Annotations № 5 (158) / 2024

THEORY OF LAW AND STATE

Shafirov V. (Moscow) The doctrine of human rights as an invaluable theoretical and practical legacy of S. S. Alekseev

The article considers the core features of S. S. Alekseev’s teaching on human rights: achieving unity of natural and positive law, priority of human rights, law as freedom expression, equality, leading role of permissibility, legality, equality of law and moral in social regulation. It is noted that the provisions of the doctrine of human rights were embodied in the text of the draft Constitution of the Russian Federation, one of the main developers of which was S. S. Alekseev. The Russian Constitution enshrines a new concept of legal understanding based on the provisions of natural and positive law. Unfortunately, the paradigm shift in law understanding at the constitutional level has not yet been properly assessed in the scientific community. This fact can be explained by the unjustified dominance of the positivist vision of law in legal science. It is concluded that the strategic task of contemporary legal science is to strengthen and develop the constitutional understanding of law, to the development of which S. S. Alekseev made a great contribution.

Key words: law, Constitution, constitutional understanding of law, human rights, freedom, equality, permissibility, legality, moral

Berg L. (Yekaterinburg) Prospects for research programs in jurisprudence

The author examines in detail the research methodology and rules for the implementation of research programs, and applies these rules to the phenomenon of legal impact. The normative guidelines for studying legal impact are formulated; the private theory of legal impact is considered as a scientific research program. It is emphasized that the research program requires a scientist to strictly follow the rules for obtaining new knowledge.

Key words: methodology, research program, scientific hypothesis, theory, methodology of legal science, theory of law, research program of legal impact

PUBLIC ISSUES AND POLITICAL SCIENCE

Lazutin L. (Yekaterinburg) War as a means of achieving political goals in modern realities

The article analyzes the changes in the approaches of states to the conduct of military operations that occurred in the 21st century and influenced the nature of war and its assessment by military, political scientists and international lawyers. The author notes that many states use war as a means of maintaining their preferential position and achieving their political goals. In modern conditions, war is considered primarily as a political act, and not just as a clash of the armed forces of the opponents. Such features of modern armed conflicts as the use of new technologies, the hybrid nature of hostilities and their asymmetry are noted. The author comes to the conclusion that the military strategy of the Russian Federation should be developed taking into account the noted features of war in the 21st century, and specialists should work out some recommendations for the purposes of ensuring national security and achieving victory over the enemy.

Key words: war, armed conflict, aggression, international terrorism, international security, peace negotiations

COMPARATIVE JURISPRUDENCE

Wang Zhihua (PRC, Beijing) The legal system of modern China and its peculiarities

The PRC’s legal system is now mature. Although it still retains traditional elements, they are no longer its main characteristics. The most important manifestations of tradition are excessive criminalisation (pan-criminalisation); emphasis on regulation of civil service; system of state examinations; unity of state power (no separation of powers). The policy of reform and opening up that began in the 1980s changed China a lot, especially the economic sector. But the political regime was hardly affected, and modern China is still in the stage of transition to a democratic state of law. Thus, Chinese law can still be classified as a socialist legal system (although it is no longer built on the Soviet model). Modern China can be characterised as a country of «state capitalism», although officially it defines itself as a country of «socialism with Chinese characteristics». Modern Chinese law, based on traditional law, incorporates institutions and concepts borrowed from continental, Anglo-Saxon and socialist legal systems. These various elements co-exist, creating a colourful but not inconsistent picture. Thus, the Chinese legal system is hybrid in nature.

Key words: China, comparative jurisprudence, legal system, legal traditions, legal borrowings, socialist law

Biriukova V. (Voronezh) Participation of the Swiss cantons in international cooperation

The article discloses both legal and practical aspects of international cooperation of the cantons of the Swiss Confederation. The federal legislation determining the limit of autonomy of cantons in international relations is examined. Active and passive forms of international cooperation of cantons are distinguished. The provisions of cantonal law acts regarding the possibilities of cantons to participate in external relations are assessed. The features of legal regulation of international cooperation of cantons are noted taking into account their position relative to the state border. The legislation of border cantons is examined using the example of the canton of Fribourg, and of domestic ones – using the example of the canton of Geneva. The special role of the cantons of Geneva and Bern as centers of international cooperation is emphasized. The author comes to the conclusion about the decisive role of the cantons in ensuring Switzerland’s foreign policy. This influence is due to many factors, including the simplified state border regime within the framework of the Schengen Agreements; developed international infrastructure; the presence of specialized institutions for cross-border cooperation; the federal nature of Swiss statehood; inter-cantonal interaction; and transparency of information on international cooperation between cantons.

Key words: Swiss Confederation, cantons, international cooperation, Constitution of Switzerland, laws of the cantons, cross-border cooperation

CRIMINAL LAW AND PROCEDURE

Markovicheva E. (Moscow) A civil claim in criminal proceedings: a balance of private and public interests

The article reveals the specifics of the civil claim method of restoring the rights of the victim violated by a crime in the framework of criminal proceedings. It is substantiated that a complex system of legal interests has formed in the criminal process, and these interests can be multidirectional. The author focuses on the limited possibilities of a civil claim in criminal proceedings and associates this with the need to ensure a certain balance of private and public interests in criminal proceedings. The article notes the features of the implementation of the dispositive principle associated with compensation for property damage or compensation for moral damage caused directly by the crime. The author considers several problematic law enforcement situations in which the claim protection of the rights of the victim seems extremely difficult. The normative structure of establishing civil circumstances in a criminal case is critically assessed. A three-level model of ensuring a balance of legal interests when considering and resolving a civil claim by the court is proposed. The author formulates several proposals aimed at adjusting the criminal procedure law and law enforcement practice of compensating damage to the victim in modern Russian criminal proceedings.

Key words: civil claim, victim, damage compensation, criminal proceedings, legal interests

Vinokurov V. (Krasnoyarsk) Making amends for damage caused as a condition for exemption from criminal liability in connection with reconciliation with the victim or imposition of a court fine

According to the provisions of Art. 76 and Art. 76.2 of the Criminal Code of the Russian Federation, one of the conditions for exemption from criminal liability is making amends for damage caused by the crime. At the same time, the explanations of the Constitutional and Supreme Courts of the Russian Federation do not contain clear instructions on the possibility of making amends for damage caused to such objects as life, public safety, public health, interests of public service, and management procedures. Therefore, it is necessary to develop criteria for making amends for non-material damage, depending on the object of the crime. According to the author, exemption from criminal liability for an act that resulted in death is unjustified due to the inability to compensate for the harm caused to such an object of crime as life. It is also unreasonable to release from criminal liability on the basis of Art. 76 and 76.2 of the Criminal Code of the Russian Federation someone who has committed violent crimes against public safety and public order, since the perpetrator causes harm to an unlimited number of people.

Key words: exemption from criminal liability, compensation for harm, object of the crime

CIVIL LAW AND PROCEDURE

Akopyan Ph. (Moscow) The fairness of judicial decisions in the civil process

The article analyses the essence and content of fairness in law. The main goal of civil court proceedings is a fair consideration and resolution of the case. The opinions of scientists on the admissibility of the requirement of fairness to a judicial decision are given. The requirements of legality, validity and fairness of the court decision are correlated. The influence of legality and truthfulness of a decision on its fairness is described. It is concluded that fairness should be recognised as a basic requirement for a judicial decision.

Key words: fairness, requirements for a court decision, principles of civil procedure law, legality and validity of a court decision

Zaykov D. (Moscow) The institution of request of the Intellectual Property Rights Court and the institution of specialist: correlation and features of legal regulation

The introduction in 2011 into arbitration proceedings of the procedural institutions of request of a specialized arbitration court and a specialist was conditioned by the need to create additional procedural tools for obtaining clarifications by the arbitration court on issues requiring special knowledge. Sending a request to a specialized arbitration court is the exclusive competence of the Intellectual Property Rights Court. However, involving a specialist in the case has become a universal means for arbitration courts to obtain a new type of evidence – consultations. At the same time, the use of identical provisions and terms in the legal regulation of these procedural institutions, the content of which is not disclosed in the Arbitration Procedure Code of the Russian Federation, has led to the prerequisites for ambiguous interpretation and application of relevant legal norms, and also raised the question of how the institution of request of a specialized arbitration court correlates with the institution of specialist. The article concludes that these institutions are independence and that it is necessary to make a number of changes to the Arbitration Procedure Code of the Russian Federation in order to differentiate the mentioned institutions and increase the effectiveness of their application in arbitration proceedings.

Key words: request of a specialized arbitration court, Intellectual Property Rights Court, specialist, consultation

Nazarov A. (Kemerovo) Directions of increasing the efficiency of enforcement proceedings

The problem of effective establishment of the property status of the debtor in enforcement proceedings is considered. Since the information on the balances of funds in bank accounts and information on sources of income provided by the Social Fund of Russia and the Federal Tax Service of Russia is insufficient, it is proposed to vest the Federal Bailiff Service bodies with the authority to process data on non-cash payments to analyse the behaviour of the debtor, the frequency and volume of transactions made by him. Such capabilities will allow bailiffs to determine the approximate location of the debtor, the composition of his property and sources of income, which will facilitate the choice of tactics for enforcement. This information can also serve as evidence in cases challenging sham transactions of debtors. Options for increasing the efficiency of enforcement proceedings by limiting the rights of debtors to receive certain state services are discussed. The advisability of including virtual game property in the property mass of the debtor in enforcement proceedings is considered. It is concluded that foreclosure on the debtor’s virtual property is currently impossible, since such objects are by their nature an element of services and do not have a negotiable tangible result.

Key words: enforcement proceedings, financial situation of the debtor, period for voluntary compliance, limitation of the debtor’s rights, measures of indirect coercion, virtual property

PROCURACY SUPERVISION

Ergashev E., Legotin A. (Yekaterinburg) Monitoring as the most important instrument in the activities of the Russian prosecutor’s office

Monitoring used in prosecutorial activities is considered as a legal phenomenon. It acts in several aspects: as a verification action of the prosecutor (legal monitoring); as a method of information and analytical activity of the prosecutor’s office (monitoring of the state of law and order); as a legal means of the prosecutor to identify information violating a law in the media and information and telecommunication networks (prosecutor’s monitoring).

Key words: monitoring, prosecutorial activity, prosecutorial inspection, legal means of the prosecutor

Makhyanova R. (Fryazino) Tactical thinking of the prosecutor: concept, content and influence on the state of legality

The article proves that the tactical thinking of the prosecutor is one of the main elements of the tactics of the supervisory activity of the prosecutor’s office. A set of basic actions of the prosecutor, carried out in the course of supervisory activities, is determined. The terms «tactics» and «thinking» are studied separately. The article analyzes the history of the origin of the term «tactics» and the specifics of its use in professional and other activities. The author’s definition of the concept of «tactical thinking of the prosecutor» is formulated, its main features are revealed.

Key words: prosecutorial supervision, tactics of supervisory activities of the prosecutor’s office, tactical thinking of the prosecutor

LABOUR AND SOCIAL LAW

Romanovskaya N. (Voronezh) Prospects for legal regulation of labour of persons working through Internet platforms based on geolocation

The last decade has seen a multiple increase in the number of Internet platforms and, consequently, people employed through them, but the issue of legal regulation of such labour activities remains open. The author finds out that there are court decisions, in which legal relations between performers (taxi drivers, couriers) and partner companies of Internet platform operators are recognized as labour relations. The article studies the provisions of the Federal Law No. 580-FZ of December 29, 2022 «On the Organization of Transportation of Passengers and Luggage by Light Taxis in the Russian Federation», which, on the one hand, establish that legal relations between the platform operator and the performer, between the partner company of the platform operator and the performer are civil law, and on the other hand, both the platform operator and the partner company are imposed with certain obligations of the employer. It is substantiated that legal relations that develop in the process of labour through Internet platforms are labour relations by their legal nature. In this case, the platform operator should be recognized as the employer. The author comes to the conclusion that the legal regulation of these legal relations should not affect the general part of labour law, and the use of the Internet platform is a way of organizing labour, which is a criterion for the differentiation of legal regulation of labour relations. The author proposes to supplement Section XII of the Labour Code of the Russian Federation with a chapter on the specifics of regulating the labour of persons working through Internet platforms.

Key words: labour relationship, Internet platform, platform operator, employer power

Tuktamyshev V. (Yekaterinburg) Challenging against the decision of the commission on labour disputes: a new model

The article examines the issue of the procedure for challenging the decision of the commission on labour disputes. It is concluded that the existing approaches regarding the procedure for challenging such decisions are not consistent with the legal constructions of procedural law. In order to form a model for challenging the decision of the commission on labour disputes, the legal nature of such commissions and the existing procedures for considering legal cases are studied. The author substantiates that the commission on labour disputes is a jurisdictional body, and its activities take place within the framework of a special form of legal protection similar to arbitration. Such a similarity implies the admissibility of using a similar procedure for challenging the act of the jurisdictional authority. It is concluded that the decision of the commission on labour disputes should be challenged in the proceedings on the cancellation of the decision of the jurisdictional body, similar to the decisions of arbitration tribunals.

Key words: commission on labour disputes, challenging the decisions of commission on labour disputes, forms of legal protection, types of proceedings in civil proceedings

ECONOMICS AND LAW

Klementiev A. (Moscow) The new procedure for performing obligations under cross-border transactions with derivatives

The article is devoted to current issues that arose amidst growing sanctions pressure on Russian financial institutions that entered into contracts deemed derivative financial instruments (derivatives) with counterparties from a number of jurisdictions later classified as unfriendly towards Russia. As a rule, these transactions were governed by foreign law and concluded on the basis of a framework agreement of the International Swaps and Derivatives Association (ISDA). The author maintains that currently a mechanism of «anti-sanction» protection of the interests of Russian legal entities has emerged in domestic legislation with respect to cross-border financial transactions. Its foundations are formed by the special procedure for performance of obligations. Auxiliary element of the mechanism gives an opportunity to transfer the disputes arising from derivative transactions with a foreign element to the jurisdiction of Russian courts as well as to issue an injunction forbidding dispute resolution in foreign courts and by arbitration abroad.

Key words: derivatives, ISDA, sanctions, cross-border payments, derivative instruments, framework contract, restrictive measures

Lapteva A. (St. Petersburg) On the concept of an investor

An investor is one of the key figures in the investment process. Most often, he is the initiator of investment activity, since the fate of a specific investment project depends on his decision to invest. Investment legislation often uses this concept, but there is no unified legal definition of it. The analysis of investment legislation demonstrates the presence of various terms (for example, «foreign investor», «resident of a special economic zone», «qualified investor», «depositor», «customer») and their definitions, which are used only in relation to a specific type of investment activity. Judicial practice and legal doctrine on this issue are ambiguous. The author comes to the conclusion that the investor is a person making an investment, i. e. a subject who has decided to convert his savings into investments, pursuing a certain goal. Such a goal is quite variable: it can be associated with both making a profit and achieving another result significant for the investor. It is emphasized that, for legal regulation in general, it does not matter what type of legal entity the investor belongs to, what his nationality is, which objects he invests, or on what basis he owns the invested property.

Key words: investments, investment activity, investor, legal status of the investor