Contents of issue # 11/2022

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

Scientificity in the System of Legal Policy Principles of Modern State

V. A. Rudkovsky

Victor A. Rudkovsky
Volgograd State University, Volgograd, Russia, rudkovskiy@volsu.ru

Abstract. The problematic of legal policy is undoubtedly of scientific and practical interest, since it is directly connected with the provision of moral-legal legitimacy and functional effectiveness of state legal strategy as a whole and its certain directions (constitutional, administrative, law making, law implementing etc.). The formation of system vision of the mentioned principles — which takes into account their unity — interconnection and differences is the actual task of modern political-legal theory. The article suggests the gradation of legal policy principles into two relatively separate groups: principles-ideals (justice, democracy, humanism etc.); and principles-technologies (systemacity, realism, regularity etc.). Special attention is paid to such principle as scientificity (scientific foundation). Attention is paid to multidimensionality of the indicated principle, its specific “all-pervading” character. On the one hand, scientificity is subjectively opened and concretized in the whole system of legal policy principles, since they all are the result of corresponding scientific and legal doctrine; on the other hand, scientificity principle has its own content and saves the well-known autonomy as part of the whole. Nearly all elements of legal policy can be specifically “revised” concerning their scientific consistency.
The problem of objective suppositions, conditions and limits of scientificity principle realization in the sphere of state policy is raised in the article. According to the opinion of the author, the idea of scientificity has played an important role in the questions of optimization and especially legitimization of state policy. Along with this, frontal realization of scientificity principle in the sphere of state policy is connected not only to serious difficulties but also to well-known social risks.

Keywords: legal policy, principles of legal policy, system of legal policy principles, principles-ideals, principles-technologies, scientificity as a legal policy principle

For citation. Rudkovsky V. A. Scientificity in the System of Legal Policy Principles of Modern State. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 5—14. (In Russ.) DOI: 10.12737/jrl.2022.113

Legal Goals and Means Manipulation and Abuse of Law: Correlation of Categories

M. A. Kulikov

Mikhail A. Kulikov
Moscow State Institute of International Relations (University), Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia, Mikhail.a.kulikov@mail.ru, https://orcid.org/0000-0002-0978-0141

Abstract. The current stage of development of public relations convincingly demonstrates the trend of ever-increasing legal goals and means manipulation to make legal regulation more effective and socially conditional. Legal goals and means manipulation — along with informational, psychological, economic, political and other types of manipulation — becomes a legal reality. Ignoring this new reality is considered as unacceptable omission, which impoverishes the general theoretical and doctrinal basis of legal instrumentalism and reduces the potential of applied analysis of the legal regulation mechanism.
The undertaken study aims to: formulate definitions of legal goals and means manipulation; to identify specific features, content and essence of these forms of legal behavior. The work also sets the task to conduct a comparative legal analysis of the legal goals and means manipulation and abuse of law, as it allows the author to substantiate the independent nature and specific content of the legal goals and means manipulation, which is not reducible to related legal phenomena.
For this research various methods of cognition of legal reality are used: both general scientific and private scientific. The fundamental method of research is materialistic dialectics, used along with the laws of formal logic, concrete historical, formal legal and comparative legal methods.
The conclusion states that both the legal goals and means manipulation and the abuse of law are socially conditioned forms of legal behavior. However, if the legal goals and means manipulation is the lawful behavior, the abuse of law can encompass both lawful and unlawful activity of the authorized person, allowing the author to substantiate a number of common and distinctive features of the considered legal phenomena. It is argued that the legal goals and means manipulation can cause an imbalance in society, disorient the participants in legal relations and significantly reduce the effectiveness of legal regulation.

Keywords: manipulation, legal goal, legal means, mechanism of legal regulation, law, abuse of law, lawful behavior

For citation. Kulikov M. A. Legal Goals and Means Manipulation and Abuse of Law: Correlation of Categories. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 15—30. (In Russ.) DOI: 10.12737/ jrl.2022.114

■ CONSTITUTIONAL AND MUNICIPAL LAW

Constitutional and Internal Party Responsibility of Deputies and Candidates for Deputies: General and Special

N. M. Kolosova, V. E. Mamedova

Nina M. Kolosova1, Vladislava E. Mamedova2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, kolosova-law@mail.ru, https://orcid.org/0000-0002-5401-0277
2Samara National Research University, Samara, Russia, vladislava0804@mail.ru, https://orcid.org/0000-0003-1659-677X

Abstract. The development of constitutional and legal relations and their excessive politicization impact the status of deputies of legislative (representative) bodies of state power and local selfgovernment bodies and candidates, who, as a rule, are members of political parties at the same time. Non-fulfillment (improper fulfillment) of the duties of a deputy, candidate and party member, imply measures of constitutional and internal party responsibility. At the same time, there is currently a tendency to diffuse these types of responsibility. Meanwhile, the different nature of the types of responsibility (the public-statutory nature of intra-party responsibility and the legal constitutional responsibility) does not allow substituting an institution by another one and requires a balanced approach to establish and implement measures of the studied types of responsibility.
The article aims to identify common and special features of constitutional and internal party responsibility. To achieve this aim, there is a set of tasks: to identify measures of internal party responsibility applied to candidates and deputies that affect constitutional relations; to provide comparative legal analysis of measures of constitutional and internal party responsibility; to identify features of the implementation mechanism of measures of these types of responsibility.
A complex of general dialectical, private scientific (induction, structural-functional, logical, etc.) and special (formal-legal, comparative-legal) methods of scientific cognition are used for the article.
The authors come to the conclusion that excessive state interference in public relations arising from the implementation of intra-party responsibility and unfair influence of political parties on the activities of their members as deputies and candidates, as well as the application of measures of constitutional responsibility based on party decisions is unacceptable.

Keywords: political party, constitutional responsibility, internal party responsibility, deputy, candidate, member of a political party, responsibility of a deputy, exclusion from a faction, termination of powers of a deputy, recall of a candidate, exclusion of a candidate

For citation. Kolosova N. M., Mamedova V. E. Constitutional and Internal Party Responsibility of Deputies and Candidates for Deputies: General and Special. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 31—43. (In Russ.) DOI: 10.12737/jrl.2022.115

The “Null Interpretation” of the Constitution: The Experience of Russia (Part Two)

I. Marino

Ivan Marino
Observatory on the Political-Constitutional System of the Russian Federation, Naples, Italy, info@ osservatoriorussia.it

Abstract. The article is focused on the vitally important problem concerning the modern Russian Federation Constitution maintaining at the beginning of the Nineties in the last century. The author wisely indicates the historical and legal specificity of that process, which is relevant till now.
The second part of the presented article is wholly devoted to the interpretation of the new Russian Federation Constitution of 1993 clauses. In the article the author focuses the readers’ attention on the various types of the newest Russian Federation Constitution interpretation, carried out by different officials, state and social bodies. The author underlines, that there are principle differences among the interpretation facilities, tools and methods, used by the mentioned participants of the Constitution elaboration process. The author pays attention to the details of the intensive debates, took place during the official plenary meetings, dedicated to the seeking and working out the most effective variants of the constitutional articles’ texts.
The goals of the author’s research are to underline the extreme necessity of the constitutional renovation affecting in Russia during the post-soviet period and onwards as well as to describe the resistance, organized and declared by some of the constitutional reforms opponents. The tasks of the author are to illustrate the measures and facilities, which are necessary to realize the main goals of the constitutional reforms in Russia: to change the methods of governing; to enable the population to use their rights and freedoms in a proper way; and to incorporate the world widely recognized standards of living.
The author uses the scientific methods of research, such as: comparing, analyzing, using the results of the scientific practice, dialogue (survey), conversation, interviewing, observation.
The author comes to the conclusion, that the constitutional reforms in Russia could not be prevented at those times of the Russian history. The described constitutional reforms are natural and provoked by the economic and political situation, created in Russia by the beginning of the 1990s. The results of this research can be used for better understanding of nowadays regularities in the Russian Federation and its further development.

Keywords: Constitution of the Russian Federation, constitutional order, interpretation, elaboration, maintaining, establishment, articles

For citation. Marino I. The “Null Interpretation” of the Constitution: The Experience of Russia (Part Two). Journal of Russian Law, 2022, vol. 26, no. 11, pp. 44—59. (In Russ.) DOI: 10.12737/ jrl.2022.116

■ ADMINISTRATIVE AND FINANCIAL LAW

Automated Decision-Making in Public Administration: A Theoretical Analysis of Possibilities

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. The practice of automated decision-making in modern conditions is largely represented by algorithmic data processing, big data technologies and artificial intelligence. The use of these technologies is still little regulated, but their use in public administration needs a regulatory framework. To create such a framework, it is necessary to identify — at a theoretical level — the possible risks and benefits in order to correctly build a regulatory support system.
The automated data processing poses certain threats to basic human rights (such as the right to information, privacy protection, equality and non-discrimination, personal data protection and judicial protection). In the next technological stage — when citizens’ data are collected continuously in real time, — the so-called chilling effect, which not only restrains human behavior but can also influence behavior, is intensified. The risks of automated decision-making include standardization of behavior, lack of clarity, information asymmetry, discrimination and «anchoring» (excessive human trust in an automated decision-making). The positive effects of automated decision-making include personalization and predictability, which in the managerial domain are clearly demonstrated by proactive public services.
The implementation of automated decision-making in public administration requires regulatory development in several areas, including: 1) ensuring transparency of algorithms and their use; 2) legal protection of individuals from automated decisions; 3) transition from privacy management to information self-determination; and 4) improved judicial protection. The use of algorithms qualitatively affects public administration, but such changes need regulatory support.

Keywords: algorithm, management decision, human rights, artificial intelligence, transparency

For citation. Talapina E. V. Automated Decision-Making in Public Administration: A Theoretical Analysis of Possibilities. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 60—73. (In Russ.) DOI: 10.12737/jrl.2022.117

Permissive Method of Regulating of Entrepreneurial Activity

S. M. Zyryanov, D. Vargova

Sergey M. Zyryanov1, Denisa Vargova2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, zyryanov.s@gmail.com, https://orcid.org/0000-0003-2592-9695
2denisa.vargova.mzv@gmail.com

Abstract. Achieving the goals of regulating relations that develop in various types of activities is possible by generally permissive, generally restrictive or permissive methods. The permissive method of regulation has become the most widespread in domestic and foreign practice due to its flexibility and ex ante ability to prevent harm (damage) to legally protected values. However, the permissive method of regulation, along with the advantages, also carries very significant threats.
The purpose of the study is to assess the state of permissive activity as a method of regulating entrepreneurial activity and to search for criteria for applying this method to certain types of entrepreneurial activity.
The research methodology is determined by the specifics of the chosen subject and includes a set of general scientific methods of scientific cognition (analysis, synthesis, comparison).
The scope of permits, their forms and content are in constant motion: the list of activities for which permits must be obtained is changing; new types of permits are emerging; a registry model is being actively introduced, blurring the lines between different types of permits; licensing requirements are being established without taking into account the risks associated with regulated activities. Permitting activity imposes tangible encumbrances on a person engaged in a regulated type of activity, due to both the need to fulfill licensing requirements and the complexity and duration of administrative procedures for issuing permits. It is required to develop objective criteria for the application of the permissive method of regulation and indicators for evaluating its effectiveness in order to periodically review decisions on the establishment of a permissive procedure for the implementation of certain types of activities.

Keywords: regulation, permit, license, administrative and legal regime, administrative procedures, mandatory requirements, state control (supervision)

For citation. Zyryanov S. M., Vargova D.Permissive Method of Regulating of Entrepreneurial Activity. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 74—90. (In Russ.) DOI: 10.12737/ jrl.2022.118

■ PROCEDURAL LAW

Ensuring the Constitutional Rights and Freedoms of Participants in Criminal Proceedings in the Context of the COVID-19 Pandemic

O. A. Zaytsev

Oleg A. Zaytsev
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, crim@izak.ru, https://orcid.org/0000-0002-8706-903X

Abstract. The emergence of new threats and risks caused by coronavirus infection and previously not predicted in the main documents of the national strategic development has led to the transformation of law and legal science. The participants in the criminal proceedings were assigned additional duties of a public legal nature, which affected the ability to directly participate in the procedural actions, as well as to fully exercise constitutional rights and freedoms during the preliminary investigation and trial. In turn, representatives of the judicial and investigative authorities faced serious difficulties in fulfilling the requirements of criminal procedure and other legislation that is not adapted to such crisis situations on a global scale.
The purpose of the study is to develop scientifically based and practically significant recommendations aimed at ensuring the constitutional rights and freedoms of participants in criminal proceedings in the conditions of the new coronavirus infection, regardless of their procedural and legal status.
Research objectives: analysis of the world experience in the formation of criminal procedural mechanisms to ensure the rights and freedoms of participants in legal proceedings in connection with countering the spread of COVID-19; study of the activities of the Supreme Court of the Russian Federation and the judicial community in the context of a pandemic crisis; identification of features of the digital transformation of criminal proceedings in the context of countering the spread of the coronavirus pandemic (including the use of video conferencing systems-connections); substantiation of measures for further development of legislation and improvement of law enforcement practice aimed at ensuring the constitutional rights and freedoms of participants in criminal proceedings in a crisis situation.
Research methodology: dialectical method of cognition, general scientific methods of abstraction, analysis and synthesis, special legal methods (comparative legal, logical legal, etc.).
Conclusion: the crisis caused by the COVID-19 pandemic has led to the need to improve the criminal procedural mechanisms for the effective functioning of criminal proceedings. Additional incentives are required to search for new conceptual ideas and scientifically based solutions aimed at ensuring the constitutional rights and legitimate interests of participants in legal proceedings who are in selfisolation. The expediency of modernizing legislation and improving law enforcement practice along the way of introducing modern information technologies into the domestic criminal process and the progressive transition from a simple written form to electronic legal proceedings is argued.

Keywords: criminal proceedings, COVID-19 pandemic, participants in criminal proceedings, constitutional rights and freedoms, digitalization, information and digital technologies, criminal procedure legislation, preliminary investigation, judicial proceedings

For citation. Zaytsev O. A. Ensuring the Constitutional Rights and Freedoms of Participants in Criminal Proceedings in the Context of the COVID-19 Pandemic. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 91—108. (In Russ.) DOI: 10.12737/jrl.2022.119

Participation of the Prosecutor in Insolvency (Bankruptcy) Cases

A. A. Romanov

Andrey A. Romanov
Law School, Far Eastern Federal University, Vladivostok, Russia, romanov.aal@dvfu.ru, https://orcid.org/0000-0003-1058-5834

Abstract. The issue of the prosecutor’s participation in insolvency (bankruptcy) cases, currently not regulated in the Arbitration Procedural Code of the Russian Federation and the Federal Law “On Insolvency (Bankruptcy)”, retains a high degree of controversy in the science of domestic law. A new impetus to the relevance of this institution was given by the adoption of the Resolution of the Russian Supreme Court Plenum of December 23, 2021. No. 46 "On the Application of the Arbitration Procedural Code of the Russian Federation when considering cases in the Court of First Instance", which provided for the inclusion of the prosecutor in the process of considering insolvency (bankruptcy) cases.
The main purpose of the work is to analyze the requirements of arbitration procedural legislation, insolvency (bankruptcy) legislation and judicial practice in comparison with the law of France and Italy in order to study the issues of participation of the insolvency (bankruptcy) prosecutor.
Research methods: special (private scientific) (formal-legal, logical-legal, comparative-legal research method).
The conclusions of the study are aimed at the possibility of including in the Russian procedural legislation provisions regulating the procedure for participation and status of the prosecutor in insolvency (bankruptcy) cases, taking into account the need to protect public interest and compliance with the rule of law.

Keywords: insolvency, bankruptcy, prosecutor, arbitration process, foreign law

For citation. Romanov A. A. Participation of the Prosecutor in Insolvency (Bankruptcy) Cases. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 109—118. (In Russ.) DOI: 10.12737/jrl.2022.120

■ JUDICIARY AND LAW ENFORCEMENT

Financing of Courts Depending on Their Workload: Theoretical and Legal Aspects

E. V. Burdina

Elena V. Burdina
Russian State University of Justice, Moscow, Russia, elenburdina@yandex.ru, https://orcid.org/0000-0001-5431-7634

Abstract. The issue of determining the sufficiency of resources for the full implementation of justice is poorly researched in legal science, questions about the method and criteria for financing courts are not theoretically substantiated and not resolved, which makes it difficult to develop a system of legal norms that consolidate modern approaches to judicial budgeting.
The purpose of the study is to substantiate the theoretical foundations of the legal regulation of court financing, including ideas on judicial budget and its importance for ensuring the independence of the judiciary, ways of financing courts, criteria for the sufficiency of resources, as well as the formulation of proposals to improve legislation on court financing in the Russian Federation.
The methodology of interdisciplinary research using methods of not only legal, but also economic sciences was used in the work, which made it possible to apply conclusions and patterns regarding the method of results-based budgeting to the financing of courts. With the help of comparative legal and systematic methods, models of financing courts in foreign countries (the Netherlands, France, etc.) were studied, where information about the results of their work, especially about their workload, is used to form the budget of courts. Based on the historical and legal method, the conclusion is made about the patterns of transition from the model of article-by-article budgeting of Russian courts to the model of financing depending on the load.
The article argues the importance of the judicial budget as a guarantee of the independence of judges and the powers of the judiciary itself to prepare it on the basis of objective criteria, justifies the legality of using the term “budgetary autonomy of courts”. A discussion is initiated on new approaches to court financing and the possibility of using economic instruments, such as productivity and efficiency, to judicial activity. The main elements of the modern model of court financing are highlighted, where an important role is played by systems for measuring the workload of courts based on the norms of the official load on judges and court staff.

Keywords: judicial budget, method of financing, criteria for financing courts, workload, councils of the judiciary

Acknowledgments. The reported study was funded by RFBR, project number 20-011-00672 “The concept of organizing judicial activities in the information society”.

For citation. Burdina E. V. Financing of Courts Depending on Their Workload: Theoretical and Legal Aspects. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 119—131. (In Russ.) DOI: 10.12737/jrl.2022.121

■ INTERNATIONAL AND INTEGRATION LAW

Dynamics of Functioning of International Law in the Conditions of Transformation of Modern World Order: Post Non-Classic Approach

I. V. Kholikov, A. Milovanovich, P. Yu. Naumov

Ivan V. Kholikov1, Aleksandar Milovanovich2, Petr Yu. Naumov3
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, iv_kholik@mail.ru
2National Institute of Occupational Health of the Republic of Serbia, Belgrade, Serbia, milalex@eunet.rs
3Center of Military-Medical Expertise of the National Guard Troops of the Russian Federation, Moscow, Russia, petr.naumov.777@mail.ru

Abstract. The authors consider the functioning of international law in the modern system of legal norms as an object of the study. The subject of the research is the dynamics of such functioning in modern disproportional open social systems, as well as the specifics of functioning of international law in the conditions of transformation (deformation) of modern world order. They include the high possibility of new armed conflicts or the risk of using military force to solve geopolitical problems, while ignoring or using purely formal approach to the observance of international law norms, as well as unconstructive tendencies of global development connected with global spread of infectious and other diseases dangerous for the population of the planet. At present, the stage of development of international law, which began during the Second World War, has been completed, the semantic core of which was approved following its completion. Today, humanity is at the stage of formation of a new system of global international relations, the consequences of the formation and development of which will be the formation of a new paradigm of international law.
The essence of the dynamics of international law functioning in the context of transformation of the modern world order is revealed through the analysis of integration and consolidation functions. The mentioned dynamics clearly demonstrates the actualization of military problems of international law in various areas: countering armed conflicts, crimes against the peace and security of mankind, protection of victims of armed conflicts; organization and activities of transnational military alliances; restrictions on the spread of weapons of mass destruction, including biological ones; production and uncontrolled proliferation of conventional weapons, etc. The authors point out the need to strengthen national health systems in order to effectively forecast, identify and dampen relevant threats both at the international and national levels, and to contribute to the development of effective international strategies to resist the spread of epidemics, pandemics and mass diseases. The conclusion is substantiated that the functioning of international law in modern conditions will proceed under the following trends: disequilibrium; dynamism; instability; inconsistencies in compliance and application; value-semantic instability, etc.

Keywords: international law, systems approach, international relations, integration process, functions of law, culture, healthcare, environment, subjects of international law

For citation. Kholikov I. V., Milovanovich A., Naumov P. Yu. Dynamics of Functioning of International Law in the Conditions of Transformation of Modern World Order: Post Non-Classic Approach. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 132—148. (In Russ.) DOI: 10.12737/ jrl.2022.122

■ REVIEWS

Review of the Monograph “Regulatory Policy of the Russian Federation: Legal Problems of Formation and Implementation” (ed. by A. F. Nozdrachev, S. M. Zyryanov, A. V. Kalmykova. Moscow, 2022. 288 p.)  Pdf 16

M. E. Babich

Marina E. Babich
Russian Presidential Academy of National Economy and Public Administration, Moscow, Russia, me.babich@igsu.ru, https://orcid.org/0000-0002-2479-4330

For citation. Babich M. E. Review of the Monograph “Regulatory Policy of the Russian Federation: Legal Problems of Formation and Implementation” (ed. by A. F. Nozdrachev, S. M. Zyryanov, A. V. Kalmykova. Moscow, 2022. 288 p.). Journal of Russian Law, 2022, vol. 26, no. 11, pp. 149—154. (In Russ.) DOI: 10.12737/jrl.2022.123

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■ TOWARDS THE 100th ANNIVERSARY OF ILCL

Memories of the Employees of the Institute of Legislation. The 1980s  Pdf 16

S. A. Bogolyubov

Sergey A. Bogolyubov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, bogolyubovsa@mail.ru, https://orcid.org/0000-0002-9003-8621

Abstract. In the centenary history of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, the 1980s are characterized by the application of research topics to the socio-economic processes taking place in society, the receipt of a new autonomous premises, the change of directors, the commissioning of the Scientific Center for Legal Information. The work of the staff was devoted to legislative support for the restructuring of public administration in our country and Eastern European countries, privatization and other ways of selling property, independence of enterprises and cooperation, procedural guarantees and private entrepreneurship, accounting for income from non-labor activities and benefits, privileges.
The organization and holding of All-Union scientific and practical conferences, the fulfillment of instructions from the Ministry of Justice of the USSR, the promotion of legislation among the population through the development of methods of legal education and speeches to workers, the generalization of citizens’ proposals on improving legislation, regular training of staff to improve their qualifications, their secondment to advise government agencies of foreign countries.
Directorate, Academic Council, old-timers of the Institute S. N. Bratus, M. G. Kirichenko, A. V. Mitskevich, O. N. Sadikov, V. V. Tishenko and others maintained a creative atmosphere of mutual exactingness, benevolence, and self-criticism. The collective responded adequately to campaigns to strengthen labor discipline, to combat drunkenness and alcoholism, to nominate candidates for deputies to the Soviets.

Keywords: legislation, legal organization of the state and society, labor collective, automated control system, Ministry of Justice

For citation. Bogolyubov S. A. Memories of the Employees of the Institute of Legislation. The 1980s. Journal of Russian Law, 2022, vol. 26, no. 11, pp. 155—167. (In Russ.) DOI: 10.12737/jrl.2022.124

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