Annotations № 4 (157) / 2024
CONSTITUTIONAL LAW AND PROCEDURE
Tupikov N. (Saratov) Human freedom and economic system in a science of Russian constitutional law
The article examines the genesis of scientific thought on human freedom and determines the relationship between this concept in the science of constitutional law and the concept of an economic system. The importance of constitutionalism and the role of constitutional law in guaranteeing freedom, including economic freedom, are emphasised. The economic system is considered as a mechanism for realising this freedom. The author concludes that constitutionalism takes a back seat to economic theory in the constitutional system, which raises the question of the value and complex perception of the Russian economic system in the science of constitutional law.
Key words: human freedom, human rights, constitution, constitutionalism, constitutional law, property, economic system, methodology
Strebkova E. (Saratov) The right to move freely, choose a place of stay and residence in the context of digital transformation
The article outlines the vectors of the realization of the freedom of movement of citizens of the Russian Federation both within the country and when travelling abroad in the context of digital transformation. Three elements of freedom of movement and choice of a place of stay and residence are noted: the right to move freely on the territory of the Russian Federation and the resulting right to choose a place of stay and residence, the right to freely leave the country and return to Russia without hindrance. The author reveals the influence of modern information technologies on the realization of freedom of movement. The latest amendments to the Federal Law «On the Right of Citizens of the Russian Federation to Freedom of Movement, Choice of a Place of Stay and Residence within the Russian Federation» are positively assessed. It is pointed out that there is a need to rethink and adapt the legal structures governing the right to move freely and choose a place of stay and residence in the context of technological changes in Russian society.
Key words: freedom of movement, choice of a place of stay and residence, departure from the Russian Federation, digital transformation
Nigmetzyanov A. (Kazan) Constitutional and legal foundations of the incentive (reward) policy in the constituent entities of the Russian Federation
The conceptual framework for the establishment and implementation of incentives and rewards has not yet been developed at either the federal or regional levels in the Russian Federation. The article examines the incentive (reward) policy of the constituent entities of the Russian Federation. Their powers to establish the basis for their incentive (reward) policy are considered from the perspective of defining the spheres of responsibility of the Russian Federation (the federal government) and its constituent entities (regional governments), as well as the specific features of the federal state structure. In light of the growing importance of a unified system of government, it is essential to address the relationship between the principles of reward systems in the Russian Federation as a whole and those of its constituent entities, despite the fact that regional reward systems are under the exclusive jurisdiction of their respective regional governments. The incentive policy of a constituent entity of the Russian Federation can be defined as a specific type of legal incentive policy that reflects the fundamental principles of federalism and delimitation of jurisdictions between the Russian Federation and its constituent entities. This policy is represented by the objectives, principles, and goals of the activities of government authorities within the given constituent entity, as well as by the actual efforts to establish and enhance legal regulation of incentives and rewards for socially beneficial behaviour in various areas of life within the jurisdiction of the constituent entity.
Key words: Constitution, encouragement, reward, incentive legal policy, reward policy, reward stimulation
LOCAL SELF-GOVERNMENT AND MUNICIPAL LAW
Likhachev A., Mikheeva T. (Yoshkar-Ola) Problems of law-making activities of local governments
Law-making is an important aspect of the activities of local government. The article analyses the system of municipal regulatory legal acts, including municipal statutes. The content of these acts is largely influenced by the guidelines of federal legislation, and sometimes duplicates federal norms, which limits the freedom of local governments in rulemaking. However, law-making at the municipal level does not only involve the adoption of local legal acts. Representative bodies of local governments have the right to initiate legislation. Statistical data from the Republic of Mari El, the Republic of Tatarstan, and the Chuvash Republic is presented to assess the exercise of this right by municipalities. The article identifies the problems that arise in the implementation of rulemaking activities by local governments. The quality of municipal regulatory legal acts is critically assessed, and it is found that they often contain provisions that do not comply with the legislation of the Russian Federation or its constituent entities. Several proposals are made in order to improve the quality of these acts and take the law-making activities of municipalities to the next level.
Key words: rulemaking, local government, municipal regulatory legal act, law-making initiative
THEORY OF LAW AND STATE
Kartsov A. (St. Petersburg) «The composed and eternal path»: on the metaphysics of legal cognition (on the release of I. A. Isaev’s monograph «Historical Metaphysics of Power and Law: A Return to the Origins. Essays on the History and Philosophy of Law»)
The fundamental work «Historical Metaphysics of Power and Law: A Return to the Origins. Essays on the History and Philosophy of Law», written by I. A. Isaev, summarizes the author’s long-term research as the founder of the metaphysical school of Russian legal thought. The article provides an overview of the main issues addressed in the monograph’s problematic field: the formation of large public spaces, mechanisms of sacralisation and secularization, myth as a foundation for political and legal discourse, the genesis of public law, legitimation and legitimacy, public institutions and their evolution, and technical aspects of power. Considering the significance of this work as the concluding part of the monographic cycle dedicated to the metaphysics of power and law, created by the author over the past quarter century, it addresses the general features of the proposed approach to the understanding of law, which has become the methodological foundation of the scientific school established by I. A. Isaev. The noteworthy features of the metaphysical approach to understanding law are stated in comparison with the normative and postmodern paradigms.
Key words: metaphysics, myth, legitimation, philosophy of law, public authority, public law
Pleshakov E. (Nizhny Novgorod) Legal priority and legal advantage: a comparative aspect
The author correlates two phenomena: legal priority and legal advantage. It is argued that there are not only similarities between them, but also differences. Technical and legal methods of fixing legal priority and legal advantages in legislation are revealed. Attention is drawn to the fact that the phenomenon of legal priority itself needs a full-fledged doctrinal study, and its comparison with legal advantage shows deep trends in the transformation of existing means of technical and legal regulation. It is proved that legal priority can not only act as a means of hierarchical construction of public relations, but can also be objectified in specific forms of legal advantages.
Key words: legal priority, legal advantage, specialisation of legislation, legal differentiation
COMPARATIVE JURISPRUDENCE
Saprin I. (Voronezh) Regulation of the circulation of civilian weapons in the Federal Republic of Germany
The article examines the legal status of civilian firearms in the Federal Republic of Germany. The norms of both international and national law governing circulation of weapons are analysed. The norms of EU law on registration, possession, transportation and sale of weapons are investigated. Attention is paid to the implementation of EU documents in the German national legal order and their impact on the overall quality of regulation in this area. Responsibility for violations of the requirements imposed on gun owners and for offenses in the field of circulation of weapons is studied. The conclusion is made about the general level and quality of regulation of the circulation of weapons in Germany.
Key words: civilian firearms, circulation of weapons, combating illegal circulation of weapons, EU law, legislation of the Federal Republic of Germany
CIVIL LAW AND PROCEDURE
Melnikova E. (St. Petersburg) The problem of the «responsibility gap» for harm caused by artificial intelligence systems and applications
The issue of responsibility for harm (damage) caused by the use of artificial intelligence (AI) systems and applications is a topic of active discussion. In English-language legal literature, the concept of «responsibility gap» is used to describe situations where it is challenging to identify the cause of harm and hold specific individuals accountable. It would be beneficial to introduce a similar term into the Russian legal framework. The article explores the characteristics of the elements constituting a tort committed through the use of AI, and defines the concept of responsibility gap. The author proposes classifying responsibility gaps based on the technological factors that lead to errors. This classification is essential for developing a mechanism to address responsibility gaps through legal means in the future.
Key words: harm, damage, artificial intelligence, responsibility gap, legal composition, tort
Shayhutdinov E. (Chelyabinsk) Some aspects of the concept of insolvency (bankruptcy)
The article examines some theoretical problems of understanding insolvency (bankruptcy). The author formulates opinion on the transformation of the Russian institution of bankruptcy from a specialized mechanism for resolving economic disputes into a widely used mechanism for the social rehabilitation of citizens. Attention is drawn to the need to study, firstly, the relationship of the terms «insolvency» and «bankruptcy» and, secondly, the relationship of institutions of insolvency (bankruptcy) and enforcement proceedings. The conclusion is drawn about the much earlier introduction of the term «bankruptcy» in Russian legislation and its interdisciplinary nature. The clarifying meaning of the term «insolvency», reflecting the economic content of bankruptcy, is emphasized. The opinion is expressed on the admissibility of the simultaneous use of these terms in legislation and law enforcement. Similarities and differences between the institutions of insolvency (bankruptcy) and enforcement proceedings are revealed, including from the perspective of their goals (objectives) and the consequences of dissatisfaction (incomplete satisfaction) of creditors’ (recoverers’) claims. In particular, the main goals (objectives) of bankruptcy are, first, to restore the debtor’s solvency, and second, to proportionately satisfy creditors’ claims. The general conclusion is that enforcement proceedings and bankruptcy are historically interrelated legal institutions; at the same time, bankruptcy is actually the result of the evolution of enforcement proceedings due to the needs of an economically developed society.
Key words: insolvency, bankruptcy, concept of bankruptcy, enforcement proceedings, bankruptcy of organizations, bankruptcy of a citizen
CRIMINAL LAW AND PROCEDURE
Tetyuev S. (Chelyabinsk) The participation of a specialist in investigative actions accompanied by exposure
The article analyses the norms of criminal procedure law governing the participation of a specialist (in particular a doctor) in investigative actions accompanied by exposure of a person of the other gender. The purpose of the study is to characterise certain procedural aspects of the examination, as well as obtaining samples for comparative research and personal search, involving the exposure of a participant in criminal proceedings. The author comes to the following conclusions: 1) the consent of the examined person to being naked in the presence of an investigator has no legal significance; 2) based on the principle of respect for the honour and dignity of the individual, any doubt about the need to expose the body during the investigative action must be resolved in favour of the examinee; 3) conclusions, explanations and assumptions made by the doctor and set out in the examination protocol have no evidentiary value, as they do not have sufficient reliability; 4) achieving the objectives of the examination is only possible with the involvement of a person with medical knowledge, who works as a doctor or a forensic medical expert, or has experience of such work in the past; 5) during an examination accompanied by exposure of a person of the other gender, in pre-trial proceedings, the doctor must draw up an examination report attached to the case and, if necessary, should be questioned further; 6) if a personal search or obtaining samples for comparative research involve exposure, then only persons of the same gender can participate in these procedural actions, except for a specialist-doctor whose gender does not matter.
Key words: specialist, doctor, examination, obtaining samples for comparative research, personal search, exposure
PROCURACY SUPERVISION
Nadin A. (Moscow) Problems and ways for improving interaction between the prosecutor’s office and local-self government authorities
The article analyses the legislative and organisational problems of interaction between the prosecutor’s office and local-self government authorities. The following problems are highlighted: the unresolved issue of including election commissions and control and accounting bodies of municipalities in the list of objects of prosecutorial supervision; fragmentation of norms on the interaction of institutions of municipal democracy with prosecutor’s offices in municipal legislation; ineffectiveness of the legal consequences of failure to comply with the prosecutor’s protest, etc. The ways of improving legislative regulation on various issues of interaction between the prosecutor’s office and local-self government authorities are proposed. The necessity of making changes to the organisational and administrative documents of the prosecutor’s office is noted.
Key words: interaction, prosecutor’s offices, local-self government authorities, law-making, problems of interaction, improvement of legislative regulation, organisational problems
LABOUR AND SOCIAL LAW
Krinina A. (Orenburg) The implementation of the principle of freedom of contract in the context of typification of labour relations
The individual contractual regulation of labour relations is achieved through the conclusion of an employment contract, a standardized form of which does not currently exist. At the same time, labour legislation provides for standard and exemplary forms of employment contracts for certain categories of workers, indicating a trend towards standardization of contractual regulation of labour relations. The article analyses the contents of the current standard and model forms of employment contracts. The author identifies several grounds for comparison between these forms, such as the level of statutory consolidation, the extent of mandatory application by entities subject to labour law, the scope of persons covered by these forms, the purpose of the contracts, and the limits of parties’ contractual freedom in determining the terms of the employment contract. The author concludes that the trend towards typifying employment contracts is closely linked to such a feature of the legal regulation of labour relations, as unity and differentiation. In addition, the development and use of standard and model forms of employment contracts serves as an additional regulatory framework for contractual regulation of labour relations.
Key words: employment contract, model employment contract, standard employment contract, legal regulation of labour
Tolkachev N. (Tomsk) Deadlines for applying to the court for the resolution of an individual labour dispute: a historical and legal analysis
The article analyses the legal nature of deadlines for applying to the court to resolve an individual labour dispute (Article 392 of the Labour Code of the Russian Federation). The concepts in the field of labour law regarding these issues are critically examined. The institution of limitation of action in civil law and doctrine is retrospectively studied, and the inconsistency of the idea of the procedural nature of the time limits under Article 39 of the Labour Code of the Russian Federation is established. The author criticises the argument of labour scientists who support the prescription nature of the deadlines for applying to the court to resolve an individual labour dispute. The conclusion is made that the rule on the declarative nature of the court’s application of the consequences of the plaintiff’s omission of the limitation period or the deadline for applying to the court is not a criterion for determining the legal nature of the categories under consideration. It is established that the concept of «deadlines for applying to the court», implemented in Article 392 of the Labour Code of the Russian Federation, was derived from the Labour Code of 1971. The thesis is formulated that, in the 70s of the XX century, the legislator made an error by establishing a single definition of «deadlines for applying to the court» for phenomena of different legal natures (deadlines to appeal decisions (resolutions) of labour dispute commissions or factory, plant, local trade union committees, and limitation periods for disputes considered directly at court). At the same time, it is noted that this error arose due to objective circumstances. It is concluded that the deadlines provided for in Article 392 of the Labour Code of the Russian Federation, by their legal nature, are a limitation period.
Key words: deadlines for applying to the court, procedural deadlines, limitation periods, legal nature, individual labour disputes
EXPERTISE
Kobelev Yu. (Yekaterinburg) Appointment of forensic medical examinations in the conditions of entry into force of the order no. 491n of the Ministry of Health of the Russian Federation
The article analyses the changes that have occurred in the procedure for the appointment of forensic medical examinations due to the entry into force of the order no. 491n of the Ministry of Health of the Russian Federation dated September 25, 2023. The author comes to the conclusion about the validity of the adopted changes and draws attention to the need to strictly comply with the normative legal provisions of the Code of Criminal Procedure of the Russian Federation regarding the mandatory establishment of the cause of death by law enforcement officers. He also proposes to preserve the scheme of cooperation between law enforcement agencies and forensic medical services in order to prevent the concealment of crimes against the health and life of citizens.
Key words: forensic medical examination, forensic medical research, act of forensic medical research, evidence, criminal procedure
ECONOMICS AND LAW
Vasyanina E. (Moscow) Financial and credit mechanism of Russia in the era of global change
The article examines some ways to enhance the legal framework for the financial and credit system with the ultimate goal of promoting economic growth. It explores the specific features of the development of this system and focuses on the interaction between monetary and fiscal policies. Based on an analysis of current models for financial and credit management, the article concludes that the lack of balance between monetary policy objectives and economic restructuring is a key obstacle to the growth of the Russian financial and credit market. It argues that administrative regulation of the financial sector should be strengthened, particularly as a means to protect individuals’ rights to financial management. It is possible to enhance the collaboration between the Central Bank of the Russian Federation and the federal executive bodies in terms of ensuring financial stability, and to streamline the execution of functions related to managing the monetary system through an administrative reform aimed at altering the status of the Bank of Russia.
Key words: financial and credit mechanisms, monetary system management, Bank of Russia, Government of the Russian Federation, financial development institutions, administrative law
Gabrielov V. (Moscow) Legal remedies for protecting investors’ interests in cases of violations by companies of international environmental standards
The article analyses the effectiveness of legal remedies for protection that investors can use to safeguard their interests when companies violate international environmental standards. The author examines judicial practices and alternative dispute resolution practices, identifying the problems faced by investors and NGOs that protect their interests, as well as the actions they can take to increase the likelihood of winning a dispute with unscrupulous companies. International environmental standards, which are prevalent in business practices, are predominantly advisory in nature, and courts do not consider their violation as a basis for holding companies accountable. The analysis of judicial practice showed that referencing international treaties related to sustainable development such as the 2015 Paris Agreement, and mandatory acts of international organizations such as EU directives, increases the likelihood of winning a dispute. Furthermore, it is possible to link the violation of an advisory international environmental standard with the violation of national legislation, as this constitutes misleading investors, consumers, and civil society. Alternative dispute resolution demonstrates fairly high efficiency but is not always feasible because companies are often unwilling to acknowledge the fact of providing false information and try to avoid engaging with investors on this issue. An exceptional case is the practice of OECD National Contact Points, which provide effective mediation and facilitate dialogue between investors and companies to develop a mutually acceptable solution. The author concludes that courts are gradually forming uniform approaches to resolving such disputes, and the arguments of investors and NGOs protecting their interests are becoming more legally substantiated. There is a trend towards an increasing number of cases in which they achieve victory.
Key words: ESG, international environmental standards, international law, sustainable development, investors, court practice
MUSEUM OF SLI – USLA – USLU HISTORY
Zipunnikova N., Kalinina A. (Yekaterinburg) The phenomenon of the jurist’s jubilee: historical and legal reading
The article actualises a complex socially significant phenomenon – the jubilee of a legal scholar. The anniversary is shown (including from historical and legal positions) as a special phenomenon in education, science, culture, and law. At the Ural State Law University named after V. F. Yakovlev, 2024 was marked by a significant number of memorable dates associated with lawyers who worked at the university over the years (S. S. Alekseev, B. K. Begichev, I. G. Vermel, L. Ya. Drapkin, A. F. Kozlov, V. I. Kofman, Yu. K. Osipov, V. E. Chirkin). Some university and «external» commemorative practices are characterised. The multiple effects of the scientist’s jubilee are systematised; its memorial, axiological, performative, educational, image, scientific aspects are indicated. The conclusion is made about the need to further promote anniversaries and memorable dates of legal scholars in historical, legal, cultural, pragmatic and other knowledge.
Key words: history of legal education and science, Ural State Law University named after V. F. Yakovlev, jubilee of a legal scholar, scientific heritage, university values