A. I. Kovler
Anatoly I. Kovler
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, firstname.lastname@example.org
Abstract. The rapid development of new information technologies makes radical changes in the social and legal existence of a person. Digitalization impacts the mechanisms for protecting the rights to privacy, freedom of movement and intellectual property. Digital technologies replace the printed word, sound and image, when electronic chips increasingly capture both information and personal space. Philosophers talk about the loss of a person’s identity, an anthropological fixture of life. At the same time, it is impossible to deny the positive aspects of digitalization. First of all, it accelerates and collates the processing and storing a large array of data necessary for social communities functioning. In this regard, legal regulators play a growing role in this process, and rational methods of such regulation are being sought.
The search for ways to optimize the new conditions of existence of the “digital person” in modern law encourages us to reconsider the very content of the concepts of human dignity, personal data, etc. It is necessary to diagnose the state of modern law in the face of “digital challenges” using the example of individual human rights and draw conclusions from the experience of solving this and related tasks in world practice. The problems of “robotic justice” and the tasks of transition to new forms of “digital democracy” require separate consideration. For this purpose, it is proposed to use anthropological and sociological approaches, the method of comparative analysis along with the traditional normative method. The combination of these approaches and methods make it possible to adjust more effectively the legal system in the new conditions and, as a result, ensure the renewal of the status of an individual claiming new rights.
Such a comprehensive analysis allows us to conclude that the efforts of traditional positive law to adapt the legal existence of a person are no longer enough. Broader anthropological and sociological approaches are needed. At the same time, it should be taken into account that the intersection of personal and institutional elements constitutes the main problem of law enforcement. The advent of “digital civilization” not only does not eliminate this problem, but, on the contrary, stimulates the search for optimization of such interdependence.
Keywords: digital age, human rights, anthropological and sociological approaches, personal data, digital democracy
Acknowledgments. The article prepared under the financial support of the Ministry of Science and Higher Education of the Russian Federation — the scientific project “The latest trends in the development of human and social sciences in the context of digitalization and new social problems and threats: an interdisciplinary approach”, agreement no. 075-15-2020-798 (internal no. 13.1902.21.0022).
For citation. Kovler A. I. Anthropology of Human Rights in the Digital Age (the Essay of the Comparative Legal Method). Journal of Russian Law, 2022, vol. 26, no. 12, pp. 5—29. (In Russ.) DOI: 10.12737/jrl.2022.125
S. N. Gavrilov
Sergey N. Gavrilov
Center for the Implementation and Operation of the Integrated Information System of the Russian Advocacy, Russian Federal Bar Association, Moscow, Russia, email@example.com
Abstract. The processes of digital transformation taking place in the legal sphere involve the development of machine-reading and machine-execution technologies. The choice of methodological guidelines, in particular, in the basis of the process of machine reading of law, depends on which path the further perception of law will take, not only by the machine, but also by the person himself. The author aims to develop key methodological approaches to the technology of machine-reading law.
The argumentation is based on general scientific and private methodologies. At the same time, the synectic method is used as the main one, i.e. as a method of comparing heterogeneous entities, which allows finding similar solutions in various fields of knowledge and practice. This method can be recognized as a key one in the field of artificial intelligence, since the very idea of its construction is basically synectical: this is an attempt to produce with the help of a machine some kind of artificial intelligence as an analogue of natural.
The article compares, on the one hand, the use of artistic techniques in ancient and medieval painting; on the other hand, the perception of human rights on an intuitive, sensory, conceptual level. The validity of the proposed approach is due to the nature of the very process of human perception of reality, including the legal one. Based on the results of the application of the techniques of “multiapproach” and “multi-perspective” in painting and iconography, the author comes to the conclusion that when obtaining data on law as an object of machine reading, one should choose not only one approach and/or method (methodology), but apply various, even contradictory one, considering them as non-competing. At the same time, it is necessary to take into account the multidimensionality of law, its ontological dialogueness and dynamism. In the context of the use of machine-reading technologies, it is proposed, in particular, the construction of a multi-script (multi-scenario) dynamic model of the life cycle of the act of realization of the right (as an act of compliance, execution, use, application of the rule of law), under all possible scenarios of its (act) development.
Keywords: digital transformation, artificial intelligence, machine reading of law, machine execution of law, synectics, legal understanding, legal perception
For citation. Gavrilov S. N. Methodology of Machine Perception of Law Based on a Synectical Approach. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 30—44. (In Russ.) DOI: 10.12737/jrl.2022.126
R. A. Kurbanov, K. I. Naletov
Rashad A. Kurbanov1, 2, 3, Kirill I. Naletov1, 2, 4
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
2Plekhanov Russian University of Economics, Moscow, Russia
Abstract. This article examines the legal personality of an information system operator that carries out digital financial assets offerings. The authors consider it as a reflection of the trend towards the development of an alternative to legal positivism in legislative and law enforcement practice. This operator is empowered by law to issue acts, which do not form the sources of law in the formal legal sense, but they meet the features of normative acts, including such as generally binding power — the uncertainty of subjects to its provisions. In support of this point of view, the article pays attention to the specific rights and obligations of the considered operator. The article analyzes also the contractual relations of users of these information systems and their operators. The article raises the question of characterizing such an agreement as an adhesion agreement construction. The article also analyzes the tension to the formation of an intersectoral institution of the current legislation — the institution of control of one party of legal relations over the other one. This institution exists in completely different branches of legislation: civil law, tax law, law of foreign investments.
It seems that in this period of development of legal regulation, in order to harmonize and develop a universal approach to its application it is advisable to use the practice of state arbitration courts in insolvency (bankruptcy) cases. Also, the subject of the research in this article is the internal corporate governance relations of the operator of the information system. In particular, the authors point to the incorrectly formulated legal prohibition for legal entities and individual entrepreneurs to hold the position of the sole executive body of the operator. As a partial alternative to the duty to compensate the losses of users, the authors propose the use of the institution of indemnity, as an obligation to guarantee the compensation for the losses of the user of the information system for offering digital financial assets to some extent without the court litigation, which is not always practical in terms of time costs.
Keywords: information system operator, digital financial assets, self-regulation, local regulations, controlling persons, liability for damages, indemnity
Acknowledgments. This work has been supported by the grants the Russian Science Foundation, no. 22-28-20415.
For citation. Kurbanov R. A., Naletov K. I. The Status of the Information System Operator that Carries out Digital Financial Assets Offerings. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 45—57. (In Russ.) DOI: 10.12737/jrl.2022.127
A. I. Zemlin
Alexander I. Zemlin
Russian University of Transport, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0001-8988-8517
Abstract. The development of technologies for unmanned driving and increasing the autonomy of motor transport through the use of an automated driving system entails the need for a fundamental change in the fundamental approaches to building a system of legal regulation of relations arising in the process of admission to operation and use of highly automated vehicles.
The purpose of the article is to bring to the scientific community the results of the research obtained in the process of critical reflection. The latter is carried out using the tools of system—legal analysis, the provisions of regulatory legal acts and their projects. These, in turn, regulate issues related to the operation of highly automated cars, as well as the development and justification on the basis of the resulting scientific data of proposals to eliminate ambiguities, gaps and conflicts of legal regulation in this area.
As a result of the application of the formal-dogmatic method of legal research, it is substantiated that the provisions of draft normative legal acts — developed in order to regulate relations arising in connection with the use of highly automated cars — do not fully comply with the requirements of formal logics, legal technology and are not based on achievements of legal science. In this regard, the author proposes some definitions and approaches. Their legalization can: solve the issues of building a logically ordered, coherent system of legal terms in the field under study; carry out a scientifically based classification of highly automated vehicles; consolidate the legal status of participants in legal relations.
Keywords: legal regulation, highly automated vehicle, automated driving system
Aknowledgments. The reported study was funded by RSF, project No. 22-28-20334.
For citation. Zemlin A. I. Issues of Legal Regulation of Relations Related to the Use of Highly Automated Vehicles. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 58—69. (In Russ.) DOI: 10.12737/jrl.2022.128
L. A. Chikanova
Liudmila A. Chikanova
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com, https://orcid.org/0000-0003-1912-2545
Abstract. The article analyzes various approaches to the modernization of labor legislation based on the innovative development of social transformation, including the scientific and technological progress, automation of industrial relations, robotics, artificial intelligence. It is concluded that the modernization of labor legislation in modern conditions should achieve a balance of interests of the parties to the labor relationship. It can be ensured only taking into account the specifics of the subjects of this relationship, namely taking into account that one of the parties — the employee — is a weaker, dependent party. Ensuring a balance of interests means that the labor rights of employees would not interfere with business development. The advantage of the employer, due to his “economic power”, would be compensated by providing employees with appropriate guarantees that ensure the necessary equilibrium (balance) of their interests. Based on the analysis of individual legal norms, specific proposals are made with regard to their modernization. In particular, it is necessary: to reduce the number of mandatory conditions included in an employment contract, while retaining only those without which an employment contract cannot be considered as concluded; expand the list of reasons why an employer has the right to introduce part-time work on its own initiative due to the difficult economic situation, which would allow it to respond promptly to the current situation and take the necessary measures. In order to ensure a balance of interests of the parties to the employment relationship, the labor legislation could be supplemented with a norm that allows suspending, by agreement of the parties, the validity of the employment contract for a certain period (until the financial situation of the employer stabilizes). In this case, the employee gets rid of the need to look for a new permanent job.
Keywords: labor legislation, modernization, balance of interests, employee, employer, guarantees, labor relation
For citation. Chikanova L. A. Modernization of Labor Legislation: Current Problems. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 70—84. (In Russ.) DOI: 10.12737/jrl.2022.129
E. V. Motina
Evgeniya V. Motina
Belarusian State University, Minsk, Republic of Belarus, firstname.lastname@example.org
Abstract. The norms of labor legislation on disciplinary responsibility of an employee need theoretical analysis from the view point of their compliance with the main categories of legal responsibility, since the practice of their application is heterogeneous and contradictory. The latter circumstance is confirmed by a comparison of the practice of bringing employees to disciplinary responsibility in the Republic of Belarus and in the Russian Federation. The subjects of the study are: certain types and signs of disciplinary misconduct, its elements; sanctions for its commission; the process of bringing to responsibility; the rights of employees; generally recognized principles of legal responsibility.
The purpose of the study is to evaluate individual elements of the dogma of law in relation to the institution of disciplinary responsibility of employees, substantiating the need for their normative consolidation in labor legislation. The purpose of the study is to fix the process of bringing an employee to disciplinary responsibility from the view point of legal concepts that make up the dogma of law, in order to identify and eliminate the shortcomings of legal regulation.
The research methods are a complex of general scientific (system-structural, system-functional, analytical) and private scientific methods (comparative legal, formal legal).
As a result of studying the main regulations on disciplinary responsibility in labor law, judicial practice, the role of the principles of disciplinary responsibility, elements of disciplinary misconduct in ensuring the legality of bringing an employee to disciplinary responsibility is revealed. The necessity to improve the procedural structure of bringing an employee to disciplinary responsibility, taking into account the dogma of law, is substantiated.
Keywords: dogma of law, disciplinary responsibility of employees, disciplinary misconduct and its elements, disciplinary dismissal, principles of legal responsibility
For citation. Motina E. V. The Dogma of Law in the Field of Disciplinary Responsibility of Employees (on the Example of Legislation and Practice of the Republic of Belarus). Journal of Russian Law, 2022, vol. 26, no. 12, pp. 85—97. (In Russ.) DOI: 10.12737/jrl.2022.130
L. K. Tereshchenko
Lyudmila K. Tereshchenko
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com, https://orcid.org/0000-0002-2170-5339
Abstract. The article is devoted to the analysis of the existing conceptual framework of information law as a whole and the terms and their definitions related to digitalization that have recently appeared in legislation; also, attention is paid to the ratio of the terms used. It is shown that information legislation is strongly influenced by the processes of digitalization, the functioning of the Internet. First of all, new terms come into law from the technical sphere without any adaptation. It is noted that the use of Internet technologies and digitalization pose to legal science the task of harmonizing the conceptual framework, the consistency of new terms with existing and applied in all branches of law, the analysis of the problem of the application of existing “traditional” norms of law in context of digitalization. Taking into account the fact that legal certainty should be a mandatory feature of the norms established by the state, it is necessary to adapt new terms to the law, include them in the legal field, and give adequate definitions.
Keywords: digitalization, conceptual framework, terminology, information, digital data, digital data turnover, digital platforms, digital profile, data management
For citation. Tereshchenko L. K.Transformation of the Conceptual Framework of Information Law in Context of Digitalization. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 98—110. (In Russ.) DOI: 10.12737/jrl.2022.131
S. A. Agamagomedova
Saniyat A. Agamagomedova
Institute of State and Law, Russian Academy of Sciences, Moscow, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-8265-2971
Abstract. Currently, there are no scientific studies of temporal criteria for the effectiveness of public administration as a whole, as well as its individual functions. Speed and other temporal characteristics are important criteria for the customs control effectiveness, which must be taken into account when assessing the control and supervisory activities of customs authorities. Objectives of the study: designation of temporal criteria for the customs control effectiveness, analysis of their normative positioning and evolution, identification of patterns of use of the category of time and time indicators (speed, timeliness, duration, etc.) in assessing the customs control effectiveness. Research methods: structural-diachronic method, methods of systematic and comparative analysis, legal formalization, structuring and classification.
The results of the study were the following provisions: on the content and options for using the category of speed and other temporal characteristics in the assessment of customs control; regulatory consolidation of temporal categories in relation to customs control and trends in its evolution; patterns and prospects for the use of time indicators in assessing the customs control effectiveness; differentiation of temporal criteria depending on the stage of customs control. Conclusions are formulated about the procedural nature of time in relation to customs control, the possibility of identifying temporal indicators as criteria for distinguishing control and supervisory activities of customs authorities, the differentiation of the speed of customs control and the speed of legal regulation of customs control, the need to use temporal criteria for the customs control effectiveness in conjunction with other performance criteria (satisfaction of controlled persons, their economic activity, etc.).
Keywords: temporal criteria, time, speed, customs control, effectiveness of customs control, control and supervision in the field of customs, administrative procedures
For citation. Agamagomedova S. A. Time as a Criterion for the Customs Control Effectiveness. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 111—120. (In Russ.) DOI: 10.12737/jrl.2022.132
S. L. Nudel
Stanislav L. Nudel
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, email@example.com, https://orcid.org/0000-0001-6699-5694
Abstract. In the article, based on doctrinal approaches to the definition of criminal law protection, the analysis of modern trends in the formation and implementation of tasks of criminal legislation in the field of protection of the constitutional system is carried out.
The purpose of the study is to develop theoretical provisions on the constitutional system as an object of criminal law protection within the framework of the mechanism for improving criminal legislation in the field of protection of universally recognized public values from criminal encroachments. In realizing this goal, special attention is paid to determining the content of the task of the Criminal Code of the Russian Federation related to the criminal protection of the constitutional system in the context of constitutional norms on the restriction of human and civil rights and freedoms, the consolidation of this category as an object of protection, the establishment of criminal liability for socially dangerous encroachments on the constitutional system.
The dialectical method of cognition, general scientific methods of abstraction, analysis and synthesis, comparison and generalization, as well as special legal methods are defined as the methodological basis of the study: comparative legal, logical-legal, etc.
The article argues the conclusion that the constitutional system as an object of criminal law protection is a set of public relations mediating the form (method) of the organization of the state, including interaction with civil society, which ensures subordination to law and characterizes the state as constitutional.
Keywords: Constitution of the Russian Federation, constitutional system, tasks of the Criminal Code of the Russian Federation, object of criminal law protection, object of crime, criminal liability
For citation. Nudel S. L. The Constitutional System as an Object of Criminal Law Protection. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 121—132. (In Russ.) DOI: 10.12737/jrl.2022.133
V. V. Balzhinimaeva, K. A. Barysheva
Violetta V. Balzhinimaeva1, Kseniya A. Barysheva2
1, 2National Research University “Higher School of Economics”, Moscow, Russia
Abstract. A legal entity is a developed legal structure in civil law, while its application in the criminal law sphere causes a lot of controversy, in particular a discussion on status of a legal entity as a victim in criminal law. Traditionally, the victim is considered as a participant in the criminal process. At the same time, based on the temporary moment of the appearance of the “victim” in legal relations, his primary appearance is noted at the time of the commission of a crime within the framework of criminal law. For this reason, it is proposed to consolidate the concept of “victim” in criminal law, including an individual and a legal entity.
The authors of the study, using general scientific methods (analysis, synthesis, induction, deduction, generalization, analogy), consider theoretical approaches and proposals on the status of a legal entity as a victim in criminal law, then moving on to the study of judicial practice.
Conclusion: criminal law, when faced with the problem of a legal entity as a victim, ignores its independence and reality, shifting the emphasis to an individual. A legal entity is not recognized as a victim in the criminal-legal sense. Moreover, in judicial practice, it is planned to develop the design of the actual owner as a proper victim of a crime while ignoring nominal legal entities and individuals used to cover up the real owner. The authors of the article substantiate the need for the supreme court to adopt guidance explanations on the issue of recognizing a legal entity as a victim of a crime.
Keywords: legal entity, criminal law, victim, theory of fiction, theory of reality, actual owner, ultimate beneficiary
For citation. Balzhinimaeva V. V., Barysheva K. A. Legal Entity as a Victim in Criminal Law: Approaches of Legal Science and Practice. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 133—144. (In Russ.) DOI: 10.12737/jrl.2022.134
E. S. Boltanova, M. V. Kratenko
Elena S. Boltanova1, 2, Maxim V. Kratenko3
1Tomsk State University, Tomsk, Russia, firstname.lastname@example.org, https://orcid.org/0000-0002-6874-153X
2Tomsk State University of Control Systems and Radioelectronics, Tomsk, Russia
3Saint-Petersburg State University, St. Petersburg, Russia, email@example.com, https://orcid.org/0000-0002-6583-0588
Abstract. A significant share in the Russian economy is attributable to the extractive industry and forest production, which causes a high environmental risks. The object of this study is the Russian legislation on compensation for damage caused to the environment (environmental damage), and the practice of its application by courts. The purpose of the study is to identify existing problems in the field of environmental compensation and propose ways to solve them, primarily through the analysis of insurance products. Research methods: general scientific, private scientific and special. Specific sociological research methods (analysis of documents and official materials), logical-legal method, methods of interpretation of legal norms, legal forecasting, etc. were used. Conclusion: the relevant relations are not fully regulated systematically, and uncertainty in solving a number of practical issues related to the consequences of negative impact on the environment disorients economic entities, hinders the development of environmental insurance. In the case of the introduction by the legislator of compulsory liability insurance for environmental damage, it is advisable to specify as the main form of insurance compensation, i.e. the obligation of the insurer to finance the costs of eliminating the consequences of pollution and remedial measures. Exceptions can be made for cases when a damaged natural resource cannot be restored to its previous state. An alternative to commercial insurance may be other forms of environmental risk coverage, for example, participation in mutual insurance companies, the conclusion of agreements on the distribution of risk (harm).
Keywords: environmental damage, natural form of damage compensation, environmental risk, environmental insurance
For citation. Boltanova E. S., Kratenko M. V. Environmental Risk, Environmental Harm and Insurance: Civil and Environmental Legislation and Law Enforcement in the Russian Federation. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 145—159. (In Russ.) DOI: 10.12737/jrl.2022.135
Yu. G. Zharikov, D. O. Sivakov
Yuriy G. Zharikov1, Dmitriy O. Sivakov2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
Abstract. The purpose of this article, presented in the form of memoirs and arguments, is to introduce the scientific life of the Institute of Legislation and Comparative Law in the second half of the 20th century. The authors of the study tried to reveal the scientific ideas of the Institute both within the framework of land, natural resource and environmental law, and in relation to different areas of legal science of the specified period. A number of ideas remain relevant today.
The Institute had a bearing on the formation, critical understanding and transformation of the legal policy of the Soviet and then the Russian state. In this regard, many generations of scientists of the Institute have raised the problem of the relationship between law and economics, law and food security of the country, law and the environment. The authors warmly talk about prominent scientists (S. N. Bratus, G. N. Polyanskaya, I. F. Pankratov, O. S. Kolbasov, B. D. Klyukin, A. B. Vengerov, I. F. Kazmin, etc.), whose personalities are revealed in the context of ideas, methods and approaches characteristic of their activities. The contribution of the Institute’s scientists to science in the second half of the 20th century allows the entire scientific community to look confidently into the future with all the difficulties that arise.
Keywords: environmental legal definitions, cooperation, civil law turnover, food safety, collective farm system, agricultural reformation, land reforms, perestroika, market reform, civil legislation, private press, information society
For citation. Zharikov Yu. G., Sivakov D. O. Institute of Legislation in the Second Half of the 20th Century: Personalities and Ideas. Journal of Russian Law, 2022, vol. 26, no. 12, pp. 160—169. (In Russ.) DOI: 10.12737/jrl.2022.136