Comparative Legal Research Research Articles

Organization of crime investigation using modern technologies

The object of research of this scientific article is crimes committed on the Internet or using it, as well as the activities of law enforcement agencies to investigate and disclose them. The subject of the study is the regularities of the mechanism of crimes committed using the Internet and the regularities of the activities of law enforcement agencies to organize the investigation of those crimes. The purpose of the scientific article is to identify the capacities of digital technologies for the identification, search and identification of persons who have committed crimes on the Internet. At the same time, attention is paid to the creation of search records for "images of persons captured on photo and video files containing illegal content" in the Federal Criminal Information Bank and the use of advances in digital identification and other innovations in the field of IT technologies in the investigation of crimes. Modern processes of globalization and digitalization require the development and introduction of new opportunities in the identification, search and prosecution of persons who have committed illegal acts, including crimes, on the Internet or using it. The practical significance of the conducted research is to increase the effectiveness of the organization of the identification of persons who have committed crimes on the Internet. The methodology of the conducted research is determined by its purpose and objectives. It is based on a systematic approach to the study of the identification of the person who committed the crime using digital technologies. The research methodology used when writing a scientific article was implemented using the following methods: structural and substantive analysis of scientific papers devoted to the topic of this study; logical (when presenting all the material, formulating conclusions, suggestions and recommendations); comparative legal (when analyzing the norms of criminal procedure legislation, regulatory legal acts) and other research methods.

MEDICAL SUPPORT OF THE JUDICIAL SYSTEM OF THE RUSSIAN FEDERATION

Background. The paper presents the results of an analysis of the organization and legal regulation of the medical support of the Russian judicial system. It is noted that at present, in the theoretical and applied medical/legal literature, there are no comprehensive and systematic ideas about the medical support of employees (personnel) of social institutions that traditionally relate to the functioning of the judiciary (judges of courts of various instances; other court employees; workers (employees) prosecutors, lawyers, employees of enforcement agencies). The authors are trying to resolve this contradiction based on the study of relevant scientific sources.
 Materials and research methods. To obtain and generalize scientific data on the organization, essence, structure, content and features of the medical support of the judicial system, the principles of systematic, comparative legal and historical legal research were used as methodological approaches. The main methods were analysis and synthesis, systematization and conceptualization, comparison and analogy, deduction and induction, abstraction and generalization.
 Results. A consistent study of medical and legal literature, as well as the requirements of legal acts, made it possible to formulate a definition of the concept of medical support for the judicial system, to establish its scope and content, as well as the subject composition and subject-functional structure. Until now, there have been no such developments in medical and interdisciplinary research.
 Conclusion. Author’s developments allow you to know the system and structure, as well as the procedure for organizing medical support for employees of social institutions that are considered judicial. This leads to the systematization of scientific ideas about such a significant social phenomenon.

Constitutional right of cardiovascular patients to health care: legal regulation and guarantees of implementation

Aim. To identify the most significant aspects and features of the right of cardiovascular patients to health care, as well as to assess its guarantee and characterize most common legal precedents with violations.Material and methods. In preparing the article, documents of international law, Constitution of the Russian Federation, primary and secondary federal legislation in Russia, as well as judicial practice materials were used. For their analysis, dialectical, system structural, technical legal, comparative legal research methods were used.Results. We established that in the Russian Federation there is a very extensive legal framework for regulating the right to health protection and health care. At the same time, the relevant legal acts establish both general (addressed to all individuals) and special (relevant only to cardiovascular patients) guarantees for cardiovascular health care. The scope and content of the legal regulation of guarantees of the right to cardiology healthcare should be generally considered sufficient for the protection of this right. However, judicial practice testifies to the facts of violation of the personal rights in the cardiac care provision.Conclusion. The most resonant and often reported violations of personal right to health protection in a cardiology are the ones of persons with acute coronary syndrome because of their very dangerous consequences.

The legislation of the Russian Federation in the field of language policy and international law

The subject of the study is the norms of the national law of the Russian Federation on the protection and preservation of languages, as well as the norms and principles of international law in this area. The object of the research of this article is the relations in the field of legal regulation of the protection and preservation of the languages of indigenous peoples and local communities. Based on comparative legal, formal legal and systematic research methods, the article presents an analysis of the legal foundations of language policy in Russia, as well as the provisions of international legal acts in the field of the protection of the languages of indigenous peoples and local communities, namely: the Declaration of Principles of International Cultural Cooperation of 1966, the UN Declaration on the Principles of International Law of 1970., The European Convention on Human Rights of 1950, the European Charter of Regional or National Minority Languages of 1992, as well as PACE resolutions and recommendations. The novelty of this study lies in the fact that the authors conducted a comprehensive analysis of the modern legal foundations of language policy in Russia. In the article, the authors consider in detail the concepts of "national minorities" and "cultural values" in accordance with the national legislation of the Russian Federation and international legal acts. The authors come to the conclusion that the Russian historical experience and modern practice of preserving the languages of national minorities, as well as the legal mechanism for the protection of languages provided for by the Constitution of the Russian Federation and other normative legal acts, in many ways surpasses the mechanism provided for by the European Charter. Thus, the exclusion of Russia from the Council of Europe will not negatively affect their protection and preservation within our state.

Evaluation Concepts in Civil Law: Historical Experiences of Development and Application

The process of formation and development of evaluation concepts in civil law has a long history and is associated with the development of law, the improvement of legislative technology due to the gradual abandonment of the casuistic method of regulating legal relations and the increase in the abstractness of legal prescriptions. This legal writing technique had already been present in the law of ancient states. The purpose of the paper is to clarify the features of the formation and development of evaluation concepts in civil law through the study of the historical experience of their use in the sources of civil law, which to a certain extent became the basis of modern Russian civil law. It is also relevant to establish the reasons for the growing trend towards the use of more flexible methods of regulating civil law relations. As a result of comparative legal research, analysis of historical sources of law and modern legislation, it was concluded that civil law norms containing evaluation concepts are known to all legal systems from the earliest stages of development of law. These legal constructions are an integral part of legal regulation. The paper analyzes and substantiates the historical conditionality of a steady upward trend in civil law in the number of norms containing evaluation concepts, the continuity of this process. The reason for this is the improvement and development of legislative techniques, the use of more flexible dispositive methods of regulating civil legal relations. At the same time, attempts by the legislator to fix the main features and content, approximate criteria for individual evaluation concepts in the rules of law are noted in order to uniformly apply them and limit the freedom of discretion of the law enforcer

PERAN PEMERINTAH DESA DALAM PENANGGULANGAN PERNIKAHAN DINI DI DESA KURANJI KECAMATAM LABUAPI LOMBOK BARAT

The research objective was to determine the concept of a negative and positive active decision according to the law on government administration. This type of research is normative legal research, that normative legal research is research that includes research on legal principles, research on legal systematics, research on legal synchronization, legal history research, and comparative legal research. This research uses several approaches, namely legislation. -law (statute approach), Concept Approach (conceptual approach). The result of the research is that a Fiktip Decision is a decision that actually does not exist (non-being) but is considered to be there (being). Decisions that exist (being) at the level of positive law in Indonesia follow as stated in Article 1 number 9 of Law Number 51 of 2009 concerning the Second Amendment to Law Number 5 of 1986 concerning State Administrative Courts, Article 7 and Article 87 of Law Number 30 of 2014 Concerning Government Administration and Positive Functions in Law Number 30 of 2014 concerning Government Administration is not only related to Decisions, but also related to Actions, so there needs to be a change in labeling of Positive Fictional Decisions be a Positive Fictional Decision and / or Action so that it can represent the two elements contained in it

Corpus linguistics: the digital tool kit for analysing language and the law

Corpus linguistics methodologies offer innovative ways of reading legal historical sources. Studying the language of source texts using computational techniques that retrieve linguistic data makes detailed searches of words, phrases, and lexical/grammatical patterns and structures possible and provides multiple contextual data that is both quantitative and qualitative, empirical rather than intuitive. It helps us understand not just what is being said, but also how it is being said, how language is used to encode meanings, and what that can tell us about underlying contents and the socio-political, cultural, geopolitical, economic, and other contexts and discourses in which these texts were produced. This paper argues that the use of corpus linguistics is relevant across comparative legal history and can be applied in comparative legal historical research independent of the area of the law or the historical period. Detailed studies incorporating corpus linguistics will be discussed to show the potential of this methodological shift.

Sources of international legal regulation in the field of social security of citizens:comparative legal research

Sources of international legal regulation in the field of social security of citizens:comparative legal research

Нарративный подход в правовых исследованиях: назначение и методология

A study of practice shows that law enforcers in Russia do not always follow the so-called “spirit of the law”, often giving priority just to its formal interpretations. In order to understand why this happens, it is necessary to examine the narrative stories behind such enforcement practices. Narratives can not only explain the existing law enforcement, but also create a new law enforcement practice and legal reasoning. Thus, narrative research is a useful tool for studying both lawmaking process and law enforcement practices. The aim of the study is to assess the impact of narratives on lawmaking process and law enforcement practices, as well as the development of the basics of the methodology for using narratives in legal research. The study used hermeneutic methods, as well as analysis of the results of empirical studies of law enforcement practices, comparative legal research, which together made it possible to propose goals, objectives, sources for obtaining narrative stories and data processing methods for conducting law enforcement research carried out using a narrative approach and narrative methods. The study resulted in the following. (1) Two functions of narrative methods and approaches in legal research have been identified: (i) cognitive (heuristic), which can be used to identify narratives that determine law enforcement, to explore them in order to understand how they are formed and how they can influence the legal reality, law enforcement practices, legal reasoning and lawmaking; (ii) prognostic-and-transformative, which makes it possible to identify the necessity for reforming legal regulations and to offer structural, organizational, legal means designed to eliminate the identified problems of law enforcement. (2) A classification of narratives has been invented. It includes four groups of narratives depending on the coverage: personal, professional, regional, national, international. (3) The possibility of using the following linguistic and special-legal methods has been proved: (a) a structural and linguistic study of narrative stories. The study of plot repetitions, of the word’s usage, etc.; (b) a study of words (and their omissions) in official documents; (c) a focused research of narrative stories in regions where practices that are not in accordance with the law are repeated; (d) identification of the relationship between the collected number of narrative stories and the results of statistical processing of the studied empirical materials; (e) analysis of the correlation of narrative stories and legislation, data on the organization of judicial activities.

Systematization of property claims in civil law

The article deals with the problem of determining the list of real actions that could be taken to improve civil legislation and develop judicial practice. The main research method is comparative law. The article analyzes the civil codes of foreign countries on issues of property law protection, and also considers tort actions in defense of rights to things in common law. Attention is also paid to the historical development of the norms on the protection of property rights, starting from Roman private law. On the basis of historical analysis, a periodization of the development of ideas about real actions in civil law is proposed. On the basis of historical and comparative legal research, a system of real actions for Russian civil law de lege ferenda is proposed. The system of real actions includes five of its varieties and consists of the following methods of protection: a vindication action, a negatory action, an action for the recognition of a property right, an action for the acquisition of a property right, an action for the termination of a property right. At the same time, the problem of systematization of property actions remained unexplored for a long time due to the universal understanding of a negatory action. The rejection of such an interpretation of the negatory action allows us to take a new step and develop the revolutionary ideas of the pandektists in modern law.

ПРАВОВОЙ РЕЖИМ СМАРТ-КОНТРАКТОВ: КОД ИЛИ ДОГОВОР

Introduction: the article is devoted to the analysis of legal regulation of smart contracts, the concept, content, and scope of their application. The author analyzes in detail foreign expe- rience of using smart contracts and suggests possible options for expanding the application area. The article also has a separate section that looks at smart contracts as compared with traditional institutions of civil law. Smart contracts are expected to find application in almost all areas of life in the future. As is often the case with new technologies, the use of smart con- tracts raises a number of civil law issues. Blockchain technology makes it possible not only to create new means of payment but also to autonomously manage almost any process. It can be used for individual contracts and even for the creation of autonomous decentralized systems. Purpose: to provide an insight into the institution of smart contracts and define their role in civ- il law. Methods: empirical methods of comparison, description, interpretation; theoretical me- thods of formal and dialectical logic; special scientific methods such as the legal-dogmatic me- thod, the methods of interpretation of legal norms and comparative legal research. Results: smart contracts are computer programs that perform legally significant actions according to predetermined algorithms set out in the form of a so-called program code. In practice, they are especially important in connection with the development of blockchain technology or (more generally) distributed ledger technology. Conclusions: the term ‘smart contract’ was defined by Nick Szabo in the 1990s as a sequence of commands represented in digital form, including transaction protocols that execute these agreements. Thus, smart contracts formulate rules and sanctions for agreements and execute them automatically. These are not necessarily contracts in the legal sense, but they are capable of controlling, tracking, and documenting legally signif- icant actions. Smart contracts can also be implemented using traditional, for example, mechan- ical technologies (e.g. in a vending machine). However, blockchain and distributed ledger tech- nologies make it possible to implement incomparably more complex rules and enforcement me- chanisms and offer a decentralized environment with an integrated settlement system. From a legal point of view, smart contracts perform two functions. On the one hand, they serve as a functional equivalent of a contract since their technological code can identify the services to be exchanged as well as the conditions under which they must be provided. Being the normative order of the digital, this code formulates the program of obligations of the parties. It resembles the legal order of a contract, without necessarily coinciding with it. On the other hand, smart contracts serve as a tool for the execution of contracts – by controlling, monitoring, and docu- menting the exchange of services. They can also facilitate the execution of conventional con- tracts by translating their provisions into a technical code, verifying the occurrence of agreed- upon events, and enforcing contracts. Smart contracts are suitable for contractual relation- ships, for example, for processing payments or delivering goods without the participation of the parties and an intermediate step in the form of direct execution. Smart contracts are gaining more and more popularity, especially in the financial sector. In addition to the so-called token economy (cryptocurrencies, ICO, etc.), there are also discussed algorithmic ETFs, online plat- forms for loans or project financing. Another important area of application is sharing economy. From a legal point of view, smart contracts can either be the subject of a contractual agreement or generate it on their own. There is sometimes put forward a thesis under the motto ‘Code is law’ that smart contracts give rise to a largely autonomous legal system and/ or are not subject to applicable law. However, this appears to be an erroneous conclusion

Legal issues of reforming the social insurance system of employees during the pandemic

The article analyzes certain legal aspects of compulsory and voluntary insurance during the pandemic in connection with COVID-19. Since Article 7 of the Constitution of Russia pro-claims the Russian Federation to be a social state, an analysis of these aspects is currently relevant, using a comparative legal and system-structural research methods. Among the most important problems currently considered are improving the mechanism of compulsory social insurance for temporary disability and in connection with maternity, as well as voluntary in-surance of those types that are social in nature, i.e. voluntary medical insurance and insurance against illness. It is necessary to optimize the composition of types of compulsory social insur-ance and to clarify the grounds for provision in connection with COVID-19, in particular, by including coronavirus infection in the list of diseases that entitle one to the payment of ben-efits for caring for a sick child for a longer period, as well as by securing the right to benefits for one of the parents in the event that the child declares additional holidays due to quarantine. In addition, it is proposed to legislate the concepts of accident and disease not only in relation to compulsory social insurance against industrial accidents and occupational diseases, but also in relation to voluntary social insurance, which can be done in legislation on organizing insurance businesses. To resolve the issue of expanding the coverage of citizens with voluntary social insurance in case COVID-19, it is necessary to approve the minimum requirements for this type of insurance by the instruction of the Bank of Russia.

Organizacione i funkcionalne razlike u upravljanju ljudskim resursima u Ministarstvu odbrane i Ministarstvu unutrašnjih poslova Republike Srbije

In security systems, the function of human resources management has a special role. The Ministry of Defence and the Ministry of Interior, as representatives of state security, seek to place the function of human resources management as much as possible in the function of the Armed Forces and the police, their efficiency and development. The paper presents a comparative analysis of the functioning of human resources management in the aforementioned ministries with a critical review of the existing solutions. The objective of this paper is to find mutual similarities and differences, as well as positive examples, through a comparative analysis, in order to define the best practice and suggest a desirable direction of development. Furthermore, efforts are being made to inform the wider scientific public about the role and importance of the function of human resources management in the defence and security systems. In accordance with the subject and objective of the research, the paper first presents the general framework of human resources management. Then focus is directed to its role in security management, and then a comparative review of two models of human resources management is done. A comparative analysis and comparative legal, inductive and empirical research methods have been used. Finally, some conclusions from the mentioned parts of the paper have been made.

The principle of maximum tolerance in criminal policy: on the example of a draft law

The author’s hypothesis is that in modern Russian criminal policy there are some principles that are not declared, but the subjects of criminal policy are guided by them. The objectives of the study are to identify and disclose such principles, substantiate their existence and possible consequences of their application. To solve these problems, the author used: rules, techniques of formal and dialectical logic; abstraction and generalization; comparative legal and formal legal research methods; methods of interpretation of legal norms; study of documentary sources; ideal experiment; legal forecasting, the results of previous criminological research, etc. The article substantiates the conclusion that many legislative initiatives of recent years in the field of combating crime implicitly proceed from the principle of maximum tolerance for persons violating the criminal law. The implementation of this principle is shown in a number of draft laws and already adopted laws, as well as the law enforcement practice that has developed on their basis. The characteristic bill developed in 2021 is analyzed in detail. in the office of the Commissioner for Human Rights in the Russian Federation and presented to the expert community as strengthening the protection of human rights in criminal proceedings, aimed at further humanization of criminal legislation. The provisions of the draft law are compared with the principles of science, justice, the inevitability of criminal responsibility and punishment, etc. The forecast of what impact, if the bill is adopted, will be exerted on the criminogenic situation in the country and law enforcement practice is substantiated. The presented analysis, according to the author, is applicable to many draft laws based on this principle that have already been published or will appear in the future, as well as to those norms and institutions that have already been embodied in the current criminal, criminal procedure and penal enforcement legislation.

Specific Features of Commercial and Contract Law in Latin America

The article analyzes the dualism of private law in Latin America with the examples of civil and commercial codes of individual states of the continent. A specific feature of the legislation governing trade activities is the incorporation of the customs of the indigenous peoples inhabiting the territory of South America into the colonial legal systems of continental Europe, which led to the formation of dualistic principles of trade and contractual regulation. The purpose of this article was to identify the common and distinctive features of contractual regulation of commercial relations in different countries of Central and South America in terms of defining the concept of a contract, the subject of the contract, the procedure for concluding a contract and individual contractual structures. The specificity of the legal regulation of contractual relations in Latin America is analyzed by means of historical, comparative legal research methods and the method of content analysis of the provisions of normative acts. Civil and commercial codes, as well as other regulations of Brazil, Argentina, Chile, Mexico, Peru, Paraguay, Venezuela, Bolivia and a number of other Latin American countries were used as empirical material. The following can be stated as the basic principles on which the Latin American system of Contractual law is built: the autonomy of participants in commercial relations, the social function of the contract and freedom of contract, good faith and equality of the parties in contractual obligations. The dualism of private law in Latin American countries leads to a different understanding of civil law contracts and commercial transactions concluded by participants in trade, which is reflected in the provisions of the civil and commercial codes and the definition of the subject of the contract. Separately, the article discusses the procedure for concluding an agreement through the offer-acceptance structure, as well as in the negotiation process.

CORRELATION OF SUPRA-NATIONAL AND NATIONAL ADMINISTRATIVE PROCEEDINGS IN THE MEMBER-STATES OF THE EUROPEAN UNION AND UKRAINE: COMPARATIVE LEGAL ANALYSIS

In this article author generalized results of comparative legal research as to the essence, main types, specifics of realization for European administrative proceedings of different levels. It’s been proposed to develop an independent codified legal act regarding participation of administrative bodies in European administrative proceedings. The conducted comparative legal analysis of the existing approaches in the European and domestic national doctrine of administrative law as to correlation, definition of the essence, specifics of exclusive spheres of application of certain types of European and national administrative proceedings has made it possible to provide a range of proposals as to improvement of the Ukrainian practice regarding normative fixation of demands as to intensification of the European integration and implementation of European standards to administrative decision-making for the main types of administrative proceedings. Author proposed development of the national codified act “The Code on participation of administrative bodies in the European administrative proceedings” for systematization of normative acts taken by the Verkhovna Rada of Ukraine for cooperation with European institutions. It has been concluded on the necessity to develop domestic approach to motivation of administrative acts with respect to European practice of legal understanding and enforcement, making it possible to review illegal administrative acts of administrative bodies.

Human Genetic Engineering: Should Indonesia Regulate It?

Human genetic engineering raises pros and cons. Despite the potential to contribute to the health sector, it can cause several problems. While, in theory, it goes against nature and against other conservative beliefs, human genetic engineering gains important support from Transhumanism—a philosophy promoting the scientific evolution of the human race. This study determines the relevancy regulation of human genetic engineering on a global scope and how it affects the prospects of regulating human genetic engineering in Indonesia. The study aims to provide consideration for Indonesia in determining the legality status of human genetic engineering, through analyses of legal constructions surrounding it. The study used a comparative legal research method, using laws and legislations as the focal point to compare the legal frameworks of Indonesia and other countries. It employed secondary data and applied the qualitative method. The study reveals that some countries have already regulated the issue based on the benefits and risks, laying out the boundaries and restrictions on the issue. Indonesia has not established any regulation or showed specific interest in regulating human genetic engineering. The regulation on human genetic engineering is very important because many institutions are now increasingly carrying out human genetic engineering; and many countries oversee it. This importance is based on the theory of legal progressivity, which states that the law exists for human and not the other way around. It implies the necessity of adding progressive moves into the existing legal framework to adapt to the changes and developments in society.

On the Path of Legal Transplantation in the Era of Legal Interpretation

The flexibility and applicability of the law have become the core standards of the modernization of the current legal system, and the legal interpretation has become an important way to govern the modernization beyond legislation. As a traditional way of law generation, legal transplantation has some problems such as conflict of perspective, confusion of definition, and lack of agreement with the above path. Based on the principle of legal unity, China's legal transplantation should follow the principle of moderate foresight and innovation, scientific principle, economic principle, and the principle of equal emphasis on ideas and systems, and use the "screening method" to conduct comparative legal research, Fully absorb the legal system beneficial to our country and pay attention to its localization research, so as to realize the rule of law and modernization of governance.

ПРАВОВЫЕ ПРОБЛЕМЫ НАЛОГООБЛОЖЕНИЯ ЦИФРОВЫХ БИЗНЕС-МОДЕЛЕЙ

Introduction: the article is the result of research on the implementation of measures aimed at improving the tax regime of profit taxation in the digital economy. The central issue in the discussion around taxation of the digital economy is the distribution between states of tax rights in relation to digital business models. The author discusses the problem of establishing a link with a certain tax jurisdiction and the problem of profit distribution after this link has been established. The study provides a focus on a comprehensive analysis of the legal framework aimed at ensuring tax security of the state in the context of digital transformation. Purpose: on the basis of comparative legal research, to reveal the features of digital business models that necessitate the application of special taxation rules to them as well as to identify possible areas for improving Russian tax legislation in this field. Methods: analysis and synthesis, the principle of unity of theory and practice; the principles of objectivity and comprehensiveness of research; the principle of interdisciplinarity of research; formal legal, comparative legal, historical, statistical methods. Results: the features of digital business models that necessitate the application of special taxation rules thereto have been identified; suggestions on how to improve Russian tax legislation have been formulated. Conclusions: based on a comparative analysis of transnational groups of digital companies and their activities in various states, the study identifies the features of digital business models that make it necessary to apply special taxation rules to them. The following are suggested as possible areas for improving the tax legislation of Russia: revision of approaches to taxation of a permanent establishment and enshrinement of the rules on taxation of a digital permanent establishment in Article 309 of the Tax Code of the Russian Federation; regulation of the relationship between the concepts of services and royalties with regard to the activities of digital companies; regulation of platform employment from the perspective of taxation.

Исследование правового регулирования медицинского обслуживания судей и членов их семей

The results of a comparative legal study of the legal regulation of medical care for judges in the Russian Federation are presented. We note that at present, in the theoretical and applied legal literature, studies of medical care for judges of courts of various jurisdictions (magistrates, judges of district, military, city, regional, arbitration, cassation courts of general jurisdiction) are not fully represented. As a research methodology, systemic, dialectical, comparative legal and formal legal methods are used. An idea is formed about the regulatory legal framework for medical care for judges and the components of such service are substantiated. The solution of the problems of the article is carried out on the basis of the study of the relevant legislative and scientific sources, by the method of comparative legal research. We conclude that it is necessary to increase their social protection by improving the relevant legal norms and mechanisms for their implementation. We note that in this aspect it is imperative to take into account the opinion and recommendations of the judiciary community. Author’s developments allow to know the system and structure, as well as the procedure for organizing medical care for judges in the modern domestic legal system. Such studies lead to the systematization of scientific ideas about such a significant type of social security for the judiciary and the possibility of its improvement in the general system of their social guarantees.