Special Rules for Imposing Punishment: Conceptual Framework and Problems of Interaction

The paper presents ideas on resolving conflicts between special legal rules. Such norm conflicts occur when several special norms originate from a single general norm vased on different criteria. These are partial norm conflicts, which cannot be resolved directly through the legal maxim of lex specialis. The purpose of this article is to establish an optimal approach for resolving conflicts between special legal rules by analyzing current methodologies addressing such conflicts. The author employs various methods for investigating legal reality, including the systemic approach, conceptual analysis, legal-dogmatic method, comparative approach, and juridical hermeneutic. Five methods for addressing these conflicts are identified. (1) The ‘ostrich’ approach. This method avoids legal conflicts by narrowly interpreting one special rule as part of general rule, enabling direct application of lex specialis. (2) The ‘integrative’ approach: This method eliminates legal conflict by harmonizing the content of special rules through interpretation that aligns them with a common purpose. (3) The ‘essential’ approach: This approach resolves conflicts by identifying a parameter that determines the degree of specialty of colliding norms, then applying the lex specialis maxim accordingly. (4) The ‘meaningful’ approach: This involves describing a universal or localized meta-legal criterion to overcome conflicts, for example, applying the humanistic criterion that famous the norm most beneficial to its addressee (in favorem) in cases of a conflict. (5) The ‘dogmatic” criterion: This criterion resolves conflicts based on other general principles, such as the lex posterior maxim. Due to its neutrality and simplicity, this approach is recommended as the primary methor for resolving conflicts between special norms. If special rules are adopted simulteneously, the ‘essential’ criterion is the preferred method, with the ‘integrative’ approach as a possible alternative.

Introduction: the author explores the problem of intellectual property protection, and especially various inventions, know-how in production, industrial designs, and the rapid spread of intellectual property objects on the Internet, where their commercial value is reduced or leveled. In this regard, the chosen research topic is of particular interest and social significance. The Internet information and telecommunications network provides its users with a lot of freedom, which unfortunately generates many offenses. However, progress is also going in a positive direction. The latest technologies of the same Industry 4.0 come to the aid of authors, helping them to protect their works. Purpose: to identify gaps in the legal regulation of copyright protection for works on the Internet, to consider the specifics of the copyright protection procedure, as well as to develop scientifically sound recommendations and proposals aimed at filling the gaps in the legislation. Methods: the study was conducted based on general scientific and specific scientific methods. Such general scientific methods as the dialectical method and logical methods of analysis, synthesis, induction, and deduction were applied. The comparative method, which was used to analyze the experience of foreign countries, and the formal legal method, became special research methods. The historical research method was used to study the main characteristics of modern copyright, its problems, and their causes. Results: a number of problems have been identified in the study of blockchain prospects in the field of copyright, as well as in the development of proposals to improve the legislation in terms of depositing copyright objects. The work contains the author’s provisions aimed at regulating the use of blockchain technology by authors and owners of blockchain platforms, which is practically absent today. The work is focused on practical results, namely, the stable and efficient operation of blockchain platforms in the field of copyright. Conclusions: it has been revealed that to fix the rights to objects of property turnover, there are both opportunities and problems of applying machine-readable law at the present stage; electronic signatures, smart contracts, and entering data into registries are used to make transactions.

The article is devoted to a comprehensive study of one of the means of judicial response to violations of legality by lower courts identified during the consideration and resolution of cases, namely special court rulings. The aim of the research is to analyze theoretical and practical problems arising in the issuance and enforcement of special court rulings addressed to representatives of the judicial authority, based on the norms of arbitration procedural legislation and judicial practice. The main attention in the research is focused on the legal nature of the special court ruling, the grounds for its issuance, as well as problems in the implementation and enforcement of special court rulings issued to the lower court. The author uses general scientific and special research methods, such as comparison, analysis, generalization and synthesis, formal-legal method. Based on the results of the research, the author substantiates the punitive nature of special court rulings issued to lower courts, and proposes some recommendations to the existing legislation: to establish the authority of the higher court to issue a special court ruling to the lower court officially; to eliminate duplication of grounds for issuing special court rulings and cancellation or modification of a court decision; to establish a written form of special court rulings; to establish the start of the deadline for the performance of the obligation to inform about measures taken under a special court ruling from the moment the special court ruling enters into legal force; to establish a judicial fine as a measure of liability for non-performance of a special court ruling; and also to expand the grounds for liability for non-performance of a special court ruling.

The subject of the study is the conceptual, theoretical, empirical and methodological foundations of the legal and economic nature of the commercialization of intellectual property in Ukraine. Methodology. General and special methods of cognition were used in the process of research. The essence of the commercialization of intellectual property was evaluated on the legal and economic level, on the basis of the same and opposite parameters with the help of the dialectical method. The analysis created conditions for a multifaceted study of all characteristic features of the commercialization of intellectual property as an economic and legal phenomenon. The synthesis created conditions for summarizing the characteristic features of this process. The formal legal method allowed to correctly interpret the content of normative legal acts that determine the general legal regime of commercialization of intellectual property and the special legal regime of its forms with regard to their use in civil or economic circulation. The purpose of the article is to determine the economic and legal foundations of the commercialization of intellectual property in Ukraine as an economic and legal category at the theoretical and empirical level. The results of the study prove that the commercialization of intellectual property is a form of implementation of scientific developments and innovations in various spheres of human life, which is usually accompanied by obtaining a certain benefit and includes a number of forms of implementation regulated by administrative, civil and economic legislation. Conclusion. Commercialization of intellectual property in Ukraine consists of two conceptual approaches to the study and implementation of an economic and legal nature. Economists propose to consider commercialization as one of the constituent stages of the social life process of intellectual property objects along with creation, security and protection. Within this approach to the forms of commercialization of intellectual property, the following manifestations are distinguished: 1) use of the corresponding object within the limits of own production, transfer under contracts (licensing, leasing, commercial franchise) to other subjects or entry of rights to the object objects of intellectual property into the authorized capital of the enterprise; 2) capitalization and sale. Among the factors that determine the qualitative and quantitative indicators of commercialization, the most important are legislation, state management in this area, and the existence and implementation of measures to stimulate participants in this area. From a normative point of view, the phenomenon of commercialization of intellectual property has gained publicity in various levels of understanding, both from the standpoint of private law and public law. For both components of jurisprudence, the approach is generally accepted, according to which the given issue is considered with a view to ensuring public or private protection of intellectual property rights. Attention is paid to the set of tools provided by special legislation to higher education and scientific institutions in the field of commercialization of intellectual property. The provisions of the Ukrainian legislation defining the general legal regime of commercialization of intellectual property and the special legal regime of its forms are characterized.

Introduction. Taking into account the fact that neither the normative nor the doctrinal form contains an exhaustive list of principles of international law, clarification of the issues of their concept and content problems is important not only for international law itself and its adequate understanding, but also for application of law at the national level, because the national legal systems of states, including the Russian Federation, are widely based on the principles of international law. This article deals with theoretical and practical issues related to the principles of international law, and the study is not limited to the framework of international law, but also covers other general theoretical aspects of law, as well as non-normative aspects. The article contains the main thesis of the speech of prof. Aslan Abashidze addressed the judges of the Supreme Court of the Russian Federation, held at the invitation of the guidance of the Supreme Court of the Russian Federation on November 23, 2017. Materials and methods. The study is based on a considerable amount of materials, including international legal acts, decisions of international judicial institutions, national legislation of the Russian Federation and decisions of the highest judicial bodies of the Russian Federation, as well as classical and contemporary doctrinal studies of Russian and foreign authors. The methodological basis of the research was the general scientific methods (logical and system analysis, the dialectical method, methods of deduction and induction) and special methods of cognition (historical and legal, comparative legal and formal legal methods, method of legal modeling and forecasting). Research results. On the basis of the study of the doctrinal positions of Russian and foreign authors, international legal acts and practice of international judicial institutions, as well as national legislation of the Russian Federation and the national court practice of the Russian Federation concerning the principles of international law, the author makes conclusions on the conceptual and substantive problems concerning the principles of international law. Discussion and conclusions. In the article the author analyzes various approaches to the content of such notions as “general principles of international law”, “generally recognized principles of international law”, “basic principles of international law”, “fundamental principles of international law”, “imperative norms of international law”. The author comes to the conclusion that “generally recognized principles of international law” both in the western and in the Russian doctrine of international law presuppose “general principles of international law” or “general principles of law” as a whole with the addition of “civilized nations”, which are often referred to as “fundamental”; these principles include, first of all, the principles enshrined in the UN Charter, the 1970 Declaration on the Principles of International Law and the 1975 Helsinki Final Act of the CSCE. The analysis of practice of international judicial institutions, mainly the International Court of Justice, allows to conclude that the Court does not differentiate the principles which it applies; all of them, as enshrined in the UN Charter, i.e. “generally recognized”, and others (in particular, principles of branches of international law, for example, the principle of humanism) are referred to as “general” principles of law. Moreover, the general principles of law, according to legal doctrine, may cover moral norms, which have been fragmentarily and declaratively already found fixation in international documents, and which in the long term may strengthen their international legal status up to an imperative norm.

Relevance. Methods of scientific cognition of legal reality are a reliable condition, a means of theoretical research of legal norms, legal relations, methods, techniques and means of legal regulation, measures of legal responsibility and other legal phenomena. There is no unity of opinion in Russian legal science about the legal nature, content and components of the method of scientific thinking and cognition. Legal publications and their own professional experience show that, unfortunately, law students and even teachers are not fully aware of the existence, specifics and operation of cognitive methods, means and techniques. The organizers of legal education and representatives of legal science have an urgent task to initiate the interest of lawyers in this extremely important issue and help them master the necessary methodological knowledge of the legal world.Purpose: to find out the features, purpose and content of the systematic method of legal cognition.Objectives: to investigate and clarify the concept of the method and methodology of legal scientific cognition, the features of the systemic epistemological method in jurisprudence.Methodology. In the course of the study of the designated topic, such general scientific and private scientific research methods as historical, logical, formal legal, systemic and comparative legal methods were used.Results. As a result of the conducted research, it turned out that if the methods of scientific cognition are methods, techniques, means and principles of theoretical cognition, then epistemological methodology is a universal teaching about the techniques (methods and means) of scientific cognition applied on the basis of achievements in the field of philosophy, political science, sociology, economic theory, psychology and jurisprudence.Conclusions. Systematic approach to the studied object (subject, phenomenon), the identification of systemic connections between its individual components (elements), the establishment of patterns and features of their connections with the external environment, other systems in nature, society and legal reality.

The subject of the present research is the mechanism of criminal law protection of atmospheric air from negative anthropogenic impact on it.
 The purpose of the research is to identify and update the shortcomings of Article 251 of the Criminal Code of the Russian Federation, which establishes criminal liability for criminal air pollution, as well as to propose ways to eliminate them.
 The methodological basis of the research is the formal legal method, the method of content analysis, as well as methods of induction and deduction. In the study of Article 251 of the Criminal Code of the Russian Federation, the content analysis method was used. The formal legal method is applied in the analysis of such concepts as "air pollution", "other changes of the natural property of air". Based on the deduction method, legally significant signs of criminal pollution of the atmosphere are determined. Using the inductive method, the research of the level of danger of anthropogenic impact on the atmosphere was managed.
 As a result of the research, the difficulties of law enforcement practice of Article 251 of the Criminal Code of the Russian Federation are revealed, ways of overcoming them are determined. The problems of distinguishing between criminal air pollution and an administratively punishable offense provided for in Article 8.21 of the Code of Administrative Offences of the Russian Federation, the absence of clarification in the Criminal Code, as well as by the Plenum of the Supreme Court of the Russian Federation of the concept of "other change in the natural properties of the air", the absence of terminological unity of the Criminal Code of the Russian Federation and the relevant legislation, special attention is paid to the consideration of the subjective side of the crime, and also the contradictory approach of legislators, to identify qualifying signs of criminal pollution of the atmosphere.

Introduction: the compositional transformation of the domestic legal space requires the creation of clear forms for new constitutional and legal phenomena. The comparison of the all-Russian vote with the existing institutions of direct democracy contributes to its isolation into an independent institution of democracy, in this connection, the author sets the goal of a comparative study of the legal nature of the all-Russian vote as a novel of 2020. Methods: the methodological framework for the study is a set of methods of scientific knowledge, among which the main ones are the comparative legal and formal legal methods. Results: the author’s position grounded in the work is based on the legislation, judicial and law enforcement practice, scientific works in the field of institutions of democracy. On the basis of the conducted analysis, the distinctive parameters of the all-Russian voting, its special legal nature are revealed, and the question of the further legal fate of the new type of voting is raised. Conclusions: as a result of the conducted research, the all-Russian voting is separated from the institutions of direct democracy. The criteria of such separation include: the legal nature; the source of the legal regulation; the essence of a ballot question; the initiator; the procedure; the recognition of the vote as valid. Based on the specified criteria, the all-Russian vote is defined as an independent institution of democracy. It is established that its further existence depends on the constitutionally verified legislative support and the scope of the constitutional reform.

Judicial ethics is a complex moral and legal phenomenon that has a significant impact on the level of trust in the court, the authority of the judiciary and the effectiveness of justice. The state of judicial ethics is largely determined by the type of legal understanding that guides the judge who administers justice. The purpose of the research is to consider judicial ethics, its moral and legal aspects in the context of a scientifically based integrative concept of legal understanding. The objectives of the research are to study the moral and legal aspects of judicial ethics, the system of requirements imposed on the judge, the relationship of legal understanding with judicial ethics, identifying the «optimal» type of legal understanding that contributes to increasing confidence in the court and improving the effectiveness of justice. The work is based on an integrative methodology. The research involved such General scientific methods as logical generalizations, analysis and synthesis, system and functional approaches. The formal legal method and the method of law interpretation were used as private methods of legal science. Judicial ethics is considered as a moral and legal phenomenon that comprehensively reveals the moral and professional appearance of a judge associated with the exercise of official functions aimed at protecting the rights, freedoms and legitimate interests of various subjects of legal interaction. The effectiveness of the justice system can significantly increase if the judge has a special state of professional legal awareness based on a progressive type of legal thinking, which is represented by a scientifically based integrative concept of law understanding. This scientific platform has the most productive impact on the moral and professional Outlook of the judge, his legal awareness, psychologically positive attitude and gives real legal tools for the protection of human and civil rights and freedoms in the judicial practice of modern Russia. A judge who shares the position of a scientifically based integrative concept of law understanding and bases his professional activity on it is able to transfer the implementation of justice to a qualitatively different level, extracting the effective regulatory potential of law and providing comprehensive legal protection to various subjects of legal interaction.

Countering juvenile delinquency through criminal law means is one of the current tasks of Russian criminal policy at the present stage. In addition to criminal liability and sentencing, such measures include a particular and special means of exempting minors from criminal liability through compulsory educational measures. However, under the conditions laid down by criminal law, minors are also subject to general rules on exemption from criminal liability, the application of which, according to judicial statistics, is preferred by judicial practice. The purpose of this paper is to analyze the legislative regulation of exempting minors from criminal liability under special (Article 90) and general rules (Articles 75, 76, 76.2) of the Criminal Code of the Russian Federation, as well as the legal explanatory and law enforcement practice emerging in this area. The study is carried out using a set of methods: general scientific (induction, deduction, analysis, synthesis, system-structural) and specific scientific (formal legal, sociological, statistical). Results: two negative, according to the author, trends are identified, which are developing in the practice of exempting minors from criminal liability: 1) courts departure from the specialization established by the Russian Criminal Code in this area, which is manifested in the priority of applying general rules (exemption under Articles 75, 76 and 76.2 in connection with active repentance, in connection with reconciliation with the victim and with the imposition of a judicial fine) over special rule (exemption with the use of compulsory educational measures under Article 90); 2) the imposition of a judicial fine on minors, with the obligation to pay it by their parents or other legal representatives, hampers the achievement of the sectoral objective of crime prevention. The author’s options for eliminating the identified negative trends at the legislative and explanatory levels are proposed.

The relevance of the research topic is due to the uncertainty of the provision of constitutional responsibility in the system of legal responsibility types. The study purpose is to the legal nature analysis of constitutional and legal responsibility, allowing it to be viewed as a form of legal responsibility. The conducted research is based on general scientific analysis methods, deduction, and also private law – the formal legal method. So, on the basis of the analysis of the current legislation and law-enforcement practice, we conclude that the political and legal nature of constitutional responsibility is special. On the one hand, it is a form of legal responsibility and is applied to subjects of constitutional responsibility in cases provided for by constitutional norms. On the other hand, it helps to regulate relations that arise in the sphere of public administration, ensure the stability of the functioning of the state apparatus. It is established that this feature explains also the fact that constitutional responsibility can occur not only in case of an offense, but also in case of lawful behavior. It is determined that for consideration of the constitutional responsibility as a special kind of legal responsibility it is necessary to introduce a special procedural order of calling to account, including in particular the procedure for appealing the dissolution of the State Duma, giving the Constitutional Court of the Russian Federation the powers to consider such cases. And it is also necessary to fix a list of circumstances that may form the basis for a decision on mistrust in the Constitution of the Russian Federation. The conclusion is made that these legislative changes will underline the specificity of constitutional and legal responsibility and leave no doubt about its status as a kind of legal responsibility.

Introduction: the relevance of the paper is justified by the fact that the civil doctrine regarding the study of the topics of investment transactions made using the financial platform is in the stage of gradual formation. While academic economists are quite actively developing issues of forming new approaches to the remote provision of financial services to a wide range of consumers. The purpose of the study: the paper provides a detailed analysis of Federal Law of July 20, 2020, No. 211-FZ “On Making Financial Transactions Using the Financial Platform”, which entered into force in 2020 and regulates the activities of special legal entities – operators providing investment services to individuals. The aim is to evaluate the effectiveness of the provisions enshrined in Federal Law No. 211-FZ of July 20, 2020, “On Making Financial Transactions Using the Financial Platform”. Analyzing the provisions of the newly adopted document, the author answers the question of whether they facilitate, accelerate and simplify the execution of transactions by a private investor made using the financial platform. The Rules of the financial platform are also analyzed as a legal regulatory basis for the entrepreneurial activity of the operator of the financial platform. Research methods: based on the materialistic worldview, the author uses a combination of general scientific and specific scientific methods. The main research methods are the logical and system-structural methods, the methods of induction and deduction, analysis and synthesis, as well as the formal legal method. Conclusions: it is concluded that the activity of recording data on financial transactions, which the repository (the registrar of financial transactions) must carry out according to Federal Law No. 211-FZ of 20.07.2020, is very cumbersome, complex, and costly, is subject to the risks of improper execution and improper preservation of personal data of consumers of financial services. It is proposed to use the depository and registration platform, which functions as a special electronic service on the website of the Bank of Russia, to record data on financial transactions using the financial platform. It is recommended to record the facts of financial transactions made in the system of a polysubject jurisdictional blockchain. The recommended scheme of polysubject blockchain interaction of entities operating on the territory of the Russian Federation has been developed, which allows each participant of the blockchain to simultaneously receive complete and reliable information on each stage of a financial transaction in the online mode and exclude irrational data transfer related to financial transactions and their participants, reduce the risk of improper storage of personal data of consumers of financial services, etc. It is proved that in Federal Law No. 211-FZ of 20.07.2020 the legislator has created a legal business scheme that is beneficial, first of all, for the operator of the financial platform – an intermediary organization. The amendments and additions to Federal Law No. 211-FZ of 20.07.2020 are proposed. The expediency of borrowing and integrating into the unified federal law “On Making Investment Transactions by Consumers in the Information and Telecommunications Network “Internet” all viable legislative provisions developed in Federal Law No. 211-FZ of 20.07.2020 is justified. This document also proposes to fix a set of rules for regulating remote digital transactions of investment in traditional financial assets, securities, digital financial assets, and derivative financial assets made by retail private investors (individuals) in the Internet information and telecommunications network.

Attribution of the use of information and communication technologies (ICT) to a state for the purposes of invoking its international responsibility is a complex task from both a practical and legal point of view. The paper examines in detail the extent of state control over non-state actors using ICTs that would be sufficient to attribute their conduct to the state. In addition, the article considers the development of special rules of attribution for the so-called “cyberspace”. The purpose of the study is to identify the possibility of adapting the usual norms of the law of international responsibility to cases of the use of ICT by non-state actors. The objectives of the study are to analyze the norms on imputing to the state the behavior of persons acting on instructions, under the guidance or control of the state, as well as to generalize doctrinal approaches to the application of this basis of imputation to the use of ICT. The scope of the research also includes the study of conditions under which special rules may arise for imputing the use of ICT to the state, a review of existing State practice and opinio juris in this area of public relations. Along with general scientific research methods, comparative legal, formal legal, historical methods, as well as the methodology of structuralist critical analysis of law were used. Conclusion. The test of “effective” control developed by the International Court of Justice is hardly appropriate in the “cyber context”. The text of the Articles on State Responsibility for Internationally Wrongful Acts of 2001 allows the interpretation of the term “control” beyond the scope of the “effective control” test, and also allows it to be applied in the context of the use of ICT in conjunction with the “general” control test. The authors note the extremely cautious approach that has developed in the practice of States to impute malicious acts of using ICT to specific States, which does not contribute to the emergence of special imputation rules in accordance with Article 55 of the Articles on Liability.

INTRODUCTION. This survey presents overview of damages and other contractual remedies under law of Germany and law of England. MATERIALS AND METHODS. The study is based on a considerable amount of materials, including legal acts, decisions of judicial institutions, national legislation of England and Germany, as well as classical and contemporary doctrinal studies of Russian and foreign lawyers. The methodological basis of the research was the general scientific methods (logical and system analysis, the dialectical method, methods of deduction and induction) and special methods of cognition (historical and legal, comparative legal and formal legal methods, method of legal modeling and forecasting). RESEARCH RESULTS. The present comparison of damages and other contractual remedies available to legal entities and individuals under law of Germany and law of England shows the differences of legal systems of these countries. The differences in the legal systems entail the differences in remedies and its implementation. There are remedies under the law of England which are not contained in German law and there are remedies not very well developed in England but widely upheld by the law of Germany (for instance punitive damages and specific performance). DISCUSSION AND CONCLUSIONS. Provided that German law is a classical representative of continental legal system it targets to force a debtor to perform its obligations via well developed means of forcing in case a debtor fail or reject to perform in a due course. Damages in the case of contractual misconduct are regarded as a supplementary instrument applicable in situations where performance forcing means could not be applied for some reason. From the German academic approach standpoint the performance in kind is the main remedy, at the same time for the English law approach the most important thing is whether damages could be recovered. As a result for the English law the main question not in the content of an obligation but in negative consequences of its breach. English law doctrine evaluating breach of contract takes into account mainly commercial applicability and economic efficiency, meantime the German law takes into account moral aspect as well.

Relevance. Today, the Caspian region has a fairly high potential in terms of legal and economic development, not only for the Russian Federation, but also for other states that are part of its geographical location. The issues of the necessity and specifics of concluding business agreements and an agreement between these states are quite difficult due to the presence of a very large number of different kinds of legal, economic, social and political characteristics of each State, which have a direct impact on the possibility of concluding an appropriate agreement.The purpose of this study is to determine the widest range of various circumstances that affect the process of concluding business contracts and agreements between the states of the Caspian region.Objectives. The main objectives are to determine the development characteristics of the states of this region, to determine the characteristics of the region itself, and to identify those factors that can directly or indirectly influence, both positively and negatively, the possibility of concluding relevant agreements. Methodology. The following methods were used in this study: the general scientific method, the formal legal method, and the comparative law method, which was most relevant due to the need to compare the legal systems of a number of state entities.Results. This study is of an economic and legal nature, which is expressed in the consideration of the features of the Caspian region, states that have a geographical affiliation to it, as well as the impact of these features on the conclusion of business contracts and agreements within the region.Conclusion. To date, the specifics of concluding business agreements and contracts in the Caspian region are determined solely by the specific features of the geographical development of the region itself.