Special Legal Status Research Articles

Legal status of the head of public service in the state body as a subject of public service legal relations

The article is devoted to the study of the essential features of the head of the public service in a state body as a subject of public service legal relations. It is found that depending on the nature of the powers that determine the role and degree of participation of public servants in the exercise of public power functions, there will be a different range of rights and responsibilities of managers, specialists, executors. Given the great diversity of public servants, the scope of their powers affects the content of the legal status of a public servant, but not the fact of his belonging to the public service. It is established that the head of the public service in a state body has: a) the general status of a citizen of Ukraine; b) sectoral status within the framework of official law – the status of a public servant; c) a special status within the framework of official law, which is mediated by the nature of the powers granted – the status of the head of the public service in a state body. The substantive features which characterize a public servant who has acquired a special legal status of the head of the public service in a state body are singled out: 1) he is assigned to public servants; 2) he holds the highest position of public service in a state body; 3) he is obliged to perform a special type of duties that are an element of authority: a) in matters of public service and b) organization of work of other employees in this body. Attention is paid to the fact that each head of the public service in a state body is an official authorized to perform organizational and administrative functions, but not every official is the head of the public service in a state body. A possible algorithm for finding a higher position in a state body is identified: a) if there are positions in a state body that fall into different categories, the highest position in a state body will be held by the public servant who replaces a category “A” or “B” (in the absence of positions classified in category “A”); b) if there are positions in a state body that are assigned to one category, the highest position will be held by the public servant whose position is assigned to the highest subcategory.

Семейно-правовой статус родителя: отдельные вопросы теории и практики

The article considers the legal status of the parent as a special legal status determined by family law of the Russian Federation. Attention is drawn to the heterogeneity of the legal status of the parent and the possibility of distinguishing in it a number of independent, having their own characteristics, sub-statuses: the status of an adult and a minor parent, full and limited status of a parent, the status of a parent living together with a child, and a parent living separately from a child. The concept of parent is characterized, the need to determine it by indicating not only consanguinity, but the totality of legal facts or to establish the origin of the child. Parental rights and obligations are distinguished as elements of the family legal status of the parent, non-property and property rights, basic and derivative rights, non-property and property obligations of parents are analyzed. Given the existing approaches to determining the legal status and its structure, it is proposed to determine the family legal status of the parent. Measures are outlined to optimize the family-legal position of the parent in terms of ensuring the enforceability of the obligation to support the child and establishing the obligation to compensate for moral damage caused to the child and the other parent.

ПРИНЦИП ПРИРОДНОГО СУДУ: АКТУАЛЬНІ ПРОБЛЕМИ ПРАВОРОЗУМІННЯ ТА ПРАВОЗАСТОСУВАННЯ В УКРАЇНІ

In 2016, a provision appeared in Article 125 of the Basic Law, which stipulated that higher specialized courts may operate in accordance with the law. Filling the content of this wording in, Article 31 of the Law "On the Judiciary and the Status of Judges" (2016) establishes that in the judicial system there are higher specialized courts as courts of first instance to consider certain categories of cases. This category of courts today includes the High Court of Intellectual Property and the High Anti-Corruption Court, activities of which are initiated by the relevant legislation. However, in political circles there was a discussion about the constitutionality of this court and, accordingly, the subject of the right to a constitutional petition questioned a number of provisions of the Law "On the Supreme Anti-Corruption Court" and appealed to the Constitutional Court of Ukraine to declare this law unconstitutional. In turn, the Constitutional Court of Ukraine initiated constitutional proceedings on this issue. Familiarization with the legal position of the subject of the constitutional petition indicates that the key issue of this constitutional proceeding concerns the presence of signs of a "special court" (within the meaning of Part 6 of Article 125 of the Constitution of Ukraine) in the mechanism of legislative regulation of the Supreme Anti-Corruption Court. In order to find an objective answer to the existing conflict, it is necessary to abstractly identify the main features of a "special" court. To solve such an applied problem, the author of the article turned to the theory and applied provisions of the principle of natural judgment, which was the subject of this study. As a result of the study, the author argues that by giving the Supreme Anti-Corruption Court exclusive jurisdiction over the system of general courts, the legislator has significantly deviated from the permissible limits of constitutional legality. The author singled out and grouped the key features of a special court, which included: 1) Separation of a judicial institution with a separate system of instances for consideration of certain categories of cases selected from the general array (special jurisdiction) or in respect to a separate category of persons. 2) The court, which is entrusted with special, different from other general courts, the purpose and objectives of the activity. 3) A court formed to expedite the resolution of certain categories of cases specific to a certain period; 4) A court in which judges have a special legal status (special tasks in the administration of justice; special professional qualifications (requirements, selection criteria); a special (extraordinary) procedure for the formation of the judiciary, etc. It is seen that the principle of natural judgment – is a fundamental constitutional and legal heritage of civilized humanity, which is designed to protect people, their rights and freedoms from the arbitrariness of the state, and from the use of courts as an instrument of terror and wrongful persecution.

Уполномоченный по правам человека и его роль в защите прав и свобод

This article is devoted to the study of the place and role of the Commissioner for Human Rights in the system of state authorities of the Russian Federation. It also analyzes its special legal status, effectiveness in exercising control over the observance of legitimate interests and restoration of violated rights, current problems of the development of the institution of the Commissioner for Human Rights and measures to resolve them, and provides statistical data. The Commissioner is a special specialized state body with independence and autonomy. It is a connecting element between the state and society and one of the main features of a democratic state governed by the rule of law. The relevance of the topic under study is due to the importance and necessity of protecting human rights and freedoms associated with the formation and development of public life, the construction of the rule of law and civil society. The scientific novelty consists in the study of the problems of the functioning of the institution of the Commissioner for Human Rights in the Russian Federation and the development of proposals for their resolution.

Russian Legal Framework for Digital Financial Assets

The article is devoted to the new Russian law on digital financial assets. The adoption of this law was an important step towards the formation of a legal framework for cryptoassets in Russia. Four types of legal framework models for crypto-assets around the world are identified: adaptation, fragmentary, experimental, and innovative. The Russian model of the legal framework for digital financial assets is close to an innovative model. The article analyses legal definitions of new legal concepts, such as "digital rights", "digital financial assets" and "digital currency". They represent different types of cryptoassets and are considered property under Russian civil law. A special legal status has been established forthe exchange operator of digital financial assets and for the operator of the information system in which digital financial assets are issued.The article describes the legal requirements for such participants in the cryptomarket, which are established to protect consumers from fraud and mismanagement. Particular attention is paid to the legal regulation of the issuance and circulation of cryptocurrencies, which the law names as digital currencies. Digital currency is not recognised as a legal means of payment in Russia.It can only be issued and circulated using the Russian information infrastructure.Based on the analysis of the new law, it is concluded that the Russian monetary authorities are not interested in establishing a complete and clear legal framework for participants in the cryptomarket.Their new initiatives aim to tighten regulation of the circulation of digital financial assets, especially digital currency.

ГАРАНТІЇ ЯК ЕЛЕМЕНТ ПРАВОВОГО СТАТУСУ СУДДІ

The article is devoted to the study of guarantees as an element of the legal status of a judge. The article considers the effectiveness of justice by the judiciary as an independent branch of state power, which is entrusted with the function of protecting the rights and legitimate interests of persons in the state. It is argued that the right to judicial protection can be properly realized only if there is an effective mechanism of judicial protection, which becomes real if there are guarantees for the activity of a judge. The independence and independence of the judiciary is due to the constitutional principle of separation of powers, proclaimed in the Constitution of Ukraine. However, it is in democracies that this principle acquires special significance, because we are talking about legally enshrined guarantees and effective mechanisms of «containment and balances» in the organization and activities of various branches of government. Each of the branches of government – legislative, executive and judicial, independently performs only its inherent functions, not obeying each other. Decisions are made by the judiciary due to their independence, because no additional approval by the bodies of other branches of government is required. The most important prerequisite for this is the protection of the judiciary from unlawful influence or interference from other actors. Only an independent judiciary can become the guarantor of the rule of law, the implementation of effective and accessible justice and a fair judicial decision of cases in the state. The guarantees of the judge's activity in the administration of justice are divided into three groups: guarantees of the procedural activity of the judge as the bearer of judicial power, the subject of the process; organizational and legal guarantees for the activity of a judge as a person holding a public office and is a member of the judicial community; social and legal guarantees of a judge as a citizen with a special legal status, limited in civil rights by legislation on the status of judges and occupying a separate position in society.

ОПТИМИЗАЦИЯ ЛОГИСТИКИ ТРАНСПОРТНОЙ СФЕРЫ ОСОБОЙ ЭКОНОМИЧЕСКОЙ ЗОНЫ КАК ДРАЙВЕР ЕЕ РАЗВИТИЯ

Attracting investments into the country’s economy is one of the priorities for any state. Investments contribute to economic development, technological progress, professional development, information exchange and other factors that improve the socio-economic life of the state. To attract foreign investors, countries use various instruments, one of which is special economic zones or free economic zones). Today, SEZs play an important role in the development of many countries, including Russia. The article examines the impact of logistics on the development of a special economic zone. As you know, a special economic zone is a territory to which the state has granted a special legal status and economic benefits, but without effective logistics, the work of residents of the zone is not possible. The activities of SEZs in the Russian Federation are regulated by Federal Law No. 116-FZ of July 22, 2005 “On Special Economic Zones in the Russian Federation”. It is necessary to strategically manage supply chains with access to international organizational interaction of both individual participants and the special economic zone as a whole. Logistics special economic zones are important for the state primarily as a basis for generating cargo flows within the country, as well as for creating an integrated network of transport and logistics complexes. The article discusses the criteria determining the effectiveness of logistics Logistics Performance Index (LPI) both at the level of countries and at the level of individual territories and the special economic zone, and also confirmed the hypothesis about the possibility of using the Logistics Performance Index modeling system to assess the prospects for the development of the territory of the special economic zone.

Benefits in law, legal science and practice

The article presents a theoretical analysis of “privilege” as a category of jurisprudence through the prism of the system of advantages in law. The relevance of the research is due to the fact that despite the study (mainly in the field of financial and banking law) of benefits, this legal phenomenon has not become the object of a comprehensive analysis. For the first time, the author proves the significant impact of benefits on the functioning of many areas of modern society (state policy, economy, social relations, etc.). The practical significance of the study is due to the consideration of benefits as means aimed at strengthening the independence and special legal status of subjects in need of state support (business community, employees of state law enforcement and other bodies, etc.), as well as social assistance (disabled people, veterans, minors, etc.). The author aims to prove the social, state-legal necessity of using this legal tool in the process of regulating public relations, to consider the main functions and goals of benefits, their internal classification. Using a variety of means and methods of cognition, the objective and subjective determinants of legislative consolidation of such a deviation from equality are identified, based on social and natural causes of occurrence, economic conditions and special legal factors. The need to analyze legislation and law enforcement practice has determined the necessity to identify existing patterns and shortcomings of technical and legal consolidation of benefits. These include the presence of synonymy in the legislation, which is characteristic of the system of advantages, in which the same terms denote different legal phenomena in their essence; the absence of a definitive apparatus, which makes it necessary to develop technical and legal measures aimed at improving the legislative consolidation of benefits, removing administrative barriers to their implementation.

Preemptive right as a component of the special status of civil servants

The article highlights the nature of such an extraordinary and complex phenomenon as a preemptive right. It is noted that the preemptive right is a special kind of legal advantage. The specificity of the preemptive right, its correlation with the subjective rights of participants in legal relations are analyzed in detail. It is emphasized that the preemptive right is an integral component of the special legal status of civil servants.

Debatable issues of granting a special legal status to participants in criminal proceedings from among persons with physical and (or) mental disabilities

Debatable issues of granting a special legal status to participants in criminal proceedings from among persons with physical and (or) mental disabilities

ИСКУССТВЕННЫЙ ИНТЕЛЛЕКТ КАК УЧАСТНИК ГРАЖДАНСКИХ ОТНОШЕНИЙ: ТРАНСФОРМАЦИЯ ПРАВА

Artificial Intelligence (hereinafter referred to as AI) carriers are active participants in civil relations. Therefore, questions of legal nature of AI units, their ability to possess rights and bear responsibilities, exercise rights and perform responsibilities, questions of liability limits for improper exercise of rights and performance of responsibilities by AI units are most relevant. For law, the defining characteristic of any participant in civil relations is its role in the exercise of rights and the performance of duties. The digital actor must also be viewed from this perspective. One of the central debates in this area is the possibility of conferring legal capacity on digital actors. This position has found supporters and opponents both in domestic science and abroad. At the same time it is necessary to take into account the specifics of will, consciousness and other anthropomorphic qualities of AI carriers. Complex neural networks have similar anthropomorphic qualities, the nature of which is a digital algorithm. AI is capable of expressing its will in accordance with the interest, goals and motives set by software algorithms, i.e. it is technological in nature. Obviously, an AI must be endowed with legal capacity and be responsible for its actions, otherwise we cannot use the full potential of an AI as a technology (person), and the actions of such a participant in legal relations cannot be recognised as legally significant. According to its purpose and registration an AI medium can be endowed with different legal personality: to be an agent - a subject with a narrow special legal capacity within certain functions, to participate in civil relations as a full subject, or to act as an object of legal relations at all. This legal capacity is conditioned by the robot having a certain set of qualities, such as the level of self-awareness, autonomy, complexity of neural networks, and competences. It is necessary to create a classification of AI forms by legal personality, by competences, which are certified through state registration. Legal statuses of different types of AI should be defined, including a new specific legal status of limited digital legal capacity. It is necessary to consider the legal personality of AI in relation to its exercise of rights, principles of law and legal content. It is necessary to create for AI varieties a certain mechanism of responsibility conditioned by the legal status assigned to it at the state registration. With respect to AI carriers the nature of law execution changes - subjective expression of will disappears, the execution becomes objective, unbiased. AI software must incorporate a system of principles for the exercise of rights and the performance of duties. In this way, the AI will be certified to a specific scope of powers, be competence-oriented and have a specific legal capacity.

Северный морской путь: перспективы легитимизации национального статуса в рамках международного права (часть 2)

The second part of the paper shows that the regime of navigation in the Arctic, particularly on the NSR, defended by Russia today, is much more liberal than that which existed in the Soviet years: up to the Gorbachev’s 1987 Murmansk speech the Soviet Arctic was a closed sea region for foreign navigation. Per-missive order of passage established today at the level of Russian national legislation applies only to civil ships, and in the framework of the 1982 Convention, measures to protect the marine environment from pollution from ships cannot be applied to warships, military auxiliary ships, and ships on the state non-commercial service. However, the presence on the Northern Sea routes of water areas with the status of internal historical waters, including several Arctic straits, plus the special legal status of the Arctic, which is not limited exclusively to the 1982 Convention, allows Russia to insist on the applicability of the permit regime also to foreign warships. This approach is based mainly on the two states’ practice with the longest coastline in the Arctic: the USSR and Canada. Navigation along the NSR in today’s ice conditions is not yet possible without passing through the waters of the Russian Arctic Straits, whose waters are classified by the USSR as internal on historical legal grounds. Although under the 1982 Convention, they can be conditionally regarded as international, the lack of permanent transit through them makes it possible not to recognize them as such. However, the Russian Federation’s task to turn the NSR into an international shipping route may lead to a weakening of the current legal position. A similar situation may arise concerning the enforcement of Article 234 “Ice Covered Areas” of the 1982 Convention, which gives the Arctic countries additional rights in the field of navigation control. Lack of ice cover in the Arctic during most of the year can significantly strengthen the position of Russia’s opponents, who insist on a too broad interpretation of this article on our part. Finally, climatic changes may lead to the NSR becoming more latitudinal, and then the Russian Federation will lose any legal grounds to regulate navigation.

NEW OPPORTUNITIES AND UNRESOLVED ISSUES IN THE CONTEXT OF CONVENTION ON THE LEGAL STATUS OF THE CASPIAN SEA

This article is dedicated for the analysis of the Convention on ‘Legal Status of the Caspian Sea’ concluded on August 12th, 2018 between the coastal States of the Caspian Sea. The exclusive rights and new opportunities issued to the parties, and alternative resolution to the question ‘sea or lake’ which has been getting on international dispute are researched throughout the Article. However, some issues arisen before the Convention have not been resolved yet. The research states possible solutions for these issues and clarifies indefinite circumstances not reflected in the Convention. In this paper, contradictions existing within the provisions of the Convention and discrepancies occurred between the clauses and the practice are searched. This Article has been prepared on the basis of the analysis of the articles of the Convention on ‘Legal Status of the Caspian Sea’ and the comparison of the current situation with the United Nations Convention on the Law of the Sea (UNCLOS- 1982). Key words: Caspian Sea, special legal status, international disputes, delimitation, implementation of the strategical projects

State Service in the Law Enforcement Sphere and Its Major Features

The article investigates the main features of state service in the law enforcement sphere and the place of state service in administrative and legal regulation mechanism. The goals of the work are as follows: to consider state service in the law enforcement sphere as a single legal category, to reveal its essence and characteristic features as a social system, to provide a scientific classification of its constituent elements and disclose their administrative and legal content. We highlight the following main functional features of those state bodies the service in which can be called law enforcement activity: state and power-based nature of activity, exercising executive and administrative powers, special functional and target purpose, application of special measures of legal influence based on the use of persuasion and coercion methods, and a special legal status. We conclude that practical solution to the question of classifying state service in a particular state body as law enforcement activity may be found through legislative definition of the concept of law enforcement activity of the state, law enforcement functions of state authorities, and the system of state authorities exercising law enforcement functions. Key words: state service, administrative and legal regulation, law enforcement activity, law enforcement functions, legal enforcement.

Peculiarities of the legal status of scientists working on unique scientific facilities of the “MegaScience” class

The article presents aspects of the legal status of scientists, both internationally and at the Russian level. By the example of the CERN scientific project, the peculiarities of the legal experience of scientists involved in the scientific experiments of CERN are revealed, as well as the corresponding legal regulations. On the basis of the analysis, the expediency of identifying a special legal status of scientists working on unique scientific facilities of the “MegaScience” class is substantiated, which needs additional theoretical understanding.

Estimating compensation ratios for tribal resources within a habitat equivalency framework

A challenging aspect of Habitat Equivalency Analysis (HEA) concerns adequately accounting for the relative value of the injured and restored or replaced resources. This issue is particularly relevant in the case of applying HEA to injured tribal trust (reservation) lands which enjoy special legal and cultural status. NOAA guidelines for HEA application state when choosing a metric to evaluate the quantity and quality of services provided by a unit of habitat, in addition to bio-physical characteristics, trustees should examine landscape, land ownership, and substitute resource characteristics. The analysis presents a theoretical framework and application of augmenting a traditional HEA analysis with discrete choice survey modeling results to ensure all key characteristics of the injured and restored or replaced resources are considered within the equivalency analysis. The example used is for the Spokane Tribe of Indians in Washington State and contamination of their tribal waterway, the Upper Columbia River/Lake Roosevelt. The addition of a discrete choice model of respondent preferences for site characteristics improves the standard HEA analysis by providing an empirical basis for unit equivalencies.

ПРАВОВИЙ РЕЖИМ ТА ОЗНАКИ НАДЗВИЧАЙНОГО СТАНУ В УКРАЇНІ

У статті досліджується правовий режим та ознаки надзвичайного стану в Україні, обмеження, які можуть бути застосовані до громадян при введенні надзвичайного стану; визначаються особливості правового статусу органів державної влади і місцевого самоврядування під час надзвичайного стану. Запропоновано вдосконалити законодавчу базу, яка регулює правовий режим надзвичайного стану й закріпити чіткий алгоритм дій для органів державної влади і місцевого самоврядування в разі введення надзвичайного стану. Наголошено на запозиченні позитивного досвіду закордонних країн, які передбачили в законодавстві завчасне правове регулювання основних питань запровадження й підтримання надзвичайного стану.

Clusters and special economic zones as factors of regional innovation development: A St. Petersburg case study

Subject. This article discusses the directions and problematic issues of institutional development of special economic zones and clusters in the context of Russia's transition to the digital economy. Objectives. The article aims to analyze the current state and justify the need for institutional development of special economic zones and clusters, considering global trends. Methods. For the study, I used the methods of analysis and synthesis, logical and systems approaches, and theoretical generalization. Results. The article justifies the need for State support for the development of industry and entrepreneurship within clusters and special economic zones. It defines the main problems of institutional development of the areas with special legal status, and their role in stimulating regional innovative development. Conclusions. The cluster approach requires systemic State support. Special economic zones are factors in the development of high-tech industries. This takes on a special urgency in the context of building a digital economy in Russia.

The formation of human rights and freedoms in the teachings of philosophers of ancient Greece and Rome

The formation of human rights and freedoms in the teachings of philosophers of ancient Greece and Rome

Directions and Legal Forms of Investment Activities of Banks

The paper is relevant because investment activities with the participation of banks, due to their special legal status, have a number of features of legal regulation that take into account the need to realize public interest in the activities of banks and their significant role in the economy. The basis for the emergence of discussions on the separation of investment and banking activities at the legislative level was the adoption of the American Glass-Steagall Act, containing the concepts of a segmented model of investment and classical lending. The paper analyzes the directions and legal forms of investment activity of banks in Russia, the difference between investment activity of banks and the classical understanding of banking activity. The main criterion for differentiation is the goal of investment and credit activity, the quality of risk, the mechanism for generating income. Investment activity, unlike credit, has a wider range of funding sources. The demarcation criterion is also the responsibility of the bank, which it bears when entering into relations with individuals in the framework of investment and banking activities. The features of the legislative regulation of banking activities in the securities market are identified, the role of banks in project financing and alternative (Islamic) financing is determined. It is proved that the investment activity of banks is a much narrower concept than the concept of a bank in the investment market, including the securities market.