Annotations № 2 (143) / 2022
THEORY OF STATE AND LAW
Tolstykh V. (Moscow) Deconstruction of the legal discourse of the transition period
The article is based on three theses. According to the first thesis, the legal doctrine reflects the state of society not only at the substantive but also at the linguistic (discursive) level; according to the second thesis, during the transition period, the function of linguistic structures is not to develop the existing order but to destroy it and free space for a new one, i. e. to organize political transformation; according to the third thesis, the world is currently undergoing a radical transformation comparable to the transformation of the 17th century (transition from feudalism to capitalism). The essence of the transformation is the dismantling of the order based on the concept of social contract and related concepts (human rights, democracy, separation of powers), and the construction of a new order based on other principles. The purpose of the article is to highlight some features of the Russian legal discourse and explain them by linking to these theses. The relevant features are: 1) sacralization of law; 2) deidelogization; 3) exhaustion of the legal rhetoric; 4) poverty of the legal language; 5) demonstrative respect for tradition; 6) using newspeak; 7) disintegration of the legal corporation. These features at first glance appear to be signs of decline; in fact, they are functional and effective tools for transformation. Another thing is that the very new order that the humanity enters into may turn out to be decline or degradation. The only indisputable criterion to determine it is the human nature. Thus any serious analysis of the transformation presupposes an answer to the age-old question: «What is human?»
Key words: philosophy of law, structuralism, legal discourse, legal science, legal doctrine, linguistic structures, social contract, transition period
Malinova A. (Moscow) The balance of interests and its «hypostases» in jurisprudence
The topic of balance of interests is popular in almost all branches of legal science, but theoretical developments are carried out with particular intensity in constitutional law and in several areas of civil law. The balance of interests is studied mainly from the point of view of its specific role and significance in legislation, legal science and law enforcement practice and is considered as a concept, principle, method, goal and task. In scientific circulation, the balance of interests as a polysemantic, contradictory and theoretically indefinite conceptual construction is an ideologeme that doctrinal thought and judicial practice persistently try to embody in the real legal concepts. At the same time, scientists often do not pay due attention to the fact that the word «interest» as a legal term has nor a legislative neither a commonly used doctrinal definition. The study of more than three hundred years of the history of the formation of the meanings of this concept in the Russian legal lexis shows that one should not expect the appearance of such a definition in the foreseeable future. Until it appears, the concept of «balance of interests» will continue to be perceived by the law enforcers as an idea, ideal, metaphor, slogan or appeal. Figuratively speaking, the balance is a scale, and interests lie on both scales, although it is unknown what it is (in the legal sense) and by which indicators interests can be «weighed». This circumstance, of course, does not detract from the merits of modern research on this topic, but it is a serious obstacle to the perception of the balance of interests as a concept, principle, method, goal and task.
Key words: balance, interest, balance of interests, balancing, principle, concept, method, balance, goal, task, idea, ideal, ideologeme, metaphor
CONSTITUTIONAL LAW AND PROCEDURE
Nazarkova E. (Yekaterinburg) Retroactivity of interpretative acts (on the example of the constitutional courts’ decisions in Russia and the USA)
The author draws attention to the notion and the temporal scope of interpretative acts. The article provides the comparison between the legal theory of interpretative acts temporality and the practice of the Constitutional Court of the Russian Federation. Actually, its decisions act retrospectively without any limits whereas decisions of the Supreme Court and the Supreme Commercial Court of the Russian Federation are applied in the same way only in extraordinary cases. According to the author, since there is no developed theoretical concept of temporality of interpretative acts, it is possible to refer to the experience of other legal systems. The functional approach in comparative jurisprudence can help to compare the retroactivity of the Constitutional Court’s of the Russian Federation and the Supreme Court’s of the USA decisions despite the differences between the civil law system and the common law system. The author concludes that interpretative acts in the context of legal theory tend to have their own temporal scope and should be applied preferably retrospectively.
Key words: interpretative act, constitutional control, temporality, retroactivity, temporal scope
Plotnikova I. (Saratov) The role of the Russian Constitutional Court in the constitutionalization of economic freedom of an individual
The article reveals the role of the Constitutional Court of the Russian Federation as the most important actor of the constitutionalization of economic freedom of an individual. It is noted that the decisions of the Constitutional Court have normative, doctrinal and law enforcement characteristics and belong to independent sources of constitutional law. The author explores the legal positions of the Constitutional Court devoted to the concretization and implementation in legislation and law enforcement practice of such constitutional principles as freedom of economic activity, recognition and equal protection of private and other forms of property, freedom of labour, and basic economic rights, as well as the proportionality of their restrictions. The author concludes that the activities of the supreme judicial body of constitutional control have a complex nature and have a decisive influence on constitutional and legal policy, law-making and law enforcement processes in the field of securing and protection of economic human rights and freedoms, the constitutionalization of economic freedom of an individual.
Key words: Constitutional Court of the Russian Federation, legal positions, economic freedom, property, labour, constitutionalization, legitimate expectations, competition of values
CRIMINAL LAW AND PROCEDURE
Klokov S., Ignatyeva A. (Nizhny Novgorod) The idea of the supremacy of formal truth: the evolution of the domestic criminal procedure doctrine
The article presents a retrospective analysis of the institute of inquiry in the criminal proceedings of Russia, which reflects an attitude of the pre-revolutionary, post-Soviet and current legislator to the achievement of objective truth in the process of proving in criminal cases. There is a tendency to introduce into the modern criminal and criminal procedure legislation the following institutes: an institute of reduced inquiry, a criminal misdemeanour and a protocol form of investigation, which provide dominance of the formal system of proofs in the investigation and resolution of criminal cases. The authors focus on current problems of the reduced form of inquiry entailing the impossibility to ensure the protection of the rights of participants in the criminal process and the achievement of objective truth in the case. The authors conclude that it is unreasonable to return the protocol form of investigation and include the provisions on criminal misdemeanour into the legislation because such amendments will contradict the principles of adversarial process. The authors criticize the proposal to include the institute of criminal misdemeanour into the RF Criminal Procedure Code and, instead, propose to reform the existing criminal procedural constructions.
Key words: inquiry, reduced form of inquiry, formal truth, criminal misdemeanour, protocol form of investigation
CIVIL LAW AND PROCEDURE
Karpeeva E. (Irkutsk) The conflict of interests as a ground for appointing to a minor a professional representative in civil proceedings
The article studies the existing gap in the legal regulation of the appointment of a representative to minors to conduct their cases in the court when there are contradictions between the interests of the minor and his / her legal representatives (paragraph 2 of Article 64 of the Family Code of the Russian Federation, paragraph 3 of Article 37 of the Civil Code of the Russian Federation). The article provides a critical assessment of the grounds provided for by civil law for the removal of a guardian (trustee) from conducting the case of his / her ward in the court. The author compares the grounds for the removal of parents and persons replacing them from participating in the case as legal representatives of a minor. The author’s definition of the conflict of interests of legal representatives and their wards is given. The author makes some proposals to improve the current legislation in terms of appointing to a minor a professional representative in civil proceedings.
Key words: legal representatives, professional representation, minors, children left without parental care, conflict of interests
Melnikova E. (St. Petersburg) Embeddability of the concept of an electronic person in the legal system of the state or state entity
Discussions about the endowment of artificial intelligence (hereinafter – AI) with legal personality have not subsided in recent years, because the emergence of a new «legal entity» (usually referred to as «electronic person» in the legal literature), along with humans and corporate entities, can affect the distribution of benefits from the use of AI and the solution of questions about liability for harm, which can be caused by AI carriers. It is believed that an intelligent, highly organized AI has a potential of becoming a subject of law. A review of the legal literature and the media allows the author to conclude that today the prospects for endowing an electronic person with legal personality are different in different jurisdictions. The author notes that, in order to recognize certain types of AI as subjects of law, three conditions must be met simultaneously: the concept of an electronic person must fit into the legal system of a particular state or state entity, state policy should be aimed at recognizing the rights and obligations of an electronic person and should be supported by civil society. The article considers only the first condition. Taking into account the fact that the existence of legal personality is unthinkable without at least the potential ability of the subject to exercise rights and obligations, i. e. to be legally capable, the approaches to the definition of the concept of «legal capacity» existing in the legal systems of common law countries, European Union countries and Russia are considered. The legal capacity tests adopted in these legal systems are highlighted and consistently applied to an electronic person. The conclusion about the «compatibility» of the studied legal systems with the concept of an electronic person is made.
Key words: artificial intelligence, electronic person, legal personality of an electronic person, subject of law, legal system, legal capacity test, concept of legal capacity in common law countries, concept of legal capacity in European Union countries
ADMINISTRATIVE LAW AND PROCEDURE
Zhukov N. (Yekaterinburg) The reasons for the growth of unjustified appeals to the internal security departments of state bodies
The article provides a brief overview of the reasons for the growth of incoming appeals to the state bodies. There is a stable tendency in Russian society to counteract the legitimate activities of the state bodies. The recommendations for reducing the growth of incoming appeals to the internal security departments of state bodies and for improving the organization of work with appeals by other departments of state bodies are outlined. The author touches upon the existing ways for officials of the state bodies to evade responsibility for committing an administrative offense under Article 5.59 of the Administrative Code of the Russian Federation (violation of the procedure for considering citizens’ appeals). The article points out that certain powers assigned to the departments for dealing with appeals and the security departments are rather similar and that the security departments are endowed with functions not peculiar to them.
Key words: citizens’ appeals, consideration of complaints, legal illiteracy, state bodies, reduction of workload
PROCURACY SUPERVISION
Ergashev E. (Yekaterinburg) Procedural and non-procedural means and acts of prosecutorial response: a legal nature and problems of legal regulation
The article examines a legal nature, concept and essence of procedural legal means of the prosecutor and procedural acts of the prosecutor’s response used in the implementation of prosecutorial supervision and prosecutor’s assistance in the administration of justice. The signs of procedural acts of the prosecutor’s response are investigated. The author points out the existing problems of legal regulation of these acts and proposes ways to resolve them.
Key words: prosecutor’s powers, prosecutor’s legal means, legal means of the prosecutor’s response, procedural acts of the prosecutor’s response
ECONOMICS AND LAW
Popova S., Borovkova Ju. (Moscow) The legal status of space tourists
The article focuses on the concept of «space tourist» and the legal status of space tourists. The key differences between the legal status of space tourists and the legal status of astronauts and «ordinary» tourists are highlighted. Based on the requirements for participants of space flights and cosmonauts (astronauts), the authors propose a classification of space tourists. They formulate a definition of the concept of «space tourist», based on the duration of the flight and the absence of labour relations between a participant of the space flight and its organizer. The authors propose to consider persons, who have made suborbital flights, as excursionists and to exclude them from the number of space tourists. At the same time, they note that the concept of «space excursionist» might be introduced if the line between the altitude of outer space and airspace is fixed at the international level.
Key words: space tourist, cosmonaut, astronaut, space tourism, suborbital flight, space law
Lisachenko A. (Yekaterinburg) The legal regime of «big genomic data»: pros and cons of free circulation
The article examines the existing legal regime of genomic information, including the legal regime of the so-called «big data». The author attempts to predict the main ways of development of technologies and public relations in the studied area and, based on this, to formulate legal positions for the near future. The risks associated with the accumulation, processing and circulation of large arrays of genomic data are analysed. The current regulations in the field of biological safety are evaluated in terms of their compliance with the current and predicted situation. The author makes a conclusion about the discrepancy between the expected risks of free circulation of genomic information, which lie mainly in the individual plane (the risks of misuse of personalized or personifiable genomic information), and the real, much more significant risks associated with the use of «big genomic data», even if they are individually anonymous. It is pointed out that the current Russian legislation lacks effective means of countering threats generated by the transition to a new technological level of the work with information in general and with «big genomic data» in particular. It is proposed to change significantly the approach to the definition of the legal regime of «big genomic data» and to exclude their free circulation.
Key words: biosafety, genomics, «big data»
Pastushenko A. (Saratov) Financial and legal features of banking supervision
To form an understanding of banking supervision, the author analyses the legislation provisions on this type of state control and supervision activities, the Bank of Russia regulations, as well as the positions of the scientific community on this issue. The main features of banking supervision are formulated.
Key words: Central Bank of the Russian Federation, banking supervision, control measures, credit organizations, financial control
PAGES OF HISTORY
Motrevich V. (Yekaterinburg) The state defense committee and agriculture of the ussr during the great patriotic war (based on the declassified GKO resolutions)
Based on the declassified resolutions of the State Defense Committee, the article introduces new materials on the state of agriculture in the USSR during the Great Patriotic War. An analysis of the GKO resolutions shows that, unlike the Council of People’s Commissars of the USSR, the GKO paid much less attention to agriculture. Nevertheless, the resolutions of the State Defense Committee touched upon the issues of evacuation and placement in the rear areas of the material and labour resources of agriculture, the organization of all-Union socialist competition, the development of individual and collective gardening, and the strengthening of the material and technical base of the industry. The GKO resolutions also reflected the issues of strengthening the food base around industrial centers, the changes in fiscal policy in the countryside, the measures to restore horse breeding, etc.
Key words: Great Patriotic War, State Defense Committee, agriculture, People’s Commissariat of Agriculture of the USSR, People’s Commissariat of State Farms of the USSR
MUSEUM OF SLI – USLA – USLU HISTORY
Zipunnikova N., Kalinina A. (Yekaterinburg) A law university and archives: the experience of interaction (based on the exhibition dedicated to the 300th anniversary of the prosecutor’s office of Russia «„the prosecutor general ought to sit in the senate and watch tightly...“ the history of the prosecutor’s office in the Urals in the light of archival documents»)
In 2022, the 350th anniversary of the birth of Peter I and the 300th anniversary of the creation of the Prosecutor’s Office in Russia are celebrated. Many events are held throughout the country in honour of these important events in the national history. One of them is exhibitions. The article attempts to analyse the scientific potential of historical and documentary exhibitions on the example of a specific project implemented by the Ural State Law University named after V. F. Yakovlev and the Archives Department of the Sverdlovsk region. It is an exhibition dedicated to the 300th anniversary of the Prosecutor’s Office of Russia «„The Prosecutor General ought to sit in the Senate and watch tightly...“ The history of the prosecutor’s office in the Urals in the light of archival documents». The prospects of using exhibition materials in the training of lawyers are considered. Possible ways to attract and increase public interest in exhibitions of archival documents are revealed.
Key words: Peter I, prosecutor’s office, history of the prosecutor’s office in the Urals, archival exhibition, legal education, Ural State Law University named after V. F. Yakovlev