Annotations № 4 (139) / 2021

CONSTITUTIONAL LAW AND PROCEDURE

Petrov A. (Irkutsk) Legal superpositions of the constitutional court of the Russian Federation: putting forward the problem

Decisions of the Constitutional Court of the Russian Federation are final and not subject to appeal. This means, first of all, the finality of a judicial act adopted by the Constitutional Court on a specific case. At the same time, a decision of the Constitutional Court is heterogeneous and includes a number of elements with different legal meanings. Accordingly, the quality of finality can manifest itself in different ways in relation to various constituent parts of the Constitutional Court’s decision, including the final wording of its resolute part and the legal positions set forth in the reasoning part. In particular, the wording of the decision of the Constitutional Court is not subject to change under any circumstances, even in the event of amendments to the Russian Constitution. At the same time, the doctrine and the practice recognize that the legal positions of the Constitutional Court, the significance of which goes beyond its specific decisions and which can be used as the basis for arguing decisions in future cases, are changeable. The article raises the question about the limits of such changes. Based on specific examples, the author assumes that there are the legal superpositions of the Constitutional Court, i. e. such legal positions that cannot be changed by the Court as a matter of principle. It is noted that, in the American constitutional legal science, a similar discussion is underway in relation to the super-precedents of the US Supreme Court, i. e. such decisions that cannot be changed by the Supreme Court due to their fundamental legal and socio-political significance.

Key words: Constitutional Court, legal position of the Constitutional Court, finality of Constitutional Court’s decisions, revision of judicial acts

Silkin V. (Moscow) Transparency of executive power in digital epoch

The aim of the study is to define the main features of the realization of the principle of transparency of executive power in light of the use of automated systems of data processing. The focus is on the freely revelation by the state bodies of executive power of the information on the purposes, means and results of the use of such systems. The content of the principle of transparency of executive power is considered. Transparency is developing in a new way during the implementation of modern governance concepts, especially the open government ideas. Transparency could be defined both as a legal principle and as a political ideal delimitating this principle. The author reveals the peculiarities of transparency in the light of the use of big data and artificial intelligence technologies by the executive bodies. It is concluded that the appropriate balance between openness and confidentiality can be achieved by making available the general information on the purposes, means and results of the use of automated systems of data processing.

Key words: e-government, open government, openness, transparency, executive power, executive bodies, automated data processing, algorithms

COMPARATIVE JURISPRUDENCE

Kokotova M. (Yekaterinburg) Local civic chambers (councils) in Russia and regional economic, social, and environmental councils in France as the agents of public control

The article investigates the public control powers of local civic chambers (councils) in Russian and economic, social, and environmental councils in France. Five French regions and five Russian urban districts are chosen for the comparative analysis. The author describes the object of the control of the consolatory bodies mentioned above. She notes that, in general, the object is similar and includes not only the legal acts but although the law enforcement practice. However, while the economic, social, and environmental councils control only the activity of municipal authorities, the civic chambers sometimes examine the laws or participate in the supervision actions organized by the municipal administration. The criteria forming the basis of the public control and the procedure of the control are analysed. It is noted that the civic chambers send their decisions not only to the municipal government, as the economic, social, and environmental councils do, but although to the state authorities.

Key words: civic chambers (councils), economic, public, and environmental councils, public control, expertise of the municipal legal acts

ELECTION LAW AND ELECTION PROCEDURE

Konovalchikov Ya. (Novosibirsk) The principle of equality of political parties in the electoral process

The author studies the implementation of the basic constitutional principle – the principle of equality of political parties in the electoral process. He reveals the theoretical provisions of this principle, its interpretation by the Constitutional Court of the Russian Federation and its normative consolidation in the electoral legislation. According to the author, the principle of equality of political parties in the electoral process is the establishment and application of the same requirements for political parties at each stage of the electoral process. The provision of state preferences for parliamentary political parties is considered a significant phenomenon for understanding the principle of equality of political parties in the electoral process. This phenomenon is evaluated to the dynamics (from the adoption of the Federal Law on Political Parties to the present day) and compared with the relevant practice in Germany. It is necessary to maintain a balance of rights: in the case of granting preferences to some political parties, other political parties should be given something in return. These are alternative legal ways to confirm the support of voters, additional guarantees of equality. The author believes that today the goal of providing preferences for «parliamentary» political parties has been achieved and there is no need to introduce them. The preservation of preferences has a negative impact on the development of a multi-party system. The author itemizes some other negative factors affecting the equality of political parties in the electoral process: there is no alternative way to confirm the support of voters; there is no correlation between the number of political parties and electoral support in the elections; the requirements for filling out and certifying subscription lists are overstated. A comprehensive approach is needed to solve the problem of implementing the principle of equality of political parties in the electoral process. This means improving the regulatory framework and clarifying the methodology of interaction between the state and political parties.

Key words: principle of equality, political parties, elections, electoral process, legal preferences

LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW

Kozhevnikov O. (Yekaterinburg) On the normative regulation of issues of local importance

The article presents a brief analysis of the normative content of the basic category of municipal law – «issues of local importance». The shortcomings of the wording of the normative acts on local self-government, the confusion of the concepts of «issues of local importance» and «powers of local self-government bodies», the need to define a list of issues of local importance of municipalities are noted. The author believes that, after amending the text of the Constitution of the Russian Federation in 2020, special legislation on local self-government should be transformed seriously; otherwise, Russia may return to the Soviet origins of local self-government.

Key words: issues of local importance, ensuring the livelihoods of the population, competence of local self-government bodies, independence of local self-government

CRIMINAL LAW AND PROCEDURE

Chuchaev A. (Moscow) Criminal law science as an independent branch of jurisprudence (views of S. I. Barshev)

The article deals with the issues that have been controversial for two centuries: the notion of criminal law science, its subject and, consequently, the boundaries of criminal law theory, its methods and its correlation with other branches of knowledge. The author outlines the views of Sergei Ivanovich Barshev who was at the origins of the metatheory of criminal law and did a lot to recognize criminal law science as an independent branch of knowledge that is not included in either state or civil law. The definition of criminal law science proposed by Barshev is provided; the characteristic of the methods of criminal law science recognized by Barshev is revealed. Special attention is paid to the relationship between philosophy and criminal law, and this is for two reasons. Firstly, there is the lack of unity among pre-revolutionary scientists, some of whom included philosophy into the subject of criminal law science (for example, P. A. Feuerbach), others recognized it as a method of science (for example, G. S. Gordeenkov), and others denied any connection between these branches of knowledge (for example, N. D. Sergeevsky). Secondly, the position of Barshev himself was contradictory. According to the author, when assessing the creative heritage of Barshev, it is necessary to take into account his commitment to the ideas of the historical school of criminal law (hence, the scientist considered the historical method of cognition as the main one) and the state of the metatheory of criminal law in the 19th century.

Key words: criminal law, S. I. Barshev, subject and methods of criminal law science, metatheory of criminal law

Vinokurov V. (Krasnoyarsk), Fedorova E. (Krasnoyarsk) The limits of the norm under article 272 of the criminal code of the Russian Federation

The article considers the issue of what should be understood as computer information protected by law as the subject of the crime under Art. 272 of the Criminal Code of the Russian Federation. There is no unified approach to this issue in judicial practice, nor have there been any rules for qualifying the impact on information in electronic form that is a secret of personal life or is an object of copyright. In the theory of criminal law, the position prevails that any information in electronic form should be referred to the information protected by law as the subject of the crime under Art. 272 of the Criminal Code. At the same time, the authors draw attention to the fact that it is necessary to distinguish between computer information containing data and commands intended for the operation of a computer in order to obtain a certain result, and a computer program as an object of copyright. In their opinion, text information, which a person perceives from a computer monitor, with the exception of a username, password and code, does not relate to the subject of the specified crime.

Key words: computer information, computer program, an object and a subject of the crime under Art. 272 of the Criminal Code of the Russian Federation

Gorobets D. (Rostov-on-Don) Signs of the objective side of the crime provided for in article 199.2 of the criminal code of the Russian Federation

The article examines the stages of transformation in the investigative judicial practice of the concept of concealment of property used by the legislator in describing the criminal acts provided for in Art. 199.2 of the Criminal Code of the Russian Federation: from its literal understanding as the keeping of property to an overbroad interpretation that changes the original meaning of the norm and leads to the identification of concealment of property with obstruction of actions of tax authorities. The different understanding of concealment entails changes in the procedure for determining a date of the commencement and a time of the commission of a crime and results in the criminalization of actions not aimed at concealing property.

Key words: concealment of funds and other property, avoidance and obstruction of compulsory collection of arrears, disposal of property after the expiration of the period established by the requirement for voluntary repayment of arrears

Balakshin V. (Yekaterinburg) The use of materials of administrative activities and results of research operations in criminal procedure proving

The article deals with the problems of using materials of administrative activities and results of research operations in criminal procedure proving, which have arisen immediately after the adoption and introduction of the Criminal Procedure Code of the Russian Federation. The author analyses the views of scientists on this issue and a number of examples from judicial practice, and, on this basis, puts forward some reasons that, in his opinion, prevent the full use of documents, objects, and electronic sources, obtained by the bodies of inquiry during administrative activities and research operations, as admissible evidence. The author concludes that the adjustments made to the criminal procedure law partly addressed these problems; therefore, he proposes to introduce amendments to the Criminal Procedure Code of the Russian Federation and the Federal law «On Operative-Research Activity».

Key words: materials of administrative activities, results of research operations, other procedural actions, proof, evidence, admissibility of evidence

QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY

Khlus A. (Minsk, Republic of Belarus) Innovative forensic developments of A. V. Dulov’s scientific school of forensics

The doctrines of tactical operations and the material structure of a crime, the idea of the development of the investigation strategy and the improvement of the forensic system on this basis, as well as the proposal to consider forensic strategy as a new section of forensics are the main achievements of the Belarusian school of forensics of A. V. Dulov. Not all of the mentioned scientific concepts have found practical application; however, this does not diminish their importance for the development of science. In addition, some of them may form the basis of a new strategy for investigating crimes. The author reveals the main provisions of the doctrine of the material structure of a crime and proposes to use an information model of a criminal act, based on the information about its material structural elements, in the development of private investigation techniques.

Key words: innovation, crime investigation, forensics, private investigation technique

CIVIL LAW AND PROCEDURE

Lisachenko A. (Yekaterinburg) The right to a unified technology as an intellectual right of the future

The article examines the legal consequences of the exclusion of the norms on a unified technology from the Civil Code of the Russian Federation (chapter 77) and assesses the extent to which Russian law can offer an adequate replacement for them. It is argued that at least two positive features of these norms should not be lost, namely the possibility of including in a single technology the objects that are not protected by traditional legal means of copyright or patent law and are not related to know-how, and the ability to oblige the copyright holder to use a unified technology for the benefit of society. The author proposes the concept of a new, reformed «unified technology» as a complex result of scientific and technical activities expressed in an objective form, which includes in various combinations the results of intellectual activity that are subject to and (or) not subject to the legal protection, and can serve as a technological basis for certain practical activities. The author demonstrates the benefits and advantages of such an approach, as well as the need for such a complex object of intellectual rights as a reformed unified technology since such objects are meant to be the main commodity in the multipolar world in the near future.

Key words: unified technology, intellectual property rights, technologies

Semyakin M. (Yekaterinburg) The principles of property law in the context of reforming Russian civil legislation

In the article, a theoretical and methodological analysis of the principles of property law in the context of reforming civil legislation is given. It is noted that, in civil law literature, the principles of property law and its features are not distinguished properly. The author emphasizes the extremely important theoretical and practical significance of the principles of property law and critically evaluates the characteristics of these principles proposed in the doctrine. He asserts that there is the need to consolidate an open list of the principles of property law in the Civil Code of the Russian Federation. According to the author, it would be useful to adapt the best practices of a number of European countries when reforming the Russian legislation on property rights.

Key words: property law, principles of property law, thing, material medium, document, civil legislation

ADMINISTRATIVE LAW AND PROCEDURE

Zaykov D. (Moscow) A warning about the inadmissibility of violating mandatory requirements: problems of law enforcement

Prevention of offenses plays an important role in the formation of the necessary conditions for ensuring security and complying with the requirements of regulatory legal acts by the subjects of legal relations. One of the institutions that has an appropriate purpose and is actively used in law enforcement activities is a warning. The warning is the most relevant in the implementation of state control (supervision) and municipal control. Actually, due to the peculiarities of legal regulation, law enforcement and judicial practice, there are two different approaches to the legal nature of the institution under study. An existing dichotomy is based on the problem of qualifying the warning as a non-normative legal act, which, accordingly, causes the question about the possibility (impossibility) of appealing the warning by its addressee. Such a duality of the legal institution under study entails the uncertainty of its impact on the rights and obligations of legal entities (individual entrepreneurs) and, accordingly, creates prerequisites for violating their right to judicial protection and excluding a mechanism of restoration (prevention of violation) of rights, freedoms and legitimate interests affected by the announcement of the warning.

Key words: warning, state control, non-normative legal act

LABOUR AND SOCIAL LAW

Fedorova M. (Yekaterinburg) The constitutional right to social security through the prism of instrumental jurisprudence

The article researches the nature of the constitutional right to social security from the standpoint of instrumental jurisprudence. To this end, the unique characteristics of the Constitution (direct effect, universalism, etc.) are analysed. The regulatory potential of Art. 39 of the Constitution, that establishes the right to social security, and some other constitutional norms is assessed. On the example of the rulings of the Constitutional Court of the Russian Federation on social security the author concludes that the provisions of the Constitution interact in order to create the constitutional model of social security. In view of the ability of the Constitution to be the ground for sector-specific legislation, the legal mechanism of social security is characterized through the consolidated regulatory potential of applicable legal tools. Instrumental jurisprudence relies on the necessity to choose the most effective tools helping to meet specific legal objectives. One of such legal tools aimed at the protection against social risks is the constitutional right to social security. It correlates with the right to a specific social benefit which has the similar nature. The author proposes to consider the constitutional right to social security as a model legal tool. In this capacity, it interacts with other constitutional tools (principles, prohibitions, etc.) and requires the state as the responsible subject to establish the system of social security in order to provide protection against social risks. The parameters of such a system are identified by the sector-specific legislation. This system in turn should comply with the conditions arising from the Constitution (in terms of structure, international standards and other criteria).

Key words: constitutional right to social security, Constitutional Court of the Russian Federation, instrumental jurisprudence, legal tools, model legal tool

Elfimov P. (Yekaterinburg), Gerasimov Vitaly (Novouralsk) Special assessment of working conditions of medical workers: problems and prospects

The article analyses the changes in legislation that have occurred since the introduction of the institution of special assessment of working conditions and up to the present time, on the example of the assessment of working conditions of medical workers. Much attention is paid to the assessment of the impact of a biological factor at the workplace of doctors and other medical personnel. The authors, taking into account this factor, identify the problematic aspects of the assessment of working conditions and consider the practice of applying the current assessment methodology. They mention that there is an ambiguity of judicial practice on the issue of taking into account the biological factor due to an ambiguity of the concepts «work under the impact of a biological factor» and «work with pathogenic microorganisms». Ways of solving conflicts during the special assessment of working conditions of medical workers are proposed. The authors think that there is a need to establish specific criteria for assessing the impact of a biological factor.

Key words: medical worker, working conditions, special assessment of working conditions, biological factor, pathogenic microorganisms

Melnikova E. (St. Petersburg) Is there a legal basis for the reconstruction of a cultural heritage site?

An indispensable condition for the preservation of cultural heritage sites is their use, which requires the adaptation of them to modern conditions, and most often this is a reconstruction. At the same time, in the Russian legislation, there is no legal consolidation of the concept of «reconstruction» in relation to cultural heritage sites; moreover, in judicial practice and doctrine, there is also no consensus on the question about which of the measures for the preservation of cultural heritage sites involves the works that are technologically inherent to the reconstruction. This uncertainty makes unpredictable the coordination of design decisions with the monument protection authority. The article examines the gaps in the Russian legislation on the protection of cultural heritage sites, which lead to the variable formalization of the same technological processes. To eliminate this variability, the author wants to find out what types of production works should be carried out during the implementation of each measure to preserve cultural heritage sites. The performed analysis reveals the absence in the legislation on the protection of monuments of such a measure to preserve cultural heritage sites as reconstruction; therefore, it becomes obvious that there is no legal basis for the reconstruction of cultural heritage sites. It is reasonable to talk about «production works carried out in order to create conditions for the modern use of a cultural heritage site» with regard to the technological processes to which the monument can be subjected.

Key words: reconstruction of cultural heritage sites, measures to preserve cultural heritage sites, production works, adaptation of cultural heritage sites for the modern use

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N. (Yekaterinburg), Kalinina A. (Yekaterinburg) Educational and methodical work of teachers at the law university (a historical and legal study on the development of the faculty for training lawyers of the Irkutsk State University in 1918 – the 1920s)

In the year of the tenth anniversary of the Law and University Museum and the appearance of a new professional holiday in the Russian calendar – the Day of a Higher School Teacher – the article is devoted to one of the university «estates» – teachers at the law university. The research ascertains the diversity of their activities and the permanent complication of their professional tasks and focuses on the educational and methodological work. The analysis of numerous records shows that, along with the scientific and educational fields of work, there is a special significant activity for the faculty, which educates lawyers in Irkutsk under the conditions of power transition and change of political and ideological, regulatory and managerial registers, – educational and methodological creativity. It is demonstrated that representatives of the faculty in 1918 – the 1920s were involved in the process of designing and correcting curricula and also developed educational and methodological documentation: teaching programs and plans, exam questions, graduation topics, etc. Besides preparing for classes and forming reports on them, lecturers participated in a creative discussion about forms and methods of teaching law. The authors conclude that the work of teachers at the law schools and faculties in different historical periods is truly multitasking.

Key words: lecturer, law faculty of the Irkutsk State University, social and legal department of the faculty of humanities, faculty of social sciences, faculty of law and local economy, faculty of Soviet construction, educational and methodological work, curricula, teaching programs