No 4 (2024)

The article is devoted to the scientific heritage of Corresponding Member of the USSR Academy of Sciences, Doctor of Law, Professor, statesman and public figure Aron Naumovich Trainin. A. N. Trainin is known primarily as a legal ideologue of anti-fascism, one of the first developers of problems of International Criminal Law; who participated in the Nuremberg trials as a consultant. He is the author of over 300 works. He was actively engaged in the development of problems of the theory of Criminal Law – corpus delicti, complicity, criminal responsibility, International Criminal Law.

The artcile first of all, it is emphasized that reality puts on the agenda the question of the fate of the current Constitution of the Russian Federation. The author of the article is a supporter of the development and adoption of a new Basic Law of our country. There are two major factors in favor of this. Firstly, Russia is entering a new stage in the development of society and the state. It demands a new Constitution that would reflect everything new that is connected with him, outline, and determine the prospects for further development. Secondly, since the adoption of the Constitution of the Russian Federation in 1993, changes have been made several times. We especially note the amendments of 2020. Their content and volume, from our point of view, are evidence of a virtually new edition of the Constitution of the Russian Federation. Let us also draw attention to the fact that there is a violation of the consistency and logic of the presentation of constitutional matter. It makes sense to fix this. It is emphasized that when preparing a new Constitution, one should proceed from its main features, which determine its connection with the development of society, its role and place in the life of the country. Those are reality, stability, dynamism, rigidity, flexibility. Today, more than ever, the question of the ideological property, the ideological essence of the Constitution is relevant. So, the most important thing first of all is to determine what the modern, domestic ideology of the Russian people, society, and the Russian state is. At the same time, there is a reasonable demand that, in order to increase the reality of the Constitution, relevant provisions of an ideological nature should be included in its text. This requires its mandatory consideration when preparing the new Basic Law of Russia.

The article examines the question of the essence of historiosophy as a cognitive discipline. As a result, it was found out that its capabilities are realized not by synthesizing subjects of different sciences (history, philosophy and law), but through an autonomous and self-sufficient range of issues with metaphysical origin and noospheric content. We are talking about a semantic area where the law is considered from the position of “was”, and not “yesterday”. In this regard, they ask: was there a right to “was” and is it still capable of being “was”? The likeness found in his life is evaluated on the subject of whether it was a moment, a passing illusion, or perhaps even “nothing” at all? Or was the grasped “was” itself a being that originated in the past, but has not gone anywhere and has a continuation in existence? As a result, it turns out that in law it leads to “historical transience”, and what in it ensures its “non-historical presence” in being.

The study also showed that the main and structurally forming category of historiosophy is time, which is rarely thought about in modern jurisprudence. Jurisprudence is mainly concerned with periods, gaps and deadlines, rather than time per se. The omission of time and knowledge about it left jurisprudence standing on the absolutist and abstract concept of Newton, which never reproduced ideas about time based on reality. The theory played with the physical side of time and missed its socio-psychological dimension, that is, that life is the main vessel of time, the only source of its filling and the key means of exhaustion. The life of atoms, as well as the life of legal goods, is not only the source of their existence, but also the duration of this existence. In turn, time is a fundamental criterion for the viability of legal benefits.

In the first part of this article (“Termination of the powers of a judge for a serious offense after the constitutional innovations of 2020 – constitutional or disciplinary liability?”) the modern problems of the mechanism of judges’ responsibility for disciplinary misconduct were considered. This second part of this article examines the current problems of the organizational and legal mechanism of disciplinary responsibility of heads (chairmen and deputy chairmen) of courts. Attention is drawn to the fact that the status of heads of courts is twofold: on the one hand, they are judges who directly administer justice, on the other hand, heads of a judicial body with powers and responsibilities to organize the work of the court (to ensure, within their powers, financial, material, resource, information and other parties), the implementation of general management of the activities of the court’s staff, and most importantly, to ensure the judicial and effective operation of the court on the principles of justice. Attention is drawn to the fact that the current legislation (and even partly the Constitution of the Russian Federation) provides for the responsibility of heads of courts for gross misconduct, which does not qualify as disciplinary, and the penalty for it is one – early termination of the powers of the head of the court, and in some cases the powers of a judge, without the possibility of applying other, less severe, penalties (penalties). It is proposed to formalize some new, real-life functions of the heads of courts with the establishment of a mechanism for their non-fulfillment. It is proposed to introduce the institution of the oath of the head of the court (separate from the oath of the judge) with the introduction of liability for violation of this oath, in particular for interference in the judicial activities of judges of the court headed by this head. Other proposals are also being made.

The article is devoted to the scientific understanding of the current state and prospects for the development of the legal institution of bankruptcy of strategic enterprises in our country from the point of view of the need to ensure a balance of private and public interests in this area. The author conducts a retroactive analysis of the development of legal approaches to key issues arising in the bankruptcy of strategic organizations, analyzes positive and negative trends in law enforcement practice in this area. Based on this analysis, the author makes specific proposals for improving the current legislation in the field of bankruptcy of strategic enterprises, justifies the need to tighten the qualification requirements for court-appointed candidates for arbitration managers of strategic enterprises and organizations.

The article is a review of the monographs by A. I. Bastrykin, R. F. Ismagilov, V. P. Salnikov “The idea of Goodness in the works of F. M. Dostoevsky and its influence on the development of the Philosophy of Law (to the 200th anniversary of F. M. Dostoevsky)” (2021) and by S. I. Zakhartsev, D. V. Maslennikov, V. P. Salnikov “The logos of law: Parmenides – Hegel – Dostoevsky. On the question of the speculative-logical foundations of the metaphysics of law” (2019) and is devoted to the formation of the philosophical foundations of the theory of law, which are considered in the general context of the collective work of St. Petersburg philosophers and lawyers to develop a sovereign Philosophy of Law under the leadership of Professor V. P. Salnikov.

In the article, in the paradigm of the history of the state and the theory of law, existing definitions of the phenomenon “civilization” are analyzed, an understanding of its content in various fields of knowledge is revealed, in particular, the relationship between the concepts of “faction” and “civilization” is established, their genesis is traced in the format of emergence and death. Particular attention is paid to the theoretical foundations of such concepts as “sovereignty of the state”, “Slavic-Russian civilization”, “state-civilization”, “Russian world”, “civilizational space of Russia”. In this regard, the theoretical and legal concepts reflected in the speeches of the President of the Russian Federation V. V. Putin and His Holiness Patriarch Kirill of Moscow and All Russia, other participants of the XXV World Russian People’s Council are analyzed. The author’s position is presented on a number of controversial issues in the format of history and theory of law.

The article examines and substantiates the conditions under which it is possible to restrict intellectual rights, primarily patent holders, in order to protect the constitutional right of a citizen to health protection. The topic is becoming especially relevant in the modern Russian realities of foreign sanctions and the need to ensure the availability, in particular, of medicines and medical devices. Based on the analysis of legislation the author identifies the main goals of restricting rights related to health protection and possible initiators of these restrictions. Based on the results of the study of the positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on the restriction of rights, as well as on the basis of the analysis of doctrinal sources and the literal interpretation of the norms of sectoral legislation, the main conditions and criteria for restricting intellectual rights in the implementation of the constitutional right to health protection were specified, systematized and justified.

The article discusses the most important features of the specifics of the mechanism for ensuring people’s trust in the activities of municipal communities. Among these, the author considers: municipal elections, with their peculiarities of organization, alternative forms of direct democracy and effective interaction between state authorities and local self-government. The organization of a unified system of public authority that operates effectively and efficiently, without the trust of the population in municipal authorities, is impossible. But at the same time, municipal authorities must simultaneously enjoy the trust of the competent authorities of the subject of the Russian Federation.

The article analyzes the evolution of conventional norms dedicated to the fight against shipowners (ship operators) who abandon ship crews without assistance in ports of foreign states. The article examines the norms of International Law, which are an integral part of the Russian legal system, related to the problem of financial support for crew members who were abandoned by the shipowner. The shortcomings of the existing legal methods and methods of influencing foreign employers (shipowners) violating the rights of seafarers, which have a negative impact on the effectiveness of the implementation of the real provision of their labor rights, are revealed. It is predicted that the problem of social vulnerability of seafarers engaged in labor activities on ships of foreign shipowners or on ships of Russian shipowners who have been transferred to a foreign “convenient” flag will worsen, due to the fact that the protection of labor rights has a pronounced international emphasis, and difficulties in solving such issues in the mode of traditional diplomacy are possible. The article explores the search for ways and mechanisms aimed at protecting seafarers from the actions of unscrupulous shipowners, as well as preventive steps to minimize the cases of abandonment of seafarers without means of livelihood in a foreign port, taking into account the trends of the latest legislation and the needs of emerging practice.

The topic considers the specifics of the construction of two types of forensic models of a person, who committed a crime: in the process of creating a forensic characteristic of crimes as its component, and also during the investigation of a criminal case as a direction of activity to identify the criminal. The problems of defining their structural content have been identified, the specifics of the methodology of forming these models have been revealed on the basis of a comparative analysis, the discussion questions about the subjects and methods of their creation have been considered with the presentation of the author’s conclusions on their solution. Some issues of using artificial intelligence technologies in the activity of creating forensic models of a person, who committed a crime, are considered. The actual directions of development of scientific research on the topic under consideration are outlined.

The growing influence of artificial intelligence, robotics and neurotechnologies on modern society increases the need to include in the legal system the rules governing the use of digital technologies and products based on them. This article attempts to establish how the concepts of “robot” and “artificial intelligence” relate to each other, as far as they are in contact with the field of neurotechnology. The author highlights the trends in the development of digital technologies, which will inevitably increase in the coming years, and outlines the boundaries within which the legal regulation being created today will be implemented.

The article deals with modern trends in the development of our state, the need for the formation of its spiritual and moral foundations, taking into account traditional family values. Family, marriage, children are defined as the fundamental family values of every person, the protection of which is of fundamental importance for the preservation of the Russian people. The article presents theoretical research aimed at determining the legal and social essence of traditional values, their system is presented, their system-forming significance for the legislation of the Russian Federation is determined. The author proves that the continuity of family values, their universality and irrefutability, the transfer of their ideological essence from generation to generation, will protect future generations from moral destruction, preserve the historical identity of our people, which will determine the further development and prosperity of our state.

The article shows that modern national security is inextricably linked with ensuring global security, and also contains a very important legal component in addition to the military component. The primary role in this dual process belongs to the UN, so it is important to assess the position of the UN Secretary General on this issue. The latest Report of the Secretary General presents a new concept of the Rule of Law in international relations. Although the Report unduly focuses on the Rule of Law within States rather than in international relations, the Secretary General’s Report, which analyzes almost all aspects of the Organization’s activities, nevertheless shows effective measures towards strengthening International Law.

The article is devoted to an extended analysis of the most important texts of the Stalin era, in which the theory of the socialist state was presented. Based on historical and political analysis, the author traces and reconstructs the history of the development of Soviet political and legal thought of the Stalin period of Soviet history towards the creation of a well-founded and structured theory of the socialist state. This work was complicated by serious problems that arose due to serious contradictions between the theory they were creating and the most important Marxist principles, as well as with the main postulates of the Leninist doctrine of the dictatorship of the proletariat. The author comes to the conclusion that these reasons ultimately led to the situation that the theory of the socialist state created from the early 1930s to the early 1950s did not achieve internal structure and consistency. The Soviet theory of the state did not resolve its internal contradictions, of which the most important was the dualism of dictatorship and democracy. Thus, the Soviet theory of the socialist state of the Stalin era did not achieve internal harmony and logic.

Theology in Russian education is increasingly strengthening its position, claiming interdisciplinary status. Such areas as theological anthropology, theological psychology, legal and political theology, etc. are being developed. The spread of theology in secular universities of the country faces a number of difficulties related to the specifics of integrating secular and religious education and science. A special point of intersection is the dialogue of law and theology on the basis of secular universities. The author of the article analyzes the possibility and relevance at the present stage of the transition from the historical dialogue of these two main regulators of public life and types of knowledge to the development and implementation of specific educational programs for training lawyers and jurists based not only on legal but also theological knowledge, taking into account the current political and legal situation in Russia and the world. It is especially important to take into account the specifics of the Russian Orthodox culture with its rich experience of spiritual and educational practice and positive foreign experience of integrating theology and law in the educational system.

On October 18, 2023 the Institute of State and Law of the RAS hosted the All-Russian Scientific Conference with international participation “Human rights: problems of conceptualization, positivization and protection. On the 75th anniversary of the Universal Declaration of Human Rights”. It was attended by representatives of leading Russian scientific and educational institutions, as well as researchers from Belarus and Uzbekistan. The Conference emphasized the continuing importance of the Universal Declaration for the establishment of international human rights standards. The participants of the scientific event discussed a wide range of problems related to the development of the doctrine of human rights and the practice of their protection in modern conditions characterized by the increasing complexity of international relations, the diversification of social inequalities and the introduction of new technologies.

The multidimensional nature of law, designed to act as the main social regulator and the importance of legal policy for the progressive development and functioning of the legal system, which is increasing in the context of modern challenges to national security, determines the theoretical and practical significance of research on the phenomenon of legal policy. The peer-reviewed monograph provides a scientific substantiation of the systemic relationship between the mechanism of legal relations and legal policy. The author of the monograph comprehensively and from original positions examines the essence of legal policy, the problems associated with its scientific knowledge and implementation, and identifies its patterns.