№ 3 (156) / 2024
CONSTITUTIONAL LAW AND PROCEDURE
Komarova V. (Moscow) «Public health» in theoretical and legal aspect
The article presents an analysis of the category of «public health» in theoretical and legal aspect, with an emphasis on its constitutional and legal model, which is the basis for subsequent development in industry legislation. The importance of the constitutional reform of 2020 is emphasized, as a result of which new terms and concepts were included in the text of the Constitution of the Russian Federation. The author considers «public health» as a complex phenomenon that includes not only physical health, but also social well-being, the spiritual and moral state of society, and personal safety. The author pays special attention to how these aspects are enshrined at the constitutional level, and what new institutions and mechanisms have been introduced for their implementation. In addition, the author conducts a systemic analysis of federal and regional regulations governing various aspects of public health, noting the need to develop a unified approach to its definition and legal regulation. The impact of the COVID-19 coronavirus pandemic on the reassessment of society’s values and changes in socio-legal models of behavior is considered, which emphasizes the need for an integrated approach to public health issues. The author comes to the conclusion about the need to create new legal institutions and mechanisms aimed at the effective protection of public health, taking into account modern challenges and threats.
Key words: public health, state policy, trust, social solidarity, healthcare
COMPARATIVE JURISPRUDENCE
Latyntsev A. (Moscow) The non-patentability of inventions that contradict the principles of bioethics in the legislation of the BRICS countries
In the context of the intensive development of biotechnologies and their spread in various fields, it is increasingly necessary to take into account the principles of bioethics to regulate various legal relations. This global issue is reflected in many international agreements and foreign laws. However, despite the increased attention to topic, aspects of the influence of bioethical norms on patent legal relations have not been sufficiently studied. It seems unacceptable to use legal mechanisms for the protection of intellectual property in relation to inventions that contradict the principles of morality, protection of life and health. The purpose of the study is to analyze the peculiarities of international law and the legislation of China, India and Brazil on the issues of taking into account the principles of bioethics in patent relations, followed by a comparative analysis. A wide range of general scientific and special methods of cognition were used in the research process. A comprehensive analysis of foreign normative acts in the field under study was carried out with the specification of the considered legal tools. The doctrinal sources on the issues of taking into account the principles of bioethics in legal regulation are analyzed and the legal structure specified in the TRIPS Agreement, which enshrines the principle of inadmissibility of patenting inventions, the commercial use of which must be prevented for the protection of public order or morality, including the protection of life or health, is considered. It is reflected in most national legal systems, including in our country, but each of the systems has its own characteristics. The article analyzes international agreements regarding the consideration of the principles of bioethics, including in patent relations, as well as features in the studied part of the patent law of China, India and Brazil. Based on the results of a comparative analysis of these documents, proposals have been developed to improve Russian patent legislation.
Key words: patents, non-patentability, patent law of China, patent law of India, patent law of Brazil
CRIMINAL LAW AND PROCEDURE
Ulyanova M., Neznamova Z. (Yekaterinburg) The problem of analogues of narcotic drugs or psychotropic substances in Russian legislation
The article substantiates the need to modernize the process of classifying substances as analogues of narcotic drugs or psychotropic substances and simplify the procedure for making amendments to the Decree of the Government of the Russian Federation dated June 30, 1998 № 681 «On approval of the list of narcotic drugs, psychotropic substances and their precursors subject to control in the Russian Federation». A gap in criminal law has been identified, which is eliminated by applying the analogy of the law, which contradicts the principles of Russian criminal law. The authors analyze each of the stages of assigning a substance to analogues, arguing for the identified shortcomings. The urgency of the problem is emphasized by judicial practice, as well as the natural expansion of the subject of drug crimes in connection with the dynamically developing underground drug business. As a solution to the problem, it is proposed to borrow the mechanism of attribution to analogues from the legislation of the Republic of Belarus as the closest to the Russian legal system.
Key words: analogues of narcotic drugs, psychoactive substances, illicit drug trafficking, criminal law
Polyakov V. (Barnaul) The concept of alibi for crimes committed using information networks
In recent years, there has been a proliferation of high-tech criminal attacks committed remotely using information and telecommunications networks. These crimes have led to certain problems in the application of the traditional interpretation of alibi in criminal proceedings and in understanding its legal essence. The purpose of this study is to identify the features of alibi in the case of crimes committed using remote technologies and formulate an updated interpretation of this concept. As a result of the study, the fundamental specificity of alibi was established and analyzed, related to the use of the concepts of the crime scene and the moment of its commission in the remote method of criminal encroachments. The necessity of making changes to the interpretation of alibis, taking into account the features of remote crimes, is justified. An expanded definition of alibi has been formulated, taking into account these features. The use of the concept of «chronotope» in the sciences of the criminal cycle is justified and its content is revealed, which consists in the unity of the spatial and temporal coordinates of the crime event. The connection between the chronotope and the possibility of an alibi statement by the suspect (accused) has been revealed. The controversial concept of «digital alibi» is discussed and its essential features related to the need to attract electronic evidence are revealed. The issues of checking and exposing a false digital alibi created by staging electronic traces are considered. It is concluded that in order to confirm a digital alibi, it is necessary to establish a number of new circumstances of the crime event and to involve a set of complementary traditional and electronic evidence.
Key words: criminal proceedings, high-tech crimes, chronotope, false alibi, digital alibi, concealment of crime
Popova T., Zvonarev A. (Chelyabinsk) Validation of expert techniques as a factor in improving the quality of forensic expertise
The relevance of assessing the suitability of using expert techniques for forensic examinations (validation) is associated with the need to ensure the correctness of the expert’s conclusion. The article provides an overview of the practice of using forensic techniques to establish the limitation period for the production of a document. It is shown that outdated or unsuitable methods are often used that do not allow checking the reliability of the results of the study and accordingly the validity of the conclusions of the expert’s opinion. To increase the level of trust in the examination, it is proposed to follow a number of procedures, firstly, the research is carried out by an expert who has a basic specialized education in the field of research being conducted; secondly, for a laboratory performing expert research, which has accreditation in the field of testing for compliance with GOST ISO/IEC 17025-2019 is advisable; thirdly, expert methods must be checked for scientific validity through peer review, validated for specific research objects, metrologically certified in terms of performing measurements, verified in the laboratory where they are supposed to be used, and verified in terms of performing measurements through periodic interlaboratory comparison tests.
Key words: forensic examination, forensic expert techniques, validation, quality of forensic expertise, techniques for establishing the limitation period for the production of documents
QUESTIONS OF INVESTIGATION AND OPERATIVE-RESEARCH ACTIVITY
Volchetskaya T., Lavrinenko A. (Kaliningrad) The role of criminalistics in the system of prevention of iatrogenic crimes: potential and opportunities
The article presents the results of an analysis of the effectiveness of investigation and prevention of iatrogenic crimes, as well as a brief overview of doctrinal approaches to the understanding and content of forensic prevention in Russian forensic science, showing its place in the system of general crime prevention. A hypothesis has been put forward and substantiated about the advisability of using forensic characteristics data in the system of forensic prevention measures, and the main directions for further development of means and methods for the prevention of iatrogenic crimes are shown. The proposal is substantiated to introduce into the system of continuous medical education and advanced training of medical workers systematic information about the identified facts of criminal iatrogenic, the reasons for its occurrence, and the conditions that contributed to it. The feasibility of expanding the range of tasks solved when monitoring the quality of medical care is shown, taking into account the need to prevent professional crimes committed by medical workers.
Key words: forensic prevention, crime prevention methods, iatrogenic crime, prevention of iatrogenic crimes, medical worker, criminal iatrogenic, crimes of medical workers
CIVIL LAW AND PROCEDURE
Zaykov D. (Moscow) Private definitions addressed to judges in civil proceedings: some problems of law enforcement
A private definition as a procedural institution aimed at eliminating identified violations of the rule of law in the course of justice and preventing their recurrence in the future has long been known to civil proceedings and is actively used by courts of general jurisdiction. At the same time, judicial practice recognizes a judge as one of the special subjects in respect of which a private determination can be made, despite the absence of appropriate legal regulation. A private ruling issued to a judge is at the same time a measure of the reaction of a higher court to violations of legality committed by a judge of a lower court, and a court ruling establishing the fact that a judge violated the requirements of the law. At the same time, the practice of applying the institute of private determination for these purposes is developing in different directions, there are no uniform criteria and approaches to the establishment of violations that are the grounds for making private determinations against judges, and a well-founded question is raised about the emerging contradiction and the negative impact exerted by the institute of private determinations on the implementation of the principle of judicial independence in practice. The conducted research has shown the need for legal regulation of the procedure and grounds for making private determinations against judges, as well as the formation of uniform judicial practice in this area of legal relations.
Key words: private definition, judge, violation, responsibility, independence
Domshenko (Chervets) E. (Moscow) Separation of property of a subject of civil law as a consequence of the assertion of individualism and a condition for the development of entrepreneurship
The article analyzes theoretical, legal and socio-economic bases of approaches to the isolation of property through the prism of expediency of isolation. The economic feasibility and demand for isolation is considered in the paradigm of individualism, which characterizes entrepreneurial activity, motives, goals and objectives of actors in the conditions of the modern market. The management of private capital arises as a natural request of the turnover participants, inclined to the definition and delimitation of property masses. The circle of interests and goals of turnover owners is determined by the specifics of their activities, the difference between private property and public property. The author investigates modern theories of property shielding for the purposes of owners of private capital and interested parties and proposes an approach to the potential of protection of these interests on the example of specific legal mechanisms of isolation and prospects of their integration into the conditions of modern economy.
Key words: property isolation, legal entities, personal foundation, trust, trust management
ADMINISTRATIVE LAW AND PROCEDURE
Osintsev D. (Yekaterinburg) Criminal wrongfulness or dangerous misconduct?
The intuitive logic of the formation of crimes and administrative offenses has given rise to a negative trend, when the distribution of dangerous or risky behavior into classes began to be arbitrary, not allowing to distinguish where the crime is and where the trivial offense is. An attempt to distinguish between criminal and administratively punishable behavior according to the criteria of danger and harmfulness turned out to be a waste of time, since the concept of «harmfulness» is included as part of the scope of the concept of «danger», which has numerous legal, factual and physical and technical confirmation (this class also includes «destructiveness», «inferiority», «unprofitability», etc.). The basis for distinguishing between a crime and a misdemeanor is the intention in the object of the offense, or rather, whether it will be considered as dangerous behavior or just a deviation from the risk management system that prevents such behavior. Hence, an administrative prejudice as part of a crime is not required, since identical repetition does not indicate an increase in danger, such was the primary one. Therefore, any perceived danger (real or potential) inherent in an unlawful incident can be criminally punishable, on the contrary, a disdainful attitude to understanding a risky practice, which precedes, but does not cause danger, can be formulated as an administrative offense.
Key words: criminal criteria, risk management, administrative punishment, administrative prejudice
LABOUR AND SOCIAL LAW
Fedorova M. (Yekaterinburg) The time factor in the legal regulation of social protection of radiation victims
The article examines the influence of the time factor on the legal regulation of social protection of citizens affected by radiation. It substantiates the thesis that the time factor, in addition to its universal significance for legal regulation in general, is also important in relation to the object of the latter. Due to this, it manifests itself differently in different branches of law. In the sphere of social protection, its significance is aggravated by the need to take into account the temporal characteristics of social risks. In this sense, among all their types, social risks arising in connection with exposure to radiation have the most striking specificity. Such an impact each time unfolds not only in space, but also in time, and its degree is also differentiated by both territorial and chronological criteria. This, in turn, predetermines the need to achieve temporal adequacy of social protection of citizens affected by radiation. It is no coincidence that legal regulation of social protection of victims is established in relation to each extraordinary event associated with radiation exposure to humans. This allows us to generalize the experience of rule-making and law enforcement, on the basis of which we can formulate temporal requirements that would serve the purpose of increasing the effectiveness of legal regulation. The findings are illustrated by examples from the legislation on social protection of citizens affected by radiation as a result of the Chernobyl disaster, the accident at the Mayak production association and the discharge of radioactive waste into the Techa river, nuclear tests at the Semipalatinsk test site and participation in the actions of special risk units. The role of the Constitutional Court of the Russian Federation in ensuring the temporal adequacy of social protection of the above categories of citizens and its legal regulation is analyzed.
Key words: time, time factor, radiation exposure, social risk, social protection, legal regulation
Paramonova S. (Yekaterinburg) Place of a separate structural division of an organization in the structure of the labour relationship
Organizations with a complex organizational structure, in which there are separate structural divisions, that are classified as economic entities, whose activities are subject to special consideration in labour legislation. Due to the fact that separate structural divisions of organizations have individual features of self-sufficient entities, their position in the structure of the labour legal relationship raises many questions. For a long time, the scientific community has been discussing the problem of the labour legal personality of this divisions, but the legislator is in no hurry to contribute to its resolution. A comprehensive analysis of objective factors, scientific opinions, regulations and individual judicial positions shows the validity of the legislator’s point of view in terms of maintaining control over the composition of persons who can be employers, but at the same time demonstrates the potential for strengthening it, including through the development and formalization of an unambiguous approach to determine the position of separate structural divisions and the labour legal status of their leaders. As a result of identifying the location of separate structural divisions in relation to the structure of the employment relationship, conditions have been identified under which the scientific discussion about vesting them with employer legal personality can be considered completed.
Key words: separate structural division, collective subjects of labour relations, employer legal personality, quasi-employer, plurality of persons on the employer’s side, employer representatives, place of work, key characteristics of work
ECONOMICS AND LAW
Torosyan K. (Moscow) The problem of distinguishing between advertising and information constructions
The article reveals the problem of distinguishing between advertising and information constructions. The problem seems relevant due to the fact that advertising constructions are one of the most popular ways for entrepreneurs to attract attention to their products. However, there are also frequent cases when due to ignorance of the specifics of advertising legislation entrepreneurs, who wanting to establish information constructions in order to simplify consumers search for a place where goods are sold and services are provided place advertising constructions, for what they are fined аnd forced to demount the installed constructions. Using a review of judicial practice and scientific literature, as well as an analysis of advertising legislation, the problems of qualifying structures as advertising are highlighted and signs of advertising are identified, criteria allowing to qualify a construction as advertising are derived. At the same time, specific examples are given, upon reviewing which it becomes possible to draw a line between advertising and information constructions. In addition, based on conflicting examples from judicial practice, the need to assess the content of the construсtion is noted, as well as the circumstances of its placement in each specific case.
Key words: outdoor advertising, advertising construction, information construction, signboard, pointer
Izotov Yu. (Moscow) Subject and system of emission law of the Russian Federation
The article provides a critical analysis of existing opinions regarding the subject and system of emission law of the Russian Federation. The author notes that despite the similarity in the formulation of the subject its understanding among researchers is different, which is confirmed by the diversity of opinions regarding the system of emission law. This difference is caused by different research methodologies, which often contain errors, for example, mixing economics and law, defining a system based on similarity rather than the nature of social relations, replacing a system with a simple set of elements. Instead, the author deduces social relations based on the nature of the monetary system as an economic phenomenon. Then the identified relations are distributed according to branches of law (constitutional, civil, administrative, criminal). The author proposes to include relations on the management of the monetary system, its protection and ensuring the monopoly of the Bank of Russia on such management and protection in the subject of emission law. These relations, which form the corresponding institutions of emission law, logically follow from each other, and the emission law itself in the presented formulation meets the principle of unity, which allows us to distinguish the system from a simple set of elements.
Key words: emission law, monetary system, money, monetary legal regimes
PROBLEMS OF LEGAL SCIENCE AND EDUCATION
Fedeneva Yu., Yushkova N. (Yekaterinburg) Value practices of mentoring in a person-centred perspective
The article reviews the work of the round table «Mentoring in Education: Names, Events, Fates» held at the initiative of the Department of Russian and Foreign Languages and Culture of Speech of the Ural State University named after V. F. Yakovlev within the framework of the International Scientific and Practical Conference «Language. Speech. Personality: Development of linguistic personality in professional discourse» and timed to the Year of Teacher and Mentor in the Russian Federation. Memories of outstanding teachers-lawyers V. F. Yakovlev, S. S. Alekseev, V. I. Yakushev, V. I. Kofman, D. D. Ostapenko and others identify the value practices of mentoring that are at the core of the mainstream scientific research and create a powerful effect of personal impact on the young generation of lawyers. The retrospective narrative allows us to describe the value indicators in a person-centred perspective and identify the dominants that are significant for institutional communication. The problem of mentoring as the basis for the continuity of traditions of linguistic education in a law school is considered with regard to different formats of intra-departmental interaction in the context of studying the linguistic personality of teachers and students and is projected on scientific and methodological ideas of K. M. Levitan. The article describes the educational potential of the use of commemorative practices realised by the teachers and students of the University within the framework of a museum project. The authors conclude that it is important to preserve the traditions and to create new models of mentoring, which will set the system of values in the era of civilisational shifts.
Key words: mentoring in education, teacher’s personality, linguistic personality, retrospective narrative, value practices, traditions
MUSEUM OF SLI – USLA – USLU HISTORY
Zipunnikova N. (Yekaterinburg) From the university statutes of the Russian empire to the soviet laws on education and science: on the formation of legal and intellectual space (jubilee highway)
The author places the legislation that regulated legal education and science in the Russian Empire and in the Soviet decades at the centre of the article. University statutes of the imperial period are interpreted as a cultural and historical phenomenon. The special role of Soviet party and state regulations in the training of legal personnel and the development of legal science is noted. The conjugation of significant anniversaries is shown – the 220th anniversary of Kazan University and the 90th anniversary of legal education in the Urals, mediated by legalizations of different natures. Attention is drawn to the importance of the intellectual transit «Kazan – Irkutsk – Sverdlovsk» for the history of the Ural State Law University named after V. F. Yakovlev. Elements of the university tradition indicate anniversaries and memorable dates of legislation, events, legal scholars, including participants in the named transit. A conclusion is drawn about the importance of museum tools and practices in the creative preservation and construction of the legal-university tradition.
Key words: university tradition, legal education and science, university statutes, Soviet party and state acts, anniversaries, intellectual transit, Kazan University, Irkutsk University, Sverdlovsk Law Institute, continuity