Modern Doctrine Research Articles

An evaluation of cyber-worthiness and related factors in maritime safety and maritime security

ABSTRACT This article revisits the traditional definition and concept of seaworthiness against the backdrop of technological developments in maritime transport and maritime law. These developments in the maritime industry, coupled with the increasing volume of maritime commerce, have affected the traditional doctrine of seaworthiness and necessitate its redefinition. Of the many developments, this article focuses on maritime security generally and cyber-risk and hence cyber-worthiness in particular. The article argues that cyber risk management, as a part of maritime safety and security standards, should be reflected in the modern doctrine of seaworthiness. It is problematic to provide a generally acceptable uniform definition for seaworthiness in maritime law, because the concept is both relative and technical. Furthermore, and considering the components of a seaworthy ship, the need to assess new systems related to technology used in ships and safety in navigation, and to determine whether a ship can be deemed “cyber-secure” has become essential.

К вопросу об определении места градостроительного права в системе права России

A relevant and controversial aspect in the modern theory of law in the development of the modern doctrine of the legal system is the question of the intersectoral division of the Russian legal system, the criteria for its construction, as well as the isolation and systematization of legal norms that are complex in nature. The purpose of the article is to establish intersectoral connections, criteria for systematization and the place in the system of Russian law of urban planning norms as a legal community that combines elements of private law and public law influence in the mechanism of legal regulation. A systematic approach and such logical research methods as analysis and synthesis made it possible to determine the place of urban planning norms in the system of Russian law as an independent branch of law with a special mixed type of legal regulation. Scope of application of the results: the main results and conclusions of the study can be used as the basis for the formation of new approaches to building a legal system and criteria for differentiating legal norms. In addition, the recognition of urban planning law as an independent branch of law will significantly facilitate the processes of law enforcement and law-making activities in the urban planning industry. Conclusions: the totality of the subject, method, principles, goals and functions of urban planning norms, forming a special mechanism of legal regulation, indicates the qualitative originality of the regulated sphere of social relations and the isolation of urban planning law as part of the Russian legal system as a branch of law. At the same time, the complex nature of urban planning law by type of legal regulation is due to the interpenetration of private law and public law interests.

Interpretation of legal duty in the American legal tradition

Human rights, as enshrined in current international legal instruments, are the result of long-term historical development and the gradual formation of standards that have become the norm in modern democratic society. The formation of such unified standards for regulating social life has led to the modern doctrine of human rights being based on universal principles and values, including freedom, equality, justice, and the inalienability of fundamental human rights. However, despite the commonality of these values and principles on which the modern idea of human rights is founded, its formation and gradual development occurred under the influence of cultural, historical, political, and sociological factors of individual states or entire regions. These factors led to the emergence of distinct legal traditions. A legal tradition is understood as a deeply rooted and historically conditioned attitude of people towards the role of law in society, the nature of law, as well as the organization and functioning of the legal system as a whole. The legal tradition, in turn, leads to certain differences or authenticity in the interpretation of various legal categories, as their formation occurred through the prism of unique circumstances characteristic of a particular legal tradition. Studying approaches to interpreting certain legal phenomena in specific legal traditions allows for a broader understanding of a given legal concept, revealing its peculiarities in the legal systems of individual states, and conducting a comparative analysis of its interpretation alongside other legal traditions. Today, when discussing human rights and obligations, we often refer to sources of the European legal tradition, which undoubtedly play an important role in the modern understanding of human rights. However, it would be incorrect to overlook the contributions of other legal traditions, particularly the American one. The emergence of the modern system of human rights and obligations on the American continent is associated with the activities of the Organization of American States, as well as the adoption of such acts as the American Declaration of the Rights and Duties of Man of 1948 and the American Convention on Human Rights of 1969. It should be noted that the American Declaration of the Rights and Duties of Man preceded the Universal Declaration of Human Rights of 1948 by six months, which underscores the significance of this act in the process of establishing an international system of human rights and their protection. A characteristic feature of this Declaration, which distinguishes it from the Universal Declaration of Human Rights of 1948 and a number of other European human rights acts, is its extensive list of duties impos ed on individuals. Thus, to identify the peculiarities of interpreting the category of legal duty, it would be appropriate to study this fundamental normative legal act of the American legal tradition in the field of human rights and duties. Furthermore, studying normative legal acts that regulate both human rights and duties will allow us to outline the mechanism of establishing and normatively formulating key human duties in the American legal tradition.

Понятие «нежилое помещение» в доктрине и законодательстве Российской Федерации

The article is devoted to an analytical consideration of the legal definitions of non-residential premises, as well as approaches to understanding this term existing in modern doctrine. The author, relying on the main features of non-residential premises as an object of civil rights, substantiates his definition of non-residential premises, and also limits the scope of the concept in order to streamline terminology and improve legal techniques in the field of lawmaking.

Государственный суверенитет в координатах судебной власти: суверенна ли судебная власть?

The article presents the author's concept of judicial sovereignty, which is based on an analysis of the constitutional characteristics of the sovereign principles of the judiciary, which include: the increased, special nature of the legitimacy of the judiciary; the unity of the judicial system of the Russian Federation, ensuring the unity of judicial sovereignty; the independence of the court; the jurisdictional universalism of the court, ensured by the exercise of judicial power in various constitutional forms of legal proceedings, by combining universalization with differentiation; judicial and jurisdictional discretion, including the possibilities of judicial law-making and the formation of judicial law. In this regard, the concept of judicial sovereignty is being implemented both in law enforcement, judicial and jurisdictional activities, and in judicial rulemaking. At the same time, the role of the judiciary in the development of the modern doctrine of state sovereignty is analyzed, bearing in mind, first of all, the decisions of the Constitutional Court of the Russian Federation as the conceptual basis of national judicial jurisprudence, which is of particular relevance in modern conditions of the global crisis of international relations and the need to strengthen the sovereignty of Russia in all forms of its manifestation.

Development of a System of Sources Russian Criminal Law

The formal source of criminal law should be recognized as those legal acts that can be directly applied by courts in resolving criminal cases and to which the court must directly refer in a court decision to justify its decision. The criminal law doctrine has convincingly proven the multi-source nature of the branch of criminal law. At the same time, the modern doctrine of sources sorely lacks a differentiated approach to their analysis and presentation. The implementation of a systematic approach in the context of a general theoretical doctrine of the forms of expression of law allows us to identify several substantively divergent groups among the sources of criminal law: a) sources of regulation of criminal legal relations that do not contain criminal legal regulations; b) sources establishing criminal legal regulations, including the criminal code as the only source establishing crime and punishability of socially dangerous acts; c) sources of normative specification of criminal legal regulations; d) sources of interpretation of criminal law regulations. Keywords: source of criminal law, systematic approach, source of establishing an order, source of specifying an order, source of interpretation of an order.

Building European Fraternity Through Gymnastics: The Establishment of the Bureau Des Fédérations Européennes de Gymnastiques, 1863–1913

The historiography of ‘associative gymnastics’ has mostly focused on the ways individual countries used gymnastics in education and in the military and to build patriotic fervour. In contrast, scholars have paid little attention to the early internationalization of gymnastics in Europe and beyond. The present paper draws on original research, notably in the archives of the Swiss Gymnastics Federation and the Olympic Studies Centre, to examine the process by which Switzerland’s model of ‘federal’ gymnastics festivals spread throughout Europe from the 1860s onwards and gave rise to intense exchanges (documentation, official delegations, competitors) between the national federations that were emerging at the time. This process, together with the work of Nicolaas Jan Cupérus, from Belgium, helped pave the way for establishing the Bureau des Fédérations Européennes de Gymnastique (BFEG), whose foundation historians traditionally trace back to a meeting in Liège in 1881. Analysis of the BFEG’s early history revealed the main issues (apoliticism, secularism, amateurism) and tensions (nationalism vs. internationalism) that accompanied its development. Its relationship with the newly founded International Olympic Committee and the modern doctrine of Olympism also had a profound impact on the BFEG and its decision to create a true international gymnastics tournament.

Primary Objectives of the Activities of Actors Ensuring National Security

The article is devoted to clarifying the key tasks of the actors ensuring national security, taking into account modern understanding of national security and its provision. Based on the analysis of current scientific literature, the authors highlight the approaches of Ukrainian scientists to the understanding of the complex of tasks of ensuring national security, which are consistent with the modern doctrine of national security and its provision. Considering the scientific views on the structure of the tasks of ensuring national security, seven main groups of the objectives of the national security entities are outlined. It is concluded that these targets envisage planning, creation, improvement and monitoring (in particular, for clarity and legal certainty, consistency and adaptability, taking into account complex and dynamic features of modern risks and challenges faced by the national security actors) in national security law making, and the results of standard-setting.

Some Issues of Realization of the Principle of People’s Power in Modern Russia

The article analyzes the scientific heritage of Professor E.I. Kozlova in terms of her study of the implementation of the principle of people’s power. In her works Ekaterina Ivanovna Kozlova investigated the evolution of the conceptual foundations of people’s power in the Russian Federation. Her ideas are reflected in the modern doctrine of constitutional law. The article reveals the development of the ideas of people’s representation in modern Russia, taking into account the development of society and scientific and technological progress, analyzes the creation of new existing mechanisms for the implementation of the principle of people’s power. Special attention is paid to the ideological foundations of people’s power based on pluralism of opinions in the light of the emerging public debate on the possibility of return to a mandatory state ideology. The article also considers the institute of preliminary voting (primaries) as an effective feedback mechanism between voters and political parties, contributing to the transparency of the modern political system of Russia. It also reviews the existing electoral systems used in the Russian Federation for the election of public authorities at the regional and municipal levels and analyzes trends in their development.

Ideal objects in philosophy and science: genesis and concept

The author discusses the concept of an ideal object. The statement of O.I. Genisaretsky is quoted and problematized, stating that the obligatory feature that has been preserved for the object and the terms "object" and "ideal object" is, apparently, its representability or visibility. The author shows that ideal objects began to be created during the formation of ancient philosophy and thinking. Faced with contradictions, ancient thinkers dealt with this situation in different ways. If Protogoras recognized the right of the reasoners to receive contradictions and, accordingly, to consider the world contradictory, then Parmenides considered the world consistent, arguing that the criterion for the correctness (truth) of knowledge is not a reasoning person, but this world, existence, which still needs to be reached with the help of correct thought. It was within the framework of the implementation of the Parmenides program that ideal objects began to be created, which, as the author shows, performed three main functions: they allowed us to think consistently, to know the world and its phenomena, to comprehend and interpret empirical phenomena (facts) in a different way. Based on the case of Plato's "Feast", the semiotic schemes on the basis of which Plato creates ideal objects are analyzed. It is argued that it is impossible to build ideal objects, bypassing schemes, since their inventors (creators) are people. By solving problems, they synthesize meanings belonging to different areas of consciousness. The analysis of Galileo's "Conversations" allowed the author to suggest that the construction of ideal objects is due to the historical type of philosophical or scientific thinking. The author considers it necessary, before claiming to create a modern doctrine of ideal objects, to analyze the main typical cases of the construction of these objects in philosophy and science, and such an analysis can make significant adjustments to the understanding of the nature and features of this concept. Nevertheless, he suggests, it is already clear that the construction of ideal objects is an important link in philosophical, scientific and a number of other types of thinking.

Fulfilling fiduciary duties in the ai era: emerging risks and responsibilities in ai-assisted corporate financial oversight

This article examines emerging legal issues and theories of liability for directors involved in the management of AI financial instruments that are protected as trade secrets. The main question of the article is whether excessive delegation of functions or lack of transparency of AI algorithms can undermine the performance of fiduciary duties by directors. By reviewing case law in the context of strict oversight of past technological failures, the article proposes a renewed approach to the use of blockchain tools that will maintain efficiency benefits while ensuring necessary reporting and accountability. The study suggests that governance based on the principles of auditing AI performance and setting minimum standards for explainability can help strike a balance between driving innovation, addressing liability issues, and aligning with modern doctrines that hold boards accountable for key decision-making. new technologies. As algorithms become increasingly integrated into senior management decision-making processes, there is a need to further explore transparency mechanisms and monitoring processes that will support evolving fiduciary responsibilities in relation to evolving automation capabilities that impact shareholder interests.

To the 110th anniversary of the birth of academician Nikolai Alekseevich Shilo

The article covers the main stages of the work of Nikolai Alekseevich Shilo, the creator of the modern doctrine of placer deposits and a major organizer of Russian science, who made a significant contribution to the development of the mineral resource base of the USSR and Russia, as well as to the formation and further development of the Far Eastern Branch of the Academy of Sciences.

THE SCIENCE OF POLITICS BY NICCOLO MACHIAVELLI

The authors present the concept of modern political science proposed by Nicolo Machiavelli. In the authors' opinion, it was around the kingdom and the king, the sovereign state and one ruler that a new political doctrine was born, which took from tradition what could serve it, but was also built on new values, or at least on a new hierarchy of values. Niccolo Machiavelli was the thinker who best combined new, or rather renewed, political values into a coherent modern doctrine of the state and power, which would secularize it and liberate it from the tutelage of religion and morality. The authors point out that the personal experience of life on the divided Athenian Peninsula was crucial for the political thought of the famous thinker from Florence. The authors share the view of Albert Asor Rosa, who tries to find the reasons for this almost paradoxical concentration on the Italian experience of the founder of modern political science, a realistic, calculating, amoral and secularized study of the engines of action of leaders and crowds.This is why the central categories of Machiavelli's political thought are "state interest", "national identity", "raison d'état". The experience of the lack of statehood, on the one hand, and the democratic traditions of the Florentine Republic on the other, created a special amalgam of ideas and views on which a modern understanding of the science of politics was created, which is invariably associated with the name of Machiavelli.

Contribution of academician I.D. Kovalchenko to the development of source studies as a special historical discipline

The article analyzes the contribution of Academician I. D. Kovalchenko, an outstanding Soviet and Russian scientist, Honored Professor of Moscow State University, Head of the Department of Source Studies of Moscow State University (1966-1995), to the development of problems of source studies. With regard to source studies, he expressed at least two ideas, each of which would be enough for the name of the scientist to go down in the history of science forever: he identified a class of mass historical sources and fundamentally solved the problem of the possibility of applying a number of provisions of the modern doctrine of information in source studies.

The Importance of the Institution of Time Limits in Russian Civil Proceedings: Evolution of Legal Approaches

The paper examines theoretical views concerning the role and functions of procedural terms in different periods of the development of domestic civil procedural law. The author elucidates pre-revolutionary, Soviet and modern Russian legislation and doctrine in the field of procedural time limits. By analyzing the academic approach to the problem of the balance between the duration of the trial and the principle of the truthfulness of the court decision, the author demonstrates a change in approaches to understanding the socio-legal role of the institution of time limits (procedural deadlines). The author comes to the conclusion that, under the pre-revolutionary doctrine, procedural time limits were treated as a fundamental institution, through which not only the acceleration of the process is ensured, but also legal certainty in substantive and procedural relations. The Soviet doctrine reduced the role of procedural time limits to a means of enforcing the time-frame of proceedings, their ordering and ensuring procedural discipline. The modern doctrine witnesses a revival and deepening of the classical approach to understanding the importance of this institution as a factor in ensuring legal certainty, stability of civil turnover and implementation of the rule of law principle. A correct definition of the significance of procedural time limits is critically necessary due to the fact that the legislator, when setting deadlines for a certain duration of the proceedings, should be guided by their purpose in the mechanism of legal regulation.

Legal Personality in International Migration: the Personological Aspect

The article examines the legal nature and content of legal subjectivity of international migrants using the cutting-edge methodology of international legal personology. The relevance of the research topic is the need to apply the personology methodology to the study of the personal component of the international legal system, especially in the context of Russian aggression which poses a threat to the lives of Ukrainian refugees. The purpose of the article is to determine the legal nature and content of international migration legal personality of a person using the latest methodology of international legal personology. The methodological basis of the study is an interdisciplinary and comprehensive approach which made it possible to formulate the conceptual framework of international migration legal personality of a person with due regard for the modern doctrine and practice of international law. The work uses a number of general theoretical and special scientific methods: objectivity; dialectical; historical and legal; formal and logical; special legal; systemic and structural; comparative legal; sociological; the person-centered method was developed by the author specifically for the study of the problems of the subject of law in general and the subject of international law in particular. It posits that the 1948 mistranslation of the traditional legal concept of “legal personality” (person before the law) as “legal subjectivity” in Article 6 of the Universal Declaration of Human Rights has had negative methodological consequences for domestic studies of personative legal reality. In their research, the scholars typically focused on the legal status, rights and duties of the legal subject rather than legal personality per se. The study of specific qualitative traits of legal personality (such as personative capacity, under the umbrella term of “legal capacity”, or negative capacity, in the narrow framework of criminal capacity) has been fragmentary, sporadic, and categorically vague. Only when legal personology cohered as an academic approach did it became possible to use an adequate person-centric methodology to study the personative element of any legal system. A personological analysis of the traditional concept of “legal capacity” identified three aspects: 1) normative: the capacity of a social actor to bear a legal status, possess rights and duties (normative capacity before the law); 2) personative: the capacity of a social actor to be a subject of law, a legal personality, a bearer of a personative legal form of a physical, legal or sovereign person (personative capacity before the law); 3) communicative: the capacity of a social actor to take part in legal communications, to be a party of legal relations (communicative capacity before the law). Further personological study of international migration law found that a person bears all the features of an international legal personality that possesses the corresponding sectoral personative capacity and active capacity at the universal, regional, and particular level. Meanwhile, a significant number of environmental (climate), anthropogenic and political migrants remain outside the purview of international legal regulation at the universal level, where they are conventionally referred to by the rather restrictive term “refugee”. At the regional and especially at the bilateral level, there is a risk that the generally recognised rights and fundamental freedoms of forced migrants during accelerated readmission, which underscores the necessity of academic scrutiny of this relatively new institution of international migration law.

Some Aspects of the Concept of State Responsibility for Internationally Illegal Acts

The article examines some topical issues of the theory and practice of state responsibility for internationally illegal acts, which is of great importance in the doctrine of modern international law. Doctrinal approaches to defining the concept of internationally illegal action of the state are analyzed. The importance of codification and further development of international law in the field of responsibility of states for internationally wrongful acts is noted. It is noted that due to the systematization of doctrine and judicial practice in 2001 it was possible to substantiate the latest doctrinal definition of responsibility in international law for international illegal actions of the state, which found its implementation and enshrined in the Articles of UN Resolution56/83 of 12 December 2001. The Articles on the Responsibility of States for Internationally Wrongful Acts stipulate that every State that has committed an internationally wrongful act is liable for it. The Articles define the elements of internationally illegal actions of the state. It is noted that an internationally wrongful act of a state occurs when any conduct constituting an act or omission is a) appropriated to a state under international law; and(b) constitutes a violation of that State’s international legal obligation. Thus, the illegal behavior of the state can be both active and in action of the state. An important role in the preparation of the Articles belongs to the Commission on International Law. The scientific views of the members of the UN International Law Commission on international legal activities of states are analyzed. Thus, the modern doctrine of the state’s responsibility in international law for international illegal acts is based on the recognition of the state’s illegal behavior inviolation of the international legal obligations of this state under international law. Therefore, the issues of international legal responsibility of states for internationally wrongful acts need to be enshrined in the Universal International Convention on the Liability of States for Internationally Wrongful Acts, which will contribute to the progressive development of the law of international responsibility. Key words: international law, state, responsibility, international wrongful act, doctrine.

SOME LEGAL AND GENERAL THEORETICAL ASPECTS

The article is devoted to the analysis of the essence and certain aspects of the admissibility of leading questions in criminal proceedings. Those provisions of the modern doctrine, which categorically refuse to use this type of question in proof only on the basis that their formulation contains an answer, a part of an answer, or a hint of it, are called into question. Each verbal-meaningful question, in general, really contains some initial information. The admissibility or inadmissibility of a leading question must be categorized not by the presence of introductory (basic) information in it and its suggestion, but by its origin, the moment of its appearance in the communicative act, compliance with the requirements, namely: 1) legality; 2) ethics, in particular: a) a manipulative leading question is inadmissible, which invariably prompts the addressee to provide the information desired by the addressee or to behave in accordance with his interests (make a decision, etc.); b) it is necessary to evaluate and take into account which social values the addressee will give priority to as a result of asking him a leading question (that is, the addressee must compare the purpose and objectives of criminal proceedings with familiar social values: family, family relations, etc.); c) that the information obtained as a result of the leading question (confession of guilt, positive reaction to involvement in a criminal offense or awareness of it, etc.) should not be considered (evaluated) as the only evidence of guilt, that is, that this information should be confirmed by other evidence as well; d) the question does not contain wording in an aggressive manner; e) a situation will not be created in which the addressee, by asking a question, directly or veiledly encourages the addressee to consider existing facts that have not yet been established in reality or are considered to exist based on information that has already been refuted; e) a situation will not be created in which the addressee, in the basis of the question, directly or veiledly operates with evidence that was previously recognized as inadmissible by the court; f) a situation will not be created in which the addressee, with a leading question, introduces a topic (idea) for discussion that was not previously the subject of direct questioning; g) a situation will not be created in which the addressee prompts the addressee to make an evaluative judgment with a leading question, etc.

НАВІДНІ ЗАПИТАННЯ: ОКРЕМІ АСПЕКТИ ПОНЯТТЯ Й ДОПУСТИМОСТІ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ

The article questions those aspects of the modern doctrine in which the categorical influence and conditionality of the answer to the leading question is emphasized exclusively by the information contained in it; impossibility of receiving additional or new information from the addressee (the person to whom the question is asked); the hidden (non-obvious) form of the question (its veiledness), the content of which is embedded in advance in the structure of the future desired answer for the addressee (investigator (court)), which in turn is generated by suggestive influence (suggestion), etc. Therefore, the statement that a leading question should not contain certain primary (initial) information is false, because every, and not only leading, but verbally meaningful question (considering its logical and grammatical nature) also should naturally contain and does contain a certain initial information (foundation). That is why, according to the provisions of logic, each question is formed by two information blocks (elements): 1) what is known; 2) something that requires clarification. The person asking the question has the goal not only to fill gaps in acquiring certain information, but also inevitably to communicate some information to another person. Consequently, each question is formed by the so-called foundation (judgment (information), from which new knowledge is derived). Thanks to this, the transition from the unknown to the known is carried out. It is the foundation that contains information that to a certain extent can influence and, as a rule, influence the received answer. Therefore, it is somewhat simplified to believe that a question to a particular person (witness, victim, suspect, accused, expert) should not contain any primary (initial) information for the expected answer at all. In practice, it is almost impossible to formulate a question so neutrally that it does not affect the expected answer, to completely prevent the personal judgment of the person asking the question from appearing in the question. It is justified that the admissibility or inadmissibility of a leading question must be categorized not by ascertaining the presence of introductory information in it, but by its origin and the moment of its appearance in communication. In the context of a natural-scientific essence, it is justified to consider leading questions as a logical form of thinking within the communicative act, which in its content (intention) covers the initial (basic) reliable information coming from the addressee, with his unambiguous indication (suggestion) of their inadequacy for the purpose receiving new (additional, necessary, etc.) information in the form of a freely chosen answer of the addressee at the subconscious level. In the sense related to the legal aspect, leading questions are a manifestation of knowledge during an interrogation or another procedural action, within the content and tasks of which authorized subjects openly or covertly operate reliable or probable information, a part of it, an admissible indication of it for the purpose of receiving information in the form of an answer formed mainly at the subconscious level of the person who is asked this question.

On the need to form a special procedural status of participants in criminal proceedings from among persons with disabilities

This article raises the problem of the lack of regulation in the Russian criminal procedure legislation of the participation of persons with disabilities. It is proposed to replace the terminology used in the Criminal Procedure Code of the Russian Federation persons with physical and mental disabilities with persons with disabilities, extending it not only to suspects, accused, but also to participants in criminal proceedings in general who fall under its signs. The necessity of allocating this category of participants is justified, based on the fact that they are limited in their ability to exercise their rights and perform the duties provided to them by law, and endow them with a special procedural status. Attention is drawn to the need to implement this, including on the basis of the provisions of international legal documents and the modern doctrine of the legal social state. It is proposed to use the compensatory approach developed by the author to solve the identified problems. It is noted that in a number of states such an approach finds its implementation, which allows using their experience to improve the Russian criminal procedure legislation.