Russian Law Research Articles

Comparative legal study of the application of a civil penalty as an interim measure in Russia and foreign countries

The subject of the study is a comparative legal analysis of Russian and foreign legislation in terms of the legal nature of the civil penalty as an interim measure in order to implement positive experience in Russian law enforcement practice. The author examines in detail the legislative foundations of the civil penalty by the EU countries, the USA and England in terms of establishing a common and different legal essence, and legislative meaning in the formulation of provisions aimed at the implementation of this institution by subjects of property relations. The substitution of the security function of the civil penalty by a foreign legislator, its "sanction" essence, is noted, however, along with this, the unconditional observance by the US courts of the freedom of expression of the parties to the contract in terms of determining the rules for the application of the penalty is seen as a positive experience. The author believes that such an approach can be copied in Russia, where the courts take a slightly different position, reducing the penalty on the debtor's application in the vast majority of cases. The paper uses a comparative legal analysis of foreign practice of civil penalty regulation in order to formulate conclusions regarding the subject of the study. Through the application of this methodology, it was found that, in foreign countries, unlike Russia, a civil penalty is applied as a measure of civil liability, and not a security one, which does not affect the positive practice of its application. The main conclusions of the study, along with the definition of similarities and differences in the application of the civil penalty by Russian and foreign legislators, are: the predominance of the security function of the Russian model of penalty, stimulating contractual discipline of participants in property relations; a "rational" approach to establishing the right of the parties to reduce the size of the penalty, ensuring a balance of interests of the parties; determining the possible copying of positive American experience in terms of unconditional compliance with the freedom of expression of contractual regulation of the civil penalty by entrepreneurs by fixing in the Civil Code of the Russian Federation a written confirmation of the creditor's right to recover the penalty in case of delay of the obligation or its improper performance and acceptance of such performance by the creditor. Such a rule makes it possible to strengthen the security function of the penalty and act as a way to protect the interests of the creditor in the event of improper (defective) performance of the obligation by the debtor.

Ispol'zovanie pytok pri rozyske prestupnikov i ispolnenii nakazanij (istoricheskij ocherk)

The article deals with torture as a means and a way to search for criminals and carry out punishments, which were legitimate forms of criminal justice. The features of the legal regulation of torture in the monuments of Russian law of the 15th - 18th centuries are highlighted. The use of such common types of torture in pre-revolutionary Russia as the rack, whip and whip is analyzed.

Does a judicial expert in Russian law enjoy immunity from civil liability or should he bear property responsibility for the quality of the conclusion prepared by him?

Present article is devoted to the search for an answer to the question of whether a judicial expert in Russian law should bear civil (property) responsibility for drawing up an expert opinion that does not meet the requirements of the law, or the nature of the relations connecting him with the court, the procedural position of the expert and the specifics of the function performed by him, taking into account his social and individual competence determines the granting of immunity from bringing a forensic expert to property liability. In conclusion, Despite the above arguments in support of the existence of immunity, as well as the emerging approaches of Russian law enforcement practice, it seems that a forensic expert should be a subject of property liability both to the court, which has the right to refuse to pay remuneration or reduce its amount if it finds that the expert improperly fulfilled his duties to conduct an expert study, and before the parties to the court proceedings, who have the right to file an independent tort claim against him for recovery of damages caused.

Smart Contract as a Type of Contract under Russian Law

Introduction. This article discusses the problem of the lack of special legislative regulation of the institution of smart contracts, which is expressed, among other things, in the absence of a definition of the concept of a smart contract and a distributed ledger of transactions (blockchain) in the law. The authors made an attempt to identify the presence of negative effects on legal relations due to the presence of a legislative gap in the regulation of this institution.Materials and methods. As part of the research, the author uses both general and specific scientific research methods. When studying the issue of the origin of the institution of smart contracts, the authors use the historical method, and when considering the issue of the existence of a gap in the legislative regulation of the institution of smart contracts in domestic law, they use the comparative legal method of scientific knowledge.Results of the study. The authors come to the conclusion that one of the main problems currently existing in the field of legal regulation of smart contracts is the lack of special regulation of this institution, as well as the lack of legislative recognition of the concept of a smart contract and a distributed registry of transactions. The identified problems create obstacles to the development and application of the institution of smart contracts in civil law relations.Discussion and conclusions. The study showed that the simplest solution to eliminating the regulatory gap of the smart contract institution is to legislate the concept of a smart contract and a distributed transaction registry in the wording proposed in the draft Law on the Central Federal District, which will make the use of this institution more attractive for participants in civil legal relations and will contribute to the development the specified institute.

Comparison of the Transformation of some Provisions of the Information Legislation of Russia and the EU in the Context of the Cyber Security Conception

Introduction. The article discusses the legislative framework in the field of information and cyber security in Russia and the European Union, as well as relevant changes to them. The changes in the legislation of the Russian Federation after the adoption on December 30, 2021 No. 441-FZ “On Amendments to Article 15.3 of the Federal Law “On Information, Information Technologies and Information Protection” and Articles 3 and 5 of the Federal Law “On Amendments to Certain Legislative Acts of the Russian Federation”, as well as Council of Europe Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD) of 1981, Protocol amending the Convention for the Protection of Individuals with regard to the Processing of Personal Data, adopted by the Committee of Ministers on its 128th session in Elsinore on 18 May 2018. (Convention 108+), 2021 Guidelines for the Protection of Individuals with regard to the Processing of Personal Data by and for Political Campaigns.Materials and methods. The research materials were compiled by the Federal Law of December 30, 2021 No. 441-FZ “On Amending Article 15.3 of the Federal Law “On Information, Information Technologies and Information Protection” and Articles 3 and 5 of the Federal Law “On Amending Certain Legislative Acts of the Russian Federation ”, Federal Law of July 27, 2006 No. 152 “On Personal Data”, Federal Law “On measures of influence on persons involved in violations of fundamental human rights and freedoms, rights and freedoms of citizens of the Russian Federation” of December 28, 2012 No. 272, Federal Law “On Fundamental Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation” No. 67-FZ of June 12, 2002, 108 of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD), Convention 108+ and the Guidelines on the Protection of Individuals with regard to the Processing of Personal Data by and for Political Campaigns 2021. The methodological basis of the study was the following general scientific and special methods of cognition of legal phenomena and processes in the field of personal data protection: the method of system-structural analysis; method of synthesis of social and legal phenomena; comparative legal method; formal-logical method.Results of the study. The Russian Federation implements many of the provisions of the Guidelines for the Protection of Individuals with regard to the processing of personal data. However, there are those proposals that are not reflected in Russian laws. In addition, the Guidelines for the Protection of Individuals with regard to the processing of personal data actually allow organizations to transfer data to social networks for advertising, which in Russia can be regarded as a violation of the law.Discussion and conclusion. At the moment, uncertainty remains in connection with the cooperation between Russia and European countries and Russia's withdrawal from the Council of Europe, the ECtHR and the HRC. In the near future, Russia will determine the list of European conventions that no longer meet its national interests, and denounce them. If Convention 108 is not included in this list, then Russia will be able to remain a party to the Convention and, consequently, to related documents. But still, even if the Convention under consideration and related documents are denounced, some of its positive practices can be adapted by Russian legislators and reflected in the Russian Federal Law in a slightly modified form.

Современные тенденции развития трудового права России (экономико-правовой аспект)

Modern trends in the development of the labor sector in the country determine the key directions for improving legislation. Among the key ones are the democratization and liberalization of the labor sphere, the growing importance of legal guarantees to ensure favorable working conditions and decent wages, the creation of op-timal legal conditions for the development of labor and business, the increased use of remote forms of work, and the development of a system of social and economic guarantees for different categories of workers (in particular, persons employed in the Far North and equated areas). Nowadays, there is a tendency of increasing integration of labor and social spheres, which determined the corresponding development of legal and institu-tional systems. Significant issues for the successful development of the legal system in the field of labor are: the development of legal guarantees for the socio-economic security of the country’s population, labor liberali-zation, legal support for decent wages, democratic development of the institutional and legal system, im-provement of the legal basis for remote work. Scientific novelty of the research lies in the analysis and as-sessment of key trends in the development of labor law in Russia, as well as in the study of promising ways to improve it. The core aspects of modern labor law are analyzed, the conditions and prospects for further devel-opment of this branch of law are examined. Based on the study of legal documents and institutional analysis, the main trends and prospects for the development of labor law are described. Under the legal and systemic approaches, the circumstances and ways of improvement of labor law as a branch of law are investigated. In addition, as part of the normative-legal and institutional approaches, the mechanisms of implementation of state policy in the field of labor are outlined. In conclusion, the article analyzes the key vectors of legislative development.

The Institute of Reconciliation in Russian Law of the XI-XVI Centuries

The object of the study is pre-trial and judicial conciliation procedures in conflicts between subjects of Russian monarchs. The subject of the study is the legal norms regulating these procedures, their genesis and development since the formation of the Old Russian state, contained in the legislation of individual principalities and the Moscow State. The need to write this article is caused both by the general vector of development of the science of the history of state and law of Russia, and by not quite correct ideas about the history of the institute of reconciliation among domestic researchers, especially specialists in the field of criminal law and procedure. The purpose of this work is to restore the scientific nature of the study of the genesis of the institute of reconciliation in Russian law. Particular attention is paid to the involvement of judicial practice illustrating the widespread use of conciliation procedures, including in the commission of serious crimes. Comparative legal analysis allowed us to show the development of the institution, the persistent desire of the legislator to reconcile the parties, including in the commission of serious crimes that caused significant property damage. The conducted research allowed us to conclude that reconciliation between the conflicting parties, carried out since ancient times according to custom, has already been legally regulated in the Moscow Kingdom in three directions: 1) in a pre-trial order; 2) after applying to the court, but before the start of the consideration and 3) after the verdict, before the judicial duel.

Договор исламской рассрочки (мурабаха): понятие, существенные условия и сравнительно-правовой анализ

The authors subject to legal analysis one of the varieties of Islamic financial transactions — the Murabaha contract. At the same time, the legal characterisation of the Murabaha treaty is given from the standpoint of Islamic law in the comparative context of Russian law. In this connection, the purpose of the work is to characterise the murabaha contract, its essential conditions and to identify the main criteria for similarities and differences in approaches to this type of transactions in Islamic law and Russian civil legislation. The main difference between murabaha contracts and a contract of sale with instalment payment under Russian law is that, according to Russian law, the goods are considered sold to the buyer on credit, i.e. such a transaction implies a loan element and the possibility of obligating the buyer to pay interest on the overdue amount (Article 488 of the Civil Code), which, in turn, is forbidden by sharia. The murabaha contract refers to a type of transaction between the parties in which the sale of goods at a price equal to the purchase price plus a certain agreed margin occurs. Such contract involves no hidden interest, fines, penalties and commissions, i.e. there is no place for usury (riba). All this guarantees minimisation of the risks of disputes for both parties as much as possible, assumes the good faith of the participants in the transaction, which increases the confidence of the parties to each other and to the business as a whole. In this connection, such a financial model is defined as ethical financing.

On the Concept of Artificial Intelligence and the Basics of its Regulation in International and Russian Law

The article covers the study of the issues of the concept of artificial intelligence and certain problematic aspects of the legal regulation of its use. The authors analyze the concept of artificial intelligence in domestic and foreign legislation, foreign and national doctrine. Currently the absence of a single concept of artificial intelligence is caused by both the initial stage of development of the legal regulation of the phenomenon under study, and the lack of its uniform understanding in academic community. The development of a single definition of the concept under study is possible with gaining experience and the regulatory framework in this area. Taking into account the availability and prospects for the creation of various types of intelligent systems, it is proposed to take a differentiated approach to their legal regulation, establishing the appropriate legal regimes. The authors analyze domestic and foreign legislation governing the legal regulation of artificial intelligence and the principles of its use. Among the problematic aspects are the issues of determining artificial intelligence as a legal subject, the peculiarities of liability in case of violation of the rights of parties to civil transactions by activities related to the use of artificial intelligence technologies. The question of whether artificial intelligence is a legal subject is debatable. Currently, in most legal orders, artificial intelligence systems are not recognized as having consciousness (capable of creating and reproducing subjective decisions). However, the practice of applying the norms of intellectual law has led to the recognition in certain jurisdictions of authorship of the artificial intelligence system. The authors conclude that, when determining the limitations of liability in relations linked to the use of artificial intelligence systems, it is necessary to use both existing legal structures, such as mixed liability in case of joint infliction of harm; liability for harm caused by activities that create an increased danger to others; the responsibility of the manufacturer for the quality of goods (services) to the consumer, and the direct fixing in the current civil legislation of special rules that determine the specifics of liability when using artificial intelligence.

О ходе реформы законодательства об утилизации отходов потребления: наметился ли прогресс

The reform in the field of consumer waste disposal, carried out since 2014, designed to involve waste in secondary circulation, in July 2023 was marked by the adoption of a number of legislative amendments. This study presents a retrospective analysis of the results of a ten-year reform which introduced into Russian law the obligation of manufacturers and importers to dispose of waste from the use of goods and packaging. The latest innovations in the regulation of this sphere are assessed.

THE MEDICALIZATION OF SOCIAL LAW: THE NURSERY IN THE BILL FOR THE PROTECTION OF MOTHERHOOD, INFANCY AND CHILDHOOD 1913-1916

The author studies the legal provisions on nurseries in the bill «on the protection of motherhood, infancy and childhood», published in 1916. The document was developed by doctors. They understood the importance of nurseries in the fight against high infant mortality- an acute social problem in Russia in the end of the 19th century and in the beginning of 20th century. In the text of the document, for the first time, a definition of a children's institution is given, a mechanism for subsidizing nurseries by the state is developed, measures of state control over children's nurseries and the participation of physicians in these events are outlined. The nursery was to be attended only by infants, and these institutions were to function all year round, not just in the summer. The legitimation of nurseries in domestic law has become an important milestone in the development of social law in Russia.

Prohibition of war propaganda in international and Russian law

Prohibition of war propaganda in international and Russian law

Рынок недвижимого имущества: общая характеристика, новые объекты недвижимости, круг субъектов посреднической деятельности

The relevance of the issues under consideration is conditioned by the insufficient definition in modern Russian law of both the actively updated list of real estate objects and the range of subjects of intermediary activities in the real estate market and their legal status. The aim of the study is to identify new objects of real estate and their characteristics, as well as to study actual problems of legal regulation of the activities of entities of media-tion activity in the context of the use of digital technologies. The methods of studying the issues of the topic are formal legal analysis and synthesis, elements of comparative jurisprudence. The article identifies current trends in the development of the real estate market and intermediary services under the influence of digital technologies and other factors, examines new real estate objects, problems of the legal status of realtors, spe-cialists and real estate brokers. The direct dependence of the segment of intermediary services on the pace and completeness of realization of information technology capabilities in the conditions of digital revolution and increased competition in this market is revealed.

Методический подход к обоснованию ставки роялти в проектах нефтегазовых компаний

Intellectual property (IP) is the result of the creative work of inventors. The implementation of intellectual property and non-property rights is regulated by Russian law. One of the important components of intellectual property (IP) management is its commercialization. It is possible to assess the value of IP through an objective analysis of projects and their parameters, including financial components. Commercialization of IP is carried out through the mechanisms of alienation and disposal by companies of their intellectual assets in order to obtain commercial benefits. One of the ways to dispose of rights is to conclude license agreements on granting the right to use protected intellectual property. The validity of a license agreement depends on the presence in the compensated license agreement of a condition on the amount and procedure for paying remuneration. Payment of remuneration may be provided in the form of one-time payments (lump payment), periodic interest deductions (royalties) or in another form. Payments in the form of royalties are most in the interests of the right holder. The calculation of the royalty rate is methodologically not regulated at the legislative level and is the most controversial issue when concluding license agreements. The development of methodological approaches to determining the royalty rate makes it possible to increase the justification of the costs of project implementation. The article describes the existing methodological approaches to the calculation of a fair royalty rate, analytical tools for determining standard royalty rates, and the values of recommended royalty rates in the oil and gas industry.

An Individual as a Foreign Agent: The Legal Regulation

Foreign interference in Russia’s internal political processes is almost always disguised as the constitutional right of citizens to ideological diversity, forming public opinion, provoking panic, as well as influencing the attitude of society towards governmental authorities. The influence of individuals who form public opinion on the basis of their recognition and pseudo-authority has significantly increased. A large-scale spread of social networks has caused a dramatic increase in the popularity of artists, musicians, public figures, whose statements can encourage society to make certain decisions. The study is conducted in order to identify signs of foreign influence, as well as criteria for classifying individuals as foreign agents. Based on a comparative analysis of the legislation on foreign agents in Russia and the United States, the authors establish the conditions for the need to restrict the constitutional rights of citizens in order to maintain a balance of private and public interests. In the preparation of the article, formal and logical methods were used, as a result of which the authors analyze socio-legal phenomena that allowed to identify the relationship between increased foreign influence and consolidation of domestic legislation on foreign agents as a response. The authors come to the conclusion that in order for an individual to be acknowledged as a foreign agent under Russian law, three elements are needed: the presence of foreign influence, the participation of an individual in political activity and direct or indirect influence on state bodies or state policy. At the same time, the main problem of law enforcement is the distinction between real foreign agents and unpatriotic citizens who actively oppose the policy of the state, which can be used «blindly». In this regard, a wide application of the provisions of the Law on Foreign Agents is justified, and the assignment of the status of a foreign agent is subject to individualization.

PRIVATIZATION OF THE HOUSING FUND IN THE WORKS OF PROFESSOR S. M. KORNEEV AND MODERN PROBLEMS OF PRIVATIZATION

The article analyzes the scientific heritage of Professor S. M. Korneev, dedicated to the privatization of the housing stock in the Russian Federation. The continuity of the ideas of the scientist in the current doctrine of law and the consolidation of individual proposals in modern Russian legislation are shown. It is noted that S. M. Korneev was one of the first in Russian law who addressed the topical legal problems of housing stock privatization and suggested ways to resolve them. In particular, he studied the issues of protecting the rights of family members of the owner during privatization, including formulating proposals on the need to improve legislation on the participation in privatization of minors and incapacitated family members; they show how the principle of “free” and “one-off” housing privatization should work in law enforcement practice; proposals were formulated for the formalization of the legal regime of the common property of an apartment building during the privatization of residential premises in it; the problem of the legal regime of a land plot under an apartment building is raised and proposals are made for organizing the maintenance of the infrastructure of such a house through the creation of special legal entities - condominiums. This article shows that the comprehension and resolution of many of the scientific and practical problems of protecting the right of ownership to residential premises identified by S. M. Korneev, which arose even at the stage of privatization, took place in the last decades of the development of domestic legislation. It is concluded that. that individual problems of privatization remain topical even at the present stage.

First Aid Kit in the Simulation Center. Obligation or Necessity?

Employees of the Department of Simulation Training of the Voronezh State Medical Institute named after N. N. Burdenko have been dealing with first aid for many years and, in this regard, we are the ones who are asked what kind of first aid kit to purchase and what should be in it. Such questions are heard from individuals, motorists, participants in a special military operation and labor protection officers of various organizations. Accreditation is often associated with additional psychological and physical stress (CPR), and according to Russian law, a first aid kit must be present at the workplace. But there are many questions about the quality and composition.

CONSUMER LAW IN THE SYSTEM OF MODERN RUSSIAN LAW AND LEGISLATION

The article is devoted to determining the place of consumer law in the system of Russian law and in the system of Russian legislation. Having formed in Russian civil law initially as a functional institution of civil law protection of consumer rights, it later, together with the norms of branches of public law, forms an intersectoral institute of Russian law, and under the influence of codified civil legislation, especially due to the reform of the Civil Code of the Russian Federation, as well as the improvement of legislation on consumer protection and the practice of its application, occupies the place of a functional sub-branch in the structure of modern civil law. For more than thirty years, consumer law has also been formed as a complex branch of legislation, including normative acts containing norms of various branches of Russian law. Consumer law (consumer protection legislation) is characterized by a number of features (it includes numerous regulations of various hierarchical levels and combines legal regulation contained in codified civil legislation and special acts on consumer protection). This, on the one hand, seems to be a very progressive phenomenon, since the civil law regulation of contractual relations with the participation of consumers is elevated to the level of the Civil Code of the Russian Federation, and, on the other hand, this is done in part two of the Civil Code of the Russian Federation, as well as in certain federal laws, is often inconsistent or insufficiently successful.

Развитие института отбывания наказания в виде лишения свободы на территории белорусских земель в XVIII веке

The article systematically examines the development of the institution of serving a sentence of imprisonment on the territory of the Belarusian lands in the XVIII century. Due to the fact that the Belarusian lands of this period were part of both the Polish-Lithuanian Commonwealth and the Russian Empire, the influence of the two legal systems of these states on the development of this institution is noted. The attention is focused on the fact that the main normative legal acts regulating the development of the institution of serving a sentence of imprisonment on the territory of the Belarusian lands at that time should be recognized as the statute of the Grand Duchy of Lithuania, Russian and Zheimot of 1588, the Cathedral Code of 1649, the Military Article of 1715 and the manifesto "Institutions for the administration of provinces" dated November 7, 1775. Expanding the influence of Russian law, including criminal law (and its constituent penal enforcement rights), on the territory of the Belarusian lands occurred according to the rule of "soft influence", enshrined in various decrees and charters of the Russian rulers. It is concluded that the institution of serving a sentence in the form of imprisonment in the Belarusian territories began to develop actively both legally and organizationally only under the influence of a more systematic Russian criminal law in the last quarter of the XVIII century, in connection with the three sections of the Polish-Lithuanian Commonwealth and the annexation of all Belarusian lands to the Russian Empire since 1795.

Аудиовизуальное произведение как сложный объект авторского права

The article analyzes the construction of an audiovisual work as a complex object from the point of view of coauthorship. To this end, the genesis of the existing subject composition of the authors of an audiovisual work in Russian law is investigated, and approaches to the defi nition of the authors of an audiovisual work in international legislation are studied. When an audiovisual work is perceived as a multilevel copyright object, its components will be a script, direction, musical accompaniment and other independent works within the framework of the doctrine of a complex copyright object. On the basis of this doctrine, the Russian legislator identifi es four authors of an audiovisual work whose creative contribution is the most signifi cant: a production director, a script writer, a composer who created a musical work specifi cally for an audiovisual work, and a production designer. It is proved that the closed list of authors of an audiovisual work is a characteristic feature of European legal systems that are part of the Romano–Germanic legal family. The Anglo-Saxon approach assumes the granting of all rights to the audiovisual work of the producer.