Annotations № 2 (155) / 2024

THEORY OF LAW AND STATE

Polyakov S. (Perm) Is the problem in normativism, and what should we do?

In the article, it is proved that legality is only possible when it is based on normativism. It is argued that the root cause of many significant challenges in law enforcement lies in a lack of understanding of the normative framework, rather than in the actual legal definitions. These challenges can be addressed through the use of information technology and software that guide judges towards a human-centric approach to decision-making in accordance with the established sequence of steps for law enforcement procedures. The article shows how one of such programs works.

Key words: normativism, court, valuation concepts, subjectively defined facts, computer program

Volkova G. (Rostov-on-Don) The human right to a digital-free environment in modern Russia

The purpose of the article is to identify some negative trends in the widespread digitalization of public relations. The author explores the right to preserve a digital-free way of life, on the one hand, as a possible means of protecting the right to privacy, and on the other hand, as a means of preserving the imperative of human dimension, protection from the need to implement a hybrid form of existence, characterized by the «fusion» of man and technology. The article pays attention to ways to protect the right to a digital-free lifestyle and notes the inadmissibility of abuse of this right. The author comes to the conclusion that it is necessary to enshrine at the legislative level a ban on forced digitalization.

Key words: digital rights, digitalization, right to privacy, right to a digital-free environment

INTERNATIONAL LAW

Lazutin L. (Yekaterinburg) Political and military foresight in the context of international security law

The article emphasizes the significance of political and military foresight for the future development of international security law. The author shows that foresight can be used to improve such institutions of this branch of international law as measures for building trust, collective defense mechanisms, prohibitions on the use of specific weapons, including nuclear arms, and international monitoring.

Key words: international security law, collective defense mechanisms, measures for building trust, international monitoring, nuclear arms, cooperative self-defense

Melnikova E. (Saint Petersburg) Supranational legal regulation of artificial intelligence as a tool for distributing responsibility for harm caused (the experience of the European Union)

Within the framework of the «Digital Package» aimed at creating a legal regime for the safe use of Artificial Intelligence (hereinafter – AI), the European Union has made significant attempts to regulate comprehensively AI in two directions: 1) the establishment of administrative and legal responsibilities of participants in the life cycle of AI systems and applications, and 2) the creation of a civil law mechanism for distributing responsibility between them by establishing appropriate presumptions. In the list of responsibilities of the main participants in the life cycle of AI systems and applications, enshrined in the key regulatory document (AI Act), the European legislator clearly follows the provisions of the concept of meaningful control over the use of AI. This concept, together with the civil law instruments proposed in the draft directive on responsibility for AI and the revised directive on responsibility for defective products, should ideally eliminate the «responsibility gap» for damage caused by AI, which, however, cannot be achieved due to a number of legislative flaws. In the article, using the example of the EU, the mechanism of supranational legal regulation of AI is analyzed as a tool for finding a balanced distribution of responsibility for harm caused by AI.

Key words: artificial intelligence, responsibility gap, meaningful human control over the use of AI, AI Act, AI Liability Directive, liability for defective products in the European Union, supranational legal regulation mechanism

COMPARATIVE JURISPRUDENCE

Nguyen Q. H., Ivanovskaya N. (Moscow) The concept of harm as the basis for the emergence of civil liability of the owner of a source of increased danger in Vietnamese and Russian law

The authors examine the judicial practice of Vietnam in handling cases related to compensation for damages caused by sources of increased danger, and analyze the approaches taken by Vietnamese and Russian legal scholars to defining harm. It should be noted that, in contrast to the legal scholarship of Russia, where the concept of harm has been studied by numerous scholars, its development in Vietnamese legal scholarship has been virtually non-existent. The authors present their own definition of harm as a basis for establishing civil liability for the owner of a source of increased danger.

Key words: concept of harm, basis for tort liability, source of increased danger, civil science in Vietnam and Russia

CONSTITUTIONAL LAW AND PROCEDURE

Salikov M. (Yekaterinburg) Diversity and equality of constituent units of the Russian Federation: statics and dynamics

The phenomena of diversity and equality of the constituent units of the Russian Federation are considered in the context of constitutional and legal regulation. Classifications of the constituent units are presented according to various criteria, including national composition, socio-economic potential, population size, etc. Differences in such characteristics of Russian regions as equality, equal rights, and differences in status are revealed. Options for correcting the distortions of the principle of equality of the constituent units existing in the constitutional text are proposed.

Key words: diversity, federalism, constituent units of the federation, equality of constituent units of the Russian Federation, Constitutional Court

Lyubchik A., Mavlikhanova R. (Donetsk) Problems of legal technique as a factor inhibiting integration of new regions into the legal field of Russia

The article analyzes the regulatory legal acts of the constituent entities of the Russian Federation that aim to regulate relations regarding the management of the state property of these entities and the exercise of ownership rights over this property by the respective authorities. The purpose of such laws is to effectively assign powers to state bodies and other legal entities to manage state assets and exercise ownership over them. However, the titles of these acts contain the phrase «management and disposition of property» which does not conform to the principles of legislative drafting and the provisions of the Civil Code of the Russian Federation. Moreover, in regulatory acts of newly established constituent entities, there is also a proposed interpretation of the terms «state management» and «property disposition» that contradicts logical reasoning and the provisions of the Civil Code. Given that there is a lack of a unified definition for the concepts of «property management» and «state property management» within the scientific community, the authors have proposed their own interpretations of these terms. Additionally, it has been noted that it would be beneficial to make changes to the titles and content of the relevant laws.

Key words: principles of legal methodology, legislation of constituent entities of the federation, management of state property, exercise of powers of the proprietor.

QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY

Smakhtin E. (Yekaterinburg) Leonid Yakovlevich Drapkin’s method: to the 100th anniversary of his birth

The article briefly outlines the main scientific concepts of Leonid Yakovlevich Drapkin in relation to the use of logical, heuristic, and intuitive methods in crime detection and investigation, as well as the processes of generating and verifying investigative hypotheses, and issues related to organizing and planning the investigation. The author wonders why, despite the generally accepted statements of criminalists regarding the importance of careful planning and organizing the investigation, meticulous generation and verification of hypotheses, many criminal cases remain unsolved. It is noted that in the current procedural and forensic aspects of pre-trial investigations in Russia, logical approaches to knowledge prevail, with almost no consideration for heuristic and intuitive techniques. The author discusses a potential paradigm shift in pre-trial procedures and emphasizes the necessity for a creative reconsideration of Drapkin’s scientific legacy, which remains pertinent.

Key words: criminalistics, investigative scenario, hypothesis, investigation management, planning, intuition

CIVIL LAW AND PROCEDURE

Dondokov Zh. (Irkutsk) Civil legal personality of funds that are public authorities: a dualistic analysis

The author, adhering to a dualistic systematic approach, analyzes the legal nature of funds that are simultaneously public authorities. The main purpose of the study is to clarify the question of whether the public law nature of public authorities affects their civil legal personality as legal entities. For this purpose, the author examines the origin of the fund as an organizational and legal form of a legal entity, the completeness of the implementation of the signs of a legal entity in them, as well as compares the concepts of civil legal personality and administrative legal personality, subjective civil law and authority, and reveals the content of the concept of competence in civil law. The author comes to the conclusion that it is necessary to unify the model of participation of public legal subjects in civil relations by rejecting the practice of recognizing public authorities as legal entities, which entails insoluble theoretical and practical problems. One of such problems is the problem of distinguishing between cases when a fund participates in civil legal relations on its own behalf, and when – on behalf of the public legal entity as its part.

Key words: civil legal personality, administrative legal personality, fund, dualism of law, public authority

Malbin D. (Moscow) Features of determining the will of public legal entities to dispose of assets from possession

One of the conditions for the protection of a bona fide acquirer is the disposal of property from the possession of the owner or the person to whom the thing was transferred by the owner, at will. At the same time, a will as a product of the psyche is characteristic of individuals. Public law entities, despite their fictitious nature, have a will; however, their characteristics as subjects of civil law determine the peculiarities of their formation and manifestation of a will. A public legal entity acts in civil circulation through its bodies, in connection with which, when resolving the issue of whether there is a will of the public owner to dispose of property from possession, the will of the body authorized to exercise the powers of the owner is important. At the same time, the system of bodies of public legal entities is characterized by the presence of a large number of bodies of the same level that can exercise the powers of the owner of the property. The bodies of public legal entities are also bearers of power and can exercise their powers, including in relation to property belonging to a public legal entity. The will of a public legal entity to dispose of property from possession may be formed and expressed by its body when exercising authority over property, but it is necessary that such an authority be simultaneously authorized to exercise the powers of the owner of the property, since the condition for protecting a bona fide acquirer is the nature of the corresponding will of the owner.

Key words: ownership, possession, bona fide acquirer, will, public legal entity

Bigunenko A. (Tiraspol) Adversarialism in civil proceedings as a basis of judicial communication

An analysis of the adversarial model of civil proceedings allowed us to take a different look at the goals of the civil process, i. e. to rethink them from the point of view of achieving effective judicial communication between participants in civil proceedings and the court. The article presents the author’s approach to adversarialism, which can direct participants in civil proceedings to information interaction between themselves and the court. Adversarialism makes the rules and conditions for judicial communication and generates a form of communication in considering a civil case. This approach is promising at the present stage of development of justice in civil cases.

Key words: competition, judicial communication, information interaction, efficiency, civil process

ADMINISTRATIVE LAW AND PROCEDURE

Karpeeva E. (Irkutsk) Claims for enforcement of orders of control (supervisory) bodies

The author analyzes the legislation on federal state land control (supervision) and the practice of its implementation, using the example of the activities of the Rosselkhoznadzor Administration in the Irkutsk region and the Republic of Buryatia. It is shown that in judicial practice there is no unified approach to understanding Part 2 of Article 95 of Federal Law No. 248-FZ dated July 31, 2020 «On State Control (Supervision) and Municipal Control in the Russian Federation». Two questions in particular are not resolved: 1) whether the Rosselkhoznadzor Administration for the Irkutsk Region and the Republic of Buryatia has the right to apply to the court with a claim for enforcement of an order; 2) whether a claim for enforcement of an order of a state body is an appropriate remedy. It is concluded that the emerging judicial practice is formed without taking into account the legal nature of the legal relationship between the control (supervisory) body and the controlled person, and, as a consequence, improper methods of protection of rights and legally protected interests are used.

Key words: civil procedure, land control (supervision), claims for compensation for damage caused to the environment, claims for enforcement of orders of public authorities, public interests

ECONOMICS AND LAW

Efimov A. (Moscow) Judicial considering of economic characteristics in resolving corporate, obligation and bankruptcy disputes

The article discusses issues related to the role of arbitration courts in studying economic characteristics in resolving economic disputes. On the one hand, courts are law enforcement agencies, and this prevents the implementation of the function of assessing the economic feasibility of decisions made and actions taken and excludes the study of economic processes. On the other hand, the court cannot make a law enforcement decision without examining the economic content of the case. Thus, the need to study economic characteristics is dictated precisely by the needs of correct legal qualifications and making law enforcement decisions. Using the example of disputes from corporate, contractual and bankruptcy legal relations, it is shown that the application of law is impossible without studying the economic characteristics in the context of which market participants operate. It is stated that judicial law enforcement is complicated by the fact that economic characteristics are not systematically fixed in positive law. The author proposes to designate such characteristics in legal acts, which would increase the degree of certainty of law and ensure uniformity of judicial practice.

Key words: economic characteristics, business judgment rule, corporate relations, contract, obligation, bankruptcy

Nabiullin B. (Kazan) Legal regulation of parallel import practices in the EAEU

The article discusses the legal aspects of parallel imports within the Eurasian Economic Union (EAEU) and their impact on the Russian economy. It presents the position on introducing a mechanism for the parallel import of foreign software into Russia and its relationship with the regional principle of the exhaustion of exclusive rights to a trademark. The author draws attention to intellectual property protection norms and possible exceptions related to ensuring state defense and security.

Key words: intellectual property, parallel imports, EAEU, trademarks, principle of the exhaustion of exclusive rights to a trademark

PAGES OF HISTORY

Zykov S. (Novosibirsk) Influence of Roman law on the genesis of domestic law treaties

The article examines the origin of the main civil law contracts in domestic law. The contents of the obligations of purchase and sale, hiring (works, things, services), loans, storage are sequentially analyzed, and loans and partnerships are also touched upon. The influence that Roman law had on their formation is demonstrated, while this influence was mediated by Byzantine sources. These include, first of all, the Prochiron (translated as the City Law as part of the Helmsman’s Book), which, on the one hand, was based primarily on the provisions of the Digest (Pandects), on the other hand, avoiding unnecessary detail, incorporated only the most fundamental provisions of the contract rights. Legal sources of Russian origin (judicial codes, Code of 1649 etc.) in relation to it at the initial stage of development of contract law for a long time played a rather auxiliary role, establishing various kinds of restrictions and features (subjective, objective, relating to the form of transactions). It is indicated that the concept of purchase and sale can be traced back to early Roman law, while the lend agreement is a characteristic feature of the later (imperial) stage of development. Among classical Roman contracts, loan and partnership agreements saw minimal development in pre-Petrine legal system.

Key words: reception of Roman law, purchase and sale, rental agreements, lend, storage, loan, partnership agreement

Zipunnikova N. (Yekaterinburg) «Law of nature» and philosophical-legal bases of educational standards for training lawyers in the Russian empire

The task of the article is to analyze the filling of the educational standards of educational institutions that trained lawyers in the Russian Empire (universities, lyceums), and also to identify the place and role of natural law, the philosophy of law and its history in them. The author studies the charters of the imperial universities, the acts and resolutions issued to the lyceums are studied, and the orders of the relevant department – the Ministry of Education – are examined. Some attention is paid to the educational and scientific practice, which demonstrates the specifics of implementing the standards for the training of professional legal personnel enshrined in the legislation. It is shown that initially domestic legal education was developed as focused on natural law as the basis of jurisprudence. It is noted that the case of Professor A. P. Kunitsyn and his work «Natural Law» is woven into the transformation of the educational and scientific policy of the Russian state and the change in guidelines in legal education and scientific jurisprudence. In the post-reform era, the standards of law faculties consistently designated the history of the philosophy of law; at the beginning of the 20th century, university professors developed the revived idea of natural law. The methods of historical and legal reconstruction, formal-legal and comparative-historical methods are used in the work. The conclusion is drawn on the importance of the philosophical and legal content of educational standards for the training of professional legal personnel in the Russian Empire.

Key words: «law of nature» (natural law), philosophy of law and its history, imperial universities, law faculties, lyceums, educational standards, educational and scientific policy, teaching practice, Russian Empire