Showing papers in "Lex Russica in 2023"

A Digital Ruble: A Civilist’s View of the Problem

Abstract: Testing of a digital ruble platform conducted by the Bank of Russia actualizes the problem of determining the legal nature of a digital ruble and features of its civil law regime. Based on fundamental provisions of the civil law doctrine, the author explores an economic concept of the digital ruble presented by the Central Bank of the Russian Federation; from a civilistic standpoint, the author examines the relationship between the concepts of «digital ruble», «digital money», «currency», «cryptocurrency», «digital financial asset». The paper justifies the fallacy of legal judgments in the interpretation of the digital ruble as a new form of money — as a form of the ruble and as a form of the Russian national currency. Comparing provisions of the Concept with the prescriptions concerning digital currency under Federal Law No. 259-FZ dated 31 July 2020, the author substantiates a number of conclusions: the digital ruble exists in a special material form as digits and other signs on a special material carrier — special computer systems controlled by special programs in the form of a digital platform; in the legal sense, digital rubles mean digital non-cash funds — rights of claim arising on the basis of an agreement for opening and maintaining a digital wallet and acting as an element of the content of the legal relationship between the bank and the customer — a holder of a digital wallet for cashless settlements. The approach proposed by the Bank of Russia to introduce the digital ruble into property circulation has much in common with the model of settlements implemented in practice using electronic wallets and prepaid smart cards. The digital ruble as a non-cash monetary means (in digital form) acts as a property (obligation) right and falls under the civil law qualification of a digital right and its varieties.

Legal Status of Decentralized Finance: Towards the Articulation of Issue

Abstract: The paper discusses the issues of legal regulation of decentralized financial services (DeFi). The purpose of the work is to form a systematic understanding of the direction and scope in which they can be regulated based on the DeFi technological features and the nature of the relationships that arise between digital platforms and their users.The methodological basis of the study is determined by the range of tasks and is focused on the analysis of decentralized finance simultaneously in technological, socio-cultural, political and legal aspects. Structural functional, taxonomic, constructive, situational, innovative, targeted and program-targeted methods form the complexity of the study. Taken together, they allowed us to study DeFi in their systemic unity and formulate the following conclusion. Decentralized finance is an independent model of finance organization both in terms of a set of technical characteristics (the use of distributed registry technology, smart contract protocols, oracles, etc.) and in terms of the nature of relations between the parties (horizontal P2P communications). The identified features allow us to consider them as a separate object of legal regulation. At the same time, it is important to take into account that the matrix of DeFi regulation at the national and international levels should be built in accordance with their taxonomy and assume simultaneous balanced consideration of technological features and product affiliation of services. The legal regulation of decentralized finance in the Russian Federation should primarily be focused on minimizing the risks associated with user identification, as well as determining the legal status of decentralized autonomous societies (DAOs), organizing centralized examination of protocols and preventing cyber attacks.

Qualification of Embezzlement Involving Bribery

Abstract: The paper analyzes the qualification procedure for obtaining illegal property benefits by officials through the use of their powers or office. Performing administrative and economic functions in relation to the entrusted property, the perpetrators pay for work that has not been completed or has not been completed in full, for undelivered goods, unproven services, or they steal funds and property of organizations. The author focuses on cases when the listed crimes are committed in conjunction with a bribe. The paper explores contradictory court practice of considering cases of embezzlement and bribery committed by officials. The author determines the rules for qualifying «official embezzlement» involving bribery, clarifies complex issues of interrelationship between embezzlement and appropriation of other people’s property, and explains the distinction between the crime provided for in Article 160 of the Criminal Code of the Russian Federation and fraud. In particular, the author justifies the possibility of receiving a bribe by an official at the expense of a part of the property stolen by him earlier, and explains the absence of signs of bribery in cases when the person to whom the embezzled funds were transferred was not interested in the embezzlement committed by the official. Actual examples from judicial practice show that a bribe can be received not for any embezzlement committed by an official misusing his office, but only if it would be implemented in abuse of administrative and economic powers. The paper argues the author’s opinion regarding the possibility of an official receiving a bribe for complicity in fraud.

Features of the Model of Control and Supervisory Activities in the Context of Public Administration Development Mechanisms in Russia: Constitutional Law Context

Abstract: The analysis made it possible to identify a number of current features of the Russian model of control and supervisory activities that are significant in the context of constitutional law. The first involves building a modern domestic model of control and supervisory activities based on a fully updated legislative foundation. The second includes the focus on the full-fledged formation of the service and partner model of control and supervisory activities (in fact, it acts as generic feature defining the meaning and having value-semantic, axiological significance and explained through a whole group of interrelated features of the Russian model of regulation and development of control and supervisory activities). The third means expanding the use of a risk-based approach as one of central principles of organization of control and supervisory activities (a full-fledged interested feedback from business and the expert community constitutes an invaluable tool in determining risks). The fourth refers to the focus on the priority of a preventive approach in implementation of control and supervisory activities (non-responding to the damage caused, but a proactive position, expressed in ensuring prevention of any possible damage to protected values; it serves as a priority and deserves further development of mechanisms facilitating its broad implementation). The fifth means active digitalization of control and supervisory activities and ensuring openness (accessibility) of information. The sixth involves constant focus on the introduction of new technologies and approaches to organizing control and supervisory activities. The author demonstrates a number of important steps that are advisable to encourage positive development of the features of the domestic model. It is emphasized that at the new stage of the reform of state control (supervision) and municipal control, development of new scientifically and practically grounded approaches to the implementation of specific mechanisms and tools that will result in uncovering the potential of the partner and service model of control and supervisory activities in the Russian Federation will be in great demand.

Difficulties in Principle of Good Faith Implementation in the Conditions of Digitalization of Civil Turnover

Abstract: The author examines the essence, features of implementation, and prospects of transformation of the content of the good faith principle in connection with the need to regulate civil relations in the digital environment. In particular, based on historical and doctrinal aspects, the author concludes that the good faith principles appliesin the context of current legislation. The author claims that this category is a principle of civil law, despite the doubts of some researchers. At the same time, conscientiousness is the most important evaluation category of domestic civil law, elevated to the rank of the basic principles of civil legislation. Based on the results of consideration of individual model and real-world examples from practice, the author concludes that good faith remains an actual and necessary tool that can be used both in legislative and law enforcement activities when solving legal problems of legal regulation of relations related to the use of digital technologies. In this case, some specific features of the principle of good faith may be identified. They are in particular as follow. There is an increase in the standard of providing information to the counterparty (in relations in the digital environment, the requirements for necessary information, as well as its content, become higher). In the future, it is possible to tighten the consequences for failure to provide information in the context of paragraph 3 of Article 307 of the Civil Code of the Russian Federation (clearly that some information can not be reported during a «live» interaction, for example, about obvious shortcomings of the product. However, the situation is different in the online space. It is necessary to consider the site interface as a circumstance affecting the assessment of conscientiousness of behavior (in this regard, font, colors, distractions are subject to evaluation).

The Legal Innovation Theory and Legal Education

Abstract: Law, being determined by social changes, undergoes significant changes. The scale of social transformation gives grounds to assume that a new taxonomy of law is being established. This includes changes in the legal profession, significant transformation of the demand of the state and industry in terms of the knowledge and competences of a modern lawyer. Accordingly, this increases responsibility of legal educational institutions and law faculties for training lawyers. The paper attempts to form an understanding of legal innovation and legal innovation theory, to highlight the subject matter and methodological areas of legal innovation formation. In particular, the legal innovation theory is defined by the author as an interdisciplinary field of knowledge about the processes of emergence, implementation and administration of innovations in jurisprudence. At the same time, the subject-legal component of the legal innovation theory lies at the level of legal understanding, where comprehension and rethinking of what is the law of the 21st century is taking place. In turn, legal innovation actually constitutes legitimization of social or scientific and technological innovation, incorporation of a new normative structure (institution) that qualitatively transforms regulation of emerging or predicted social relations into the field of law. The study of legal innovations, being a subject area of the legal innovation theory, involves conceptualization of knowledge about innovation process in law and its administration, as well as the study of the transformation of the law itself and the legal profession, since legal innovations create a demand for new knowledge and competences for lawyers. Based on the achievements of the theory of the pedagogical innovation theory, the paper outlines methodological approaches to building a new model of legal education in conjunction of the content component, new teaching methods, formats of the educational process, logistics of the educational process that influence the formation and implementation of legal innovations. Some approaches have been put into practice at Kutafin Moscow State Law University (MSAL) and their application can be extended.

From Fantastic Theories to Objective Reality: Is there Future for Artificial Intelligence and Predictive Technologies in Administration of Criminal Justice?

Abstract: Digitalization of various spheres of public relations, including their legal regulation, has recently become the talk of the town. More than a dozen works, many of which are of a rather fundamental nature, address the problems of digital development of law in general and criminal procedure in particular. However, it is difficult to deny that the issues of the influence of artificial intelligence on the development of justice have become the subject of widespread discussion relatively recently. As for predictive technologies, in comparison with foreign countries, there are many times fewer works of Russian legal researchers studying the issues under consideration. Basically, the legal personality of artificial intelligence is perceived as something negative, although it would be wrong to completely deny the idea of gradual penetration of this high technology into legal reality. The study attempts to participate in the discussion concerning admissibility of the use of predictive technologies and artificial intelligence in the administration of justice in criminal cases.The paper substantiates the thesis that rapid digitalization in the field of criminal justice should not go against implementation of the citizens’ right to access justice, but should serve as an important means of achieving transparency of the criminal process.Based on the basic postulates of the construction of the Russian criminal process, the author critically comprehends the place of artificial intelligence and predictive technologies from the standpoint of auxiliary elements or a fullfledged replacement of a human judge, discusses the search for an optimal balance of their application in order to improve the quality of justice in criminal cases. Despite certain conservatism of the criminal process and the seeming surrealism of thinking about full-fledged coexistence of criminal justice with predictive technologies and artificial intelligence, the author considers this direction to be very promising, requiring further study and reflection for the benefit of human development, society and the state.

Main Approaches to «Public Power» Definition in Public Law (State Law) Doctrines

Abstract: The paper is devoted to examination of the main approaches to the definition of the concept of «public power» that has developed in the theory of state and law, in constitutional and administrative law. The analysis of theoretical and legal views allowed the author to conclude that public power in the theory of state and law is defined as an institutionalized legal social power supported by the force of coercion and exercised within a certain territory or social community. General theoretical conclusions and provisions have been developed in public law (state law) studies. The Russian theory of constitutional law is dominated by the concept of public power as the people’s power, according to which all power in the Russian Federation belongs to its multinational people. In addition, in constitutional law, a systematic approach to the definition of the concept of «public power» is widespread. As a rule, the systematic approach distinguishes three types (forms, levels) of public power: direct public power (direct democracy, public power), state power, municipal power. In administrative law, the research of public power has not been as widespread as in constitutional law. At the same time, the analysis of scientific sources allowed the author to single out institutional (public power is viewed through the prism of government bodies) and functional (public power as a set of functions and powers of government bodies and organizations endowed with state authority) approaches as the main approaches. The author concludes that regardless of the initial positions used by various public law doctrines the basic properties of public power include legitimacy, complexity, institutionality, functionality.

Lawmaking in the Republic of Crimea: The Current State and Prospects

Abstract: The paper examines the issue of the lawmaking development in the Republic of Crimea as a subsystem of lawmaking in the Russian Federation in modern conditions. The author analyzes historical stages of development of the Crimea legislation from the 1991 Referendum to the adoption of the new Constitution of the Republic of Crimea in 2014 and the factors contributing to the effectiveness of lawmaking technologies.Using the methods of synthesis and comparison, as well as the formal legal method, the author identifies two models of development of lawmaking in the constituent entities of the Russian Federation. The author draws attention to the rule-making policy in the regions and determines the role of the RF Constitutional Court decisions in improving regional legislation.From the standpoint of the theory of organization, the author considers lawmaking as a higher stage of development of lawmaking activity and a peculiar form of legal activity. Considerable attention is paid to the study of the concepts of interaction between lawmaking systems of the Republic of Crimea and the Russian Federation.Lawmaking in the constituent entities of the Russian Federation is an integral part of the unified law-forming process of the federal State. The Republic of Crimea, like other constituent entities of Russia, is endowed with lawmaking competence. At the same time, regional lawmaking should be a logical continuation of the federal one with due regard to regional peculiarities. And in no case it can confuse, complicate, contradict, duplicate federal rule-making.

The Concept of Crimes against Digital Data Security

Abstract: In the theory of criminal law, there are many approaches to understanding the concept and content of computer crimes. Some authors adhere to a strictly normative approach, using the term «crimes in the field of computer information» and referring to this category of acts provided for by Chapter 28 of the Criminal Code of the Russian Federation. Other authors operate with concepts «computer crimes,» «information crimes,» «cybercrimes,» «crimes in the field of high technologies,» «Internet crimes,» etc. The paper also presents an analysis of foreign regulations, demonstrating a significant difference in the directions of regulating criminal liability for computer crimes. The lack of a uniform approach creates obstacles to effective scientific and legislative activity. The author attempts to develop the most comprehensive and accurate definition covering crimes related to the use of computer technology. The author proves that the term «computer» is outdated and requires replacement, as the term «electronic computing machine» previously used in the criminal law. Recent changes in various branches of law are characterized by the use of the adjective «digital,» which is applicable to criminal law. Starting from the concept of digital information that was earlier developed by legal scholars the author proposes a new definition covering crimes related to the use of computer technology. When forming a definition, the author, first, takes into account the object of encroachment, and as additional features — tools, means or method of committing an act. According to the results of the study, the author gives the concept of crimes against the security of digital information — these are socially dangerous acts that cause harm or put in danger of harming the state of security of the processes of searching, collecting, storing, processing, providing, distributing digital information committed using information and telecommunications technologies or violating the rules of their use.

Failed Technological Revolution in Contract Law: Apologetics of the Contract Traditionalist Interpretation

Abstract: Technodeterminism determines the main task for civil law when solving issues related to blockchain technologies and smart contracts. This task is connected with the search for answers to the question of the need to amend civil legislation in order to adapt it to new technological challenges or about the possibility of effective application of existing legal norms to the regulation of innovative civil relations.In the doctrine, there is a hypertrophied attitude towards blockchain and smart contract technologies. The standing exists that due to smart contracts, trust in people is replaced by trust in the code. Eschatological predictions were made about the beginning of the end of classical contract law, about emergance of «contract law 2.0». The paper states that the digital code will not be able to replace reality in the field of contractual relations. The revolution in contract law has not happened. Instead of the «revolutionary path» highlighted by some authors, there is a gradual evolutionary development of ideas about a civil contract. The civilistic doctrine has responded to technological challenges by becoming rhizomorphic in its interdisciplinarity, trying to comprehend the legal phenomena associated with the digitalization of public relations.The «ideological core» of the civil doctrine, the «core» of the concept of the contract, remained untouchable. A legal smart contract has remained a speculative phenomenon from a parallel reality, a simulacrum. The Russian and foreign doctrines are dominated by the traditional interpretation of a civil contract, since the concept of a legal smart contract is not able to solve the problem of its incompleteness. From the perspective of futurological perspective, it can be assumed that the traditional approach to the contract will retain its significance, and the digital code will have only an auxiliary, servicing value for the contract.

The Concept of Possession in Civil Law

Abstract: Possession constitutes a complicated phenomenon of civil law to understand, which leads to numerous studies of its legal nature. Possession has a long history, during which its contents have been transformed. The author analyzed the difference in the content of possession using the civil legislation of Germany, France, Italy, Switzerland, Austria and Spain as cases for the study. The ambiguity of the concept of possession leads to the situation when in the doctrine this term is used to describe phenomena that do not relate to possession as an institution of property law. Thus, scholars often use the term «possession» in relation to digital assets, tokens, etc., when researching and describing concepts related to the digitalization of civil turnover. The author substantiates the impossibility of using the terminology of property law to digital objects. The paper analyzes the significance of transfer of possession during the transfer of ownership under the contract of sale and in the event of possession arising under a works contract. The conclusion is formulated according to which possession can be associated only with physical entities and it is inherent exclusively to the legal regime of things, but not other objects of civil rights. The concept of bona fide prescription possession is formulated and a conclusion is made about its legal nature. The author highlights and argues the point of view according to which the doctrinal classification of possession, depending on the type of thing (movable or immovable), into ordinary and «bookish» for the purposes of differentiating ways of its protection is controversial. Attention is drawn to the fact that possession can act as a fact and as a right. At the same time, as a legal fact, possession must be differentiated for the purposes of protecting the interests of the authorized party.

Application of the Principle of Legal Certainty to Legal Relations in the field of Customs by the Court of Justice of the European Union and the Court of the Eurasian Economic Union

Abstract: The principle of legal certainty, according to which the established rules should allow interested parties to clearly understand the scope of the obligations imposed on them, has found wide application in the practice of the Court of Justice of the European Union (CJEU) and the Court of the Eurasian Economic Union (EAEU Court) on customs legal relations. The CJEU and the EAEU Court not only use this principle as an additional method of argumentation, but also as an independent basis for monitoring the legality of secondary law acts adopted by the bodies of these integration associations. As the analysis of the practice of the CJEU shows, this principle has two main aspects: material, expressed in the requirement of clarity of the act, and temporal, associated primarily with the prohibition of retroactive effect of the EU act. At the same time, within the framework of the material aspect, the EU Court draws attention not only to the absence of internal contradictions in the act, but also to compliance with the requirement to publish the act and to indicate the legal framework. In the practice of the EAEU Court (and earlier the EurAsEC Court) on customs legal relations, compliance with the principle of legal certainty is checked in terms of clarity and consistency of the Commission’s decisions. As the practice of the EAEU Court devoted to the classification of certain types of goods shows, a violation of these requirements may be a consequence of both the confusion in the content of one classification decision of classification features characteristic of different commodity items, and the absence in the classification decision of the necessary classification features that allow distinguishing the goods subject to classification in different commodity items. In these cases, non-compliance with the requirement of legal certainty serves as an unconditional basis for recognizing the Commission’s decisions as inconsistent with the law of the Union.

Prospects for the Introduction of Criminal Misconduct into Domestic Criminal Legislation. Draft Laws of the Supreme Court of the Russian Federation

Abstract: In the light of doctrinal discussions regarding the expediency of supplementing domestic criminal legislation with the category «criminal offense», the paper examines the legislative initiatives of the Supreme Court of the Russian Federation in 2018 and 2021. The author records both the revision of the original draft law and the unresolved nature of a number of significant issues. These include the ratio of criminal misconduct and insignificance; the totality of the commission of a crime by a person and a criminal offense; the legal assessment of the commission of acts by a person, a number of which (or all) the relationship between the circumstances of exemption from criminal liability in connection with the application of other measures of a criminal nature (due to the recognition of the act as a criminal offense) and other circumstances of exemption from criminal liability (for example, in connection with active repentance or reconciliation with the victim). It is argued that a thorough revision of the list of criminal offenses is necessary. Specific practical recommendations are formulated for its formation by not only classifying crimes as such, but also by criminalizing common administrative offenses (as an example, data on the number of persons brought to administrative responsibility under Articles 6.1.1 (beatings) and 7.27 (petty theft) of the Administrative Code of the Russian Federation are given). The author speaks about the expediency of including the institution of criminal offenses in the domestic legal system due to the predominance of the expected positive effect and the debatable nature of a number of arguments against the introduction of criminal misconduct (rejection of the concept of a «small but tough» criminal law; blurring the boundaries between crimes and offenses; leveling the difference between punishment and other measures of a criminal nature, etc.).

Rights, Not «To» but «Of» the Nature: Legal Deal with Meal

Abstract: The dilemma that human-beings are in is that; while they are aware that the sustainment of their own living fully depends on the sustainment of the natural-beings’ living, on the one hand, they also want to use (usus), exploit (fructus), and even abuse (abusus) them, on the other. This dilemma has emerged after the viewing of the natural-beings as «resources» has proved that they are not endless by causing the extinction of many of them. It is an undeniable fact that natural-beings are the only sources for the sustainability of all beings’ life. However; this, by no means, means that they can be used, exploited, and abused as one wishes. For, there is a miraculous circulation in nature that can be summarized as the «butterfly effect»: The planet we live on is like a closed circuit; that is, no being vanishes but just rots, dissolves and transforms into another being. Let’s take a look at the water: it drops from a cloud onto the earth in its pure form; it forms the rivers, lakes, seas, and oceans; it is absorbed by the soil; after being absorbed from there by a plant, via the roots thereof, it is mixed up with other chemicals therein and been stored thereby in the form of a fruit appetizing for animals and humanbeings; it turns into the blood after being digested in these beings’ bodies; it travels through the veins within their bodies; it returns back to the nature through the excretion and sweating processes or their burial upon the death of these beings; from where it evaporates to form another cloud. Let’s take a look at the oxygen: it exists in, in addition to the air, all the places mentioned above wherein exists the water, of which it is a component, together with a pair of hydrogens — which is such a miraculous composition: a couple of flammable gas together with a burner gas, instead of creating a fire, creates a fire-extinguisher liquid-; it flies all around along with other gases; as a result of being inhaled by animal and human-beings at all-times and by plants only at night-times, it couples with another oxygen and one carbon and turns into a carbon-dioxide; returns back to its original form as a result of the photosynthesis process of plants during daytime.Therefore; the soil formed by minerals and organic materials, the Sun, the air, and the water, all together make the living of plants, animals, and human-beings possible. Plants make it possible for almost all animals and humanbeings to live, and animals make it possible for most human-beings and some plants to live. These two naturalliving-beings, besides water, should be consumed as the only source of food for the continuation of human life. The exact same particles in these beings, just in the same way they have been doing so since the beginning of time, do also compose the bodies of human-beings that consume them by eating and drinking; and they will again transform back to their original states in order to form a new corpse that will host a new soul after the death of these human-beings too.The natural-beings that we now see in their form of the meal are only unvanishable in their particle form as clearly seen in the extinct-natural-living-beings’ case of both plants and animals. This reality brings us to the conclusion that; we must protect them, i.e., stop destroying them, at least for our own sake. The mostly used legal tool for this protection is a punishment-based method, in which the foreseen actions are prohibited as a rule by the legislator, and those who violate them are punished with the penalties prescribed by the courts. Two of the most important shortcomings of this method are to impose sanctions on unforeseen acts and to ensure that the foreseen sanctions serve to compensate the damaged natural-beings. There is an alternative method, that is in use in a few countries, fulfilling the above-mentioned shortcomings: attributing legal personality to natural-beings. According to this; first, an action may be brought for compensation for damage to a natural-being, whether foreseen by the legislator or not; secondly, the court considers the actual damage done to the naturalbeing instead of a predetermined fixed amount as in the case of a fine; thirdly, the compensation determined by the court serves to compensate the damages of the natural-being. Such a change of perspective towards them would make a huge difference in simplifying and effectuating their protection method.In this paper, we will examine a new legal personality status, which we define as «legal deal with the meal» by analogy with «social contract», under the name of «natural personality», which will enable natural-beings to have their own rights.

Behavioral Finance in the Digital Economy

Abstract: The paper reveals the essence of «behavioral finance»: it is a field of scientific knowledge that studies the influence of emotions, cognitive biases and social factors on financial decision-making. Behavior is an approach to the interaction of a person with the outside world. It is obvious that the study of behavior lies more in the plane of biology, physiology and psychology than in jurisprudence. At the same time, it should be understood that it is the behavior of legal entities that affects public relations, which, in turn, are regulated by the norms of law. The paper reveals the factors influencing the behavior of consumers of financial services in the digital economy. In particular, it is indicated that people have fundamentally different attitudes towards cash and monetary funds that are not expressed in cash (non-cash, electronic and digital). In this context specifically, it is necessary to note the general information background associated with blockchain technology. Thanks to the media and against the background of the success of bitcoin and a number of altcoins, at some point in society there was an opinion that investing in cryptocurrencies (and later in NFTs) is more profitable than investing in traditional financial instruments. All of the above leads to the fact that a citizen who is motivated to earn easy money, but does not have the necessary knowledge, loses money as a result of unsuccessful investments in the financial market, and often simply becomes a victim of fraud. The paper highlights the problem of the practical use of behavioral finance in the framework of legal regulation of public relations emerging in the financial market. At the same time, the Bank of Russia evaluates, however limited, behavioral aspects in the process of supervision of the financial market.

Homo Juridicus, a Legalized Society and the State in the Naturalness of Legal Reality. Review of the Study by P. P. Serkov: «Legal relationship. (Theory and Practice of Modern Legal Policy)». Moscow: Norma, 2023

Abstract: According to its content, the new study presented by Professor P. P. Serkov goes far beyond its formal title, which means the focus on the place of legal relations in legal policy.Like the ancient Roman commander Cato the Elder, who ended all his speeches in the Senate with the same phrase dedicated to the sad fate of Carthage, Professor P. P. Serkov ends any lengthy discussions about law, legal relations, legal policy, legal ideology, legal socialization, legal principles, morality, religion in one way or another with a conclusion about the effect of what appeared, in his opinion, in the pre-state era, the principle of equivalence, parity of subjective rights and obligations, which was justified in previous works.The main features of legal research are the involvement of the methodology of other sciences (philosophy, political science and psychology), as well as the fact that legal policy, positive law around the world are evaluated («law sleeps») not directly, but indirectly--through an appeal to legal theory, which is criticized for focusing on the «artificiality of law».The review of the original research draws attention to the extremes and contradictions in the author’s positions. In its constructive provisions, it fills both legal science and political science with new knowledge, justifying the need to reduce the inevitable distance between politics and law by taking into account the mechanisms of the emergence, development and completion of legal relations. In its polemical part, the monograph rightly warns legal science about the danger of moving in a circle, about the need for an adequate perception of the reality of being based on the achievements of other sciences to increase its efficiency.

Changing the Paradigm of Environmental Law in a New Reality

Abstract: This paper is an attempt to build a different paradigm of environmental law in the conditions of the planetary transformation of the Earth in the context of such civilizational paradigms as archaic — modern — postmodern — supermodern with the transition to the sixth technological order. These realities require both traditional and innovative legal regulation. The spectrum of transformations includes the initial parameters of the current order, the hierarchy of structures and the dynamics of their interaction, the level of fluctuation and bifurcation vectors, as well as attractors for exiting the turbulence zone. In order to answer these questions, the authors monitor previous and current environmental and historical trends in the world and the goal setting of what we are building in response to the challenges of the future on the basis of expanding interdisciplinary horizons, a systematic approach, a new range of methodologies and conceptual and categorical apparatus. Through the method of multidimensional didactics, legal topics are associatively connected to the consonant tasks of other subject areas with logical structuring and analysis of isomorphic meanings and semantic models for optimal synthesis of the developed legal systems with ensuring their applied effectiveness and practical application options. Interdisciplinary registers make it possible to build a new ecological and legal doctrine with the correction of the mutual importance of man and nature in the conditions of the global collapse of the capitalist system, based on impoverished natural resources and an increasing ecological catastrophe. Since it is necessary to go to the capital coordinates of the living cosmos for earthly problems to be solved, the «reasonable man» has completed a purely earthly cycle of evolution and must position himself as a «Universal Man» with access to a new ecological political and legal paradigm. These should include formulas (semantic images), integrals (keys of wholeness) and algorithms (methods of action, ways achievements) rule-making matrices.

Some Civil Law Concepts of Non‑Pecuniary Harm in Europe

Abstract: The article is aimed at comparing different concepts of individual right protection. The author dwells on two theories of claims for moral harm. They are the rebuttable presumption relied on in the EU, and the need to provide evidence of harm under Russian law. In addition to reviewing several doctrinal works, higher courts rulings and the European views on the topic, the author focuses on the question of the relationship between moral and reputational harm, noting here that not all of the identified doctrinal concepts correspond to strict legislative terminology. For example, information injurious to honor, dignity, or business reputation may not cause harm (save for moral harm) but is associated with the occurrence of damages. It seems to be the first work advocating the thesis that damages can be recovered instead of non-pecuniary harm. The Russian tort law concept bares some features of Soviet tradition with strict division between reimbursement of harm and recovery of losses. It was allowed only when reimbursement in kind grew impossible. That was later transferred on to judicial discretion to determine the right means of legal protection. The formula that recovery of losses is a substitute of compensation of any harm had been set forth in Civil Code serving as a legal basis to sue for losses in lieu of moral damage.

The Supreme Court of the RSFSR as a Court of First Instance

Abstract: The establishment of the Supreme Court of the RSFSR is connected with the unification of the judicial system, the renewal of the legal system and the first codification of republican legislation, due to the proclamation of a new economic policy and strict implementation of the principle of legality in all spheres of public life. In this regard, the Supreme Court of the RSFSR was entrusted with the most important function of ensuring the implementation of the principle of legality in the law enforcement activities of the republican courts. It was implemented through the consideration of cases by way of appeal in cassation and review of cases in a supervisory manner, through judicial explanations, interpretation of law, as well as a result of the reclamation of any cases that are in the proceedings of other courts of the Republic. The paper examines the little-studied practice of the Supreme Court of the RSFSR as a court of first instance. The material and procedural law of the Soviet period is analyzed to determine the categories of cases within the jurisdiction of the Supreme Court of the RSFSR in the first instance. The first procedural codes (Civil Procedure and Criminal Procedure of 1923) outlined the judicial activity of the Supreme Court of the RSFSR as the first instance in both civil and criminal cases. In this regard, it is stated both the generic jurisdiction of cases, due, in particular, to counter-revolutionary, economic or official crimes, and exceptional, determined by cases of national importance. In the future, during the period of updating legislation dictated by the new codification of law, only exclusive jurisdiction is noted in the activities of the Supreme Court of the RSFSR, predetermined by cases of special complexity or special social significance, including those related to encroachment on state and ideological interests. The political resonance that accompanied the consideration of such cases ensured the achievement of the preventive goal of the «show trial».

Genesis of Harm and Losses in Civil Law Doctrine. The Factor of European Science

Abstract: The works of the first Russian jurists on the problem of compensation for damages in civil law are not sufficiently used in scientific works on this topic. This article can fill in the gaps and be of interest to specialists in this field of research. The author has studied and compared the main works on civil law compensation published before the revolution of 1917. It was found that the science of civil law has moved away from the consideration of universal claims for damages as a remedy and focused on the interpretation of damages as a sanction for an offense. Modern authors repeat the four-level structure of consideration of compensation cases adopted and developed in the Soviet period and the influence of the following conditions: illegality, causality, guilt, proven material damage, lost profit. The author comes to the conclusion that it is necessary to return to the ideas that existed before the Russian Revolution and use them to improve the existing theory of compensation for damages and losses.Russian pre-Soviet civil law initially proceeded from the concept of responsibility only for behavior, since the category of «illegal actions» was introduced in Article 684 of the Code of Laws of the Russian Empire. Due to the developing industry, separate laws provided for payment as the equivalent of property losses for any material damage from dangerous activities, that is, for the materialized risk. In the Draft civil code of the Russian Empire, branched norms on responsibility for lawful actions appeared. A proper scientific generalization of this approach and phenomenon has not yet been made. The Civil Code of the Russian Federation has a norm on compensation for damage due to lawful actions, when it is specified in the law, but not on recovery of damages.

Lawmaking in the Context of the Theory of Correlation between Subjects of Constitutional Law

Abstract: The paper is devoted to issues related to the analysis of lawmaking and law enforcement activities in the context of the theory of correlation between subjects of constitutional law developed by the author of this study. Based on the standings of reputable researchers, the author systematically proves the thesis that the entire law-making process at any level must be based on the real needs of the society based on the relations between subjects that already exist. The author considers it impractical and ineffective to change established ties by creating new documents and applying organizational measures on the part of the public authorities. Working for the federal executive authority, the author faced with the fact that creating new rules of conduct is planned in advance, and after a certain period of time a relevant report is issued. A planned nature of rulemaking also seems to be a vicious practice, since it generates unnecessary requirements and norms for persons on a daily basis engaged in certain activities the stability of which only increases its effectiveness. In addition, a well-established strict positivist approach to the implementation of legislation has positive sides and allows ensuring legality and law and order, but citizens should have at their disposal tools to influence legal acts in the event that the current norms do not work or do not work as initially intended. The paper provides the reader with some suggestions with regard to the issues under consideration.

Procedure for the Formation of Constitutional (Statutory) Councils of the Constituent Entities

Abstract: The abolition of the constitutional (statutory) courts of the constituent entities of the Russian Federation as specialized bodies of legal protection of the Basic Law has set the task of forming new mechanisms for ensuring constitutional legality for the constituent entities of the Russian Federation. At the same time, the federal legislator, having authorized the creation of constitutional (statutory) councils of the constituent entities of the Russian Federation, did not determine either their status or the procedure for their formation. At the same time, it is the order of formation that often determines the real place and role in the system of public power, and the unresolved issue will prevent the creation of constitutional (statutory) councils in the constituent entities of the Russian Federation. In addition, it is the order of formation of the body (and not the competence or the order of work) that is given the main attention in the three laws on already established constitutional councils in the Republics of Yakutia, Adygea and Bashkiria. The paper analyzes the experience of the formation of constitutional protection bodies of the Basic Law and, above all, constitutional (statutory) courts of the constituent entities of the Russian Federation as historical predecessors of constitutional (statutory) councils. The problems of establishing requirements for candidates for members of the constitutional (statutory) councils of the constituent entities of the Russian Federation are studied. The order of formation of constitutional councils in Yakutia, Adygea and Bashkiria is analyzed. The three most probable models of formation of constitutional (statutory) councils of the constituent entities of the Russian Federation are substantiated. The authors propose a model that is deemed optimal. They suggest appointing members of the constitutional (statutory) council exclusively by the legislative (representative) authority of the constituent entities of the Russian Federation following the proposal of a wide range of state bodies, officials and organizations (and not only on the proposal of the head of the constituent entity of the Russian Federation). It is also proposed to establish separate deadlines for submitting candidates to the parliament of a constituent entity of the Russian Federation and for subsequent decision-making thereon. At the same time, the deadline for submitting candidates to the House of Parliament should be sufficient for proper notification and selection of candidates and should be at least three months, while the deadline for making a decision on candidates can and should be as short as possible (for example, one month). It is proposed to replicate the experience of the Constitutional Council of Adygea, the chairman, deputy Chairman and secretary of which are elected by the constitutional advisers of Adygea from among their members.

Evidence and Proof in Criminal Proceedings: Problems of Understanding their Nature

Abstract: The paper is devoted to the consideration of topical issues related to the essential characteristics of such categories of evidentiary law as «evidence» and «proof», due to the ambiguity of approaches that researchers apply to disclose their nature.The study purports to identify the conformity of the actual proof procedure with its definition reflected in the law, and to formulate scientific recommendations for improving the law in this part. Scientists’ ideas that the legislative definition of evidence does not reflect the requirement of their reliability are critically assessed, and the absence of grounds for such a conclusion is demonstrated.In the course of the research, scientific methods of analysis, synthesis, formal-logical and legal interpretation were used. Based on the terminological analysis, in contrast to the opinion of scientists who believe that such an element of proof as gathering should be replaced by the concept of «formation», the author substantiates the position that all elements of proof, and not just gathering, represent the process of evidence formation. Therefore, the most accurate characteristic of criminal procedural proof is the process of transformation of the information obtained during the proceedings into evidence to substantiate the presence or absence of circumstances to be proved, i.e., the process of forming evidence.In this regard, the author concludes that for a more accurate reflection of this process in a number of norms of Chapter 11 of the Criminal Procedure Code of the Russian Federation, it would be necessary to replace the concept of «evidence» with the concept of «information that can be used as evidence». According to the author, the legislative definition of criminal procedural proof should reflect not only the actual process of evidentiary activity, covering the initial stage of criminal proceedings, but also its target orientation. For this purpose, the author proposes the following wording of Article 85 of the Code of Criminal Procedure of the Russian Federation: «Proof consists in gathering, verifying and evaluating information in order to obtain evidence substantiating the presence or absence of circumstances provided for in Article 73 of this Code for the correct resolution of a criminal case.»

Procedure for Providing to Third Parties Restricted Access Information Contained in State Information Systems Monitoring Goods Turnover and Medicines Circulation: Peculiarities of Legal Regulation

Abstract: The paper is devoted to the study of peculiarities of legal regulation of providing restricted access information to third parties contained in state information systems for monitoring the turnover of goods and circulation of medicines. The paper provides an overview of legal acts regulating the functioning of these information systems from the moment of their creation. This made it possible to trace stages of legislative development and demonstrate that the systems under examination were launched as an experiment when a state body acted as an operator. Then there was a change in the approach to determining the operator, and the Government of the Russian Federation, without conducting competitive procedures, defined a commercial organization as an operator of the relevant state information systems.Based on the results of the legal regulation analysis, the authors determined some pecularities of the procedure applied for providing restricted access information stored by the systems monitoring turnover of goods and circulation of medicines. In particular, a closed circle of subjects is entitled to receiving such information; third parties have access to information only to the extent that it relates directly to their activities. Another feature is that the list of mandatory information to be entered into these state information systems by participants in the turnover of goods is quite wide. It is argued that the volume and nature of information contained in information systems indicate their high commercial value. Also, the operator of state information systems is prohibited to provide commercial services to third parties using the restricted access information contained therein. In addition, attention is drawn to the fact that the revision of the current approach prohibiting the monetization of these data will require amendments to federal laws.

The Role of Digital Platforms in the Organization of the Financial Market

Abstract: The paper aims to determine the role of digital platforms in the organization of the financial market on the basis of a critical analysis of existing regulatory legal acts, scientific papers and practices on the said market. To achieve the stated goal, the following tasks were set: to determine the content of such concepts as «digital platform» and «digital financial platform»; to identify the types of digital platforms; to classify digital financial platforms; to identify the impact of the introduction of digital platforms in the activities of financial organizations on public relations emerging in the financial market.It is established that the digital platform can be viewed from various points of view: as an information system, a digital environment, a combination of digital tools and services, a hosting service provider, a set of rules according to which participants interact.It is noted that digitalization in general and the introduction of digital platforms in particular lead to changes in the structure of the financial market, business models of financial organizations, the order of interaction between financial service providers and their customers, the behavior of consumers of financial services, as well as to a number of other fundamental shifts affecting the financial market.In the course of the study, digital financial platforms and financial platforms in the proper sense of the word are differentiated (the functioning of which is regulated by the norms of Federal Law № 211‑FZ dated 20.07.2020 «On Financial transactions using a financial platform»).The classification of digital financial platforms is carried out on various grounds: depending on the type of services provided with their help (basic digital financial platforms, infrastructure digital financial platforms, service (optional) digital financial platforms), by the nature of the financial services provided (independent digital financial platforms, intermediary digital financial platforms, mixed), by functional purpose as part of the activities of the financial market regulator (RegTech and SupTech platforms).

Remote Performance of a Labor Function by an Employee: Problems of Theory and Law Enforcement

Abstract: Periodic bursts of deterioration of the sanitary and epidemiological situation in certain regions and in Russia as a whole make remote performance of a labor function by an employee relevant and in demand. The remote format of work increases economic profitability of the employer’s activities. Transition to remote work is not a formal change of the place of performance of the labor function, it involves a significant organizational and local regulatory restructuring.Mandatory and optional transfer to a remote form of work involves the inclusion of certain terms in the employment contract, as well as in additional agreements to the employment contract. The classical rules of interaction between an employee and an employer are not applicable for the remote exercise of the labor function. Prior to the conclusion of employment contracts with remote employees of the employer organization, it is recommended that local regulations be developed and published for all the employees to read them. It is important to note that the employee must acknowledge by signing that he has read each local regulatory act.The work of a remote employee means certain specifics of his interaction with the employer, including the use of electronic document circulation system and electronic digital signature.Traditional approaches to determining the working time and rest time of a remote worker are also inapplicable. Such an employee independently and under his own responsibility chooses the mode of work depending on the tasks periodically given by the employer. It is impossible to apply the classical grounds to terminate an employment contract concluded with a remote employee, since it seems necessary to take into account the specifics of the remote labor function.In the doctrine and law enforcement practice, there is no uniform approach to solving problems related to the remote exercise of a labor function, the interaction between a remote employee and an employer. Based on the analysis of current provisions of labor and information legislation, judicial and business practice, conclusions and recommendations are made in the article regarding the solution of problems related to the conclusion and termination of an employment contract with a remote employee, as well as regarding the documents supporting the contract.

National Interests of the Russian Federation in the World Ocean: Legal Characteristics

Abstract: In the paper, the author endeavours to form a comprehensive legal characterization of the national interests of the Russian Federation in the World Ocean consolidated in the new Maritime Doctrine approved by the Decree of the President of Russia dated 31 July 2022. The paper highlights a vital nature of the needs of the State and society that represent conceptual basis for the establishment and implementation of Russian national interests in the World Ocean. The author argues that national maritime interests should be understood as a complex and integral political and legal category of a dual nature, covering both interests in the peaceful use of living and non-living resources of the World Ocean, including commercial navigation and naval activities aimed, inter alia, at ensuring the economic and social interests of the state and society in the maritime sphere. The author highlights the importance of identifying vital, important and other areas (zones) for implementation of national interests. Also, attention is focused on the need for doctrinal development and improvement of a set of legal norms regarding maritime activities in the Azov-Black Sea basin. The paper substantiates a positive role and current activity of the representatives of the Sevastopol scientific School of Maritime Law in the formation and development of systemic legal regulation of the legal status and features of the use of the sea spaces of the Azov-Black Sea basin. In addition, the author analyzes the prospects for strengthening and promoting the national interests of the Russian Federation and qualifies a spatial sphere of their implementation that covers the entire World Ocean and the Caspian Sea. The paper proposes a systematic approach to implementation of national interests in the World Ocean based on an interconnected set of various legal characteristics including teleological; institutional; functional; formal-legal; vital; international law characteristics.

The Antarctic Stations Status in the Context of Antarctica's Frozen Territorial Claims of the States Parties to the Antarctic Treaty and Applicable National Legislation

Abstract: The paper analyzes the Russian doctrine of international law and gives a critical assessment of its state, because the problems of Antarctica traditionally belong to international maritime law. However, the author defines the concept of international Antarctic law as an intersectoral international legal institution with a certain independence within the framework of international territorial law. It is noted that the problems of Antarctica have gone beyond the cognitive interest of the academic community, moving into the context of a clash of geopolitical interests among states, which caused the attempts of five states to establish their sovereignty by means of sectoral division. The Antarctic Treaty of 1959 established a notification procedure for the establishment of Antarctic stations, the modern administrative regime is provided by the activities of institutional mechanisms. With about 100 Antarctic stations and bases opened by States, their international legal status remains uncertain. The problem has acquired particular importance because Russian stations are located in the sectors of territorial claims, which generates competitive processes. By concluding bilateral agreements with States that have put forward territorial claims, it is possible to partially neutralize the competition of jurisdictions in certain areas of cooperation. In the documents adopted by the Antarctic Treaty Consultative Meetings (ATC), attention is paid only to the problems of the station placement and issues of their verification during inspection activities. In order to fill the gap, the author proposed the definition of the Antarctic station as a legal enclave of the State, which is subject to the exclusive jurisdiction of the founding State and establishes immunity from the jurisdiction of other states. The maintenance and development of Russia’s presence in Antarctica is ensured by Russian Antarctic legislation. In order to develop the Russian expeditionary infrastructure (including Antarctic stations and field bases), it is important to develop and adopt a regulation on the status of the Russian Antarctic station, in connection with which measures to improve legislation are proposed.

Doctrinal Approaches to Understanding Evidence in a Criminal Case: History and Modernity

Abstract: The paper discusses the main stages of the development of the theory of criminal procedural evidence. The author analyzes and systematizes various approaches of procedural researchers, on the basis of which the basic doctrinal approaches to understanding evidence are distinguished: 1) formal-logical; 2) factual; 3) dualistic; 4) liminal (transitional); 5) synthetic; 6) cybernetic (informational); 6) pragmatic (Anglo-Saxon). The paper defines the causes of their emergence, evaluates their advantages and disadvantages.It is noted that the diversity of approaches to understanding evidence can be explained by the predetermination of various academic approachers and related legislative provisions, initially different ideological ideas and trends that play a priority role in certain periods of society development. At the same time, it is argued that these approaches do not exclude each other, but reveal different elements of criminal procedural evidence as a comprehended, multidimensional complex of cognitive-certifying techniques and argumentative-logical operations: the cybernetic approach as accumulation of useful information; pragmatic approach as its proper certification; formal-logical and factual approaches as justification of law enforcement decisions and positions of the parties, etc.In this regard, the conclusion is formulated about the optimality and the greatest acceptability for the use of another, so-called non-synthetic approach. Evidence is proposed to be understood as information assets provided for by law and predetermined by substantive or ideal traces-displays, subject to accumulation as legally suitable (permissible) information products, and then used as argumentative resources, which support the investigator, inquiror, court in establishing circumstances relevant to the criminal case and substantiating law enforcement decisions., and to the parties in attempts to influence the nature and content of these decisions.