Russian Legal System Research Articles

Legal regulation of cryptocurrencies in Russia and foreign countries: problems and solutions

In this article, using such scientific methods as the dialectical method, the comparative legal method, the historical method, the systematic method, the formal legal method, the method of special legal interpretation, the normative acts of the Russian Federation and foreign states related to the legal regulation of the circulation of cryptocurrencies, as well as with the specificity of taxation of cryptocurrencies are studied. The special attention is paid to the legal documents of Germany, France and Israel, since it is the legal acts of these states that are the most significant in the regulation of cryptocurrencies, while they use different approaches to the taxation of these assets. The authors highlight the points that require in-depth study, and highlight the common and different features of the legal regulation of cryptocurrencies in the Russian Federation and in foreign countries. The problems of the Russian legal system related to the circulation of cryptocurrencies caused by the specificity of the technological development of the Russian Federation are determined. The article proposes changes related to the inclusion of norms implementing the legal regulation of cryptocurrencies in the legislation of Russia.

Trends in the development of Russian administrative law: A comparative legal aspect

The article substantiates that during the period of development of administrative law as an independent progressive branch of law in the 20th and 21st centuries, two main achievements can be distinguished in world experience. The first is the evolution of the administrative process, administrative procedures, which changed the face of public administration, making it more transparent and democratic, since citizens got the opportunity not only to challenge administrative acts, but also to participate in the procedures for their adoption, protecting their interests even before the approval of the ruling decision. The second key achievement is the approval as categorical imperatives of such principles as legality, equality, proportionality, legal stability (protection of legitimate expectations), prohibition of overformalism. These beginnings are most consistently implemented in the Russian legislation on administrative responsibility, as well as in the legislation on administrative proceedings. In the field of positive public administration, the legislator is still less receptive to these novelties. At the same time, the inertia of the legislator is to a certain extent compensated by the activity of the Russian judicial bodies. The trend towards the perception of the main innovations of administrative law cannot be called into question by special administrative regimes (high preparedness for an emergency, a special military operation, etc.), including for the reason that such regimes, for all their importance, are temporary. Therefore, despite any difficulties, it is necessary to form a regulatory system designed for “usual” normality. At the same time, it is more important than ever to maintain a balance between the goals of rationalizing public administration (protecting public and state security) and protecting the rights of citizens. It is possible to predict further “splitting” of Russian administrative law. On the one hand, administrative legislation will be tightened and politicized, first of all, on the issues of interaction between the domestic administrative system and representatives of unfriendly foreign legal orders (as well as subjects of the Russian legal system, affiliated with them). But for the basis of the model of relations between the Russian public administration and the citizens of the Russian Federation, a predominantly different paradigm should be used — a human rights one.

АНТИКЛИНИКА КАК ФОРМАТ КОНСТРУКТИВНОГО ЮРИДИЧЕСКОГО ОБРАЗОВАНИЯ

The article is devoted to overcoming the crisis of the Russian legal system in the context of digital transformation. The analysis is based on the Russian legal education as a way of reproducing the carriers of legal knowledge and related values. The article considers six factors that influence this process: motivation, competition, transformation, micro-education, actualisation and multimodality. Based on the results, the format of the anticlinic is considered as a legal educational environment that optimally takes into account these factors and allows creating fair legal norms.

Theoretical and methodological problems and Military Law (to the publication of the monograph “Military Law”)

The review analyzes some issues of methodological problems in the context of the discursive practice of Military Law in the collective monograph “Military Law” under the general editorship of A.N. Savenkov, A.V. Kudashkin, is the first 3-volume fundamental scientific publication, where based on the article presents a modern view of Military Law as a branch of the Russian legal system. One of the key aspects of the reviewed monograph are theoretical and methodological problems and discursive practice of Military Law research as a branch of domestic scientific law. This nominal circumstance in the presented article is the subject of the author’s consideration, which, in the opinion of the reviewer, deserves a separate scientific understanding and interpretation, since it served as the most important basis for the entire scientific concept of the presented monograph. In the article, the reviewer’s judgments are not indisputable, but it is important to have the following circumstance: the relevance of this monograph has been put forward as one of the most important scientific studies of the last decades in the field of Military Law in the system of Russian and International Law. Which, in turn, gives the scientific community an opportunity to take a closer and comprehensive look at all aspects of the issues studied in it.

A fundamental scientific work was published, which proved Fermat’s legal theorem Military Law: in 3 vols / under the general editorship of A.N. Savenkov, A.V. Kudashkin

The three-volume monograph “Military Law” presents a large-scale fundamental study of military law, its genesis, theory, proving its independence as a branch of the Russian legal system, substantiates the conceptual and practical understanding of the essence of modern Military Law and its place in the legal system. The groups of military legal relations that make up the main subject area of Military Law are studied. The main problems and current directions of military-legal research are revealed

The “forgotten” branch of the Russian legal system “The Law of armed conflicts” is being revived with the release of the fundamental scientific work of the three-volume monograph “Military Law” (Some comments in connection with the publication of the three-volume monograph “Military Law”)

The article is a review of the three-volume scientific work “Military Law”, published in 2021 - 2022. The role and significance of the conducted research for the development of Military Law science are revealed, proposals for further promising research in the field of Military Law on topical issues of modern political and military history are formulated. The necessity of developing educational publications for military educational organizations on the basis of this monograph, the introduction of mandatory military legal training of military personnel into the system of military education is substantiated

Статус и функции правотворческого судебного толкования права в российской правовой системе

Статус и функции правотворческого судебного толкования права в российской правовой системе на протяжении длительного времени остаются спорными ввиду сложности разграничения процессов интерпретации содержания норм права при осуществлении его толкования и собственно правотворчества. В статье приведен анализ функций правотворческого судебного толкования в отечественной правовой системе, теоретических подходов к пониманию статуса актов правотворческого судебного толкования в системе источников права, сформулированы выводы о роли высших судов в правотворческом процессе. The status and functions of the law-making judicial interpretation of law in the Russian legal system have remained controversial for a long time due to the complexity of distinguishing processes of interpreting the content of law norms in the implementation of its interpretation and actual law-making. The author analyzes functions of law-making judicial interpretation in the domestic legal system and theoretical approaches to understanding the status of acts of law-making judicial interpretation in the system of sources of law, and draws conclusions about the role of higher courts in the law-making process.

Корпус официально-деловых текстов русского языка

This article discusses the Russian Corpus of Official Texts, which was created between 2018 and 2020. The Corpus contains 294 documents (2,183,493 words) embracing the entire history of Russia, from agreements between Rus’ and the Byzantine Empire (912) to the present. This is the first collection of legal documents in Russian of its kind. The authors also provide brief descriptions of the most important documents that aided in the early development of the Russian legal system. A table with data on a specific lexeme (svoboda (freedom)) by year derived from a search result exemplifies the Corpus’ capabilities. This Corpus will facilitate a whole range of tasks related to the enhancement of Russian officialese, the optimization of legal language, the study of legal writing and its genres, and the expansion of information available on the history of legal thought in Russia.

Administrative disputes as an integral element of contemporary Russian legal system

The subject. The article is devoted to the study of a wide variety of administrative disputes arising in the Russian legal system, but insufficiently studied by domestic administrative legal science.The purpose of the article is scientific substantiation of the concept, key elements and system of administrative disputes in the Russian Federation, identification of the constitutional foundations for the development of the institute of administrative disputes and proceedings for the resolution of administrative disputes.The methodology of research includes formal logic and systemic approach as well as legal-dogmatic method, method of interpretation of legal norms, method of comparative jurisprudence.The main results, scope of application. An administrative dispute is proposed to be understood as a documented disagreement of a subject of administrative or administrative-procedural legal relations with the decision, action or inaction of a public administration body (official) or another entity implementing or assisting in the implementation of administrative public functions which, in the opinion of the applicant of the dispute violates, infringes or encumbers his subjective right. Such disagreement is addressed to the competent authority (authorized official) of the public administration or the competent court (authorized judge) in order to resolve this disagreement in a special extrajudicial or judicial administrative procedure. The key elements that make it possible to characterize an administrative dispute are: 1) the objects; 2) the matter; 3) the purposefulness of the administrative dispute. The connecting link between the presented elements of an administrative dispute is the subjective right of participants in administrative and administrative-procedural legal relations, or to put it another way – subjective law arising from administrative and administrative-procedural legal relations, which is understood as a collective category combining such a well-known legal structure as "rights, freedoms, legitimate interests", as well as individual elements of the administrative-legal status of the applicant of the dispute, established by the administrative-procedural law, which require extra-judicial or judicial protection in an administrative dispute (first of all, procedural guarantees of innocence and good faith).Conclusions. Administrative disputes primarily arise from administrative and administrative-procedural legal relations that develop during the implementation of administrative public functions by specialized public authorities and authorized organizations, which in a generalized form are proposed to be called public administration bodies. In some cases, administrative disputes arise from administrative and administrative-procedural legal relations in which public administration bodies and their officials do not participate. These administrative disputes arise in connection with the provision of assistance to the public administration in the performance of its administrative public functions.

Genetic Information in the Light of Genetic Discrimination: the Experience of Foreign States

Background. Genetic information is often used for purposes of discrimination. For example, the results of genetic testing can demonstrate a high risk of developing a disease in an apparently healthy person, which will require expensive medical care. Such information may affect the decision on the employment of a candidate for a job or the conditions for concluding an insurance contract with him/her. Objective. The article discusses major issues of legal regulation of public relations arising from protection against discrimination based on genetic status in the legislation and law enforcement practice of a number of foreign countries (Australia, Canada, the USA).Design. 20 studies written in English were retrieved from Scopus and Web of Science databases.Results. The research methodology is based on dialectical, logical, predictive methods, system analysis, content analysis, as well as private scientific methods (statistical, technical legal, comparative legal methods). The article provides an overview of the international legal framework for the regulation of public relations arising from countering discrimination based on genetic status, as well as key acts of leading foreign jurisdictions and law enforcement practice.Conclusion. In conclusion, the author reflects on the advisability of implementing relevant foreign experience into the Russian legal system.

ВОЗНИКНОВЕНИЕ И РАЗВИТИЕ ПОНЯТИЯ «СПЕЦИАЛЬНЫЕ ЗНАНИЯ» В ДОРЕВОЛЮЦИОННЫЙ ПЕРИОД

The article is devoted to the study of the genesis of the development of the term of special knowledge incases of insult, subjects of the use of special knowledge in the pre-revolutionary period of the Russian state.The necessity of scientific development of approaches to understanding the essence of special knowledge inrelation to the Russian legal system, including criminal, civil and a set of norms in cases of administrativeviolations, is substantiated. The importance and necessity of a competent interpretation of such a legal termis emphasized.The article analyzes the works of scientists on this topic, gives estimates and generalizations to this stageof the development of the term “special knowledge”. Thus, the articles of a number of scientists on this topicare analyzed, after reviewing and quoting scientific research on this topic, analytical conclusions are givenon the influence of such ideas on the general construction and scientific justification of theoretical views on the definition of the term “special knowledge”, subjects of the use and application of special knowledge,as well as the sectoral nature of such knowledge, that is, the use of opportunities various humanities andnatural sciences to address issues arising in the course of legal proceedings.The article provides an overview of the sources of Russian law, which contain indications of thepossibility of applying special knowledge, the subjects of their application or the nature of the applied specialknowledge. The importance of studying the history of the development of the term of special knowledge forthe formation of a holistic picture of the understanding of this multidimensional legal concept is emphasized.At the end of the study, a conclusion is made about the scientific elaboration of the genesis of specialknowledge in the pre-revolutionary period, as well as its influence on the further stages of the developmentof this scientific problem.

Culture of legal techniques: key dominants in the modern Russian legal system

The article is dedicated to the conceptual and specific analysis of the emergence of the culture of legal techniques under the conditions of a new technological form. The identification and analysis of key types of culture of legal techniques, allows to show their specificity following typological groups. Its systemic unity, which has its specificities, can be considered as the second dominant of the culture of legal techniques. The article further offers a primary doctrinal definition of the concept of culture of legal techniques based on the identified dominant characteristics and manifestations of the culture of legal techniques, studied in the context of the search for ways of effective functioning of the system of power and powerless principles in the Russian legal system. This phenomenon is in the formation stage. The authors have used dialectical, historical-political, formal-legal, and comparative-legal methods. It is concluded that a promising systematic understanding of the essence and meaning of the culture of legal techniques will help to improve the legal culture as a whole and thus increase the effectiveness of the law in modern society.

Russia’s Place on the Legal Map of the World (a Comparative Analysis of the Positions of Russian Comparatives)

The last three decades have been marked by the intensification of comparative studies in our country, an important plot of which is to determine Russia’s place on the legal map of the world. Russian comparative studies initially, since the 19th century, developed in the East — West ideological paradigm.In the post-Soviet period, an opportunity arose to rethink the global system of legal coordinates, especially in the light of modern international turbulence. Among the comparative works published by Russian publishing houses, attention is drawn to those that quite clearly define Russia’s belonging to the Romano-Germanic legal family. Indeed, in structural and functional terms, the Russian legal system has many acquired features similar to individual parameters of the Romano-Germanic legal family. However, one should also agree with those researchers who point to the incompleteness of the legal self-determination of Russia, to the existence of some alternatives for its further development.The author of the article assumes that the state of legal consciousness and legal culture, together with other factors of public life, is of great importance for legal identification. At the same time, in his opinion, the pan-Slavic tradition was not of great importance for Russia due to the active expansion of the West to the East. On the other hand, until the end of the 1980s, the socialist legal family was a very real phenomenon. At the moment, apparently, Russia is more and more showing itself as the initiator of the emerging Eurasian legal system. However, this process is clearly not completed. In any case, the legal system of our country, as Professor V. N. Sinyukov, “belongs to a special type of legal civilization”.

DOES RUSSIA NEED A DOMESTIC VIOLENCE LAW?

In Russia, there has been a long-standing effort to develop a special law against domestic violence, as well as a debate on the need for such a law. In 2016, such a bill was sent to the State Duma but received negative feedback and was withdrawn. In 2019, work on the adoption of such a law resumed and a draft was developed and posted on the official website of the Federation Council. However, this draft also received a lot of criticism. In this context, the author considered it important to address the issue and conduct an analysis. Objective: Analysis of the draft laws "On prevention of domestic violence in the Russian Federation" 2016 and 2019 in the context of the current legal regulation, international and foreign experience. Results: the author concluded that the existing legal regulation does not adequately address the issue of prevention of domestic violence and does not protect victims of such violence. A large number of measures which could help to solve this problem are absent in the Russian legal system.

Gift Certificate: Problem of Uncertainty of Legal Nature

Currently, there is no clear definition of the legal nature of a gift certificate in Russian law, which is very popular among consumers in retail sales. Due to the fact that the civil law does not regulate the status of a gift certificate, the law enforcement practice does not contain a single approach and does not differ in uniformity, which creates a problem in the protection of consumer rights. The purpose of this article is to analyze the judicial practice and position of the Supreme Court of the Russian Federation on the legal nature of gift certificates, as well as, based on the experience of leading states on this issue, to propose a solution taking into account the specifics of the Russian legal system. To achieve this goal, the following tasks were set: 1) consider the concept of a gift certificate; 2) analyze the positions that determine the function of a gift certificate on the example of foreign experience, individual contracts and judicial practice; 3) analysis of the position of the Supreme Court of the Russian Federation on the recognition of a gift certificate as a form of advance payment; 4) establishment of a range of problems related to the legal nature of the gift certificate and the issues arising from it, as well as putting forward its position on solving this problem. When writing this article, such methods of scientific research as the system method, formal-legal and comparative-legal methods, as well as methods of synthesis, analysis, induction and deduction were used. The results of this research were the range of issues to determine the legal nature of a gift certificate and hotel developed by the authors for solving problems, taking account of the specific characteristics of gift certificates.

Эволюция законодательной регламентации конфискации имущества в отечественной правовой системе

The institute of confiscation of property serves as a historically integral tool, known since ancient times, to fight crime. The contradictory legal nature and ambiguous nature have led to a trend of variability of its legal status in the domestic criminal law system. An objective assessment of the role and place of confiscation of property in modern Russia requires consideration of the rich historical experience of the formation and development of this institution, which is the purpose of this work. The methodological basis of the study is represented by a number of traditional, general scientific (analysis, synthesis, comparison, forecasting) and private scientific methods of cognition. Among them, the most common were the historical method, which made it possible to trace the specifics of the formation of the institution of confiscation in domestic criminal law, the comparative legal method, with the help of which it was possible to compare the norms of different historical eras that regulate the legal status of confiscation. The formal legal method made it possible to prove the expediency of maintaining the legal status of confiscation in the Russian legal system. As a result of the study, the features of the criminal law regulation and application of property confiscation in the pre-revolutionary and Soviet state are considered in detail. The relationship between the economic needs of the country and the regulation, content and procedure for the execution of property confiscation is substantiated. The author's position on the need to preserve confiscation as another measure of a criminal law nature is argued. The results obtained can be used in the process of further theoretical understanding of the institution of property confiscation.

Smart contract as a civil law way of disposing of digital rights: problems of theoretical substantiation and practical application

Complex socio-economic processes are simultaneously taking place in Russian society: the economy is adapting to external economic challenges and, due to the COVID-19 epidemic, many aspects of social life are being transferred online. As a result, there is a transformation of all types of entrepreneurial activity, oriented both to the end consumer and to another legal entity (B2B transactions). The digitalization of commerce objectively requires an effective legal response to the procedures for concluding and executing contracts. A feature of the Russian legal system for regulating digital assets can be considered the impossibility of concluding direct transactions, bypassing a specialized information platform.
 The article discusses the features of smart contracts as a civil law way of disposing of digital rights. The activity of an information platform operator or a market maker as an intermediary is analyzed. Their positive and negative impact on the digital asset market is shown.
 The conclusion is substantiated that the disposal of digital rights through the use of a smart contract cannot be identified with all other classical contractual structures. Smart contracts, including those that are made using blockchain and Ethereum technology, are legally different from the electronic form of a civil law contract. Despite the obvious advantages of a smart contract as a way to manage digital assets, in the absence of legal regulation, significant business risks arise that require a prompt and effective legislative solution

Proposals for the Introduction of Certificates of Authorship instead of Patents for Methods of Diagnosis and Treatment

Recent years have shown reasonable support (including by the author of the article) for proposals to exclude methods for diagnosing and treating people and animals from the list of results of intellectual activity in respect of which patent protection can be applied in the scientific legal literature. These proposals are based on the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), foreign experience of countries with developed legal systems and arguments about the practical inexpediency of patenting these results of intellectual activity, as well as on the moral and ethical side of the issue. In the case of legislative support for these initiatives, in order to preserve the encouragement of innovation and reflect the contribution of developers to medical science in the field of creating new and developing existing methods of diagnosis and treatment, the paper proposes to refer to the experience of the USSR in issuing copyright certificates for this type of invention and to revive such legal mechanisms in the Russian legal system.

On Measures to Ensure Sovereignty the Russian Legal System

Today we can observe a number of fundamental changes in the interstate sphere. There is the systemic crisis of international law. We also can see the attempts to replace it with the American concept of a “rules-based world order”. In response to the unfriendly actions of Western countries, Russia has taken a number of measures in various fields, such as a diplomatic, economic, financial, trade, educational, etc. Russia’s withdrawal from some international organizations unfriendly to our country has begun. At the same time, the legislation of the Russian Federation has accumulated a significant number of acts ratifying international treaties (agreements) which are currently irrelevant or do not correspond to the interests of the Russian Federation, limiting its sovereignty in modern conditions. Considering the obviously unfriendly nature of the activities of a number of states, Russia need for an inventory and revision of it. In addition, Russia is a member of a number of international organizations leading an anti-Russian policy. It makes necessary to audit the expediency of the country’s participation in their activities.

ТРАНСФОРМАЦИЯ СОЦИОНОРМАТИВНОЙ КУЛЬТУРЫ АДЫГОВ В УСЛОВИЯХ АДМИНИСТРАТИВНО-ПРАВОВЫХ ПРЕОБРАЗОВАНИЙ II ПОЛОВИНЫ XIX ВЕКА

In this the author deals with the issues of transformation of the socio-normative culture of the Circassians in the context of administrative and legal transformations in the second half of the 19th century. The author substantiates the importance of socio-normative regulators of society, the role of traditional social institutions in preserving the identity of the ethnic group. The article focuses on Russia's active policy on peoples living on the outskirts, so that they become involved and quickly adapt to the political and legal system of Russia.