Russian Law Research Articles

Некоторые вопросы применения ст. 1192 ГК РФ

In this article the author analyses the practical aspects of application of the mandatory rules of direct application (the so-called super-imperative rules) of Russian law, including the qualification of legislative requirements as super-imperative rules, inclusion into such rules of public laws (administrative, currency, etc.), consequences of adoption/enactment of such super-imperative rules for existing contractual relations and, in particular, whether it is possible to use the frustration (impossibility of performance) doctrine. It also analyses the grounds for refusal by Russian courts to apply foreign imperative rules, including such grounds for the refusal as contradiction to Russian public policy (in particular, in case of sanctions introduced by foreign states). The article focuses on application of Article 1192 of the Russian Civil Code, mainly, in the context of foreign sanctions restrictions.

Актуальные проблемы обеспечения и защиты прав лиц, находящихся под стражей

The article studies the results of the human rights practice of the Human Rights Commissioner in the Russian Federation that reflect systemic problems of the Russian law enforcement practice resulting in violation of rights of persons in custody, gives an evaluation of legislative initiatives that facilitate filling legal gaps and further humanization of criminal proceedings.

On the psychological and economic foundations of forming private property relations in the economy for the purpose of their legal regulation

The paper considers the psychological and economic foundations of the formation of private property relations, which are based on the “sense of ownership” – the attitude to property as to one’s own, in the presence of an additional feature of a “sense of benefit”. The authors give a definition of property relations, which is based on psychological and economic foundations. The paper substantiates that private property under Russian law is a too generalized category – a single legal regime has been established for it, which does not correspond to the optimal legal regulation of property relations. The article substantiates the need to identify the subvarieties of private property, which have significant differences in psychological and economic motivation: classical, financial, social, collective and state-owned. Each subvariety of private property depends on the presence (absence) of a sense of ownership and a sense of benefit, as well as the presence (absence) of a certain level of property. Accordingly, civil legislation requires the legal consolidation of the subvarieties of private property, designating for each of them its own legal regime.

Legislative Initiatives for Improving the Interaction among the Educational Process Participants: Criminological Perspective

Introduction. The use of smartphones as a learning tool in schools is prohibited by the Russian law. As it is well known, the scientific and technological progress has induced active implementation of the electronic devices into the everyday life of all categories of citizens, and the system of education has not been an exception. To systematise the use of the electronic devices in the education system, the legislators have submitted to the State Duma of the Federal Assembly of the Russian Federation a draft law, which reflects the revised attitude to the modern means of communication. However, the reaction of the scientific community to this proposal has been extremely contradictive and contained both positive and negative arguments. The aim of the present research is to study the expediency and justification of using the means of electronic communication in the educational institutions, to analyse the criminological problems arising in this field, and to assess the legislative initiatives and opinions of the scientists of different scientific specialties referring to improving the interaction among the educational process participants.Materials and Methods. The overview analysis of the scientific criminological literature and respective legislation regarding the expediency and justification of using the means of communication for the educational purposes was carried out in the frame of the research. Among the methodological tools there were used the commonly accepted in Russia methods of scientific cognition: general scientific (dialectical method) and specific scientific methods (analysis, synthesis, logical, comparative legal, systemic methods).Results. In the frame of the research, the analysis of the various scientific opinions on acceptability of using the means of communication for the educational purposes was made. The criminological problems arising in this field and the existing legal regulation were studied, the opinions of scientists of different scientific specialties on this matter were evaluated. The conclusion about the negative effect of the long-term usage of a device on the learner’s academic progression was made, even though it was used for the educational purposes. According to the scientists’ opinion, this dependency can be explained by multitasking: the mobile phones have many applications and functions that naturally lead to frequent switching from one task to another, which happens in the educational process too. This entails worsening the quality of perception of the material. To change the situation, the Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing (Rospotrebnadzor) and the Federal Service for Supervision of Education and Science (Rosobrnadzor) have developed the recommendations for the educational institutions and state authorities on reducing the negative impact of mobile devices on learners.Discussion and Conclusion. The results of the conducted research have led to the conclusion that the total prohibition of the means of communication usage for the educational purposes significantly complicates and slows down the development of learners’ cognitive activity. Moreover, the opinion of some of the researchers about potential threats caused by children having devices in an educational institution does not seem convincing from a criminological point of view, because a smartphone can act as a guaranty of child’s security, the means of communication with his parents and monitoring his movement and condition. The paragraph 3.5.3 of the sanitary rules and norms SP (СП) 2.4.3648-20, which regulates the prohibition of the mobile means of communication usage for the educational purposes at the lessons, should be revised. In our opinion, it should not be the prohibition, but the control over the usage of the electronic devices in the educational process.

Legal status of young scientists in the Russian Federation

The subject. The article presents a comprehensive analysis of the legal status of young scientists in the Russian Federation, taking into account the needs of the Russian scientific society for the reproduction of the scientific knowledge.The purpose of the research is to confirm or to reject the hypothesis of the necessity of the specific legal status of the young scientists in Russian academic law.Methodology. The formal legal method, the method of comparative legal analysis and method of systemic approach were used in the article.The main results. The research proves that the modern Russian academic community is in need of the young scientists due to the aging of the community. According to statistics, the lack of social guarantees and the low prestige of the academic profession result in a low percentage of PhD graduates in the recent years. The study concludes that there is no systematic approach to the definition of the status of a young scientist in the current Russian law. Although attempts to formalize the legal status of the young scientists have been made, they have so far not led to significant results. The authors conclude that the current legislation governing the legal status of young scientists should be harmonised. Analysis of the current legislation on the legal status of young scientists also reveals a number of complex issues. Social guarantees for young scientists, presented in the form of social housing, affect only a small proportion of the scientific community, while there are no laws granting preferential loans for young scientific workers. The participation of young scientists in grant support competitions is complicated due to the lack of a unified approach. Specific problems are faced by female scientists. A partial solution to the problem of the low prestige of the profession for both scientific and pedagogic workers, according to the authors of the article, lies in the foundation of a unified federal system of guarantied wages for such workers.Conclusions. Researchers conclude that a consistent approach to the legal status of young scientists and social guarantees, according to such status, can ensure the stable growth of young people in the sphere of scientific activity. In order to enhance the prestige of the profession of scientist among young people and to prevent the lack of scientific and pedagogical workers, researchers consider it necessary to take a number of measures, such as legal enshrinement of the status of a young scientists, development of a system of social guarantees, search for a new ways to measure the scientific activity of employees, formation of a stable system of postgraduate studies and creation of comfortable working conditions for young scientists.

Quintessence of the principle of good faith of participants of civil legal relations in Russian law

The aim of this article is to define the good faith of a participant of civil turnover, to reveal the legal nature of the principle of good faith. Combining the studied etymological and legislative basis of good faith, the author formulates a definition of the concept of good faith of a participant of civil turnover. Such methods of research as analysis, synthesis, deductive, comparative, abstraction are used. The results of the study have practical significance.

Dispositivity in Russian Business Law

The principle of dispositivity is developed based on the concept of party autonomy that is characteristic of civil law regulation that covers business activities and is realised through the application of, in addition to directly applicable imperative norms, dispositive norms that imply the freedom of the parties to perform (to acquire, realise and dispose of) their rights on their own discretion. Particularly in respect of the civil law relations the law provides the parties with large possibilities to determine their relations in accordance with their autonomy of will and in default of such determination offers the applicable rules. Essentially important in realisation of the principle of dispositivity in the civil law are also initiative norms through the application of which the civil law relations emerge, change and cease. Related particularly to the contract and corporate law regulation in Russia, the traditional totality of the legislative law has been challenged in the pragmatic approach supported by the Russian highest judicial body. According to the Ruling of the Plenum of the Supreme Arbitrazh Court of 2014, the norm that determines the rights and obligations of contractual parties but does not include the expressed provision of its dispositivity or imperativity, ought to be recognised as dispositive or imperative in accordance with the interpretation of its aims, and this indicates of favourable attitude towards business activities as well as of reasonable implementation of the pragmatic attitude that is characteristic to common law to Russian law. In particular, the favouring of the principle of dispositivity in respect to business law regulation, by the concentration of the valuation of the dispositivity of a legal norm in the sphere of successive control, instead of previous control, actually promotes the real freedom of business activities, and makes the regulation flexible. This is particularly important for small and family enterprises that are very common in Russia. Keywords: Dispositive Norm; Initiative Norm; Contract Law; Corporate Law; Pragmatic Approach

Mechanism of Administrative and Legal Regulation

In modern conditions, issues of regulating relations related to the implementation of public administration and the protection of subjective rights, freedoms and legitimate interests in this area are of great importance. Their consideration at the scientific, educational and didactic levels can be carried out through such a category as a mechanism of administrative and legal regulation. Its use in scientific circulation makes it possible to establish the relationship that exists between the norms of administrative law, administrative legal relations and legal acts of management, as well as to characterize the interaction between them. This article attempts to systematically study these categories, as well as the features of their implementation in individual institutions of administrative law in Russia and foreign countries. The mechanism of administrative legal regulation is studied in the science of administrative law in the aspect of the action of various regulatory and protective measures, through the prism of the implementation of state regulatory policy, special administrative legal regimes and administrative responsibility, protection of subjective administrative rights, mandatory requirements, and administrative coercion. At the same time, until now in the science of Russian administrative law, despite its widespread use of this category in relation to applied issues of public administration, it has not been the subject of comprehensive scientific knowledge. At the same time, at the theoretical level it is recognized that subjective administrative rights and obligations cannot exist outside the application of the norms of administrative law and the implementation of administrative legal relations. This scientific article defines the importance of the mechanism of administrative and legal regulation, presents the content of this scientific category, and carries out an analysis of scientific positions existing in the relevant field of knowledge.

The development of pledge law in Russia

The development of pledge law in Russia

ПОЛИТИКА НАРОДОСБЕРЕЖЕНИЯ И ЕЕ РЕАЛИЗАЦИЯ В ПОЛИЦЕЙСКОМ ПРАВЕ РОССИЙСКОЙ ИМПЕРИИ

The purpose of this study is to determine the political and legal ideology that developed in the Russian Empire in the second half of the 19th - early 20th centuries in the field of people's preservation and its provision by means of police law. As a result of the study, it was revealed that in the process of evolution of the formation of police law in Russia and the transformation of this branch into the law of public administration, within the framework of the subject of legal regulation, the right of improvement was singled out, where an important place was occupied by the law of population and the right to preserve the population, which took its political and legal origin from the ideas of M.V. Lomonosov and was initially formed into the concept of demographic populationism, which was transformed by the end of the 19th century. at the beginning of the 20th century into the ideology of demographic mercantilism. Conclusion: as a result of the existing approaches to the construction of the system of the subject and the system of police law in the second half of the 19th - early 20th centuries, it is determined that within the framework of the police (dogmatic) doctrine of this branch, the problems of people's preservation lost their significance, while representatives of the liberal (political and economic) trend defended the approach to expanding the formation of the administrative and legal foundations of the people's preservation police.

ГРУППА РАБОТНИКОВ КАК САМОСТОЯТЕЛЬНЫЙ СУБЪЕКТ ТРУДОВЫХ ОТНОШЕНИЙ

In the current labor legislation practically there are no rules governing relations with industrial groups of employees. However, the association of workers into groups, due to the common social and labor interests, widespread during the Soviet period, has not lost its relevance even today, on the contrary, in modern conditions there is a tendency to strengthen collective beginnings in the process of production activities. The purpose of the study: determining the place of a group of workers in the system of modern subjects of labour law. Tasks: to study groups of workers as subjects of labor law in Russia and abroad, to study forms that accept groups of workers in traditional and atypical labor relations, to determine the status of modern industrial groups, proposals to improve labour legislation with regard to the legal regulation of labour relations with groups of workers. In the process of work such research methods as the method of scientific analysis, as well as formallogical, system-structural, technical-legal methods and comparative methods were used. Results: analysis of selected atypical forms of employment (various forms of joint work and temporary management)as well as the analysis of new approaches to the management of independent work leads to the conclusion that the issue of regulation of the legal status of groups of production associations of employees is being updated. The author notes the similarity of the structure and organization of such entities with the group forms of production activities known to Soviet legislation. Conclusions. It is concluded that it is necessary to legally define groups of workers as subjects of labor legislation, to determine the place of such subjects in the system of subjects of labor relations, as well as to regulate both intra-group and external relations of the group, including the employer.

Principles of environmental law in Russia

The article analyzes the provisions of domestic normative-legal base and legal doctrine on the content and meaning of the principles of modern environmental law of Russia. The author’s opinions and approaches to the doctrinal categories under consideration are studied, theoretical problems on the stated subject, and algorithms for their resolution in the foreseeable future are presented. The main purpose of the research is to accumulate the gained theoretical and empirical experience on the problems of formation of the system of principles of modern environmental law, to identify problematic issues and to develop measures to resolve them in the foreseeable future. The author analyzed the opinions and approaches of domestic and foreign authors, which made it possible to form a reasonable position on the stated subject. Theoretical significance of the research results consists in the possibility of their use in the course of further scientific developments on the issues of improving the system of principles of environmental law. Practical significance of the research results consists in the possibility of their use in legislative activities and in the development of educational and methodological literature on legal disciplines.

Правовая охрана экологических систем в России: вопросы теории

Natural ecological systems and biological diversity represent an important natural resource with ecological and economic value for all mankind. The quality of life on Earth depends on the state of ecosystems. The negative impact on ecosystems as a result of anthropogenic activities, the reduction or destruction of species of wild animals and plants leads to the degradation or death of ecosystems, large economic losses on a national and global scale. To preserve ecosystems, it is necessary to apply the principles of sustainable development. This will prevent a conflict between human activities for the conservation of biological diversity and its needs. Applying the provisions of the concept of sustainable development in practice, it is possible to explore the problems of preserving biological diversity, taking into account economic and social factors. The purpose of this article is to introduce the legal category "ecological systems" into scientific circulation, to determine their significance for humans, and to identify problems of their legal regulation. In the course of the study, the authors used scientific works by biologists and lawyers devoted to various aspects of the interscientific theory of the protection of ecological systems. The research was based on the norms of environmental legislation, as well as the provisions of the ecological and legal scientific doctrine. The methodological basis of the article is presented by separate philosophical, general scientific and private scientific research methods. Our work was aimed at studying the problems of finding a balance between the interests of nature and society, the needs of the population and the conservation of biodiversity. In the course of the study, the authors applied specific historical, logical methods, the method of analysis and synthesis. The chosen methodology is justified by the tasks of considering the genesis and current state of legal protection of ecosystems in Russian law. The article provides a scientific interpretation of the current environmental legislation, and offers suggestions for its improvement. The authors note that in the current environmental legislation, legal regulation is carried out only in relation to particularly valuable ecosystems. Meanwhile, having valuable properties for humans, each ecosystem and their totality requires special legal regulation. Therefore, it is argued that it is necessary to develop a legal category "national ecological network" in order to create a special legal regime for the core, ecological corridors and buffer zones, which will preserve biodiversity in the long term. Proposals are being made for a clearer legal consolidation of the habitat of wildlife and the protection of wetlands. The boundaries of the "ecosystem" category are also proposed, and critical comments are made about the proposal to grant them subjective rights. Based on the analysis of the provisions of legislation on environmental protection and environmental-legal doctrine, the authors argue that currently the mechanism of legal protection of ecosystems is poorly represented in Russian legislation. It is pointed out the need to develop criteria for ecosystem sustainability, the introduction of ecosystem monitoring and rationing, which will create a clear legal mechanism for the conservation and restoration of ecosystems by means of law.

Меры противодействия недобросовестным торговым практикам на зарубежных биржевых товарных рынках

Currently, one of the reasons for the increase in fuel prices at trading on exchanges is the use of unfair exchange practices by trading participants, which has been repeatedly emphasized by the Russian Ministry of Energy and the Federal Anti-Monopoly Service. The concept of “unfair trading practices” is not enshrined at the level of statutes and regulations of the Russian Federation, and therefore, exchanges determine actions that relate to such practices at their own discretion, which entails, in particular, regulatory risks for exchanges, and may negatively affect the market as a whole. This article analyzes foreign practice in terms of the level of enshrinement of types of unfair practices: the legislative and/or local level, as well as analyzes the types and criteria of unfair practices in order to further analyze the implementation of foreign experience in Russian laws or local instruments of exchanges. As a result of a comparative legal analysis, it was revealed that in each jurisdiction there is regulation of unfair practices both at the legislative level and at the level of trading rules, their types and criteria are established, which allows us to conclude that the regulation of unfair behavior in stock trading is an area in which the participation of both an exchange and the state is required, including in terms of establishing criteria and types of such behavior.

Private International Law: Some Development Trends, Traditional and Novelization Institutions

The unprecedented impact of technology on society, the dramatic change in the climate of international relations due to the economic blockade of the Russian economy had a direct and immediate impact on the development of national law and private international law. This is not about slowing down, but about reversing the processes of globalization. The agenda includes the issues of updating the personal statute of a legal entity, the tort statute in the aspect of personal rights protection, the formation of the statute of intellectual property rights and securities in Russian legislation. Relations on the use of artificial intelligence systems, cryptocurrencies and blockchain require special regulation in private international law. The aggressive anti-Russian sanctions policy of the United States and Europe necessitates the modernization of public order regimes and superimperative norms, and the development of regulation of foreign property expropriation in Russian law. This article is devoted to the discussion of these issues, prepared on the basis of the author's report at the plenary session of the XVII Scientific Readings in memory of Professor S. N. Bratus.

КОМПЕНСАЦИЯ МОРАЛЬНОГО ВРЕДА КАК СПОСОБ ЗАЩИТЫ НАРУШЕННЫХ ЛИЧНЫХ НЕИМУЩЕСТВЕННЫХ ПРАВ И НЕМАТЕРИАЛЬНЫХ БЛАГ В ИНТЕРНЕТ-СРЕДЕ

The purpose of this article is to study the theoretical and legal aspects of compensation for moral damage as a mechanism for the prevention of offenses in the Internet environment. To achieve this goal, tasks such as the analysis of the content of the concept of «moral harm», the study of criteria for the systematization of personal non-property rights are set. The article uses modern methods of scientific cognition such as general scientific and private scientific research methods, which together made it possible to characterize compensation for moral damage as a mechanism for preventing offenses in the Internet environment.The results of the study include the formulation of scientific and practical proposals to improve the legal regulation of compensation for moral damage in the Internet environment in Russia, taking into account the established legal practice in foreign countries. The legal essence of moral damage as an evaluative concept and legal category is revealed in the fact that when determining the amount of the latter, judicial discretion is taken into account to the extent that it is allowed by Russian law, the model of civil procedure, the existing judicial system and established practice in courts. The article also touches upon the theoretical dilemma regarding the identification of a person in the digital space through the coverage of issues of the correctness of the use of personal data in the Internet environment. As a result, it is proposed to legislatively define the concept of «personal data» as «any information related to an identified individual or an individual who can be identified.» The analysis of the problem of tracking and recording the facts of offenses in the Internet environment, the problem of determining the amount and payment of compensation for moral damage caused in the Internet space is consistently given.The study is accompanied by conclusions arising from the analysis of the legislative regulation of compensation for moral damage caused on the Internet. As a result, the authors come to the conclusion that compensation for moral damage has certain features of manifestation on the Internet. Cases in this category have certain difficulties (the uncertainty of the defendant, the large volume of the information dissemination site, the defendant's ability to delete information, high costs for ensuring pre-trial fixation of evidence), which contributes to an increase in the marginal environment of the Internet environment. A proposal has been formulated on the need to catalog the amounts for causing moral suffering and provide the perpetrator with a wide margin of discretion, taking into account new approaches to determining the amount of compensation for moral harm on the Internet.

THE LEGAL NATURE OF THE JOINT WILL OF THE SPOUSES

This article examines the peculiarity and legal nature of the joint will of spouses (joint will) in Russian law and modern legal doctrine. The author explores the problem of the legal characteristics of the joint will of spouses, analyzes the existing positions in the legal literature concerning the concept of joint will of spouses. Within the framework of this article, the author defines the problem of the ambiguity of the regulatory legal regulation of the joint will of spouses in domestic legislation and comes to conclusions about the correlation of problems of substantive law concerning the legal characteristics of the joint will of spouses with potential law enforcement problems.

Restrictive covenants in agreements between entrepreneurs and their employees under the law of foreign countries. Part two: Germany, France, Japan, China and the Eurasian Economic Union

This review article is devoted to restrictive covenants, which are widely used in contracts between entrepreneurs and their employees in many countries. In Russia, these covenants are not supported by the courts. It is believed that such restrictions are contrary to the constitutional and other norms of Russian law. The purpose of this study is to analyze the foundations of legal regulation in a number of countries of such restrictive covenants as non-competition agreements, non-solicitation agreements, non-dealing agreements and non-disclosure agreements. This analysis is necessary for a reasonable answer to the question of the advisability of recognizing in Russia the legality of such agreements. The first part of this article provides an overview of the law on non-competition and other similar covenants of the United Kingdom and the United States, in the second part — Germany, France, Japan, China and the Eurasian Economic Union. In jurisdictions where non-competition agreements and other similar restrictive covenants are not prohibited, the “rule of reason” acts as a legal mechanism for balancing the competing interests of employers, employees and public interests. This rule allows the courts in each specific dispute to assess the specified conditions for their compliance with the protected business interest of the employer and other criteria. The conclusion is made about the advisability of legalizing agreements on non-competition, non-engagement and non-entrepreneurship in Russia, taking into account the positive foreign experience of legal regulation in this area. In this regard, it will be necessary to legislate in Russian law an analogue of the rule of reason.

Риски объектоспособности криптовалют в реалиях нарастающей цифровизации российской экономики

The high pace of development of digitalization processes of the national and world economy inevitably requires optimization and adaptation of the rules of civil and trade turnover to the changing operating conditions of traditional markets for goods, services and capital. Russian law in this direction has introduced new norms and even separate laws corresponding to the digital challenges of the economy, regulating the processes of circulation of objects of law in digital form with varying degrees of certainty. Cryptocurrency is one of these. However, Russian legislation still shows signs of legal uncertainty regarding the place of cryptocurrency in the system of objects of civil rights and obligations. At the same time, the recognition by Russian law of the global practice of identifying cryptocurrencies as a full-fledged alternative to fiat currencies creates risks for the national financial system of Russia. Particular attention is drawn to the risk of cryptocurrency acquiring unofficial payment power in the conditions of its uncontrolled circulation due to objective reasons. The latent nature of this asset cannot go unnoticed when developing a system of legal conditions for civil circulation of digital currencies. The method proposed by the legislator to protect the rights of cryptocurrency owners, which depends on the will of the subject of the right to disclose or not disclose information about the ownership of cryptocurrency and transactions made with it, allows us to speak about the aleatory nature of transactions with cryptocurrency. The noted problems do not allow us to talk about the completion of the process of searching for an answer to the question about the legal nature of cryptocurrency and transactions with it.

General view on interaction of criminal, administrative-delict and administrative laws in prevention of unlawful activities

The article provides an overview of the relationship between the Criminal Code, the Administrative Offenses Code of the Russian Federation in the prevention of illegal behavior. In this country, historically, those laws serve as effective tools for managing public processes and their interaction in the relevant field is extremely important. Their common problems are especially challenging today as the legislators prepare to adopt a wholly new version of the Administrative Offenses Code, which should be synchronized with “senior” criminal legislation; and they both will have to rely on the laws governing prevention from administrative perspectives. Taking into account conventionality of some kind of division of illegal acts into administrative offenses, misdemeanors (their introduction into the Russian law is also on the agenda) and crimes, the prevention of the administrative delinquency becomes an integral element of the crime prevention in general. So the author supports the idea of creating a unified preventive system which should also involve a number of other pertinent acts of the actual policing legislation: Law on Police, Law on Administrative Supervision, Law on Foundations of System for Prevention of Neglect and Juvenile Delinquency, and others. The declared main point of the laws’ current interaction is the administrative “res judicata”, disputes around which in the criminal law also cover the issues of crime prevention. In addition, effective prevention must be ensured by building now lacking an adaptable and balanced system of criminal and administrative penalties, conforming to each other.