No 5 (2024)

The article is devoted to the Soviet and Russian legal scientist, corresponding member of the Academy of Sciences of the USSR and the Russian Academy of Sciences, Doctor of Law, Professor, Laureate of the USSR State Prize, Honored Scientist of the RSFSR Sergey S. Alekseev. The work presents the main stages of the scientist’s life and work, as well as reveals his contribution to the development of the theory of state and law, Constitutional and Civil Law. The main attention is paid to the scientific activity of S. S. Alekseyev, his work as Chairman of the Committee of the Supreme Soviet of the USSR on Legislation and Chairman of the Committee for Constitutional Supervision of the USSR, characterized his role in the preparation of drafts of the Constitution of the Russian Federation and the Civil Code of the Russian Federation.

The article discusses the “critical theory” of G. Marcuse. Its essence is to synthesize metaphysical philosophy, science and ideology, thus creating a political theory that can become a means and goal of political struggle. Science, permeated with metaphysics, Marcuse concludes, will inevitably be politicized, turn into ideology and politics, since its goal will be to develop historical alternatives, social projects of the future. In this case, the values postulated by metaphysics must be transformed into the technical capabilities of the new society. In fact, this is an act of liberation: genuine philosophy frees thinking from the enslavement of society.

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 a study of judicial practice on the issue of recovery of unjustified enrichment by private entities (suppliers, contractors, performers) from state (municipal) customers in the absence of a concluded state (municipal) contract provided for by the legislation on the contract system.

The article continues scientific discussion about the so-called Service Law. The author critically estimates proposal for the allocation the so-called Service Law as element of system of Russian Law or sub branch of Administrative Law. State service is one of fundamental institutes of Administrative Law.

The article notes that the development of cross-border migration and the internationalization of the labor market leads to the fact that an increasing number of people permanently or permanently reside outside their countries of origin and citizenship. Migration processes are developing most actively in regional integration associations. In order for citizens not to experience difficulties in exercising their social rights when moving from one participating State to another, multilateral agreements are concluded in them aimed at preserving acquired social rights and the grounds for obtaining them. Analysis of such agreements in force in integration associations established in Europe (EU), in the Eurasian Space (EAEU), in Latin America (the Common Market of South American Countries MERCOSUR and the Andean Community), the Caribbean States (Caribbean Community CARICOM), the interregional Ibero-American Community, as well as emerging in Africa (Inter-African The SIRPES Social Insurance Conference makes it possible to identify common and different legal mechanisms used to ensure the social rights of migrants. All these agreements contribute to the coordination of the social policy of the participating States in order to ensure equal access to social rights and the continuity of their provision in the case of interstate migration within the integration association, but do not imply the harmonization of social legislation.

The article notes, that the Civil Code of the Russian Federation does not fully reflect the constitutional provisions on forms of public ownership, on state assistance to the development of entrepreneurship. The system of legal entities is built without taking into account in their classification of state-owned legal entities, in particular, state corporations and public law companies. The attribution of the latter to non-profit organizations does not reveal their essence as powerful manufacturers of high-tech products, active participants in the implementation of state economic policy. The establishment in the laws, that state corporations and public law companies are the owners of state property assigned to them means that they have the right to exercise the right of federal state ownership within the limits established by laws and decrees of the President of the Russian Federation and decisions of the Government of the Russian Federation. This is a kind of federal state property, not an independent form of ownership. Due to the fact that the legislator did not adopt the provisions of the Concept of the Development of civil legislation on the broad interpretation of property law, including the right of ownership and various developments of Roman lawyers, given that the concept of a legal entity now does not include as a mandatory element the existence of property rights or property rights, it would be necessary to discuss the question of whether property law is.

Based on the continuous monitoring of all changes made to the Criminal Code of the Russian Federation from the moment of its adoption and up to July 1, 2023, the article examines the main trends in the development of modern criminal law policy in Russia in the field of lawmaking. Criminalization (decriminalization), as well as penalization (depenalization) processes are analyzed, certain patterns and new vectors of their development are revealed.

In the article, the subject of the study is modern legal mechanisms for the formation of favorable legal conditions for trade in international markets carried out in the digital space for Russia. As such, the provisions of the Framework Agreement on the Simplification of Procedures for Cross-Border Paperless Trade in the Asia-Pacific Region (Framework Agreement), which is the newest UN treaty in the field of trade and development, fully dedicated to the digitalization of trade processes and the introduction of paperless technological and legal procedures (Russia joined on July 10, 2023), are considered. The author analyzes the conditions for mutual recognition by states electronic trade documents and data, as well as their exchange; legal problems and proposed solutions for the interoperability of national and sub-regional single window systems and/or other paperless trading systems; principles of electronic interaction in commercial legal relations. The author focuses on the complex legal and technological problem of agreeing on an “essentially equivalent level of reliability” of the cross-border exchange of electronic trade documents, which is the main condition for their mutual recognition by the parties and the main element of the cross-border space of trust. In this regard, various international and national legal approaches are compared to assess the reliability, cross-border recognition, as well as the legal responsibility of subjects of electronic interaction for adverse consequences that may occur as a result of their failure to fulfill obligations related to such interaction. Responsibility is considered as an essential criterion for the reliability of electronic transactions. The author proposes to include the existence of a legal mechanism of responsibility in the field of digital trade interaction (both national and cross-border) among the criteria (indicators) of the “digital maturity” of its participants. Particular attention is paid to Russia’s position on the implementation of the Framework Agreement: coordination of mechanisms to ensure an “equivalent level of reliability” and “independent assessment of readiness” of the national legislation of the Russian Federation. As a result of the analysis of the provisions of the Framework Agreement, it is concluded that it corresponds to the rights, interests and obligations of the Russian Federation in the field of building a cross-border trust space of the Eurasian Economic Union.

The article presents an analytical review of the main scientific ideas and works of one of the leading Russian constitutionalists, a representative of the Ural law school, Doctor of Law, Professor Anatoly T. Karasev in the year of his 70^th anniversary. The analysis of the main scientific developments of the scientist in the fields of Constitutional law, parliamentarism and Parliamentary Law, the constitutional and legal status of the Russian parliamentarian, representation in the system of public authority and strengthening the constitutional order is carried out. The author shows the significant contribution of the hero of the day to the development of the science of Constitutional Law in general and individual constitutional legal institutions in particular (Parliamentary Law, public representation, the system of public power, etc.). Conclusions are formulated about the promising nature of A. T. Karasev’s key scientific research, the concentration of his scientific research on representation in the system of public power, parliamentarism and the Constitutional and legal status of the Russian parliamentarian as the most important areas of development of Constitutional doctrine and practice.

The article is devoted to the study of topical problems of the history of the formation of international legal mechanisms in the field of protection of cultural heritage in the event of armed conflict and of modern measures in this area. The authors consistently analyze the relevant norms of both general and special nature of all major international legal acts relating to these issues, starting with the 1874 Brussels Declaration concerning the Laws and Customs of War as the earliest relevant document. The issue of the relationship between the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and the 1977 Additional Protocols to the 1949 Geneva Conventions is considered. A conclusion is drawn about the subsidiary nature of the special norms of the 1977 Additional Protocols in relation to the norms of the 1954 Convention. The resulting coincidence of the scope of the definition of cultural property for the purposes of the 1954 Convention and its Protocols, on the one hand, and of the corresponding special rules of the 1977 Additional Protocols, on the other, is substantiated. The shortcomings of the individual international legal acts mentioned are indicated, including those related to the virtually non-functioning “special protection” regime enshrined in the 1954 Convention. The lack of norms directly protecting intangible cultural heritage is discussed as a shortcoming of the entire array of international legal norms in the field of protection of cultural heritage in the event of armed conflict.

In modern conditions, it is impossible to talk about the current picture of international relations if there is no talk about the People’s Republic of China. It has become customary today to hear about China as the “second economy of the world”, an influential force in the political arena. If such rates of economic development of the PRC look so striking against the background of characteristic trends of slowing down the growth of general indicators in most countries of the planet, only one question arises against this background. How to deal with the thesis, which has become so traditional in liberal ideology, about the incompatibility of conditions for accelerated economic development and the existence of a “leading and guiding role” of the Communist Party in any country?

It can be said that China is more cautious about the events of the past. It should be noted that researchers of the past note a curious phenomenon: the Chinese themselves insist that, unlike the rest of mankind, they do not come from the African continent, but represent an independent branch of an earlier stage in the evolution of anthropoid apes, the remains of which were found in China, – Homo erectus. Despite the fact that most historians in the world accept such statements with a smile, individual interpretations of the past make it possible to lean towards a peculiar perception of the past.

The reasons explaining the restrained attitude to power and the negative manifestations of the past, of course, include the spread in China two and a half thousand years ago of a unique philosophical doctrine, called Confucianism. The core concept of Master Kun was the thesis: “a noble ruler gives rise to noble people”. Thus, a chain of obligations and mutual services arises.

The leadership of the Communist Party of China pays special attention to the need for maximum attention to the traditions of the past, when the cultural values that have developed in the course of history serve as a nourishing source that nourishes socialist values. Such a narrative of continuity between the spiritual and value orientations of the past and the present is accompanied by the proclamation of the foundations of Confucian morality as the fundamental principles of the “socialist code”.

The article is devoted to the definition of possible approaches and criteria for evaluating the effectiveness of parliamentary (deputy) activity. In the course of the study, five criteria for the effectiveness of legislative (representative) activity were identified: the effectiveness of legislative work; the effectiveness of parliamentary control; the effectiveness of working with voters; the effectiveness of organizing the work of committees, commissions, working groups; the effectiveness of the apparatus. Based on the analysis of the selected criteria and the current state of legal regulation, proposals are made to improve the current legislation and the legal mechanism for evaluating the effectiveness of legislative (representative) authorities.

The review sets out the main ideas expressed by the participants of the All-Russian scientific and practical conference “Legal issues of the reunification of new regions with the Russian Federation”, held in March 2024. The organizers of a major scientific forum with universities of the DPR, LPR and Crimea express confidence that bring peace closer, support scientists and teachers from new regions of Russia in the necessary professional form, prepare norms and procedures for the legal adaptation of the peaceful model of development of new regions of Russia. The fact of holding such conference can be an example of civil self-organization of the scientific community.

The author, pointing out the advantages of the monograph “Application of law: problems of theory and history”, also notes that the presented work is not without some drawbacks, there are theoretical provisions that require additional specification. The review outlines the essence of the main comments.