Annotations № 6 (159) / 2024

THEORY OF LAW AND STATE

Kashanina T. (Moscow) Legal regulation and legal impact: what is their relationship?

The article is devoted to the characterisation of the central category of the theory of law – «mechanism of legal regulation» (MPR), formulated in 1966 by S. S. Alekseev. It is noted that although the MPR has long entered the annals of legal science, there are still attempts to interpret it in a variety of ways. The reason for this, in the author’s opinion, is the confusion of the concepts of «legal regulation» and «legal impact». The meaning of these categories is clarified. The features of legal regulation and legal impact are considered. It is concluded that legal regulation is a «hard power» and legal impact is a «soft power» and only together they can ensure order in society.

Key words: mechanism of legal regulation, legal regulation, legal impact

PROBLEMS OF LEGAL SCIENCE AND EDUCATION

Kodan S. (Moscow) Legal historiography: general understanding, directions of research, interdisciplinary interactions

The purpose of the article is to record the current state of development of the historiographical trend in jurisprudence and to determine its prospects. The author, relying on the existing approaches to understanding historiography in socio-humanitarianism and his own works of historiographical nature, presents a generalised vision of historiographical processes in modern jurisprudence. The main attention is paid to the subject, objectives, tasks and functions of historiography in modern socio-humanitarianism and jurisprudence. The problem of positioning of historiographer in the system of historiographical knowledge is highlighted. The final plot is to identify the main problems of interdisciplinary interactions in historiography as a condition for the development of historiographic research in legal science.

Key words: socio-humanitarianism, historiography, legal science, legal historiography, directions of historiographic research, historiographic model, interdisciplinarity of historiography

Kuznetsov P. (Yekaterinburg) Information law and legal informatics: co-evolution of knowledge

The issues of the nature and joint development of knowledge in the field of information law and legal informatics are considered. The co-evolution of this knowledge is not yet complete. Legal informatics as an interdisciplinary branch of knowledge about the nature of legal information and the development of information processes in the field of legal activity is the basis for the formation of the phenomenon of machine-readable law. The new (digital) form of information determines the expansion of the possibilities of law associated with the new (digital) format of its implementation. The digital form of law can be presented as a modern form of existence of tangible and intangible objects of law, as an alternative opportunity to implement law.

Key words: information, digital information, legal informatics, cybernetics, information law, machine-readable law, digital law

COMPARATIVE JURISPRUDENCE

Aldgem B., Fedosov I. (Saint Petersburg) Implementation of Islamic law in the marriage and family legislation of Syria (on the example of marriage provisions)

The article is devoted to the integration of Islamic law into the family legislation of the Syrian Arab Republic using the example of the provisions of the Personal Status Law regulating marriage. The authors examine the interaction and complementarity of two legal systems – continental and Muslim – in terms of regulation of marriage and family relations in modern Syrian legislation. The provisions of the Personal Status Law are studied and commented on. Certain institutions of Islamic family law are considered in comparison with their analogues from European continental law. The authors trace the special role of Islamic law in the process of formation of modern family law in Syria.

Key words: Islamic law, family law, Islam, Syrian Arab Republic, Sharia, marriage, Middle East

CIVIL LAW AND PROCEDURE

Chistyakova Y. (Moscow) Range of subjects of the redomiciliation procedure in Russian law

The article considers the range of subjects taking part in the redomiciliation procedure, analyses the role of each of them. The differences in the range of subjects depending on the organisational and legal form of the redomiciled economic company are described. The expediency of assigning certain legal functions to the participants of the redomiciliation procedure is assessed.

Key words: redomiciliation, international companies, international funds, special administrative region, management company, registrar, nominee

Latyntsev A. (Moscow) Modernisation of legal mechanisms for the unlicensed use of foreign inventions without the consent of patent holders

The Russian patent legislation is overly loyal to the protection of the rights of foreign patent holders and does not use a number of legal mechanisms aimed at ensuring national technological sovereignty, allowed by international treaties and enshrined in the legislation of many Western European countries and BRICS countries. This issue is particularly acute for Russia in the context of unprecedented foreign sanctions and the refusal of many Western copyright holders to work in the Russian market. The article proposes a number of directions for the modernisation of Russian patent law in order to improve the legal framework for intensification of import substitution. Thus, it is proposed to use the criteria of accessibility of products, works and services in legal relations provided for in Article 1360 of the Civil Code of the Russian Federation, as well as to fix at the legislative level the procedure for the formation by profile executive authorities of the lists of results of intellectual activity not used or insufficiently used by the foreign patent holder in Russia, with the subsequent granting to the Russian organisations, corresponding to the established criteria and possessing necessary resources, the right to apply for the use of these results of intellectual activity without the consent of the patent holders, notifying them of this and paying a proportionate remuneration.

Key words: results of intellectual activity, inventions, utility models, industrial designs, unlicensed ways of using the results of intellectual activity without the consent of patent holders, technological sovereignty

Tereshchenko D. (Elista) On the essence of possession (theoretical and legal analysis)

The article is devoted to determining the place and role of the concept of «possession» in civil law. The existing options for answering the question of what is possession do not fully meet the needs of civil turnover, and still cause discussions among civilists. This situation hinders the introduction of the institution of possession into civil legislation. One of the main obstacles is the synonymous understanding of the concepts of «produced» and «derivative» used in civil law. This circumstance does not allow to adequately consider the content and dimension of the legal concepts of «possession as a fact» and «possession as a right». An extended theoretical approach to the interpretation of the concept of «possession» is proposed. The essence of possession is considered as an action (process, function). The author’s version of the understanding of the term «possession» is formulated, according to which possession as a fact is a characteristic of possession as an action, and possession as a right is a derivative from the process of possession.

Key words: possession, triad of owner’s powers, dimensionality of the concept, derivative characteristics of action

LABOUR AND SOCIAL LAW

Kurchenko O. (Omsk) Legal significance of the fact of orphanhood in the appointment of survivor’s pensions

Based on the analysis of Russian pension legislation, it is concluded that the loss of both parents by a child (orphanhood) is one of the grounds for differentiating the legal regulation of the survivor’s pension provision. The impossibility of assigning a survivor’s pension to an orphan child for each of the deceased parents makes it necessary to take into account the fact of the loss of both parents when determining the amount of a survivor’s pension of various types. The history of Russian pension legislation and an analysis of the current legal regulation of survivor’s pension provision relations show that the method of such accounting depends on the type of pension formula used by the legislator, and in relation to pensions awarded in the state pension system – on the specifics of a particular survivor’s pension. The study reveals that not all types of survivor’s pension are affected by the fact that a child has lost both parents. If the deceased parents belonged to different categories of citizens, the fact of orphanhood will probably not be taken into account when determining the amount of the survivor’s pension. The author concludes that it is necessary to improve the legal regulation of pension provision for the children of a serviceman who died as a result of a military injury, as well as the recalculation of survivor’s pensions due to the death of a second parent.

Key words: orphan, survivor’s pension, right to choose a pension, pension amount, differentiation of legal regulation, recalculation of pension

ECONOMICS AND LAW

Vinnitskiy A., Kharinov I. (Yekaterinburg) Identification and transformation of the legal status of the operator of integrated development of territories

The authors, based on the analysis of the latest urban planning legislation and the practice of its application, come to the conclusion that the decision on integrated development of territories (hereinafter – IDT) has a dual legal nature: on the one hand, it is a special legal act, on the other hand, it is a project management tool in the field of urban planning activities. The organisation – IDT operator is endowed with a special legal status based on the decision on IDT, and the scope of rights and obligations of such an organisation should remain unchanged regardless of the adjustment of urban planning documentation or urban planning legislation as a whole. The authors conclude that legal entities duly determined by the Russian Federation or its subject in decisions on IDT adopted before 1 January 2024 are considered to be IDT operators without the need to adopt additional legal documents confirming this. The article examines cases when, based on decisions on IDT adopted before 1 January 2024, other persons (developers) were previously involved in their implementation. The consequences are differentiated depending on the basis on which «investors» were involved – competitive or non-competitive.

Key words: integrated development of territories (IDT), IDT operator, decision on IDT, normative legal act, project management, legal status of the organisation, effect of the law in time, ongoing legal relations

Butakova Ia. (Moscow) Corporate ways to protect shareholders under sanctions restrictions

International economic sanctions have a significant impact on the implementation of corporate rights, corporate governance and corporate relations of Russian companies with the majority shareholder. The purpose of the article is to form practical recommendations for the protection of corporate shareholders’ rights in the context of the modern sanctions landscape, as well as to analyse the existing protection mechanisms and their adaptation to new legal and political realities. The author focuses on the protection of the rights of majority shareholders and shareholders who actually exercise control and ownership of the company. The author examines new corporate ownership schemes of a holding company associated with a decrease in the share of ownership of the sub-sanctioned shareholder, and also suggests using a corporate agreement to minimise sanctions risks. Attention is drawn to the fact that there is no universal definition of modern international economic sanctions in science and there is no consensus on their relationship with other institutions of international law. The author offers her own definition of this concept.

Key words: international economic sanctions, sanctions, unilateral restrictive measures, corporate legal relations, corporate rights, shareholders, majority shareholder

PAGES OF HISTORY

Belousova M. (Moscow) On the sources of the reform of subject matter jurisdiction of the Russian Orthodox Church in 1722

The article deals with the question about the sources of the reform on the reduction of the jurisdiction of the Russian Orthodox Church over laity affairs, carried out by Peter the Great in 1722. Based on the study of archival materials and Swedish church legislation (up to the XVIII century), the author concludes that the presence of Swedish influence on the church-judicial reform of 1722 is unproven. It is hypothesised that this reform was not originally conceived by the emperor as a transformation, but consisted in reproducing the norms of the Ecclesiastical Regulations (1721) and its Addendum (1722) in the resolutions on the report items of the Holy Synod of 12 April 1722. The author concludes that the actual limitation of jurisdiction was due to the omission in the drafting of the resolutions of the norm of the Ecclesiastical Regulations on the jurisdiction of the Holy Synod over all those cases that had previously belonged to the office of the patriarch.

Key words: ecclesiastical court, Peter the Great, Sweden, ecclesiastical law, the Holy Synod

Zhabreev M. (Yekaterinburg) Nationalisation of enterprises (1917–1921): ideological basis, features of realization, legal regulation

The article examines the ideological foundations of the ongoing nationalisation in Soviet Russia, which is based on the idealistic idea of the Bolsheviks about the possibility of achieving social justice by seizing the means of production from the owners with the subsequent redistribution of income in favour of the working people. The author conducts a comparative analysis of the initial plans of the Bolsheviks regarding the upcoming nationalisation and the actual measures during the nationalisation in the Soviet state. The legal regulation of nationalisation, which consisted in giving legitimacy to gratuitous and unlimited seizure of enterprises from wealthy strata of the population, is examined.

Key words: ideological basis for the nationalisation of enterprises in Soviet Russia, features of nationalisation, legal regulation of nationalisation

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N., Kalinina A. (Yekaterinburg) Law and museum laboratory practicum: evolution, values, prospects

The article considers the potential of the law school museum in working with novice researchers, primarily university students. In the context of the developing multitasking of the museum as a historical and cultural phenomenon and a modern cultural institution, special attention is paid to its cultural and educational activities and museum and pedagogical meanings. The authors show the research interest to university museums and note their diversity, but at the same time the similarity of their functions, as well as the importance for different areas of university work – educational, research, youth, career guidance, image, etc. A variety of museum and museum-pedagogical practices due to the diversity of university museums is indicated. The article describes the legal and museum practices developing at the Ural State Law University named after V. F. Yakovlev and their significance for the formation of values of a future lawyer. Attention is drawn to the circle form of research work of students (undergraduates, postgraduates), as well as other museum practices, including those promoting issues of the evolution of legal education and science, continuity, intellectual transits (transfers), and the history of a particular law school. Retreat classes in museums, libraries, archival institutions of the city are shown as a perspective for the development of legal and museum workshops and practice-oriented training of lawyers.

Key words: museum, law and university museum, cultural and educational activities, museum pedagogy, law and museum workshop, student scientific society, intellectual transit, formation of a lawyer’s professional personality, retreat classes

STUDENTS’ BULLETIN

Akmanov D. (Moscow) The right of the pledgee to challenge transactions on the alienation of pledged property carried out without his consent by the pledgor: substantive and procedural aspects

The article analyses the question of whether the pledgee should be recognised as having the right to challenge transactions on alienation of pledged property by the pledgor. The author assesses whether this right corresponds to the nature of pledge, including its inherent property of succession. It is noted that, as a general rule, endowing a pledge with the property of succession relieves the pledgee from the need to restitute the pledged property from any third parties who acquired such property in favour of the original pledgee. Taking into account the methods of protecting the rights of pledgees provided for by law, the practice of consideration by courts of cases on contesting by pledgees of transactions on alienation of pledged property, the peculiarities of transactions with immovable property, it is concluded that it is inexpedient to give the pledgee of property (both movable and immovable) the right to demand recognition of a transaction on alienation of pledged property as invalid if it was made in violation of the rules established by law. It is substantiated that the pledgee cannot be restricted in the right to bring the relevant claims, because otherwise it would indicate an unjustified restriction of its right to judicial protection.

Key words: pledge, property of succession, method of protecting civil rights, right to sue, civil procedural capacity, invalidation of the transaction

Shugulbaeva A. (Moscow) A new approach to the arbitration as a subject of justice

Due to the new stage of development and popularisation of arbitration, it is necessary to study arbitration proceedings as a subject of justice. The purpose of the article is to determine whether the arbitral tribunal exercises justice, taking into account the existing constitutional and legal position, legislation provisions and trends in practice. The author analyses the principles of arbitration and justice and refutes the ideas about the inability of arbitrators to carry out justice. It is concluded that the difference between the principles of justice and arbitration is not essential and is levelled by the fact that arbitration corresponds to the main feature of justice – a fair procedural form. However, the fairness of arbitration proceedings should not be measured by the hallmarks of fairness in a state court – in arbitration, what matters most is the trust of society and the parties to the dispute in the procedure.

Key words: principles of justice, principles of arbitration, procedural form of justice, arbitration