No 2 (2024)

The article is devoted to an overview of the life path and scientific heritage of Academician of the USSR Academy of Sciences, member of the Presidium of the USSR Academy of Sciences Ilya P. Trainin. Scientific work of I. P. Trainin combined with organizational, socio-political and pedagogical activities. From 1942 to 1947 he served as Director of the Institute of Law of the USSR Academy of Sciences (in 1931 – Soviet Construction and Law of the Communist Academy; now – Institute of State and Law of the Russian Academy of Sciences). He owns research in the field of International Law, domestic and foreign State Law. The scientist’s scientific works have always covered key and topical problems of legal science and practice: the sphere of national relations, citizenship, issues of sovereignty, federation and autonomy. During the Great Patriotic War, I. P. Trainin wrote a number of works devoted to the mechanism of the fascist dictatorship and the responsibility of Nazi Germany for the atrocities and damage caused by its aggression and military robbery.

The article represents the author’s effort to extract a key national and cultural particularity of the Russian federalism model. Taking into account a historical experience of the federative development in Russia as well as the traditions of the Russian school of federalism, it is concluded that the key particularity of the Russian federalism is not concerning just an utilitarian distribution of powers and functions between federal and sub-federal authorities; it is first of all providing the equality of intra-societal dialogue, based on a reciprocal respect of the different ethnos and nations, forming together the multinational Russian people and, as a consequence, the united Russian state. In this context, the author arguing an idea that namely the Russian federalism model should be observed as a realistic preimage of the future multi-polarity in the changing world order.

The article demonstrates the cognitive value of the postclassical legal theories underlying the phenomenological and hermeneutic methodology of postmodern philosophy. The ways of overcoming the relativism of postmodernism, which raises the right to the top of the pyramid, based on the foundations of Russian society, forming the context of meaning-making carried out during the constitutionalization of criminal proceedings, are outlined. The article reveals the value component of the methodology of conflict resolution used by the Constitutional Court of the Russian Federation, based on the postclassical jurisprudence. The author argues that it is impossible to resolve these conflicts through traditional legal and dogmatic methods of law enforcement used by ordinary courts. Constitutionalization is presented as a process for the transformation of natural law into a positive law, carried out in two stages: at the first, a certain right is elevated to the rank of a constitutional norm; at the second, this right is deployed in sectoral legislation. It is concluded that the constitutionalization carried out by the Constitutional Court of the Russian Federation is nothing more than a way of resolving normative conflicts, during which the Constitutional Court of the Russian Federation interprets both the provisions of the Constitution of the Russian Federation and the norms of laws, bringing them into a state of mutual non-contradiction.

The article is devoted to the study of the subject of law as a formal-dogmatic model of a person in legal reality. The process of the doctrinal formation of the subject-legal model is traced, four methodological transitions in the legal view of the subject of law are distinguished. The importance of an anthropological and legal approach to understanding a person and his behavior in modern legal reality is substantiated. The anthropological and legal approach is based on the idea, that law is inherently human phenomenon, the main goal and value of which is the person himself, and not his subject-legal model. In this regard, it is proposed to recognize the official nature of legal-conceptual design in relation to the teachings of a person in law. Despite the fact that the formal-defense method underlies the legal regulation of social relations and the legal means created with its help are a guarantee for a person as the main legal value, nevertheless, it is a person, and not his legal structure, is a central element of legal reality and legal system. To know the anthropological and legal properties of a person and their use in legal regulation, an additional level of legal representation of legal personality in relation to the formal-defendant is proposed.

All types of modern litigation are characterized by a combination of individual and collegial principles. The commonality of the concept of justice determines the conceptual universality of most institutions of criminal, arbitration, civil and administrative proceedings. It follows from this that the criteria and principles for determining the ratio of collegial and individual are or should be approximately the same in all types of processes. Recent years have been marked by an active reform of the rules on the composition of the court in these types of justice, but the novelties are not always uniform or at least coordinated. The author attempts to identify the patterns of formation of the sole or collegial composition of the court within certain types of legal proceedings and justice in general. The tendencies of modern procedural law in determining the ratio of individual and collegial in the courts of the first, appellate and cassation instances are analyzed separately.

The article examines the system of formal sources of Criminal Law, which, during consideration and analysis, is thought of as a set of forms of expression of criminally relevant information, differentiated depending on the content of information, subjects of its presentation, purpose in the mechanism of criminal law regulation and clearly falling into two related groups: related to the criminal law prohibition in as a whole and to the composition of the crime. As the main conclusion, a system of formal sources of a Special part of Criminal Law is proposed, consisting of two groups of acts: a) normative acts, which are represented by sources of establishing a criminal law prohibition (the Criminal Code and the code of responsibility for criminal acts of a low degree of danger) and sources of specifying the prohibition (resolutions of the Government of the Russian Federation and resolutions of the Plenum of the Supreme Court of the Russian Federation); b) non-normative acts, which are represented by sources of non-mandatory (doctrinal documents, acts of unauthorized state bodies, rulings of the Supreme Court of the Russian Federation) and mandatory (decisions of the Constitutional Court of the Russian Federation and decisions of the Presidium of the Supreme Court of the Russian Federation) interpretation.

The authors of the article, based on a comparative legal analysis of the system of sources of legal regulation of financing of forensic institutions, as well as domestic scientific literature, propose to “transfer: the signs of the system to the concept of a mechanism. Within the framework of the system analysis carried out, the authors of the article proceed from the definition of the system of financial and legal mechanisms for ensuring forensic expert activity as an object of public administration, which is a legal relationship regulated by the norms of law to achieve the set goals and objectives, the use of methods, tools and rules having monetary, organizational, accounting and control content. The article substantiates the need for an integrative approach to the definition of a system of financial and legal mechanisms for ensuring judicial expert activity as a single system subject to legal regulation. The authors propose to define the mechanism of financial support for the activities of a forensic expert institution/organization as a system of education from the norms and institutions of national law contained not only in regulatory legal acts relating to various branches of legislation, but also local acts of state and non-state institutions and organizations; legal and technical documents, among which should be mentioned instructional letters, regulations, methodological recommendations, technical standards, GOST standards, etc., as well as contracts of normative content that ensure international cooperation on forensic activities.

The authors consider the peculiarities of the legal regime of official documents and their drafts. The article proposes the concept of a work as an object of copyright, highlights the features of the work. The authors substantiate the reasons for the lack of legal protection in relation to information messages, works of folk art, official documents, state symbols and signs. Based on the study of legal doctrine and judicial practice, the authors identify the legal regimes of draft official documents, determine the conditions for the lawful use of such projects. The authors conclude that in the case of sending a draft official document to the authorized body, the object is doubled from the moment the project begins to be used. After the adoption of an official document by the authorized body, such a document is excluded from legal protection and is not recognized as an object of copyright. The authors note that the withdrawal of official documents from legal protection does not exclude the possibility of creating protected works on their basis, in particular, composite, derivative works (collections, translations, etc.), for which an independent copyright of compilers, translators and other persons arises.

The article reveals the legal problems associated with finding a treasure containing cultural values. According to the author, the person who found the treasure, without special knowledge, cannot independently determine its cultural significance. The paper also examines the legal consequences of the discovery of a treasure, which includes archaeological items. The normative legal regulation of these public relations has its own peculiarities. Based on the analysis of the norms of the current legislation of the Russian Federation in the field of protection of cultural heritage objects and law enforcement practice related to the finding of archaeological treasures, determining their fate, the author formulates a number of conclusions and proposals for improving legislation.

The article is devoted to the search for a solution to such an acute and urgent problem of modern society as the informal economy, which has an adverse impact both on the state and its financial instruments, and on the population employed in it. Analyzing the norms of Labor Law and Social Security Law, the authors evaluate the current legal regulation through the prism of its focus on the transition to formal employment and the economy. Taking into account the peculiarities of informal employment, they propose ways to improve labor and social security legislation.

The annual increase in microplastic pollution of Lake Baikal is a new environmental threat to a unique freshwater ecological system that requires a set of interrelated general (applies to the entire territory of Russia) and special (applies to the Baikal natural territory or its individual parts) legal measures. The forthcoming international and interstate decisions to reduce plastic and microplastic pollution, which will have an impact on the domestic regulation of environmental protection, including the protection of the ecosystems of the Baikal natural territory, are considered. In a systemic relationship, the existing, expected and recommended legal measures for the protection of Lake Baikal from primary and secondary microplastics are shown on the basis of foreign legislation. The consolidation in the Russian legislation of the missing general and special legal measures for the protection of Lake Baikal in relation to pollution with both primary and secondary microplastics is substantiated. It is proposed to create a special council that would coordinate the protective measures taken against microplastic pollution and other negative environmental impacts at the level of the constituent entities of the Russian Federation, Mongolian aimags and their municipalities located within the entire catchment area of Lake Baikal.

The theoretics of law asks a question what should the law be in the fast-changing world? In the context of this modern stream this article studies the flexibility and adaptability of financial planning acts and especially strategic planning documents. The legislator envisages strategic planning documents flexibility by means of corrections mentioned in the law. These legal provisions are commented and discussed in the article. The “sliding planning” instrument is discussed in the article as another possibility to make the plans flexible. The authors present the lack and excessiveness of strategic planning documents as the extremums of flexibility. The extremum of lack of document of strategic planning is especially relevant due to the absence of the annual President’s of Russia addressing to the Federal Assembly in 2022, which is an annual strategic planning document according to the legislation. The authors point to the importance of the President’s addressing for the budget process and propose to turn back to the practice of the President’s budgetary addressing to ensure the stability in the budgetary process.

The author raises the issue of the formation in the practice of the national regulator of the protection of the rights of users of Internet platforms in terms of illegal blocking and censorship restrictions, contrary to the fundamental principles and guarantees of freedom of collection, receiving and disseminating information and the right to freedom of expression in a democratic society. The author, analyzing the decision of the Federal Antimonopoly Service and other normative acts, states that the relevant judicial and administrative practice has not been generalized and logically developed in the form of amendments and additions to legislative acts. At the same time, the author concludes that the relevant user rights continue to be massively violated despite the imposition of large fines by both Russian courts and other State authorities. In the author’s view there is insufficient protection of user’s rights and redress.

In the article, the author examines the features of one of the elements of the legal personality of minors, their delictability, and determines its specificity in relations of a diverse type (civil, family, procedural, labor, criminal) with their participation. The author identifies the sectoral features of his delictability, due to the essential influence of his individual criteria, physical and social maturity, belonging to a special subject of responsibility and the content of industry norms defining the basis and conditions of his responsibility. The author proves that at the present stage of development of the legislation of the Russian Federation, the norms defining the responsibility of minors require regularity and systemic changes, in particular the theoretical and practical need for the allocation of so-called special torts. The article argues the conclusion about the need to take into account in tort obligations the responsibility not only of minors and their legal representatives in cases of their lack of proper performance of rights and obligations towards a minor, but also to take into account current trends in the development of legislation that allow considering the issue of reciprocal responsibility of legal representatives to minors.

The article is devoted to the 85^th anniversary of the famous Russian legal scientist, Doctor of Law, Professor, Honored Scientist of the Russian Federation, Honorary Worker of higher Education of Russia Vladimir T. Kabyshev. Speaking about the work of Professor V. T. Kabyshev, the author of the article notes that among the scientific topics (Russian constitutionalism, the foundations of the constitutional system, human rights and freedoms, democracy, the implementation of the Constitution, the constitutional mechanism of power, etc.) that have become the object of his research, the doctrine of constitutionalism occupies a central place. The teachings of V. T. Kabyshev’s work on constitutionalism is focused on the formation of an adequate understanding of the role of the Constitution in modern society and the state, the formation of a constitutional culture of citizens and officials, and the optimization of the management process, which are a condition for the progress of public relations.

The article examines the problems of the “right to death” – a constitutional and legal guarantee that recognizes the right of a person to end his own life at his discretion. This issue was initially considered as a downside, a kind of negative dimension of the right to life (Part 2 of Article 2 of the Basic Law of Germany). However, the focus has changed over time; the discussion is currently being conducted in the context of the right to personal self-determination. Within the framework of this article, the analysis is carried out on the basis of the law enforcement practice of the highest courts of Germany and the European Court of Human Rights. The point of contact of the German courts can be considered the recognition of the right to voluntary retirement as an act of individual self-expression, the realization of personal choice. The legal structure of the right to personal self-determination presupposes the establishment of a close connection between the right to general freedom of action (Part 1 of Article 2 of the Basic Law of the Federal Republic of Germany) and the guarantee of human dignity in accordance with Part 1 of Article 1 of the Basic Law of the Federal Republic of Germany. At the same time, the counterargument is not considered convincing, according to which the recognition of the “right to death” entails the impossibility of further personal self-realization and therefore contradicts the “life-affirming” spirit of the Basic Law, expressed, in particular, in part 2 of Article 2, since the very realization of the desire to end life is considered as an act of self-realization, which falls under constitutional protection. This constitutional and legal concept, developed by the Constitutional Court of the Federal Republic of Germany, is shared by the rest of the highest judicial instances of Germany, which complement it, in particular, by establishing state obligations to assist persons who wish to voluntarily end their own lives. The European Court of Human Rights has not yet had the opportunity to express its position on this issue, however, trends in the development of its law enforcement practice indicate that it is likely sooner or later to join the legal line of the German courts. The author identifies the argumentative shortcomings of the fundamental prerequisites for justifying the right to voluntary retirement, demonstrating not only their internal inconsistency, but also the inadmissibility of the consequences that state support for suicidal aspirations of citizens will lead to.

This article discusses some issues related to the use of the concept of “destructive religious association” applied to the Russian legislation in the late XIX – early XX century. In the sphere of relations between the state and various religious associations in modern society, various issues arise that require a balanced approach. In this regard, it is appropriate to study the legal policy of the Russian Empire in relation to certain sects, Old Believers. In particular, the author analyzes the issues related to the use of the concepts “heresy”, “schism”, “Old Believers”, “sect” in the context of the corresponding historical period. Also, some attention is paid to the responsibility born by members of fanatical and especially harmful sects (according to the Code on Criminal and Correctional Punishments of 1845). In conclusion, the author examines the correlation of religious associations that are dangerous for the individual, society and the state, with fanatical sects and especially harmful sects.

The authors of the present article demonstrate the inaccuracy of the idea proposed by the Vienna Circle positivists that it is necessary to extend the terminology and methods of natural sciences to political and legal studies in order for these studies to produce truly scientific knowledge, which, as suggested by these positivists, should present a set of statements formalized through the usage of mathematics. The authors contend that this theoretical approach opposes natural sciences to jurisprudence and political science and therefore are incorrect. It is the authors’ stance that social sciences, including jurisprudence and political science, as well as other areas of scientific research, explore the nature. Thus, jurisprudence and political science belong to natural sciences. Accordingly, in every area of scientific research the qualities of its results are controlled by the specifics of the sphere of nature under examination. It is this sphere that dictates a choice of categories and methods employed for this examination. These categories and methods are determined by the aforesaid specifics and, as a result, are also specific. For example, this is true not only for mathematics and physics but also for jurisprudence and political science. It is worth noting that every area of research has its own, distinctive findings or scientific results produced by means of the unique system of notions and methods, utilized in the course of the research. Spheres of nature examined within separate areas of research overlap with each other. Consequently, a given area of research may adopt categories and methods of cognition that were initially devised within another area of research. However, such an adoption should be undertaken only if it leads to the achievement of original scientific results.

The article contains an analytical review of reports and speeches of participants in the International Scientific and Practical Conference “Intersectoral protection of labor and social rights in the conditions of social transformation”. Attention is drawn to the fact that the legal regulation of labor, which is inextricably linked with the personality of the worker, and social protection require reliance on knowledge of the sciences about man and society. Sectoral labor legal protections for effectively achieving results in the field of labor migration, creating a comprehensive system for protecting the life and health of an employee during working life, protecting workers in the event of an employer’s insolvency, implementing the constitutional guarantee of respect for the working person, etc. must achieve intersectoral and interdisciplinary harmonization.

The peer-reviewed monograph by Y. V. Truntsevsky and L. I. Belyaeva is devoted to the study of the life and work of the outstanding Russian lawyer, scientist and administrator E. G. Shirvindt (1891–1958). The authors focused their attention on his scientific works in the field of penitentiary, criminological and criminal legal science in general, as well as on the practical work of E. G. Shirvindt as the head of the Main Directorate of Places of Detention of the NKVD of the RSFSR (People’s Commissariat of Internal Affairs of Russian Soviet Federative Socialist Republic) and the first director of the State Institute for the Study of Crime and the Criminal – the predecessor of the Institute of Legislation and Comparative Law under the Government of the Russian Federation. The structure of the work is built on the principle of analyzing the “tangle of contradictions” in the history of the formation and development of criminal policy and criminal law science in the first decade of Soviet power, which, at the same time, became the key milestones in the biography of the main character of the book. The authors of the monograph have done an important work in terms of reanimating the scientific heritage of E. G. Shirvindt and rethinking the rich experience of his practical activities to reform the penal system, which makes the book are very relevant in today’s conditions of functioning of the domestic penitentiary department.