Annotations № 1 (130) / 2020

INTERNATIONAL LAW

Tolstykh V. (Novosibirsk) The legal regime of the Caspian Sea according to the 2018 Convention and the interests of the Caspian states

The article discusses the legal regime of the Caspian Sea, provided for by the Convention of August 12, 2018. When determining it, the parties were not bound by the common law of the sea and could use the regime of border lake, the regime of public domain or the regime established by the 1982 Convention. The main factor influencing the choice was the question of the exploitation of oil and gas fields. As a result, the parties had fixed a sui generis regime, i. e. they referred to bilateral agreements on shelf delimitation and established a condominium for maritime areas located beyond 25 nautical miles from the coast (i. e. beyond the territorial sea and fishing zone). This reference, on the one hand, highlights a lack of a general consensus, and, on the other hand, confirms and consolidates the sectoral approach and excludes the use of the condominium approach. In addition, the parties regulated a number of issues related to security, environmental protection, pipeline laying, transit, access to ports, etc. This regulation is mainly based on liberal approaches: for example, the parties have the right to construct pipelines provided that their projects comply with environmental requirements and the pipeline route is agreed with the transit party (previously Russia insisted on the need to obtain the consent of all five Caspian states). Like many other treaties concluded in the post-Soviet space, the Convention does not provide for an effective mechanism for the control and settlement of disputes. On the whole, the 2018 Convention makes an important contribution to the formation of the Caspian Sea regime and an atmosphere of cooperation among the Caspian states. Unlike the previous conventions (in particular, the 2003 Convention), it does not have a framework character, i. e. involves a direct implementation and unambiguous interpretation. At the same time, it can hardly be regarded as a brilliant victory of the Russian diplomacy. While confirming the existing demarcation, it deprives Russia of access to the richest oil and gas fields, and, while maintaining free fishing in waters outside the territorial sea and the fishing zone, it provides other states with opportunities for sturgeon fishing near the Russian coast.

Key words: maritime law, Caspian Sea, delimitation, oil and gas production and transportation, fishery, pipelines

Mammadov U. (Kazan) The role of courts in enforcing international humanitarian law during and after armed conflicts with terrorist groups

The modern armed conflicts often involve organised armed groups including terrorist groups, and such conflicts are in many cases accompanied with the violations of international humanitarian law and human rights that raises deep concerns of the international community. The author examines certain issues of the enforcement of international humanitarian law during and after armed conflicts with terrorist groups in the context of international law, and formulates some conclusions and suggestions. He considers certain norms of international law and, on this basis, concludes that there are some gaps and matters in the enforcement of international humanitarian law during and after armed conflicts with terrorist groups; he also puts forward some assertions on the role of courts in strengthening the compliance of such groups with international humanitarian law.

Key words: armed conflicts, international humanitarian law, terrorism, terrorist groups, organised armed groups, courts, law of armed conflict

PUBLIC ISSUES AND POLITICAL SCIENCE

Osintsev D. (Yekaterinburg) Philosophy, science, ideology, and methodology in legal research: an experience of worthless knowledge

Legal issues have been not only difficult to investigate, but also mysterious for several centuries; the secret of law has not been revealed yet, despite the numerous efforts of researchers. Apparently, the reason is that the substantive side of activities that are subject to legal influence is hidden behind the legal shell as their transformed form. The existing approaches that prevailed in the legal framework in modern times (philosophical, ideological, scientific and methodological) were themselves subject to legal influence, which allowed them to master the so-called «legal thinking»; that is an obvious feedback effect. The law did not need them at all or would be degraded due to their absence; the law remained itself, and its so-called methods of branch regulation were entirely determined not by the legal form per se, but by the nature of organized interaction in various types of activities.

Key words: approaches in legal understanding, philosophy of law, legal science, issues of methodology of law, normalization of activities

Chervonyuk V. (Moscow) Legal diagnosis in the structure of applied jurisprudence

The author considers the concept of diagnosis from the perspective of several branches of scientific knowledge: medicine, sociology, and psychology. He wants to know whether it is possible to extrapolate their fundamental conclusions about the purposes, objectives and methods of diagnosis to the legal sphere. It is presumed that diagnosis of the socio-legal environment is the constitutional goal for public authorities and civil society institutions. It is proved that, in the structure of jurisprudence, there is legal diagnosis – an applied complex social and legal research (theory, technology, and methodology) and an interdisciplinary branch of theoretical and practical jurisprudence. The main and priority forms of legal diagnosis are: legal monitoring, monitoring of legislation and practice of its application; law-making and public law experiment; legal examination, in particular examination of legal regulations; legal forecasting; diagnostics of technical reality and IT-area (digital reality) to the extent that it affects civil rights and freedoms. The objects of legal diagnosis are social and legal risks, law-making and other relevant interests.

Key words: practice-oriented research, medical diagnosis, sociological diagnosis, social and psychological diagnosis, methods of diagnosis, legal diagnosis, forms and objects of legal diagnosis

COMPARATIVE JURISPRUDENCE

Robyshev V. (Moscow) Witness evidence in English civil proceedings: features of examination and evaluation

The article reveals the requirements specified by English law for a person whom a party wants to bring to court as a witness, as well as the rules on the admissibility of evidence given by minors and persons with mental disorder or disability of mind. Special attention is paid to the procedure of preliminary exchange of witness statements between the parties (that doesn’t exist in Russian procedural legislation), the purpose of which is to strengthen the adversarial principles of civil process, to ensure a fair trial, to accelerate the consideration and resolution of a dispute. The author concludes that the English rules on the examination of witness evidence positively impact the evaluation of witness evidence credibility. He proposes to enact the rule requiring the parties to disclose witness evidence in Russian procedural law.

Key words: English civil procedure, witness evidence, examination and evaluation of evidence

CONSTITUTIONAL LAW AND PROCEDURE

Khasyanov R. (Moscow) The right of citizens and their associations to exercise state and municipal powers

The intensive transfer of state and municipal powers to non-governmental organizations, associated with the trends to «denationalize» certain spheres of society, improve the efficiency of the state, save budget funds and develop civil society, raises many legal issues. One of them is about whether the opportunities for citizens and their associations to exercise state and municipal powers is an independent right. Based on the analysis of the legal literature of different periods, the author concludes that this right is not considered independent; however, most authors point out the possibility of involving both the citizens and their associations in the exercise of state and municipal powers, so there is nothing to prevent it from recognizing an independent right. The right to exercise state and municipal powers by citizens and their associations derives from the constitutional right of citizens to participate in managing state affairs, with the help of which the Constitutional Court of the Russian Federation justifies the existence in Russian legal reality of an institution for the transfer of state and municipal powers to non-governmental organizations. The author reveals the content of the right to exercise state and municipal powers by citizens and their associations, and distinguishes five separate powers in its structure. It is noted that the given right, unlike most constitutional rights and freedoms, has a technological and practical nature.

Key words: state and municipal powers, transfer, non-governmental organizations, civil society, people’s representation, management of state affairs

CRIMINAL LAW AND PROCEDURE

Kondrashova T. (Yekaterinburg) Depraved actions and other actions of a sexual nature: the concept and correlation

The article touches upon one of the contentious issues about the correlation between the concepts of depraved actions (acts constituting the objective side of the offense provided for by Article 135 of the Criminal Code) and other sexual actions (one of the alternative acts included in the objective side of the offense provided for by Article 132 of the Criminal Code). The author analyses different types of depraved actions (intellectual and physical, contact and non-contact), all sexual acts included in the objective side of the offense provided for by Article 132 of the Criminal Code, as well as the objective side of certain crimes against public morality, and concludes that the concepts of depraved actions and other sexual actions are not identical and there are some legal gaps in Chapter 18 of the Criminal Code; she also proposes to amend certain criminal-law norm concerning liability for sexual crimes.

Key words: depraved actions, other actions of a sexual nature, sexual crimes, prostitution

Kulikov A. (Yekaterinburg) Multi-оbject constructions in criminal law

On the basis of the analysis of criminal legislation, the author investigates a criminal-law nature of complex multi-object crimes, and highlights the ways of their constructing. He points out some contradictions in the system of construction of multi-object crimes that can provoke law enforcement errors, and proposes methods for eliminating them.

Key words: object, multi-object, corpus delicti, legislative construction

Militsin S. (Yekaterinburg) Traditions as the prerequisites for the continuity of criminal procedure law

The author asserts that there are some traditions in Russian criminal procedure law, which are the prerequisites for its continuity. By using examples from current and previous domestic legislation and judicial practice, the author shows that traditions have both positive and negative effects on the further development of criminal procedure law. The subjects of preserving or destructing traditions in criminal procedural law are the legislator and the law-enforcers who are most interested in preserving effective legal institutions and norms.

Key words: criminal procedure law, traditions, prerequisites for continuity, reasons for the emergence and existence of traditions, structure and types of traditions

Sergeev A. (Chelyabinsk) The theory of investigative situations in terms of digitalization of preliminary investigation

The article provides a brief overview of current Russian forensic doctrine on the importance and consequences of the use of digital technology in preliminary investigation and criminal proceedings. The author calls into question the probable complete replacement of a human investigator by artificial intelligence and mentions the continuing relevance of the theory of investigative situations. Having examined the particular elements of this theory, he notes that it is applicable to solving many problems of the disclosure and investigation of digital crimes.

Key words: digitalization of preliminary investigation, digital technologies, artificial intelligence, investigative situations

CIVIL LAW AND PROCEDURE

Semyakin M. (Yekaterinburg) Civil contract in the digital economy

The author notes the importance of forming theoretical and methodological foundations for understanding the digital economy and its impact on the private legal environment. The article reveals certain problems of digital technologies application in civil circulation. The intermediaries’ activity for posting on the websites (aggregators) for fee proposals of suppliers to sell goods (services) is considered from the perspective of regulatory framework and practice. The author analyses the structure of contractual relations between the aggregator owner and other subjects and, for this purpose, examines the Draft of a Directive on Online Intermediary Platforms. It is proposed to take into account a number of circumstances for determining the legal status of the aggregator owner. When the aggregator owner clearly and indisputably identifies himself as a counterpart in the contractual relations with a client, he should be considered as a party to certain relations, unless otherwise follows from the terms available at the website or from the existing relations; in other cases, when the client is not able to identify a counterpart, the aggregator owner and the supplier are considered as persons acting on behalf of a debtor, and bear joint and several responsibility.

Key words: digital economy, aggregator owner, online intermediary platform

Zykov S. (Novosibirsk) The system of property rights to the results of intellectual activity and means of individualization

The article indicates the differences in the content of exclusive rights to different objects and, on this basis, proposes their hierarchy by using the following criteria: the extent of the right to use, absoluteness, urgency, alienation. It is concluded that the general definition of exclusive right, according to which it encompasses any use of an ideal object, is not universal. It was formulated in relation to the right to use a literary work, but is not suitable for most objects of intellectual rights due to external and internal restrictions of these rights. It is possible to create a hierarchy showing the decrease in the actual extent of the exclusive rights to each of the objects. Moreover, the distinctive features of some objects are so significant that the extending of this right to them is rather doubtful. The author also presents the classification of the non-exclusive property rights by taking into account their correlation with the exclusive right. They could serve as a prerequisite for the occurrence of an exclusive right, a partial or complete substitution (surrogate), or an additional legal possibility.

Key words: exclusive right, property rights, right to use the results of intellectual activity and means of individualization, system of property rights

Tolmachev I. (Yekaterinburg) Measures to protect the creditors’ rights and legitimate interests in case of bankruptcy of a credit institution: the concept and classification

The author defines the concepts of protection of rights and defence of rights and shows their differences. Protection measures are examined from the perspective of legal remedies. The classification of legal means and measures to protect the rights and interests of creditors in case of bankruptcy of a credit institution is given.

Key words: protection of rights, defence of rights, bankruptcy of a credit institution, measures to protect the creditors’ rights and legitimate interests

Lekanova E. (Yaroslavl) Conclusion of a marriage contract by minors before marriage

In the family law doctrine, there are the controversial issues about the point at which minors have the right to conclude a marriage contract, as well as about whether not fully capable minors need the consent of their legal representatives to conclude a marriage contract. The article analyses the main scholars’ positions on the studied issue. The author believes that, as a general rule, not fully capable minors need the consent of their legal representative to conclude a marriage contract before marriage, because the legislation does not explicitly set out that the conclusion of a marriage contract through a representative is inadmissible. Moreover, the conclusion of such a contract by minors before marriage may require a permission of a guardianship authority if the marriage contract entails a reduction in the property of the minors who have not acquired full civil capacity. Family law should enshrine the right of persons entering into marriage to independently apply to a court from the age of 14 when their legal representatives and (or) the guardianship authorities don’t consented to the conclusion of a marriage contract by not fully capable minors. At the same time, not fully capable persons entering into marriage conclude a marriage contract independently if it concerns only that property which the minor is able to dispose independently.

Key words: inadmissibility of representation, marriage contract, minors, framework contract, marriage age, emancipated persons

LABOUR AND SOCIAL LAW

Leskina E. (Saratov) Balancing the interests of an employee and an employer: the rules and methodological bases

The development of the market economy and information technologies warrants new directions for the state labour policy and requires new ways for establishing a balance of interests of the parties to labour relations. This leads to inconsistent judicial practice due to the different understanding of the balance of interests of the parties to labour relations by courts. Establishing such a balance is a really difficult task because, on the one hand, an employee and an employer are economic antagonists and, on the other hand, they are interested in each other, the motivation of one party contributes to the well-being of the other. The purpose of the article is to develop the rules and methodological bases for establishing the balance of interests of an employee and an employer. An analysis of international and constitutional norms as well as of the practice of the European Court of Human Rights shows that the axiological approach is the only means for balancing the interests of the parties to labour relations and would help to achieve the goals and objectives of the labour legislation of Russia.

Key words: balance of interests, employee, employer, legitimate interest, labour policy, axiological approach

PROBLEMS OF LEGAL EDUCATION

Biyushkina N. (Nizhny Novgorod) The main stages in the development of educational legal relations in the Soviet state from October 1917 till 1990: the historical and legal aspect

The article examines the features of the formation and legal regulation of education in the Soviet state. The differences in the organization and regulation of educational relations during the pre-revolutionary and Soviet periods were primarily due to the changes in political-legal and socio-economic paradigm. The class approach, proletarian internationalism, Soviet patriotism, and a socialist way of life had a crucial influence on the organization and legal regulation of education in a Soviet country.

Key words: education, legal regulation, Soviet state, universal compulsory education, Soviet patriotism, proletarian internationalism

LEGAL HERITAGE

O. E. Leist on the political and legal doctrine as a subject of the history of political and legal studies (the material is presented by S. Kodan)

PAGES OF HISTORY

Sokolova E. (Yekaterinburg) «You are our mistress and mother...»: on the supra-estate vector of the rule of law policy in the first years of the reign of Empress Elizabeth (1741–1742)

The article is devoted to the poorly studied issue on the political and legal orientation of Empress Elizabeth’s official legislative initiatives in the field of institutionalization of the rule of law. Legislative strategies of the first years of the reign of Peter’s the Great daughter, aimed at creating legal conditions for the monarch’s dominance in the political system of the Russian state, are considered as an integral part of the state and legal «heritage» of Peter’s the Great, who wanted to transform the legislation into the sovereign’s main instrument of influence on his subjects. The author analyses the main ways of ensuring the legal status of the monarch as the sole guarantor of the «common good» for all people, and notes that they were mediated by national-patriotic ideology. Based on a wide range of legal information carriers, the article reveals the historical and legal specifics of the socio-political nature of the Russian autocracy, which consisted in strengthening the supra-estate position of the monarch through his withdrawal from the action of general laws. At the same time, the problem of legalization of the supra-estate monarchy in Russia is considered, taking into account the personal and ideological factor in the midst of the Elizabeth’s consistent desire to create her own political image as a legitimate guardian of the «Peter’s heritage».

Key words: legal policy, rule of law regime, Russian autocracy, supra-estate monarchy, legalization of a special status of the monarch, citizenship relations, personal and ideological factor, legislation of Empress Elizabeth

LIBRARY

Review of the book: Ignat’eva I. A. The use of land and land plots with electric power facilities: law and practice. – Moscow: Prospect, 2019. – 368 p.