Annotations № 6 / 2018

PUBLIC ISSUES AND POLITICAL SCIENCE

Selikhov N. V. (Moscow) Representation in the states of democracy: the confrontation of approaches

In the article, the nature and the character of public institution of representation of the people are analyzed through opposition of the main approaches to understanding and realization of it in the frame of political science. The classification of models of representation according to party and political and people’s democratic principles is proposed. The peculiarities of the functioning regime of «free» and «imperative» mandates of elected representatives are compared, and the differences are pointed out. The political representation in modern Russia is briefly described.

Key words: people, political representation, democracy, «free» mandate, «imperative» mandate, people’s state

Grishchenko G. A. (Moscow) Artificial intelligence in public administration

The author makes an attempt to generalize approaches to the definition of artificial intelligence, shows the scope of its application in public administration and the prospects for development. The author suggests dividing legislative problems that prevent the introduction of artificial intelligence in public administration into two groups: «form problems» and «content problems». It is concluded that the legislative approach towards abovementioned problems should be ensured by combining the solution of various tasks not only in the field of the application of electronic technologies but also within the framework of civil, administrative, fiscal, and financial law.

Key words: artificial intelligence, public administration, robotics, neural networks, digital technologies

Postolyako L. S. (Yekaterinburg) Philosophy of law as the apology of power: rethinking of the classical tradition

On the basis of several considerable works F. Nietzsche and also relying on modern domestic and foreign historical-philosophical researches, the author offers her own interpretation of key philosophical ideas of the thinker, opens their semantic interrelation. In the context of the integrated analysis of an ideological position of Nietzsche, his understanding of such major socio-cultural phenomena as right, duty and debt is characterized. The author asserts that, in the conceptual creation of Nietzsche, there is a correlation between the right and the intrinsic characteristics of the subject of activity inherent in the classical philosophical tradition. Nietzsche shares Kant and Fichte’s ideas about a connection between law and will, mutual recognition, duty, however, considers force, power as the basis of emergence and existence of law. The author shows that development of Nietzsche’s ideas of duty and right is connected with a transition from treatment of the power as an act of a commandment, order to its understanding as a free creative act causing the increase of the meaningful potentials of culture. Having generalized experience of Christianity, the thinker comes back to an early antique image of law, to the idea of an objective need and an order embodied in the game of space forces. The author comes to the conclusion that Nietzsche considers historical changes of legal meanings as an aspect of a cyclic process of self-updating of religious consciousness.

Key words: law, duty, equality, game, power, religious consciousness

THEORY OF STATE AND LAW

Tarasov N. N. (Yekaterinburg) On a law in the contemporary society (some thoughts about)

The article discusses the ideas of S. S. Alekseev articulated in his paper «The crash of law» in the light of new realities. The author touches upon the role of law in the institutional organization of society, its place in social development and its importance for overcoming social crises.

Key words: law, state, society, civilization, government, principles of law, legal education

Ponomarenko E. V. (Tyumen) On the problem of person’s alienation from the forms of activities in law

The author considers three parts of the problem of person’s alienation from the forms of activities in law: 1) alienation of a person himself as abstract universality; 2) alienation of a person as a particular individual from his legal awareness; 3) alienation of a person as a particular individual from his legal interest, the perception of legal interest as a pursuit of satisfying needs. A person exists in the world around in isolation from legal humanitarian and panhuman values, in isolation from his own legal awareness and a law-cognizing interest. The solution of the issue of person’s alienation can be found through the category of legal mastering, development of which constitutes a difficult scientific problem.

Key words: alienation of a person, person as an abstraction, legal mastering

Ponomareva E. V. (Yekaterinburg) Main aspects of understanding of a quasi-subject of law

The author examines the main aspects of understanding of a quasi-subject of law phenomenon and the causes of its occurrence in law. She proposes to define the quasi-subject of law as a participant in social relations, which is recognized by the legislator and the legal community as a subject of law but has no necessary content and formal characteristics of the latter. Some aspects of understanding of the quasi-subject of law and the causes of its origin in law such as axiological, communicative and legal, rational and legal are suggested.

Key words: quasi-subject of law, legal value, legal communication, signs of the subject of law

INTERNATIONAL LAW

Savryga K. P. (Moscow) The international legal status of human shields

The article deals with the problem of the legal status of human shields and legal status of their participants. Based on the analysis of norms of international law, it is concluded that participants in voluntary human shields are directly involved in hostilities and, therefore, lose their immunity for the duration of such participation. In the case of the forced use of people in the formation of human shields, their actions cannot be qualified as direct participation in hostilities; the principle of proportionality should be applied to them, but the limit of permissible indirect damage should be softened. The author is against of giving participants of human shields a special legal status because the presence of additional statuses only worsens the protection of privileged subjects of international humanitarian law.

Key words: human shields, non-combatants, direct participation in hostilities, principle of proportionality

CONSTITUTIONAL LAW AND PROCEDURE

Evstifeev D. M. (Yekaterinburg) The constitutional duty of an individual and legitimate behaviour

The article is devoted to the constitutional duty of the individual and characteristics of its execution in various forms of lawful behaviour. The author offers understanding of the constitutional duty as a moral obligation of the individual to society and state, social requirements, converted into a personal challenge for a specific person in a certain situation. Constitutional duty is defined as an important element of the motivational sphere that influences or determines the personal choice of particular variant of legitimate behaviour. The author claims that the constitutional duty of the individual is a kind of legal duty and is expressed in some form of lawful behaviour of the individual that requires its own peculiarities of execution of constitutional duty.

Key words: constitutional duty, legal duty, civic duty, moral obligation, duty, legal behaviour, legitimate behaviour, social-active behaviour, social-passive behaviour, conformist behaviour, marginal behavior

LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW

Damm I. A., Ron’zhina O. V., Akunchenko E. A., Volkova M. A., Korkhov A. V. (Krasnoyarsk) Openness and free access to information about the legal activities of local governments in the Russian Federation

The research focuses on openness and free access to information about the legal activities of local governments for citizens, organizations, state and local authorities, and independent experts. The authors perform a monitoring of the official websites of 24 municipal entities in 8 federal districts in order to find out how many municipal legal acts are published there. They suggest a number of criteria to appreciate the site usability for searching law information. As a result, the authors reveal some weaknesses in the publication of information on local governments’ official websites, which diminish openness and free access to municipal legal acts. Some proposals, designed to ensure the citizens’ constitutional right to information about the legal activities of local governments, are made.

Key words: openness, free access, municipal entity, normative legal act, local governments, official website of the local government body, legal information

CRIMINAL LAW AND PROCEDURE

Tarkhanov I. A. (Kazan) The definition of qualification of crime and procedural order of its changes in pre-trial proceedings

In the article, the author examines a definition of qualification of crime and its features as a form of law enforcement activity. He also shows reasons and procedural peculiarities of its changes in the stages of pre-trial proceedings.

Key words: qualification of crime, criminal legal appraisal, crime, prosecution and its structure, criminal case, proceedings, criminal procedure stages, pre-trial proceedings

Tkachev I. O. (Yekaterinburg) The Russian Federation Supreme Court’s legal initiative on criminal minor offences: a critical look

The article deals with the legal initiative of the Russian Federation Supreme Court, where the notion of criminal minor offences is introduced. The author notices that the definition of juridical nature of a criminal minor offence, as well as the criteria for identifying criminal minor offences among other minor criminal acts, which were suggested by the Court, are rather incorrect. The legislative experience of differentiation of types of criminal offences in the countries of the Romano-Germanic legal family, as well as the domestic pre-revolutionary legislation, is studied. The author disagrees with the initiative’s approach to defining criminal minor offences as all criminal acts to which all sanctions except custodial sentences apply. The author draws attention to some practical problems, arising when compulsory community labour and corrective labour are treated as both punishment and other forms of penal sanctions. It is concluded that adoption of the legislation initiative in the analyzed form will cause violation of the basic principles of justice and equality of all before the law and the court.

Key words: foreign countries criminal law, criminal minor offence, criminal liability differentiation, other forms of penal sanctions

Stelmakh V. Yu. (Yekaterinburg) Procedural aspects of termination of criminal prosecution with the appointment of a judicial fine

The article analyzes procedural problems of termination of criminal prosecution with the appointment of a judicial fine. The author highlights the substantive and procedural conditions for the adoption of this decision. The possibility of terminating criminal prosecution on the grounds under consideration for crimes with a formal composition, as well as in the absence of the victim, is argued. The author substantiates the position according to which the initiation before the court of the petition for the termination of criminal prosecution is the right but not the duty of the investigator. The ratio between the judicial penalty and other dispositive grounds for the termination of criminal prosecution is investigated. It is concluded that the application of the norms on active repentance and reconciliation of parties is preferable since these grounds do not imply imposing additional restrictions on the accused. The issues of procedural order of consideration by the judge of the investigator’s petition on the termination of criminal prosecution and application of a judicial fine are considered. The author argues that the rules on choosing a preventive measure in the form of detention couldn’t be transferred automatically to the consideration of materials on the application of a judicial fine, and shows the distinctive features of this order. It is proposed to amend the criminal procedure law concerning, in particular, the possibility of the termination of criminal prosecution with the use of a judicial fine not only before the court has entered a deliberation room but also after that, if a decision to retrain the offence is made.

Key words: criminal proceedings, preliminary investigation, termination of criminal case, non-rehabilitating grounds for the termination of criminal prosecution, judicial fine

CIVIL LAW AND PROCEDURE

Borodach M. V. (Ivanovo) National domain as a particular kind of public property: doctrinal, axiological, and praxiological basics of the legal construct

The article is concerning the issue of necessity to legalize the term of «national domain» in Russian law from the viewpoint of its axiological and praxiological grounds for its distinguishing. The starting point of the analysis is the acknowledgement of the constitutional legal nature of public property phenomenon, as well as the consideration of the constitutional-legal regime of administration conducting in the proprietary environment of a public owner as an object of the legal relationship of public property. From this point, the characterization of social goods, which form the real material substrate of this group of legal relations, is given, and the author concludes that the civil law classification of the items of property is insufficient for the legal regulation of public property relations. The author argues that, within the public area of legal order, the determining criterion for classification of different public assets should be the targets of administration conducting in the proprietary environment of a public owner. From this point, the detachment of the term of «national domain» dedicated to identify a particular kind of the public property items, which have unique and irreplaceable traits for realizing national interests, seems to be reasonable and indispensable. To prove this formulated notion, the author cites the relevant legal opinion of the Constitutional Court of the Russian Federation, and gives the examples, although not numerous, when the term of «national domain» is provided for by federal laws.

Key words: public property, domain, public interests, public assets, targets of administration

Branovitskiy K. L. (Yekaterinburg) Actual legal regulation of international jurisdiction in legal order in the member states of the EAEU. The influence of legal reforms of the Republic of Kazakhstan on the actual international regulation in the field of civil procedure

The article provides an overview of the actual procedural regulation of the EAEU member states in the sphere of international jurisdiction, as well as the selected provisions of the legal regulation of the International Financial Center (IFC) «Astana» in the Republic of Kazakhstan. The author analyzes the relationship between the new national law about the jurisdiction of the Court of the IFC «Astana» and the actual international legal regulation in the post-Soviet space, as well as some issues of recognition and enforcement of judicial decisions of this court.

Key words: approximation of civil procedure law, international jurisdiction, International Financial Center, recognition and enforcement of judicial decisions of foreign courts

Golskiy D. G. (Khimki) The effect of the arbitration award annulment in connection with its revision on the merits

The author studies the legitimacy of the arbitration awards annulment in connection with their revision on the merits. He considers the compliance of such actions of the court of the place of arbitration with the nature of the arbitration award itself, as well as with the provisions of the New York Convention of 1958. The author draws attention not only to the cases of legislative approval of the revision of the arbitral awards on the merits but also to the application by the court of the place of arbitration of other grounds for the annulment of the arbitral award leading to the same result.

Key words: international commercial arbitration, arbitration award annulment, revision of the award on the merits, nature of the arbitral award, effect of the arbitration award annulment, recognition of revoked arbitration awards

ECONOMICS AND LAW

Kuznetsov P. U. (Yekaterinburg) A complex approach towards the regulation of public relations in the field of digital economy

The article discusses a complex approach towards the formation of legal norms designed to regulate social relations in the field of digital economy. The main characteristics of the complexity of information law are disclosed. The integrative value of its norms for the systematization of information legislation is emphasized.

Key words: legal system, informational law, digital economy, electronic interaction, informatization

Kartskhiya A. A. (Moscow) Cloud technologies: the legal aspect

The article discusses the cloud services (computing) as an important component of the digital economy and technological infrastructure that form a new legal institution of digital services. The legal aspects of the use of digital technologies and features of the legal regulation of cloud services in Russian and foreign law, and law enforcement practice are analyzed. The author comes to the conclusion that cloud computing is capable of forming a civil digital turnover in the structure of the modern digital ecosystem.

Key words: cloud services and computing, computing technology, intellectual property, personal data, service agreement, confidential information

Hazieva G. B. (Ufa) Judicial practice on the scenario work copyright infringement

The article gives some examples from the Russian court practice concerning the infringement of the copyright to scenario works used as a part of such complex objects as audiovisual works – films and teleformats. The author addresses issues of regulation of legal relations connected with the copyright to scenario works and analyzes the range of civil-law methods of protecting the author’s exclusive rights to a scenario work in cases of their infringement or contesting these rights by third parties. The author also wants to know in which cases the right-holder has the right to compensation for moral damage payable in the case of infringement of copyright to scenario works; she also notes that, according to law, it is impossible to collect moral damages for the infringement of the author’s exclusive rights to scenario works. It is concluded that there is discretionary powers of the judicial authorities in determining the amount of compensation when defending the author’s exclusive right to a scenario work which was violated.

Key words: scenario work, scenario, civil protection of copyright, character, audiovisual work

LEGAL ASPECTS OF ECOLOGY

Kruglov V. V. (Yekaterinburg) The organizational and legal provision of environmental protection

The article considers the improvement of the state and municipal administration, the types of organizational and legal measures of environmental protection and their interaction in the current economic circumstances.

Key words: ecological policy, state administration, environmental protection

Tyuleneva I. G. (Moscow) The requirement to demolish an unauthorized building as a way to ensure the proper use of land

The article based on the current legislation and law enforcement practice, as well as the draft law «On amendments to the Civil Code of the Russian Federation (in terms of clarifying provisions on unauthorized buildings)» analyzes the legal regulation of demolition of an unauthorized building as a way to ensure the proper use of land in accordance with its intended purpose, permitted use and established restrictions. Special attention is drawn to the order of decision-making on the demolition of unauthorized building, its importance for ensuring public interests. The author also proposes some measures to improve the legal regulation of demolition of an unauthorized building in the case of obtaining a building permit and / or registration of ownership of such an object. In particular, she justifies the necessity of the demolition of an unauthorized building violating the established regime of use of land (even after receipt of a building permit or registration of ownership), subject to compensation for damages to the developer. This approach, according to the author, will ensure, on the one hand, the priority of proper use of the land and, on the other hand, the consideration of interests of bona fide developers.

Key words: unauthorized construction, improper use of land plots, permission for construction, demolition of an unauthorized building

PAGES OF HISTORY

Bazhenova T. M. (Yekaterinburg) The development of Czech criminal law (through the pages of Karel Malý’s «Three essays about criminal law in the Czech lands from 17th till the first half of 18th centuries»)

In the article, there is a review of the monograph by the noted Czech historian of law Karel Malý. It briefly describes the Malý’s contribution to historical and legal science and his conceptual approaches to the estimation of development of criminal law and its influence on the Czech legal system in 17th and the first half of 18th centuries. Special attention is paid to the author’s characteristics of trends, sources, and main institutions of Czech law.

Key words: history of state and law of Czechia, sources of Czech law, county (zemsky) law, estate unification, novelization