Russian Legal System Research Articles

Основания применения ликвидационной привилегии в хозяйственных обществах как механизма защиты прав и интересов инвесторов в российской правовой системе

The article is devoted to the analysis of the grounds for the application of liquidation preferences in the context of protecting the rights and interests of investors in the Russian legal system. The article examines both the economic and legal basis of this legal mechanism. Attention is drawn to the fact that the liquidation preference includes a range of legal relations that are different in legal nature, which goes beyond the cases of liquidation of a business company. Based on the practice of structuring liquidation preferences, an analysis of the legal nature of this legal mechanism is carried out.

Conditions of institutionalism application as a theoretical basis for economic analysis

Russian society is a complex social system, the functioning of which is conditioned by socio-economic policy, the development process of which requires a comprehensive economic analysis of virtually all spheres of social interaction. The interdisciplinary scientific approach to economic analysis, which makes it possible to consider the impact on socio-economic development of various aspects of the state and society functioning, is inherent in institutional economic theory. However, the problem of its application to the Russian state and society analysis is that institutionalism developed by American scientists is based on analyzing the political and legal system of the United States of America, which differ significantly from the political and legal system of Russia. The purpose of the study is to determine the conditions for institutionalism application in the process of economic analysis of political and economic subsystems of Russian society and socio-economic policy development that meets the requirements of the time. The relevance of the study is conditioned by the impossibility of applying the neoclassical economic paradigm to conduct a comprehensive economic analysis of the social system, as well as by the institutionalism dynamic development, which applies an interdisciplinary approach to economic analysis. The study proposes measures aimed at adapting institutionalism to the conditions of Russia and its population development, formulates the author’s approach to the universal definition of its basic concepts. The study contributes to institutionalism development, promotes a unified institutional economic theory creation and the conditions for its application for the interdisciplinary economic analysis of various aspects of the Russian society development as a complex social system.

International Treaties as Sources of Criminal Law Prescriptions in Chapter 34 of the Criminal Code of the Russian Federation

The authors examine how Russian legislation can be brought in accord with Russia’s international obligations that are used in practice by the lawmakers in the Criminal Code of the Russian Federation: implementation and overt or covert reference. They analyze the examples of implementation and references in Champer 34 of the Criminal Code of the Russian Federation, the specifics of adding articles and the used legislative formulations. The authors present examples of a different scope of criminalizing an action at the domestic and the international levels. Besides, they highlight the problem of sometimes a considerable time gap between the ratification of an international treaty and its implementation in the Criminal Code of the Russian Federation and note that ratified but unimplemented international treaties are only a part of the Russian legal system, however, they are not sources of Russian criminal law. The research revealed that implementation is sometimes non-linear: several international treaties can be implemented into one Article of the Criminal Code of the Russian Federation or, vice versa, one Article of the Code can determine liability for violating several international treaties. A special part of the work is devoted to studying the list of international agreements referred to in Art. 353–356, 360 of the Criminal Code of the Russian Federation. The analysis allowed the authors to conclude in which cases non-self-executing international treaties are the source of criminal law prescriptions. They also mention a new type of a blanket disposition introduced in 2014, which refers not to a normative act from a different sector, but to a court act (Art. 354.1 of the Criminal Code of the Russian Federation). The authors conclude that in this case the Nuremberg Tribunal's decision will be a source of Russian criminal law. In conclusion the authors outline the most urgent problems at the legislative level that require scientific and practical solutions.

Личность в российской правовой системе: поиск новых подходов

Личность в российской правовой системе: поиск новых подходов

Категория «суверенитет» в практике российского конституционного правосудия

The category of “sovereignty” is inherent in the characteristics of the Russian state, this is predetermined by the provisions of the Constitution of the Russian Federation. The appeal to this category in the practice of constitutional justice is conditioned by the need to protect against increased threats to the rights and freedoms, security and well-being of society and the state itself. An analysis of the practice of the Constitutional Court of the Russian Federation shows that the category of “sovereignty” manifests itself and reveals itself in particular legal relations (international, federal, tax, customs, etc.) as a kind of protective mechanism that ensures the preservation of the state and legal system of Russia in conditions of the most acute and dangerous threats of both internal and external origin.

Конституционное регулирование избирательной системы в контексте обеспечения стабильности избирательного законодательства

The article deals with the problem of the gap in the 1993 Constitution of Russia in terms of regulating the electoral system in its broad sense. It is noted that the introduction of the vast majority of legal norms to the level of laws and by-laws generates instability of electoral legislation and negatively affects the state of the Russian legal system. Based on the results of the analysis of the Constitutions of foreign states and domestic scientific works and political constitutional projects, proposals are made on the prospects of constitutional regulation of the electoral system of Russia.

ISSUES OF IMPLEMENTING AN INTEGRATIVE APPROACH TO COUNTERING EXTREMISM: POLITICAL AND LEGAL ASPECT

In this article, the authors analyze domestic and foreign experience in political and legal regulation of the system of countering extremism. The need for comprehensive interaction in matters of preventing and combating extremist manifestations on the territory of the Russian Federation, government bodies, law enforcement agencies with public organizations and civil society institutions is revealed.The authors come to the conclusion that even in the context of a special military operation and external sanctions, taking into account and implementing the experience of foreign countries in the fight against extremism in the Russian legal system is still significant.

Using Generative Neural Networks as a Media in Education: Formal Analysis in the Context of the Russian Legal System

Using Generative Neural Networks as a Media in Education: Formal Analysis in the Context of the Russian Legal System

SUSTAINABLE CORPORATE GOVERNANCE OF AMERICAN SOCIAL ENTERPRISES UNDER THE PRESSURE OF NEW TRENDS

With minimal federal regulation, state legislation and precedent in the United States, the institutional environment for social enterprises, the development of social responsibility of business and sustainable corporate governance has generally been formed. It is distinguished by active support for social initiatives of business, a minimum of administrative barriers and interference in matters of their internal management, and the presence of special legal regimes. At the same time, the economic effectiveness of sustainable corporate governance is not known; its principles are also not enshrined at the federal level, but are implemented through the charters of corporations and social entrepreneurship organizations. The type and specifics of sustainable management depend on the type of organization. They are fully implemented in the organizational and legal forms of SPC and BC. The main problem in implementing the principles of sustainable management by the owners and management of social corporations remains the search for a balance between profit and social interests, including an objective assessment of the level of achievement of the latter. This balance is achieved not by the application of corporate law, which varies from state to state, but by the application of the business judgment rule, based on precedent, which implies a high degree of discretion and the difficulty or even impossibility of an objective assessment. Sustainable corporate governance is under increasing pressure from multidirectional non-economic trends leading to socialization, greening and politicization of business to the detriment of its traditional goals. The American federal, decentralized model of legal regulation of social entrepreneurship does not correspond to the development trends of the Russian legal system, where the trends of centralization of regulation dominate. The American legal model of sustainable corporate governance is implemented mainly in large international corporations, which no longer exist in Russia, which significantly reduces the relevance of the experience.

SUBJECT COMPOSITION OF PARTICIPANTS IN LEGAL RELATIONS ARISING WHEN USING INNOVATIVE (UNMANNED) VEHICLES IN BUSINESS ACTIVITIES

The subject of research is the composition of the participants in the legal relationship on the use of an unmanned vehicle. The article breaks off with a general overview of attempts to settle these legal relations, which are fundamentally new both for the Russian legal system and the economy as a whole. At the same time, central attention is paid to their subject composition. The study states that the legal regulation of relations on the use of unmanned vehicles is haphazard. A single regulatory legal act has not yet been adopted, and by-laws have an extremely heterogeneous subject of legal regulation, including civil, administrative and other aspects. This leads to significant problems of legal technique, the result of which in the future will be difficulties in law enforcement practice. An analysis of the civil component of the use of unmanned vehicles shows that the potential of the current civil legislation to regulate relevant relations is far from exhausted. The range of subjects for the use of an unmanned vehicle coincides with the subjects of classical relations for the transportation or rental of vehicles. In this regard, changes to the Civil Code of the Russian Federation, its additions by new subjects of legal relations or new contractual structures are undesirable at the current stage.

К вопросу о теории деконцентрации власти

This article examines the issues of the theory of deconcentration in the domestic and foreign scientific literature. In this context, the author consistently examines the existing positions regarding the understanding of the category “deconcentration” and its relationship with the concept of “decentralization”, and also studies the types of deconcentration. In particular, it is noted that in the Russian legal system, unlike other countries, this term is not used. Thus, deconcentration as one of the factors of the organization of power has been reflected in France and Cambodia. However, despite the absence of mention in Russian legislation, this mechanism is widely used within the framework of the territorial organization of public administration. As for the literature, most researchers point out that deconcentration is one of the forms of decentralization of public power. At the same time, among other manifestations of the latter, it is characterized by the least degree of autonomy of local government structures. The author understands by deconcentration the movement of the central government to the periphery through the formation of territorial subjects (or the empowerment of local subjects) as agents (representatives) of the central government, characterized by relations of power and subordination and not involving the creation of a separate level of public authority. The article also touches upon the issue of classification of the types of the analyzed legal phenomenon.

On the Issue of the Legal Expediency of "Automatic Sanctions" in the Russian Legal System

The subject of the study is a critical analysis of the “theory of automatic sanctions,” which is based on the patterns of formulation and functioning of sanctions developed in the general theory of law. The study aims to determine, based on the analysis of, the patterns of formulation and functioning of sanctions as an element of the rule of law in the Russian legal system by analyzing the signs of automatic sanctions set out in these works. Also, the subject of the study is the patterns of application of sanctions in the Russian legal system, knowledge of which will allow us to draw conclusions about the advisability of the existence of “automatic sanctions” in the Russian legal system. The research methods are analysis, synthesis, induction, deduction, abstraction, generalization, modeling formal legal approach, and a variety of these methods as legal analysis. Analysis of the nature of “sanctions” shows that they are aimed primarily at protecting the existing legal order by bringing the person who violated the disposition of the legal norm to legal liability and by applying other protective measures to restore the violated legal order. The effective application of sanctions involves establishing the following circumstances: who committed this unlawful act, whether the person is guilty of committing an offense, if sanctions provide responsibility for its commission; what measures of protection can be applied in this case to a person who has violated the legal order set out in the disposition of the legal norm, whether in this case there are circumstances excluding the wrongfulness of the act, or other circumstances excluding the application of these sanctions. All this requires implementing a law enforcement process, which makes the existence of such a phenomenon as automatic sanctions inappropriate.

The place of artificial intelligence in the legal system of Russia

The place of artificial intelligence in the legal system of Russia

Ненормативные законы и проблема юридической нормативности

The relevance of this scientific article is due to the insufficient elaboration of the problem of non-normative laws in the theory of law, as well as the need to clarify the concept of legal normativity, which does not take into account the existence of normative legal facts. Purpose. The purpose of the article is to study certain aspects of non-normative laws, substantiate the expansion of the concept of legal normativity by including normative legal facts in it. Methodology. In the preparation of this article, general scientific methods (analysis, synthesis), general logical methods (induction, deduction, generalization, classification), special legal methods (formal legal, method of interpretation of legal norms) were used. Results. It is noted that in the Russian legal system, the use of non-normative laws in legislative practice has become quite widespread. At the same time, the correctness of the qualification of certain types of laws as non-normative acts in some cases is questionable, since it does not take into account the possibility of fixing in them not only individual legal prescriptions, but also regulatory legal facts. A broader understanding of legal normativity than the traditional one makes it possible to clarify the substantive classification of laws, including regulatory laws. Conclusion. It is summarized that the concept of legal normativity should cover two types of its manifestation: generally binding rules of conduct and normative legal facts.

Implicit administrative acts (Part two)

Based on the comparative legal method, the article analyzes the use of the construction of implicit (fictitious) decisions in Russian and several European legal orders, when the inaction of the public administration is equated with the adoption of an administrative act. In the first part of article the author provides a brief overview of the evolution of the legal regulation of the silence of public administration in France, the Netherlands and Germany, and considers the influence of the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (Services Directive) on the development of the institution of implicit decisions in the EU countries. The paper analyses the conceptual basis and the main arguments pro et contra of two models of implicit administrative acts – a negative decision (based on the principle of “silence is a sign of refusal”) and a positive decision (based on the principle of "silence is a sign of consent"). The analysis of legislation and judicial practice in the second part of article leads to the conclusion about the active use of the principle of "silence is a sign of consent" in regulating the activities of public administration in Russia. At the same time, the negative model of implicit administrative acts (silent refusal) has not been developed in the Russian legal system. However, the doctrine of implicit administrative acts in Russia remains largely underdeveloped, which negatively affects the effectiveness of public administration and judicial protection of the rights of private parties.

Implementation of traditional Russian spiritual and moral values in the legal system

Until the first half of the 20th century, jurisprudence practically did not face with the concept of values. Being focused on analysis of legal acts, which rarely referred to values, the continental jurisprudence used to put the latter outside the legal reality. As a result, traditional dogmatic jurisprudence was focused on the development and systematisation of other concepts, e.g. legal norms, legal relation etc. At the same time, recent decades have been marked by a sharp increase in the role of values in legal regulation. Reference to values in legal acts has become commonplace, including in Russia. Thus, the Foundations of State Policy on Preservation and Strengthening of Traditional Russian Spiritual and Moral Values implemented in the Russian legal system a number of values, the content of which requires clarification. This raises a number of serious questions for the Russian jurisprudence related to the recognition of values as a basis for legal regulation. Among them, the main problems are the content of traditional values, as well as the ways of their embodiment in the legal system. The article attempts to resolve these current problems by outlining the legal content of Russian traditional spiritual and moral values, as well as the ways of their implementation in the Russian legal system. The authors of the article first reveal each of the values from the point of view of its legal content, and then describe the possible and existing ways of its embodiment in the domestic legal order.

Правила и стандарты доказывания факта использования компьютерной программы как объекта авторского права

Introduction: the global IT market is steadily growing. International law and national legal systems protect computer programs as copyright objects. Copyright protection in relation to these objects is associated with proving the fact of their use. Judicial practice reveals a number of problems related to the establishment of efficient, balanced, and at the same time fair rules and standards of proving the fact of using a computer program. Purpose: to determine the rules and standards of proving the use of a computer program as a copyright object. Methods: the method of formal logic, comparative‐legal, systematicstructural, and formal‐dogmatic methods. Results: the notions of an intellectual property object and the use of such an object should be understood in two senses: 1) from a day‐to‐day perspective; 2) in the lawbased context. The scope of the notion ‘use’ and the standards of proof of such use are interpreted differently in different intellectual property law institutions. The more technologically advanced the protected object is, the more formalized the procedure to establish the fact of its use should be. Conclusions: Russian judicial practice is on the path of developing the following rule: in general, it is legal to draw a conclusion about the use of a computer program when the evidence reliably reflects an analysis of its source code having been conducted. In the Russian legal system, two approaches have developed to resolving the issue of a computer program storage in computer memory: 1) the scope of the exclusive copyright includes the storage of a program in computer memory per se; 2) such storage is not included in the scope of the exclusive copyright. The second approach seems correct. It is based on a systematic and teleological interpretation of Part 4 of the Civil Code of the Russian Federation, on a historico‐political and teleological interpretation of the WIPO Copyright Treaty of December 20, 1996.

Судьба правовых позиций ЕСПЧ, используемых в уголовном праве

The relevance of the study is determined by the fact that after Russia's denunciation of the European Convention on Human Rights (ECHR), changes in the legislation of the Russian Federation (2020-2023), there are almost no studies in the legal literature devoted to analysing the issues that have arisen, especially in the field of protection of fundamental human rights and freedoms in the criminal sphere. Moreover, mostly with pessimistic forecasts, without sufficient substantiation. In this regard, the purpose of the study is to identify the purpose of the decisions of the European Court of Human Rights (ECHR) after the amendments to the Constitution of the Russian Federation in 2020 and denunciation of the ECHR (2022). The subject of the study is the Constitution of the Russian Federation, conventions signed by Russia in the field of protection of human rights and freedoms, decisions of the Constitutional, Supreme Courts of the Russian Federation, reviews of the Supreme Court of the Russian Federation, practice of interstate bodies (2017-2023), studies of representatives of different branches of law on the issues under consideration. The main methods of research are: observation, legal hermeneutics, comparative-legal, systemic. In the process of research the following results were obtained and conclusions were drawn. 1. The practice of the ECtHR in the interpretation of the treaty, which corresponds or partially corresponds to the Constitution of the Russian Federation, is recognised and used by the national legal system of Russia at all levels to justify the provisions of the national legislation, in law enforcement until 2022. So, it should be recognised in the meaning of the subsequent practice of treaty application, which should be taken into account, along with the context of the treaty. 2 The exclusion in the legislative novelties of the Russian Federation of the law enforcer's obligation to implement the judgments of the ECtHR, which entered into force after 15 March 2022, does not mean a ban on taking into account the legal positions of the ECtHR in everyday court practice. Because: treaty implementation includes not only the execution of ECtHR judgments, but also the consideration of the legal positions of the ECtHR when courts consider similar cases; many provisions of international human rights treaties coincide with each other and the Constitution of the Russian Federation; the concepts developed by the ECtHR are also used by other interstate bodies. 3. The practice of UN committees must be considered within the meaning of Article 31(3)(b) of the Convention on the Law of Treaties and must therefore be taken into account along with the context of the treaty. 4. Decisions of interstate bodies, including the decisions of UN committees, should be assessed by the law enforcer for the possibility of their recognition as new circumstances, the emergence of which may become the basis for revision of judicial acts that have entered into legal force. Thus, the practice of the ECtHR recognised by the national legal system, along with decisions of other interstate bodies, should be used by legislators and law enforcers even after the denunciation of the ECHR. Further research is needed to improve the mechanism of implementation of decisions of interstate bodies in the Russian legal system.

Изменение социального облика финансового права на рубеже ХХ–ХХI веков

The consolidation of the Russian state as a social state in the Constitution of the Russian Federation required significant changes both in the system of domestic law and in the system of its individual branches. One of the leading industries that bore a significant “burden” to implement the corresponding transformation is financial law, which by that time, as scientists put it, occupied a “modest place” among other industries. The fulfillment of the assigned mission significantly contributed to changing not only the content, but also the role of financial law in the life of society, the state, and the individual. In essence, the social appearance of financial law has changed, which, although it should be social at its core, is not always clearly socially “coloured”. In this regard, the purpose of this study, based on the thesis about the change in the social image of financial law at the turn of the 20th–21st centuries, is to argue for the presence of a social vector in the development of this branch of law as one of the special branches of the Russian legal system. Using historical, logical methods, as well as methods of comparative legal research and system analysis, the basic prerequisites and conditions for the corresponding transformation, as well as its features, are identified using the example of individual sub-sectors and institutions of financial law. The thesis about the implementation in the norms of financial law of the state’s targets for the implementation of plans and forecasts of socio-economic development is substantiated, it is proven that not only traditional financial and legal institutions (budgetary and legal, tax and legal) are involved in the implementation of the social tasks of the state, but also other (institutions of public banking law, money issue). The current financial legislation and individual acts of strategic planning are analyzed, which made it possible to argue the hypothesis that in the last three decades the social appearance of financial law has changed significantly: not only the socialization of financial law itself has occurred (external aspect), but its content has also changed, including changes the composition of its principles, system, subjects (intra-industry aspect).

Fundamental jurisprudence as a strategic basis for national legal leadership

The current stage of historical development is characterized by the tendency of an increasing value and ideological crisis, directly related to the crisis of legal understanding, spiritual, moral, civilizational and cultural disorientation of jurisprudence. The unifying humanity and the legal values it has suffered have been shaken by the policy of single-vector globalization, which has called into question national identity and the primordial possibility of peoples to self-determination. The methods of dictate, unilateral sanctions, and hybrid forms of aggression that have entered into current international use, based on ideas about the exclusivity and dominance of a certain form of legal culture and civilization, destroy the sovereign equality of states, and have nothing to do with the laws of natural history development. The need to form a new global legal paradigm and substantiate the intrinsic value of domestic law as the normative embodiment of Russian civilization require the mobilization of domestic fundamental jurisprudence, which is currently experiencing a number of difficulties and is characterized by negative development trends. This concerns, in particular, the disclosure in our jurisprudence of the historical, civilizational and cultural factors of the Russian legal system, the development of the ideological and philosophical potential of the national legal heritage, the establishment of systematic work to update the methodology of legal cognition, taking into account fundamental changes in the world and in the national worldview, thematic and substantive consistency of research work with the priorities of state development. Increasing the role of fundamental disciplines in legal education and its constitutionalization, revealing the unity of the Russian state and law, the original foundations of our legal system, focusing on a predictive approach that allows us to form advanced models of legal regulation, coordinating the topics of scientific and legal research in accordance with national priorities — key areas in the field of fundamental jurisprudence.