Annotations № 3 (150) / 2023

THEORY OF LAW AND STATE

Churakov V. (Moscow) Perspectives and limitations of using nudge technology in legal regulation

The nudge technology is associated with the developments of behavioural economics and mainly with the attitude towards subjects (addressees of legal regulation) as irrational actors. Behavioural economists identify a number of cognitive errors that affect human behaviour: over-optimism, hindsight error, loss aversion, self-control problem, availability heuristic, etc. By exploiting these cognitive constraints, the law can affect behaviour of persons in the necessary direction by applying dispositive rather than coercive mechanisms (e. g. presumptions and discounts on payment of fines). However, the use of nudge in the system of legal regulation is currently not systematic and scientifically substantiated. Furthermore, the nudge technology has been criticised for being unethical, ineffective, politically untenable and for violating the freedom of individuals. While the current criticism of nudge is valid, it does not provide sufficient grounds for rejecting the practice of nudge per se. A specific nudge may be unethical or illegal, yet it should not undermine confidence in the technology as a whole. It seems appropriate to use nudge in legal regulation as a tool that has proven to be effective.

Key words: behavioural economics, nudge, irrationality

INTERNATIONAL LAW

Keshner M. (Kazan) The law of international responsibility of States: from the codification of a branch to the search for alternatives (the end)

On 9 August 2001, the UN International Law Commission adopted the final text of the Articles on Responsibility of States for Internationally Wrongful Acts, completing more than 50 years of hard and methodical work on them. In working on the topic, the Commission sought a balance between codification and the progressive development of international law on the one hand, and the interests of States and other actors on the other. In order not to jeopardise the delicate balance set in the final version of the Articles, the ILC left unresolved the issues of grave breaches of obligations to the international community, the resolution of disputes over responsibility, the form of the draft articles on responsibility, countermeasures and sanctions. The issues of joint responsibility and responsibility of States in succession situations were left out of the discussion. The article sums up the results of 20 years of application of the Articles on Responsibility of States and attempts to predict their «future», taking into account the key narratives in the field of international State responsibility.

Key words: Articles on Responsibility of States for Internationally Wrongful Acts, codification of international responsibility, joint responsibility, international responsibility of States in succession situations

Bogatyrenko I. (Moscow) Legal value of pronouncements of expert human rights treaty bodies and their role in international justice

The article deals with the problem of the non-binding force of pronouncements of expert human rights treaty bodies – one of the main problems in the functioning of the entire system of treaty monitoring bodies established within the framework of universal international agreements on human rights. The absence of legally binding pronouncements of the treaty bodies does not mean that they have no legal value at all. The purpose of the article is to trace how the attitude of the international community, represented by the International Court of Justice of the United Nations and the UN International Law Commission, towards the pronouncements made by human rights treaty bodies and their significance for international law has changed. To this end, the article analyses the practice of international bodies. It is noted that recourse to the pronouncements of treaty bodies in interpreting human rights is likely to depend on the authority of the treaty bodies and the specific provisions contained in the pronouncements.

Key words: UN expert treaty bodies, pronouncements of human rights treaty bodies, human rights, interpretation

COMPARATIVE JURISPRUDENCE

Druzhinina A. (Moscow) Legal validity of a judgment in German civil procedure

The author analyses German legal doctrine to determine what is meant by the validity of a judgment and the legal force of a judgment in German civil procedure, and how these concepts are related. Other inherent characteristics of judgments, including their enforceability, are also considered.

Key words: comparative law, German civil procedure, legal validity

CRIMINAL LAW AND PROCEDURE

Perina A. (Saint Petersburg) Digital crimes against the person: problems of legal technique

The article analyses the specifics of how the dispositions of criminal law norms reflect the sign of the use of information and other technologies in the commission of crimes against the person. The author proposes to introduce in the criminal law the term «digital crime against the person» that represents a generalised understanding of crimes against the person committed by using computer and other modern technologies. The question is raised about the possibility of using in criminal law norms the words «through / with the use of digital and other modern technologies» in order to eliminate the imperfection in the legal technique of criminal law.

Key words: crimes against the person, digital crimes, digital technologies, criminal law

Chupilkin Y., Dvoryaninov A. (Rostov-on-Don) Cybercrime investigator in criminal proceedings

The article notes the increasing level of cybercrime in Russia. The problem of shortage of qualified personnel in the field of information security is raised. The authors conclude that it is necessary to formalise, popularise and introduce a new profession of cybercrime investigator into the structure of law enforcement agencies.

Key words: cybersecurity, personal data, law enforcement agencies, cybercrime investigator

CIVIL LAW AND PROCEDURE

Malbin D. (Moscow) The content and features of the legal dispute on the claim for the release of property from arrest

The article analyses the point of view that the claim for the release of property from arrest is an independent way of protecting the right. The author is critical of this approach and argues against the independent nature of the said claim. It is stated that the claim for the release of property from arrest has all the signs of the claim for recognition of the right; its purpose is to determine that the property belongs to the plaintiff, and not to the debtor, and thereby to prevent foreclosure. The claim for the release of property from arrest is declaratory, since, when resolving a dispute, the court, by establishing the legal facts with which the plaintiff’s right to property is associated, concludes that the property belongs to the plaintiff. In those cases when there is no dispute about the right to property and the arrest was carried out due to the court’s or bailiff’s mistake, the rightholder of property can use the protection methods arising from the relevant public legal relations.

Key words: property, possession, claim for the release of property from arrest, arrest, dispute about the right

Parygina N. (Omsk) Defamation towards public-law entities: essence, types and counteraction through the lens of civil law

The research is devoted to the analysis of defamation towards public-law entities (the Russian Federation, federal subjects, and municipal formations) as well as to the assessment of the potential of civil law protection against such offences. The notion, mechanism and negative implications of defamation towards the designated public subjects are considered. The significance of separating personal opinions, which do not constitute defamation, from statements of facts is emphasised. External and internal defamation against public-law entities are distinguished according to the criterion of defamer’s connection with one or another state. Depending on the way of dissemination of defamatory information about a public-law entity, four types of this offence are distinguished: unqualified defamation, defamation in mass media, documentary defamation, and latent defamation. The issue of civil law remedies for the subjective right of a public-law entity to reputation is analysed. In particular, the author raises a question of whether the use of analogy of law in the context of Article 152 of the Civil Code of the Russian Federation is accessible and practically expedient. It is concluded that the most of such remedies are theoretically – not practically – appropriate for the legal protection of reputation of public-law entities, which have the exclusive juridical identity and significant resources for self-protection. The problem of compensation of non-material damage to a public-law entity, whose reputation has been diminished, is investigated. It is found that political, rather than legal, measures to counteract defamation are the most appropriate to the specificity of public-law entities. The obtained conclusions do not negate the need to clarify in the law the existence of the reputation of the State, its subjects and municipalities.

Key words: public-law entity, state, federal subject, municipal formation, non-material benefits, defamation

Tuktamyshev V. (Yekaterinburg) Arbitrability of disputes on termination of powers of the sole executive body through the competition of legal statuses

The author considers the problem of arbitrability of disputes on termination of powers of the sole executive body. The category of «legal status» is chosen as a guideline for solving this problem. The author believes that in case of competition between labour legal and corporate legal statuses of the sole executive body, priority should be given to the corporate one, while the regulation by labour law norms should be subsidiary. Analysing the grounds for termination of the powers of the sole executive body, the author states that the labour law nature of legal relations and non-arbitrability of disputes should be recognized in situations where the powers of the sole executive body are terminated on the grounds of abuse of right, discrimination or on any of the «guilty» grounds for termination of the employment contract.

Key words: arbitrability, arbitration, sole executive body, legal status, competition of legal statuses

Kurnosov A. (Kemerovo) Judicial control over final arbitral awards not requiring enforcement

The article considers the problem of protecting the rights of the parties to arbitration when the arbitral tribunal makes a final decision that does not require enforcement. By their direct agreement, the parties to institutional arbitration may exclude the possibility of challenging an arbitral award in a competent court, while, as a general rule, the right to judicial protection will be ensured as part of the exequatur procedure, or by challenging an arbitral award on fundamental grounds (violation of Russia’s public policy and non-arbitrability of the dispute). In the case of an arbitration court considering a claim for recognition or transformation of a legal relationship, enforcement of such a decision is usually not required, but it gives rise to legal consequences, since it establishes a legal fact and has the qualities of exclusivity and irrefutability. The author emphasizes the need to introduce the procedure of counter-exequatur – objections to the recognition of an arbitral award that does not require enforcement. This procedure applies to foreign arbitral awards (Article 245.1 of the Arbitration Procedure Code of the Russian Federation and Article 413 of the Code of Civil Procedure of the Russian Federation), but is not provided for in relation to arbitral awards issued in Russia. In the context of significant legal uncertainty regarding the finality of an arbitral award and of the need to ensure the right to judicial protection, the author concludes that it is expedient to abandon the institution of exclusionary agreements in the arbitration of domestic disputes.

Key words: arbitration, institutional arbitration, arbitration of domestic disputes, international commercial arbitration, final arbitral award, exclusive agreement, objections to an arbitral award that does not require enforcement, counter-exequatur

ADMINISTRATIVE LAW AND PROCEDURE

Mikhailova E. (Moscow) On some problems of administrative legal proceedings

The article is devoted to determining the specificity of procedural rules of administrative proceedings and searching for the criterion for distinguishing between public-law and civil cases. The analysis of the history of development of legislation governing the procedure for considering public-law cases makes it possible to identify its essential procedural specificity, which, in general terms, was preserved in the Administrative Procedural Code. The current rule on initiation of administrative and civil proceedings at the discretion of the court in certain cases is criticised. Administrative proceedings are considered in a broad and narrow sense. In a broad sense, they include both the protection of public rights and interests of an unlimited number of persons, and the protection of violated or contested subjective public rights. In a narrow sense, administrative proceedings are a procedural form of protection of public rights and interests belonging to an unlimited number of persons. It is proposed to fix the sign of the correlation of legal statuses of the participants of the case as a criterion for distinguishing between civil and public-law cases.

Key words: procedural form of defense, administrative proceedings, civil proceedings, special proceedings, competition, private and public interest, subjective public law

ECONOMICS AND LAW

Lyutova O. (Moscow) The institute of tax obligation in the system of tax law: current problems

Current trends in the development of society, in particular digitalisation, necessitate the development of new approaches to structuring the branch of tax law and the institutionalisation of tax liability, which plays a key role in tax and legal regulation and in building a system of tax law and tax legislation. The ambiguity of the traditional opinion in the science of tax law regarding the determination of the system of tax law exclusively by the system of tax legislation is noted. Special attention is paid to the theoretical and legal analysis of the concept of tax system in terms of its content and elemental composition; it is pointed out that it is controversial to use the tax system as a basis for the institutionalisation of tax law. The author proposes an approach, according to which the system of tax law is considered in the context of the triad «obligations – procedures – responsibility», and outlines some current trends in the development of the tax law branch. A conclusion about the «cross-cutting» nature of the institute of tax liability is made and its system-forming role in tax law is substantiated. The article also provides the most common points of view of researchers on the place of legal regulation of tax obligations in the system of tax law.

Key words: tax obligation, institute of tax law, tax system, tax legislation, tax obligation

Minkina N. (Barnaul) Mediation legal relationship: understanding and problems of legal regulation

The article characterises the concept of mediation legal relationship, identifies its main features and reveals its legal nature. It also considers the grounds for the emergence and termination of a mediation legal relationship, its object (in a narrow and broad interpretation), and the possible range of its subjects. The problem of the incorrect use in the literature of a number of professional terms describing the mediation legal relationship is noted. Gaps and other shortcomings of the current federal law regulating the mediation procedure are indicated. The author concludes that there is a need to improve legislation for the purpose of uniform implementation of mediation legal relations. In particular, it is proposed to: resolve the question of the possibility and conditions of using multilateral mediation and representation in this procedure; exclude a non-professional mediator from the subjects of the analysed relationship; specify general and special requirements to the mediation agreement; preserve the framework effect of the law regulating the mediation procedure.

Key words: mediation, mediation legal relationship, mediator, agreement on the application of the mediation procedure

LEGAL ASPECTS OF ECOLOGY

Kochemirovsky V., Fogel A., Mokhorov D. (Saint Petersburg) To the issue of identifying signs of damage caused to a water body as a result of wastewater discharge

The formal approach to assessing damage caused to water bodies does not always reliably reflect the presence or absence of environmental damage. The methodology of calculating the amount of damage used by the Federal Service for Supervision of Natural Resources, which is limited to recording the fact of pollutant discharge without analysing its actual consequences, appears to be over-formalised and insufficient to prove that the damage actually occurred. The authors propose an integrated approach to establishing the fact of damage by using the system of indicators and assessment of the assimilation potential of the water bodies biocenosis.

Key words: environmental damage, damage compensation, standard for permissible discharge, biocenosis, evidence of degradation of a water body

PROBLEMS OF LEGAL SCIENCE AND EDUCATION

Strunskiy A. (Simferopol) Development of theoretical and historical legal sciences in modern Russia: trend analysis

The author makes an attempt, firstly, to identify the most popular topics of historical and legal research in Russia for the period from 1992 to 2022 and, secondly, to determine the trends in demand for these topics based on time series. The empirical basis of the study is made up of bibliographic descriptions of dissertation abstracts on scientific specialities 12.00.01 and 5.1.1. published from 1992 to 2022. The methodological basis of the study is the method of content analysis, as well as data science methods. Key words and phrases found in the titles of abstracts of dissertations were identified in the course of the study; the number of their mentions was also calculated. This allows to identify the most popular topics of legal research, which include: legal responsibility, legal policy, internal affairs bodies, human rights, civil society, law-governed state, subjects of the Russian Federation, local self-government, etc. Also, based on the data obtained, time series were constructed, which made it possible to trace the trends in the demand for the above research topics. The results of the present study can be used for the purposes of state planning of legal science development in the next decade.

Key words: historical and theoretical legal sciences, data science, content analysis, trends, natural language processing

PAGES OF HISTORY

Gorbachev V. (Donetsk) The principle of independence of the Prosecutor’s Office of the Russian Empire after the judicial reform of 1864

The article discusses the normative regulation and practice of implementing in the Russian Empire the principle of independence of the Prosecutor’s Office from administrative and judicial authorities after the judicial reform of 1864. The author analyses the normative guarantees of this independence, i. e. the procedure for appointing and dismissing officials of the Prosecutor’s Office, for supervising their activities, for appealing against their actions and for bringing them to justice. The nature of the legal relations between prosecutors and governors , as well as the specifics of their actual relations, are considered. Despite the independence of the Prosecutor’s Office declared by law, the practice had shown that in fact the governors and the Ministry of Internal Affairs interfered in its activities. Many prosecutors vigorously defended their legal position, and this often led to their conflicts with governors who often sought the dismissal of officials of the Prosecutor’s Office who were objectionable to them. The features of relations of military and naval Prosecutor’s Offices with military and naval chiefs are considered. The nature of supervisory and disciplinary powers of military authorities in relation to the military Prosecutor’s Office is shown. A general characteristic of the independence of the Prosecutor’s Office from the court is given. It is concluded that, compared with the pre-reform period, the judicial reform significantly expanded the independence of the Prosecutor’s Office from administrative bodies; however, in practice this independence was often violated.

Key words: judicial reform of 1864, governor, court, Prosecutor’s Office, principles, independence

Novikova Yu. (Vladimir) State contraction policy in agricultural cooperation in the 1920s (historical and legal aspect)

The article deals with the transformation of the legal status of agricultural cooperation during the years of the new economic policy (NEP). It is shown that the main difference in the legal regulation of agricultural cooperation in that period was the presence of mandatory state assignments. It is emphasized that the soviet government, setting the task of improving the welfare of the poor peasantry through cooperation, since the beginning of the 1920s, created the conditions for a systematic transition to a new form of organization of agricultural production. It is proved that the contracting mechanism, on the one hand, made it possible for peasant farms to strengthen their financial position after the period of «appropriation», and for the government – to receive a large amount of agricultural products; on the other hand, it determined the transition of agricultural cooperation from a private law institution to a state mechanism for the redistribution of products between city and countryside.

Key words: contraction, cooperation, cooperative partnership, cooperative legislation, state order, agriculture

LIBRARY

Book review: Karpysheva Yu. O. Actual problems of prosecutorial supervision over the execution of laws: a monograph. – Irkutsk: Irkutsk Law Institute (branch) University of the Prosecutor’s Office of the Russian Federation, 2020. – 148 p.