E. A. Legal Characteristics of Medical Errors and Minimizing the Risks of Their Commission. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 61—77. (In Russ.) DOI: 10.12737/jrl.2021.111

Social Security of Citizens in the Digital Economy

S. V. Kamenskaya

Svetlana V. Kamenskaya
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, on_light@mail.ru, https://orcid.org/0000-0002-9189-5465

Abstract. The development of the modern digital economy faces numerous problems and challenges. They affect all spheres of society, including the social sphere, which is largely tied to the economy and depends on budget replenishment. The transformations taking place under the influence of digital technologies in the social sphere expand its capabilities and at the same time pose a threat of violation of citizens’ rights due to imperfections of information systems, technical failures of programs, failure to ensure proper protection of information and personal data. Thus, according new trends, the legislation on social securityshould focus on guaranteeing the rights and legitimate interests of citizens. All economic entities should be involved, including those who are not yet covered by the mandatory social insurance system (self-employed, creative professionals — freelancers, informally employed citizens, etc.).

Keywords: compulsory social insurance, social security, atypical employment, social benefits, social assistance, pensions

For citation. Kamenskaya S. V. Social Security of Citizens in the Digital Economy. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 78—88. (In Russ.) DOI: 10.12737/jrl.2021.112

■ PROCEDURAL LAW

Jurisdiction of Corporate Disputes in International Unified Acts

A. I. Schukin

Andrew I. Schukin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, pil@izak.ru, https://orcid.org/0000-0002-4539-6876

Abstract. The article examines the unified norms of international acts on the jurisdiction of corporate disputes. Corporations, established under national law in various forms, often carry on business activities outside the borders of the state of establishment. They play a very important role in international commerce.
Corporations are among the major participants in the common market, which is an area without internal borders and freedom of movement of goods, persons, services and capital. The creation and proper functioning of this market is of great importance in achieving the goals of international economic integration of States. The activities of corporations — which conduct businesses across borders — and the decisions they make have consequences in many states, sometimes leading to disputes beyond national borders. They concern, for example, the purchase of goods, the provision of services, and the infliction of harm. The corporate form of business organization also does not exclude conflicts between managers and shareholders, between shareholders and disputes between shareholders and other stakeholders, including creditors and employees. Disagreements between the parties to corporate relations — complicated by a foreign element — often become the subject of court proceedings. In order to consider such disputes, it is important to determine international jurisdiction. The international community pays close attention to the above mentioned issue, because national legislation differs in terms of determining the place where a corporation may be subject to general jurisdiction — at the principal residence or establishment — or when in other states the corporations’ branches or subsidiaries may be tried within specific jurisdiction.

Keywords: corporate disputes, international jurisdiction, exclusive competence of national courts, unification of corporate law, lex societatis

For citation. Schukin A. I. Jurisdiction of Corporate Disputes in International Unified Acts. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 89—105. (In Russ.) DOI: 10.12737/jrl.2021.113

Legal Gaps in the Procedural Order of Notification, Announcement and Exchange of Procedural Documents in Civil Proceedings

A. Yu. Tomilov, D. V. Danilov

Alexander Yu. Tomilov1, Denis V. Danilov2
1, 2Institute of Law, Chelyabinsk State University, Chelyabinsk, Russia
1Uralian branch, Russian State University of Justice, Chelyabinsk, Russia, 79043059405@yandex.ru, https://orcid.org/0000-0002-9551-3524
2cheladvokat@mail.ru

Abstract. The change in the civil procedure legislation in terms of clarifying the procedure for notifications and announcement of participants in legal proceedings is carried out against the background of the introduction of new information technologies aimed at the development of distant interaction. New technologies do not exclude, but only complement the existing procedural mechanism, which requires identifying the boundaries of their use both in civil proceedings and the delivery of state and municipal services in electronic form.
The purpose of the study is to identify legal gaps in the framework of the procedural order of civil proceedings when the participants exercise their rights and perform duties related to notifications, announcement and exchange of procedural documents. The objectives of the research are aimed at clarifying the features of the procedural and legal mechanism of notifications, announcement and exchange of procedural documents both within the framework of the traditional procedural mechanism and using new information technologies.
The main methods used in the study are formal-logical, comparative-legal, system analysis and scientific modeling.
Using the new information technologies does not exclude the active use of well-established and proven procedural mechanisms for notifications, announcement and the exchange of procedural documents between the participants in the case. However, in order to adapt them with new technological changes, the concept of “first notification” should be introduced into the civil procedural legislation, after which the persons participating in the case can refer to the fact of proper notification, which allows the subsequent use of electronic means of correspondence delivery. As part of the improvement of the procedural mechanism, it is necessary to clarify the list of entities entitled to deliver procedural documents, as well as to clarify the legislative provisions regarding the admissibility of references to certain evidence confirming a person's refusal to receive notifications, notices and other procedural documents addressed to him.

Keywords: good faith, judicial notices, judicial dispatches

For citation. Tomilov A. Yu., Danilov D. V. Legal Gaps in the Procedural Order of Notification, Announcement and Exchange of Procedural Documents in Civil Proceedings. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 106—118. (In Russ.) DOI: 10.12737/jrl.2021.114

■ INTERNATIONAL AND INTEGRATION LAW

Interaction of the Russian Federation with International Human Rights Institutions: Current State and Development Trends

I. V. Goncharov

Igor V. Goncharov
University of the Prosecutor’s Office of the Russian Federation, Moscow, Russia, goncharov-i@mail.ru

Abstract. Currently, the system of international cooperation of states is experiencing a serious crisis. This fully applies to cooperation in the field of human rights, which is especially evident against the background of a significant reduction in the role of universal legal regulators of international relations. The policy of double standards is the reality of the modern world, which negatively affects the state of international cooperation of the Russian Federation with international human rights organizations.
The methodological basis of the study was made up of both general scientific and special research methods: systematic, dialectical, logical-legal, comparative-legal, formal-legal, etc.
The purpose of the study is to consider problematic issues of interaction between the Russian Federation and international human rights institutions, to identify negative and positive factors of an objective and subjective nature that affect the level and nature of this interaction. The conducted socio-legal study of the current state of cooperation between the Russian Federation and international human rights organizations allowed the author to identify trends and prospects for the development of these relations, to draw conclusions that in the modern world, despite the contradictory influence of various factors, a systemic crisis in international relations, processes are objectively formed that determine the need to improve international cooperation of states in the field of human rights, including in relation to the Russian Federation.

Keywords: human rights, the crisis of international law, international cooperation, inter-state bodies for the protection of human rights, multipolar world, the policy of “double standards”, Council of Europe, European Court of Human Rights

For citation. Goncharov I. V. Interaction of the Russian Federation with International Human Rights Institutions: Current State and Development Trends. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 119—132. (In Russ.) DOI: 10.12737/jrl.2021.115

■ SCIENTIFIC FUNDAMENTALS OF COUNTERING CORRUPTION

Institutional Mechanisms for Combating Corruption in the Public Service

A. M. Tsirin, V. V. Sevalnev

Artem M. Tsirin1, Viacheslav V. Sevalnev2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
1artemtsirine@yandex.ru, https://orcid.org/0000-0003-0690-074X
2sevalnev77@gmail.com, https://orcid.org/0000-0001-5676-0998

Abstract. In the article devoted to the study of institutional mechanisms for combating corruption in the public service, their author’s concept and classification are proposed. The authors considered such anti-corruption mechanisms as declaring the property status of officials of various categories, preventing and resolving conflicts of interest, as well as ensuring compliance with prohibitions, restrictions and fulfilling duties established in order to combat corruption. At the same time, new cross-sectoral subinstitutions of anti-corruption legislation were analyzed. In addition, the authors differentiated the existing institutional mechanisms for combating corruption into traditional and fundamentally new ones based on the use of digital and information technologies, the use of which also allows us to unlock the potential of existing anti-corruption mechanisms. Taking into account the analysis carried out by the authors, in order to consolidate new institutional anti-corruption mechanisms, the directions of further improvement of the Russian anti-corruption legislation are proposed.
The article emphasizes the growing role of еthe conflict of interest in the development of modern legislation, which uses for legal regulation of heterogeneous social relations. It is noted that with an increase in the level of informatization, it becomes necessary to process large amounts of information, including various types of data, which become the foundation for the information systems, including those administered by humans. The scientific article proposes scientific and practical approaches that will be used to create a digital profile of a civil servant and also concludes that it is necessary to synchronize this work with activities to form a digital profile of an ordinary citizen.
The authors conclude that a new institutional anti-corruption mechanism is emerging;it will consist of digital profiling, which will not only lay the foundation for the use of new digital technologies but also unleash the potential of existing mechanisms.

Keywords: combating corruption, legislation, legality, the rule of law, mechanism, institute

For citation. Tsirin A. M., Sevalnev V. V.Institutional Mechanisms for Combating Corruption in the Public Service. Journal of Russian Law, 2021, vol. 25, no. 9, pp. 134—142. (In Russ.) DOI: 10.12737/jrl.2021.116

■ REVIEWS

A New Book by Professor S. A. Bogolyubov as a “Catalyst” of Ecological and Legal Scientific Thought (S. A. Bogolyubov. Development of Environmental Law in the Eurasian Space. Moscow, 2020. 432 p.)  Pdf 16

I. A. Ignateva

Inna A. Ignateva
Lomonosov Moscow State University, Moscow, Russia, land@law.msu.ru

For citation. Ignateva I. A. A New Book by Professor S. A. Bogolyubov as a “Catalyst” of Ecological and Legal Scientific Thought (S. A. Bogolyubov. Development of Environmental Law in the Eurasian Space. Moscow, 2020. 432 p.). Journal of Russian Law, 2021, vol. 25, no. 9, pp. 143—146. (In Russ.) DOI: 10.12737/jrl.2021.117

Adobe pdf 24  Full text in Russian

■ LEGAL LIFE. CHRONICLE

Human in Law: Modern Doctrine and Practice (Review of the XVI International School-Workshop of Young Legal Scholars)  Pdf 16

Yu. P. Michurina, A. A. Pushkina, A. I. Sidorenko

Yulia P. Michurina1, Anastasia A. Pushkina2, Andrei I. Sidorenko3
1, 2, 3Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
1michurina_y@mail.ru
2pushkina-a.a@yandex.ru
3andreww.i.sidorenko@gmail.com, https://orcid.org/0000-0002-5356-3363

For citation. Michurina Yu. P., Pushkina A. A., Sidorenko A. I. Human in Law: Modern Doctrine and Practice (Review of the XVI International School-Workshop of Young Legal Scholars). Journal of Russian Law, 2021, vol. 25, no. 9, pp. 147—169. (In Russ.) DOI: 10.12737/jrl.2021.118

Adobe pdf 24  Full text in Russian

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