G. A. Vasilevich, S. G. Vasilevich
Grigory A. Vasilevich1, Sergey G. Vasilevich
1Belarusian State University, Minsk, Belarus, Gregory_1@tut.by
Abstract. The article analyzes such concepts as lawful behavior, offense, abuse of right. Attention is drawn to the fact that in legal science, legislation, practice there is no unified definition of the concept of “abuse of right”, which would allow to distinguish it from concepts like offense, lawful behavior. The article carries out classification of abuses of right according to the subject composition. It is emphasized that the specifics of such phenomenon as abuse of right lies in the fact that for these deeds there should be legal liability or — due to the abuse of subjective right — a person can be deprived of guarantees and benefits established by law. The stage at which the implementation of a right turns into an abuse of it is characterized by wrongfulness. Counteraction to the abuse of right may be associated with a possible restriction (suspension) of rights and freedoms. The grounds and limits of their restriction are laid down in the Constitution. Whether an abuse of right will ultimately be regarded as an offense depends on the content of the legal norm, which regulates certain relations. In doing so, it is necessary to proceed from the analysis concerning the limits of the exercise of rights.
Keywords: abuse of right, lawful behavior, offence
For citation. Vasilevich G. A., Vasilevich S. G. Lawful Behavior and Abuse of Law. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 5—17. (In Russ.) DOI: 10.12737/jrl.2022.101
A. I. Abramova
Aleksandra I. Abramova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org
Abstract. The growth of social, technological innovations characteristic of the modern period, their convergence, as the basis for the transition of Russian society to a new phase of development, a very noticeable increase in its impact on the national state and law, actualizes the problem of lawmaking, ways of its modernization.
The goals and objectives in this study are the systematic analysis of convergence in law, the development of new standards in understanding this legal category, the formulation of a number of methodological problems of legal convergence.
This research uses the formal legal method, methods of legal modeling and intersectoral analysis, the system-structural method, as well as proprietary methods of legal convergence (harmonization, unification, integration).
Convergence in law is considered as a complex multifaceted process of internal and external interaction of elements of law, the influence of extralegal factors that determine the dynamics of this process. The manifestation of this phenomenon — which allows a new look at the traditional institutional and functional aspects of the state legal matter — can be expressed, according to the author, in the convergence of law and the law, individual elements of the national legal system, law and other social and non-social norms. It is emphasized that with the development of the national legal system, which is influenced by convergence, there is an increase in integrative trends in law, which changes the nature of law-making activity and first of all lawmaking, as its most important component.
Conclusion. The development of innovative processes and trends supported by changes in law caused by convergence processes, the mechanism of its action leads to a change in the entire paradigm of the law-making process, which becomes the most important factor in the economic, social and political organization of society.
Keywords: convergence, lawmaking, innovation, strategy, law, legal regulation
For citation. Abramova A. I. Law-Making Strategy in Conditions of Convergence of Social and Technological Innovations. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 18—27. (In Russ.) DOI: 10.12737/jrl.2022.102
N. G. Doronina
Natalia G. Doronina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com, https://orcid.org/0000-0002-5962-7276
Abstract. There is a new approach to the Unification of Regulation of Cross-border Transactions that is shown in the article. The globalization in the world economy may be illustrated by the examples of the world scale of infrastructural projects, which realization depends on the efforts of several states and transnational corporations. These projects are undertaken since they are backed by strong financial means of economically developed states and private companies with widespread network of branches around the world, and thus the latter is called transnational corporations. The organizational structure of the projects lies within the international legal order but the project is realized by businessmen within the national order of their states. The article — based on the example of various agreements between the state and private business — illuminates what is the peculiarity of the national legal regulation of agreements on public-private partnership and how such agreements differ from concession and other civil law agreements, the parties to which are the state and a private investor.
Conclusion: even developed legislation in the field of legal regulation of domestic relations between the state and an individual cannot meet the requirements of international legal regulation of crossborder traffic or external relations, for which the central issue is the solution of the conflict problem, i.e. the question of choosing the applicable rights. The agreement on the implementation of a global infrastructure project formulates the principle of regulation, common for arising from numerous contracts, when resolving a conflict issue. For infrastructure projects on a global scale, in addition to international law, it is important to establish a unified approach in order to choose the applicable law.
Keywords: unification, law of collisions, agreements on public-private partnerships, concession agreement
For citation. Doronina N. G. Uniform Regulation of Cross-border Transactions Following the Experience of the Agreements on the Public Private Partnerships. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 28—40. (In Russ.) DOI: 10.12737/jrl.2022.103
E. A. Gromova
Elizaveta A. Gromova
South Ural State University (National Research University), Chelyabinsk, Russia, gromovaea@ susu.ru
Abstract. Experimental legal regimes (regulatory sandboxes) are a very popular mechanism in Russia and abroad aimed at developing entrepreneurial activity based on digital technologies. Its main feature is the temporary non-application of certain regulatory requirements to the activities of the participant of such a regime. On the one hand, this makes it possible to accelerate the introduction of innovative technologies, creating the most effective legal regulation. On the other hand, it provides participants of such a regime with important competitive advantages and more favorable conditions for “entering” the market. This raises certain questions in the sphere of correlation of legislation on experimental legal regimes of digital technology creation and protection of competition.
The purpose of the study is to analyze the Russian and foreign legislation on regulatory sandboxes — as well as the practice of their application — from the perspective of possible violations of the principles of competition regulation. To achieve this the comparative legal method is used, which makes possible to compare Russian and foreign legislation, law enforcement practice in the field of establishing experimental legal regimes, as well as formal and systematic methods.
The study leads to the conclusion that establishing experimental legal regimes does put business entities in a more favorable position, and thus can lead to violations of antitrust law norms. To solve this problem, the author proposes to take a number of measures to prevent such violations ex ante: to involve antimonopoly authorities in the process of establishing experimental legal regimes; to strengthen their interaction with the participants of such regime; as well as to recommend its participants to implement a system of antimonopoly compliance.
Keywords: special regime, experimental regime, regulatory sandboxes, territories with special regime of entrepreneurial activity, digital technologies
For citation. Gromova E. A. Experimental Regimes for Creating Digital Innovations and Problems of Ensuring Fair Competition. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 41— 51. (In Russ.) DOI: 10.12737/jrl.2022.104
S. Yu. Golovina, N. L. Lyutov
Svetlana Yu. Golovina1, Nikita L. Lyutov2, 3
1Ural State Law University named after V. F. Yakovlev, Yekaterinburg, Russia, firstname.lastname@example.org, https://orcid.org/0000-0003-3987-121X
2Kutafin Moscow State Law University, Moscow, Russia, email@example.com, https://orcid.org/0000-0002-7498-9734
3M. Narikbayev KAZGUU University, Astana, Kazakhstan, firstname.lastname@example.org
Abstract. The question of the place of court case law within the system of labor law sources is one of the most disputable issues in the current legal doctrine. The article contains the analysis of the legal law-making process by the Supreme Court of the Russian Federation, which influences the legal practice.
The research goal of the article is to discover the court case law approaches to forming the new legal determinations, which have the potential to overcome the legal uncertainty in certain aspects of labor law. The more specific aim is to show the way, in which the Supreme Court does not limit itself to the explanation of the existing case law but widens the scope of the employment relations’ regulation.
The main method of research is a systematic analysis of the Supreme Court’s practice, as well as the appellate courts regarding the labor disputes resolution.
Several Supreme Court’s legal determinations are examined to show their influence over the application of law including the practice of the lower courts of general jurisdiction. The conclusion is made that the Supreme Court goes beyond filling the legal gaps and mere interpretation of law toward the de facto law-making. Such activity covers quite important aspects of labor law including pointing out the new sources and principles of labor law.
The article underlines the importance of the principle of primacy of facts in the resolution of disputes regarding the determination of employment relations, recently underlined by the Supreme Court. The proposal is made to introduce the number of the Supreme Court positions directly in the labor legislation.
Keywords: Supreme Court of the Russian Federation, court law-making, legal determinations, abuse of right, principles of labor law
Acknowledgements. The Article was written as part of the State Task No. 075-00293-20-02 of 25 May 2020. Topic number: FSMW-2020-0030.
For citation. Golovina S. Yu., Lyutov N. L. Is the Supreme Court a Law Maker in the Field of Labor Law? Journal of Russian Law, 2022, vol. 26, no. 10, pp. 52—67. (In Russ.) DOI: 10.12737/ jrl.2022.105
Tatyana Yu. Korshunova
Tatyana Yu. Korshunova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com
Abstract. Recently, the question of the role and place of judicial practice in the legal system of Russia has become increasingly relevant and acute. Sometimes contradictory opinions are expressed in scientific discussions from recognizing the right of the courts not only to interpret, but also to create law, fill gaps and eliminate inaccuracies, to denying in principle such a possibility. Currently, there is a situation in which not only the decisions of the Plenums of the Supreme Court of the Russian Federation and reviews of judicial practice, but also decisions on specific cases play an important role in law enforcement. These reviews also form ideas about the proper behavior of both the employer and the employee. Judicial practice related to the consideration of cases arising from labor relations is of great importance, since the construction of a system of labor law norms is based on the idea of humanism: the attitude to a working person — his life, health, professional self-realization, dignity as values significant to society. This is manifested primarily in the recognition of the vulnerable position of an employee in an employment relationship. The position of an employee as an economically and organizationally weak side of an employment relationship requires the court to take into account not only how the law’s prescription is fulfilled, but also to assess the behavior of the employee, his personality, and the life circumstances that prompted him to make a particular decision. Nevertheless, achieving a balance of interests is all the more important because a bias in favor of one of the parties inevitably lead to negative consequences, which, in the end, is felt by both sides of the employment relationship. However, recently, in a significant part of court decisions — especially the Supreme Court of the Russian Federation — there are decisions on labor disputes, which follow rather dangerous trend: courts not only apply and interpret the rule of law, but also impose duties on the employer that are not directly prescribed by law and do not follow from it. In fact, the Supreme Court supplements and clarifies the legislator, filling the norms of labor legislation with a new, unprecedented meaning. Such approaches are typical for the application of all institutions of labor law, which require rethinking, since the acts adopted by the Supreme Court should correspond to the law, and not to the idea of the law formulated by the courts.
The purpose of the study is to improve the legal mechanisms for the application of labor law norms. The author’s task is to identify the degree of compliance of the emerging judicial practice with the requirements of the current labor legislation.
The methodological basis of the research consists of universal, general scientific methods, as well as system-structural, formal-legal methods.
Keywords: labor relations, statute of limitations, guarantees, pregnancy, dismissal, reduction, number of employees, court decision, employee, employer, vacancy
For citation. Korshunova T. Yu. Limits of Judicial Interpretation in Resolving Labour Disputes. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 68—84. (In Russ.) DOI: 10.12737/jrl.2022.106
M. A. Lipchanskaya, S. A. Privalov
Maria A. Lipchanskaya1, 2, Sergey A. Privalov3
1Russian State University of Justice, Moscow, Russia, firstname.lastname@example.org
2Institute of Public Administration and Civil Service, Russian Presidential Academy of National Economy and Public Administration, Moscow, Russia
3Saratov State Law Academy, Saratov, Russia, email@example.com
Abstract. An integral characteristic of modern society is its communication and information content, the development of digital technologies and artificial intelligence systems. In turn, the level of development of information and digital technologies determines the permanently increasing demand of the state and society for the use of digital intellectual technologies in new spheres of life, including in the implementation, security, protection of human and civil rights and freedoms guaranteed by the Russian Constitution. One of the options for the development of law in this context was the creation of the concept of machine-readable law, set out in the Concept of the Development of Machine-Readable Law Technologies, developed by the Ministry of Economic Development of Russia and approved by the Government Commission on Digital Development, the Use of Information Technologies to improve the quality of life and business Conditions. Despite the active discussions about the prospects of using machine-readable law and artificial intelligence technologies in public relations, this problem still has no unambiguous solution.
The purpose of the study is to identify the problems and prospects of using machine—readable law and artificial intelligence technologies in public relations. The goal is specified in the following tasks: to conduct a theoretical and legal analysis of the category of “machine-readable law”, to identify the legal prerequisites for its formation in modern Russian society.
Research methodology: recognized general scientific and private scientific methods of cognition used in legal science; applied methods of analysis and synthesis, legal comparative studies, formal-logical and legal-dogmatic methods. The conclusions are based on the data of scientific research in the field of doctrinal understanding and development of machine-readable law and artificial intelligence, on the analysis of normative legal acts and law enforcement practice in the judicial sphere and rulemaking.
The main results and brief conclusions: the shortcomings of the definition of machine-readable law formulated in the above-mentioned Concept are revealed, the author’s concept of this category is proposed; the prerequisites for the legal institutionalization of machine-readable law at the present stage of development of Russian society are investigated; conclusions are drawn about the problems and prospects of using machine-readable law and artificial intelligence technologies in some public relations.
Keywords: human and civil rights, artificial intelligence, machine-readable law, the right to judicial protection, rulemaking, legal regulation
Acknowledgments. The work was supported by the RFBR grant 20-011-00765 “Constitutional and legal mechanism for the implementation of social rights and freedoms using artificial intelligence: problems of legal regulation, limits and responsibility”.
For citation. Lipchanskaya M. A., Privalov S. A. Development of Machine-Readable Law Technologies: Theoretical Problems and Prospects. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 85—96. (In Russ.) DOI: 10.12737/jrl.2022.107
A. M. Tsirin
Artem M. Tsirin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0003-0690-074X
Abstract. The author of the article, considering the problems of digital profiling in the public service, based on the analysis of fundamental scientific works devoted to the introduction of information technologies into public life, concludes that it is possible to reduce negative management practices due to greater automation and controllability of administrative procedures performed by public authorities.
Special attention is paid to the study of the phenomenon of the digital profile in relation to citizens and civil servants, which made it possible to identify the essential features of this concept, including its dualism, as well as the importance of the functional component of the digital profile for the correctness of its definition. The interrelation of the analysis of changes in information and identifiers of the digital profile and ensuring compliance by civil servants with restrictions, prohibitions and duties, including those established for the purpose of combating corruption, is emphasized. This relationship also determines the need for high-quality digital profile analytics.
The author predicts the expansion of the use of digital profiling in the public service due to the need to strengthen the information base for the work of developing state information systems, as well as the fulfillment of a number of related tasks of a personnel, anti-corruption, educational and educational nature. As part of the improvement of the digital profile concept, it is proposed to develop scientifically-based evaluation criteria (scoring) of state civil servants, taking into account, among other requirements, their compliance with the system of restrictions, prohibitions and duties, requirements for official behavior, as well as the requirements contained in the model code of ethics of state and municipal employees.
Keywords: digital profile, public service, register, identifiers, restrictions, anti-corruption, scoring
For citation. Tsirin A. M. Digital Profiling in the Public Service: The Concept and Prospects of Legal Regulation. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 97—109. (In Russ.) DOI: 10.12737/jrl.2022.108
E. V. Luneva
Elena V. Luneva
Kazan (Volga Region) Federal University, Kazan, Russia, email@example.com, hhttps://orcid.org/0000-0001-6666-5353
Abstract. In applied sciences, there is no single name for a food product obtained in laboratory conditions from cells (cell lines) of animal origin (“artificial meat”, “synthetic meat”, “cellular meat”, “cultured meat”, “cultured meat”, “in vitro meat”, “pure meat”, “meat from a test tube”, etc.). It is proved that in Russia, as a legal name for a food product obtained in the laboratory from animal cells, the most effective is the phrase “cultured meat product”. The necessity of legal regulation of the production and sale of cultured meat products as fundamentally new food products, and not ersatz products (an inferior substitute), is substantiated. The effectiveness of differentiation of regulatory requirements on quality and safety in relation to such varieties of artificial meat products as: analogues of meat products made on the basis of vegetable protein and cultured meat products is shown. The basic overlapping areas of legal regulation covering public relations for the production and sale of cultured meat products are highlighted: the quality and safety of food products for humans and the environment; genetic engineering (if the original cell lines undergo genetic modification); protection of the life and health of consumers and their other interests. These areas constitute the general legal regulation of safety in the field of production and sale of cultured meat products.
From the perspective of the ratio of general and special legal regulation of the production and sale of cultured meat products, the safety of bringing such products to the market of Singapore, the USA, the European Union and Russia is assessed. In Russia, the specifics of cultivated meat products are not fully taken into account in the supranational and national legal regulation of ensuring the safety of a new type of food product. It is necessary to develop and adopt a system of additional legal instruments that ensure the safety of cultured meat products at the stages of their production and market launch. Applicable for the borrowing and development of Russian legislation in the field under study should be recognized: special legal measures of Singapore and the United States to ensure the safety of not only the final cultured meat product, but also measures to reduce the high risk associated with the nature of the original cell lines; the system of general legal measures of the European Union on the identification, assessment and reduction of the degree of risks of harm human life and health, the environment as a result of the introduction of new food products into circulation.
Keywords: legal support, safety, cultured meat product, production, sales, cell technology, biotechnology, cultured meat, cell lines, food products, genetic engineering, ersatz, risk, donor animal, agriculture, marking
For citation. Luneva E. V. Legal Security of Production and Sale of Cultured Meat Products in Russia. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 110—126. (In Russ.) DOI: 10.12737/jrl.2022.109
E. K. Sayfullin
Emil K. Sayfullin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-5727-0779
Abstract. The relevance of the research topic is due to the international legal uncertainty regarding the differentiation of concepts and the relationship between the statuses of a mercenary, a foreign volunteer and an employee of a private military and security company. The complex composition of participants is one of the features of the increasing trends of military conflicts of the 21st century, along with the use of high-tech, unmanned and precision weapons. Modern mercenary activity, having an ancient history, received a new development in the middle of the 20th century. in connection with the process of decolonization of Africa. The international community has managed to develop international legal instruments to combat this phenomenon, but the imperfection of the formulations that give ample opportunities for interpretation has created an atmosphere of legal uncertainty and a ground for possible evasion of responsibility. The problem under consideration is complicated by the strengthening of the role of non-State actors in modern armed conflicts against the background of the transfer of part of state powers to private military contractors and the absence of a relevant international treaty and regulatory mechanisms. In armed conflicts of the 20th—21st centuries, ideologically motivated foreign volunteers who sympathized with one of the parties to the conflict invariably took part. A set of similar qualifying features, being in a combat zone and the difficulty of giving an accurate definition of the concept of direct participation in hostilities do not always allow for an unambiguous legal assessment of the committed actions and correctly classify a mercenary, a foreign volunteer and an employee of a private military and security company, which creates prerequisites for avoiding their responsibility.
Research objectives: to study the historical background of the emergence and development of mercenary, private military and security companies and foreign volunteerism; to analyze existing international legal approaches to determining the status of a mercenary, a foreign volunteer and an employee of a private military and security company.
Special attention is paid to the applicable international legal framework in order to develop practical recommendations for determining and differentiating the status of a mercenary, a foreign volunteer and an employee of a private military and security company.
Keywords: mercenaries, foreign volunteers, private military and security companies, international law, international humanitarian law, International Committee of the Red Cross, Montreux Document, mercenary activity
For citation. Sayfullin E. K.Differentiation of the International Legal Statuses of a Mercenary, a Foreign Volunteer and a Contractor of a Private Military and Security Company. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 127—142. (In Russ.) DOI: 10.12737/jrl.2022.110
T. Y. Khabrieva, S. L. Nudel
Talia Y. Khabrieva1, Stanislav L. Nudel2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
For citation. Khabrieva T. Y., Nudel S. L. Scientific Approaches to the Problem of Criminal Liability of Legal Entities (Review of Monograph “Criminal Liability of Legal Entities in Post-Soviet States” by Professor A. V. Fedorov (Moscow: Yurlitinform, 2022. 248 p.)). Journal of Russian Law, 2022, vol. 26, no. 10, pp. 143—149. (In Russ.) DOI: 10.12737/jrl.2022.111
N. N. Chernogor, M. V. Zaloilo
Nikolai N. Chernogor1, Maksim V. Zaloilo2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
Abstract. The article, dedicated to the 100th anniversary of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, analyzes the research path of Doctor of Law, Professor Anatoly Vengerov (1928—1998) — one of the brightest representatives of the theoretical and historical-legal scientific school of the Institute, formed as a scientist precisely within the walls of the All-Union Research Institute of the Soviet Legislation (that was the name of the Institute in those years). His significant contribution to the development of problems of methodology of legal science, substantiation of the possibility of using cybernetic and information approach in law, synergetic in jurisprudence, development of methodology and theory of the effectiveness of legal norms, legality, the rule of law, judicial practice, its forms and content, interpretation and concretization of law, systematization of legislation is shown. Particular attention is paid to the innovative developments of A. B. Vengerov in the study of the problems of spatiotemporal expansion of the framework of history and its archaeological and ethnographic interpretation in the context of legal science, substantiation of the author’s original crisis theory of the origin of the state, solving theoretical and legal problems of automation of management, mechanization in law. In his doctoral dissertation, monograph and scientific articles, he was the first to substantiate the existence of information relations as an independent type of public relations in the sphere of legal impact, proposed the information concept of law, which is the basis for the formation of the theory of the same name. Many of the theoretical and methodological ideas expressed by the scientist played an important role in updating of the foundations of Russian jurisprudence and changing of the rational picture of law from a classical view to a postclassical image of legal reality, which gave a new impulse to modern research of the state-legal sphere of society, which confirms the need and timeliness of addressing its scientific heritage.
Keywords: theory of law and state, classical jurisprudence, post-classical jurisprudence, methodology of legal science, synergetic, scientific and technological progress, information relations, automation of management, mechanization in law, anthropology of law
For citation. Chernogor N. N., Zaloilo M. V. The Life Path and Creative Legacy of Professor Anatoly B. Vengerov. Journal of Russian Law, 2022, vol. 26, no. 10, pp. 150—173. (In Russ.) DOI: 10.12737/jrl.2022.112