Annotations № 4 (145) / 2022
THEORY OF LAW AND STATE
Kulikov M. (Moscow) Technologies of manipulating legal restrictions: Russian realities and international experience
The object of the research is the manipulation of legal instruments carried out in the process of legal regulation of social relations – an extremely common phenomenon but barely explored by representatives of both the theory of law and branch legal sciences. The subject of the article is the technologies of manipulating legal restrictions, which are the most important type of legal means used in the mechanism of legal regulation. Technologies of manipulating legal restrictions are defined as a set of techniques and methods for creating or using legal restrictions, through which a participant in legal relations is deterred from performing certain actions in the interests of the subject of management (manipulator) contrary to the true needs and interests of the object of management (manipulated); and the manipulated person is not fully aware of the significance and consequences of these restrictions and believes that these measures are optimal or the only possible ones in the current situation. Based on the analysis of Russian and international legal realities, six key groups of technologies of manipulating legal restrictions are identified and analysed. The author substantiates the fact that technologies of manipulating legal restrictions are a socially determined form of lawful behaviour and are largely attributable to the development of social relations within the framework of a state-organized society.
Key words: manipulation of legal instruments, legal restriction, legal regulation, legal reality, interest, legal relationship
PUBLIC ISSUES AND POLITICAL SCIENCE
Minbaleev A., Petrovskaya O. (Moscow) Problems of implementation of the principle of information reliability in conditions of digital transformation
Reliable information is accurate, complete information (messages, data) reflecting objective reality and recognized as reliable by the subjects of information relations. The authors point out that it is necessary to distinguish an independent principle of information reliability in information law. They suggest that the principle of information reliability may be transformed into a general legal principle of law in the near future, since it is implemented in all spheres of public life and in all branches of Russian law. The reliability of information, including digital one, becomes a key condition, requirement and factor in the development of information society and digital transformation. The key problems of ensuring the information reliability in the conditions of digital transformation are identified. The main problem is the lack of special requirements for ensuring the information reliability, its verifying and controlling while using modern digital technologies. The authors assume that it is necessary to develop the digital legislation that will establish requirements for the information reliability and the obligation to verify it while using the artificial intelligence systems and systems operating on the basis of neural networks, big data technologies and other modern digital technologies.
Key words: reliability of information, information law, personal data, principle of information reliability, digital transformation
INTERNATIONAL LAW
Batalov A. (Montréal, Canada) Some issues of responsibility in international air law in view of the Bodensee mid-air collision of 1 July 2002
The article examines the factual information and the causes of one of the biggest and notorious air crashes of the 21st century – mid-air collision of Bashkirian Airlines’ Tupolev TU-154M and DHL’s Boeing 757-200 near Lake of Constance (Überlingen, South of Germany) on 1 July 2002, as well as international legal issues of state responsibility relating to this air crash. In particular, the problems of state’s responsibility for provision of air traffic services within its sovereign airspace and the possibilities of transfer of functions for such services to another state or foreign entity are studied. Different mechanisms for invoking state responsibility for wrong acts of omissions relating to air traffic services are analysed. It is concluded that in view of specificity of dispute settlement mechanisms in international air law invoking international state responsibility under the Convention on International Civil Aviation of 1944 can be considered as subsidiary means, which are applied only when dispute settlement and compensation mechanisms under national law appear inefficient.
Key words: air crash, Bashkirian Airlines, air traffic services, responsibility, dispute settlement
Fetyukov F. (Yekaterinburg) The legal structure of broad consent in genomic research and the security of genetic information in the digital environment
The General Data Protection Regulation, which establishes the legal regime for the circulation of genetic information in the EU, is considered. The potential risks of the existence of genetic information in digital form are assessed. The author associates the possibility of the ultimate minimization of emerging risks with the formation of a digital environment of trust. At the same time, it is assumed that the decisions aimed at implementing the task of forming a digital environment should be made simultaneously at three levels: public (state), corporate and private. The essence and content of the legal structure of broad consent in genomic research, which is provided for by the General Data Protection Regulation and has received significant support in the legislation and law enforcement practice of the EU Member States, are considered in detail. The legal grounds and the existing limitations for the application of the this legal structure are analysed. The problem of establishing proper control over the circulation of genetic information in the digital environment is actualized. A decisive role of state (supranational) control in the sphere of genetic information turnover is substantiated.
Key words: genomic research, broad consent, genetic information, digital environment, personal data, legal regime, security
CIVIL LAW AND PROCEDURE
Volos A. (Moscow) Principles of civil law in the situation of digitalization: the problems of research methodology
The article discusses the main methodological problems of the study of principles of civil law as a special institution, which is important for the regulation of various digital technologies used by subjects. The author offers the hypothesis that today Russian digital law is neither a branch of law nor even a branch of legislation. The current legal acts and draft laws regulating relations with the use of digital technologies do not predetermine the creation of a new system, but are only a mechanism for implementing the rules governing the right to digitalization. The principles of civil law remain an actual and necessary tool that can be used both in legislative and law enforcement activities in solving certain legal problems arising in connection with the use of digital technologies. At the same time, in this situation the principles of civil law have a special content that requires an independent study. The methodological basis of such research will include, in particular, the empirical method, the modelling method, the comparative legal method, the economic analysis of law, the interdisciplinary method.
Key words: principles of civil law, digital law, civil methodology, legal modelling, cryptocurrency, smart contract
Zaykov D. (Moscow) Reduction of a legal penalty: legal regulation and application
The penalty is a widely used method of ensuring the fulfilment of obligations in contractual relations, and this is due to the simplicity and effectiveness of its use. The application and size of a legal penalty do not depend on the will of the parties to the contract but are determined by federal law; therefore, this is a special legal institution mediating public interference in the sphere of private-law regulation. The specifics of the legal regulation of a legal penalty raises the question of whether it is possible to reduce its size; and this question gets an affirmative answer in judicial practice. At the same time, this approach conflicts with the legal essence of a legal penalty. The author identifies the reason for the existing contradictions between the theoretical provisions of the legal penalty institution and their practical implementation when reducing the size of a legal penalty in the court; he also names the conditions under which the existing judicial practice could be changed.
Key words: legal penalty, contractual penalty, creditor, debtor
Zakharov V. (Saint Petersburg) A claim for the award of an individually defined thing: procedural aspects
The article considers a claim for forcing to transfer an individually defined thing on the basis of an obligation (Article 398 of the Civil Code of the Russian Federation). It is justified that mere fact of absence of the thing in the factual possession of the defendant does not constitute ground for refusing the action unless it is proved that the title to the thing has been successfully passed to another person. It is proved that, based on the «dual» nature of the claim under discussion (compulsion to actually fulfil the obligations and determination of priority between several creditors of the debtor), court decisions, on which the requirements for determining such priority were not declared, are not enforceable in a situation of conflict between creditors on the issue of priority; at the same time, creditors not involved in the case have no right to appeal against such a court decision, since they have the right to file an independent claim. It is proposed to use the termination of enforcement proceedings by the court as a procedural form of protection of the rights of such creditors. In addition, such creditors cannot be involved in the case as third parties without independent claims regarding the subject of the dispute due to the lack of grounds for this in the law; depending on the fact that claims are made against them, they may have the procedural status of either the defendant or a third party with independent claims regarding the subject of the dispute, or combine these statuses.
Key words: actual fulfilment, opposition, termination of enforcement proceedings, third parties with independent claims regarding the subject of the dispute
Drozd D. (Moscow) The immediacy of judicial proceedings when using artificial intelligence
The article raises the question of whether the principle of the immediacy of judicial proceedings is complied when using artificial intelligence in the administration of justice. The author explores the meaning of this principle in Russian justice and suggests moving away from its literal reading. There are three levels of the use of artificial intelligence systems in the administration of justice: technical processing of evidence by artificial intelligence (their analysis); evaluation of evidence by artificial intelligence; consideration of the case by artificial intelligence. Compliance with the principle of the immediacy of judicial proceedings in each of these levels is assessed. The author concludes that in some cases artificial intelligence can be used in judicial activity without violating the principle of immediacy, while in other cases the ability of a particular artificial intelligence system to distort the evidence under study will be a decisive factor. Artificial intelligence systems that simultaneously replace the judge in the examination of evidence and do not guarantee the absence of distortion of evidence are recognized as violating the principle of immediacy.
Key words: artificial intelligence, principle of the immediacy of judicial proceedings, digitalization of judicial proceedings
ECONOMICS AND LAW
Zapolsky S., Vasyanina E. (Moscow) Legal issues of digitalization of financial control in Russia
Based on the analysis of financial legislation and financial and legal doctrine, the authors come to the conclusion that control in a broad sense is a feedback mechanism carried out in the form of supervision, monitoring, audit, accounting and statistical accounting, and the modern model of state financial control is based on redistribution of control functions between different bodies, as well as on the differentiation of methods for its implementation. The authors substantiate that the forms of financial control are subject to: firstly, general legal regulation aimed at creating a legal regime for information that meets the requirements of objectivity and reliability; secondly, special legal regulation, which is aimed at specifying the procedure for the implementation of each form of control; thirdly, digital transformation.
Key words: financial control, supervision, audit, monitoring, taxes, accounting, statistical accounting, cryptocurrency, digitalization
Lapteva A., Skvortsov O. (Saint Petersburg) Investment regime of foreign securities: legal aspects
Domestic legislation regulates investment activity sector-by-sector or point-by-point. This also applies to such an area as the admission of Russian investors to purchase securities emitted by foreign issuers. The peculiarities of investment legislation are reflected in the field of securities market regulation, where its own conceptual apparatus, legal forms of investment activity, requirements for subjects of investment activity, as well as a range of objects subject to normative regulation are developed. The authors identify two possible options under which the admission of foreign securities to the Russian stock market is carried out. The first option is a regime of direct access to such securities. The second option is a regime of indirect acquisition of them. It implies the emission of a special security – a Russian depositary receipt. The authors pay special attention to the legal and technical tools used by the legislator when formulating the rules for admission of foreign securities to the Russian stock market.
Key words: securities, foreign securities, legal regime, investment regime, foreign investments, stock market, Russian depositary receipt
Kuzmina A., Lomakina E. (Yoshkar-Ola) Protection of the weak party from the imposition of unfair terms of the contract concluded on the Internet
The article is devoted to the features of protecting the weak party to the click-wrap and browser-wrap contracts from the imposition of obviously burdensome contract terms. The authors analyse the current Russian legislation governing the procedure for concluding the online contract, and the law enforcement practice of Russian and foreign courts. The authors draw attention to the identity of the procedure for concluding a contract on the Internet and of the simplified procedure for concluding a contract by joining its terms (article 428 of the Civil Code of the Russian Federation). The criteria for classifying a subject as a weak party to the online contract are enumerated. The subject of proof in claims for the protection of the weak party from the imposition of unfair terms of the online contract is determined. The authors note the need to introduce an evidentiary presumption of inequality of bargaining power when concluding the online contract. The effectiveness of ways to protect the weak party to the contract from the imposition of unfair contract terms is evaluated.
Key words: click-wrap contracts, browse-wrap contracts, adhesion contract, unfair contract terms, inequality of bargaining power, weak party to the contract
PAGES OF HISTORY
Motrevich V. (Yekaterinburg) State procurement policy in the USSR during the Great Patriotic War (based on the materials of the resolutions of the Council of People’s Commissars of the USSR)
On the basis of declassified resolutions of the Council of People’s Commissars of the USSR, the procurement policy of the Soviet state during the Great Patriotic War is characterized. The various channels for the receipt of agricultural products by the state, the norms of their delivery during wartime are investigated. The peculiarities of the organization of procurement in the frontline and in the territories liberated from occupation are shown. The emergency measures taken by the state to ensure the implementation of the established plans are analysed. The study claims that, despite numerous Government resolutions, in 1942–1943 the volume of harvested agricultural products in the rear areas decreased markedly, which was the result of the lack of real measures to assist agriculture. The measures to adjust the tax policy in the village, adopted by the state at the final stage of the war, are described in detail. They include the cancellation of arrears on mandatory supplies and in-kind payment for the work of machine and tractor stations, the reduction of taxation rates and the expansion of the suburban area around industrial centres. The author concludes that the semi-serf collective farm system created as a result of Stalin’s modernization of the village and the procurement policy as part of it turned out to be well adapted for the needs of defence. They made it easier for state structures to mobilize all forces and funds to fight the enemy and allowed them to withdraw from agricultural producers even products necessary for simple reproduction. As a result, the State managed to provide its own population with the necessary minimum of food through the application of extraordinary organizational and legal measures.
Key words: Great Patriotic War, resolutions of the Council of People’s Commissars of the USSR, villagers, agricultural products, purchases, mandatory supplies, natural payment
Ivanov O. (Moscow) The role of writing and orality in the development of German civil procedure science
Modern German civil procedure law is based on a combination of three elements: written preparation, oral proceedings and the ability of the court to reject untimely motions. The development of this model was a reaction to the problems of lengthy proceedings and numerous procedural abuses caused by the inadequacies of the doctrine that developed during the 19th century. The article reveals the political and legal prerequisites of the formation of the mentioned doctrine and the main reasons, which led to the increase of the judicial load. The key factor in the development of the German civil procedure doctrine was the discussion on the relation between the oral and written elements in the court proceedings. Such a discussion became possible at the beginning of the 19th century when German lawyers used to a written procedure discovered the advantages of oral trial in the French proceedings. This new choice prefigured the nature of scholarly debate, which required new theoretical argumentation, as the former doctrine was no longer able to justify the future model of civil litigation.
Key words: concentration of civil procedure, German civil procedure, principle of oral trial, science of civil procedure
MUSEUM OF SLI – USLA – USLU HISTORY
Zipunnikova N. (Yekaterinburg) University, museum, university museum: a historical and legal study on the development of education, science, and culture in Russia
The author addresses the issues of historical and legal studying of the phenomena of education, science, and culture. Her focus is on the evolution of the university and the museum in the 18–20th centuries, as well as the university museum as a «point of intersection» of these cultural phenomena, shown mainly in the Russian context. The prospects of using the resources of historical and legal science in the light of interdisciplinary strategies and of appealing to the ideas and concepts of museology and cultural studies are indicated. The fruitfulness of the idea of forming an interdisciplinary and integrating direction – university studies, as well as the relevance of its legal and historical-legal content are noted. Particular importance is attached to the study of the formation of domestic legislation that regulated university and museum activities. The author puts forward a hypothesis about the benefits of cooperation between museums of law schools, faculties, departments, as well as museums of law enforcement agencies, courts and other sites preserving and demonstrating legal heritage, in particular, in connection with the emerging legal museum hypertext. Such co-creation can also contribute to the development of the legal «museum world».
Key words: university, museum, university museum, interdisciplinarity, legal university studies, phenomena of education, science, and culture, legal museum hypertext, legal «museum world»
LIBRARY
A terminological component of professional communication in the field of forensic medical examination (Review of the book: Buromsky I. V., Klevno V. A., Pashinyan G. A. Forensic medical examination: Terms and concepts: Dictionary for lawyers and forensic medical experts. – Moscow: Norma : INFRA-M, 2022. – 256 p.)