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No 4 (2023)
Institute of State and Law of the Russian Academy of Sciences: towards the centenary
7-8
Defined the new time and the strategies of the future
Abstract
The essay presents the main stages of the life of an outstanding lawyer – Academician, Vice-President of the Russian Academy of Sciences Vladimir Nikolaevich Kudryavtsev, whose 100th birthday is cel-ebrated by the legal community of Russia in April this year; a general description of one of the funda-mental research of the scientist “Strategies for combating crime” (2003) is given, the influence of V.N. Kudryavtsev’s ideas on the further development of Criminal Law and criminology is shown.
Gosudarstvo i pravo. 2023;(4):9-15
9-15
Transformation of scientific paradigms in social practice
Abstract
The article dedicated to the 100th anniversary of the birth of Academician of the Russian Academy of Sciences Vladimir Nikolaevich Kudryavtsev provides a brief analysis of his creative experience in Criminal Law, criminology and legal conflictology, reveals the theoretical and practical significance of the author’s works, which in many ways have become the theoretical basis for new areas of research in jurisprudence; the transformation of scientific ideas developed by the scientist into social practice is shown, in particular into criminal legislation, law enforcement and criminological measures to prevent crime, resolve conflicts by legal means.
Gosudarstvo i pravo. 2023;(4):16-29
16-29
Fighting crime as a life strategy (touches to the portrait of the Academician)
Abstract
April 2023 marks the 100th anniversary of the birth of the outstanding Soviet and Russian lawyer, criminologist, Academician, Vice-President of the Russian Academy of Sciences Vladimir Niko-laevich Kudryavtsev. The article, based on the scientific heritage of V.N. Kudryavtsev, reveals topical issues of combating crime: starting with general philosophical ideas about criminal behavior and end-ing with specific aspects of the preliminary investigation and trial. Special attention is paid to the state-legal ideology, its necessity in a democratic state governed by the rule of law. The issues of criminal policy, crime prevention, and the use of punishment are considered. The absolutization of the ac-cused’s admission of guilt and the accusatory bias in the administration of justice are criticized.
Gosudarstvo i pravo. 2023;(4):30-37
30-37
Remembering Academician V.N. Kudryavtsev…
Abstract
The author, who worked for a long time with academician V.N. Kudryavtsev at the Institute of State and Law of the USSR Academy of Sciences, recalls him as a scientist whose works have not lost relevance at the present time, an organizer of science, under whose leadership fundamen-tal, including intersectoral, complex, studies have been prepared, recognized not only by not only in Russia, but also abroad, the head, during whose work the Institute took a leading place in the study of actual state-legal problems of our time, a person with multifaceted interests.
Gosudarstvo i pravo. 2023;(4):38-41
38-41
Philosophy of law
Methodology of the Neo-Kantian Philosophy of Law: the transition from “due” to “being”
Abstract
The article shows the influence of Kantian philosophy on jurisprudence. From the position of neo-Kantianism, law and the state are not objective “things in themselves”, but transcendental logical constructions of the cognizing subject. Law is twofold: as a subject of logic and as a social phenomenon included in social relations as their regulator. In the concept of law, rational and irrational elements are distinguished. According to neo-Kantian methodology, the state can be the subject of research both nomothetic (the state is a recurring fact) and idiographic (the state is a unique phenomenon) sciences. It is shown that in the Russian Philosophy of Law of the 19th - early 20th centuries of the neo-Kantian orientation, special attention was paid to the problems of finding a social ideal, the connectedness of the state by law, the theme of a legal state, the basis of which is a self-sufficient person. The ethical and legal basis of the neo-Kantian Philosophy of Law in Russia was Kant’s idea of individual freedom, its autonomy, of the external protection of all members of society by the state with the help of the rule of law and non-interference in the inner world of a person. In the late 19th - early 20th centuries, Kant’s philosophy was extrapolated to the conditions of the historical reality of that period in the form of requirements for the legal provision of individual rights and freedoms in a legal state.
Gosudarstvo i pravo. 2023;(4):42-49
42-49
Discussions and debates
Legal regulation: positive and negative aspects
Abstract
The article is devoted to the actualization and substantiation of the dual nature of legal regulation. The methodological basis of the study is a pluralistic approach to law and dualistic dialectics. In the aspect of the conflict nature of social development as one of the determinants of the social nature of law, the author states the methodological significance of conflictological legal understanding for the actualization of the dualistic nature of legal regulation in the unity of its regulatory and protective principles. The author proceeds from the hypothesis that legal regulation has as its subject the ordering and protection of social relations in the order of establishing regulatory and protective norms, which corresponds to the essence of law. The indicated dualism of the subject of legal regulation is used for its dual characterization at the level of positive and negative aspects, expressing the correlation of the dichotomy of the regulatory and protective functions of law with the dichotomy of positive and negative types of social relations. The argumentation of the positive and negative principles of legal regulation is based on institutional and legal means.
Gosudarstvo i pravo. 2023;(4):50-57
50-57
The Russian system of pre-trial proceedings as a synthesis of different types of criminal procedure
Abstract
The article is devoted to the study of prerequisites that determined the distinctive character of the Russian system of pre-trial proceedings in a criminal case.Analyzing the vector of development of national criminal justice and criminal procedure legislation, drawing comparative parallels with foreign mechanisms of preliminary investigation, the author comes to the conclusion that the gradual separation of the Soviet and post-Soviet system of pre-trial proceedings was caused by the well-known historical cataclysms of the 20th century. It is noted that a unique model of pre-trial proceedings has been formed in Russian Federation that represents a chaotic synthesis of various, including poorly compatible, elements inherent in different types of criminal proceedings.
Gosudarstvo i pravo. 2023;(4):58-65
58-65
“Digital law” vs “digitalization of law”
Abstract
With the inevitability of further expansion, improvement and systematization of the mechanism of legal regulation of relations developing in the digital environment, the accuracy of legal and doctrinal terminology, its compliance with the already established system of conceptual and categorical apparatus, subject area and trends of legal regulation remains a significant task. The conflict of doctrinal approaches in the issue of terminological designation of such a phenomenon as the intensifying regulation of digital phenomena is incompatible with the dogmatism of law, requires more certainty, but for this it is necessary to resolve, according to the authors of the article, the main question: which of the terms most accurately corresponds to the nature of the emerging system of norms – “digital law” or “digitalization of law”?
Gosudarstvo i pravo. 2023;(4):66-71
66-71
Rights and freedoms of a man and a citizen
Federal legislation on the indigenous peoples of the North, Siberia and the Far East of Russia: novels of recent years
Abstract
The article is devoted to the novelties of the federal legislation on indigenous peoples. It gives a general description of this legislation, shows the directions of strategic planning of its development, as well as analyzes changes in this legislation related to the introduction of registration of persons from among indigenous small peoples, fixing the standard of responsibility of residents of the Arctic zone in relations with these peoples, establishing the procedure for compensating them for losses, ensuring their rights to use land and traditional hunting and the definition of places of traditional residence and traditional economic activity of indigenous peoples.
Gosudarstvo i pravo. 2023;(4):72-83
72-83
Strengthening of legality and struggle with criminality
Criminal policy of the state in the field of national security
Abstract
The global processes taking place in the international political arena are more likely to correspond to the state of a silent confrontational and information war, forcing Russia to defend itself more actively, reflecting more and more blows from potential and established opponents. Ensuring State security is an integral and one of the most important functions of the state, it has as its task the prevention and suppression of actions that violate peace and order. It is this topic that is closely interrelated with the processes of preventing and countering crime, since the success of countering crime and, accordingly, ensuring national security depends on the effective functioning of the relevant processes. Taking into account the above factors priority task of the state is to ensure both its own security and the security of its citizens. The article examines individual elements of crimes that infringe on national security, which allows us to assess the scale and depth of the chosen topic. The authors have made proposals that should contribute to strengthening the rule of law while ensuring national security.
Gosudarstvo i pravo. 2023;(4):84-92
84-92
Crime in the field of housing construction through the prism of legislative reform
Abstract
The author analyzes the trends of crime in the field of housing construction, focusing on such an aspect as the high adaptability of developers to the next measures taken at the state level to stabilize the housing market, protect the rights and legitimate interests of participants in shared-equity construction. The author comes to the conclusion that neither the adoption of the Federal Law of December 30, 2004 No. 214-FZ “On participation in the shared construction of apartment buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation”, neither the subsequent addition of such a significant novelty as the escrow account regime, nor the introduction of special restrictive measures of a regional nature, contributed to minimizing illegal acts in this area. Developers continue to undertake methods and techniques of concealing true intentions, which, in general, are expressed in creating the appearance of legitimate entrepreneurial or other activities not prohibited by law, in combination with: a) the production and use of forged title or other documents (for example, documents confirming the rights to a plot of land for construction); b) the commission of fictitious transactions (creating the appearance of acquiring apartments through escrow accounts; transit resale of land); c) using front persons or organizations as fictitious intermediaries. In this regard, the author suggests recommendations to improve the effectiveness of the investigation in terms of identifying elements of fictitious activity as techniques for concealing illegal acts.
Gosudarstvo i pravo. 2023;(4):93-99
93-99
Law and medicine
Social risks of the genetic revolution: from the standpoint of the legal approach
Abstract
Technological progress and law development until recently were different facets of one common process of mankind progressive advancement towards asserting greater independence from the natural elements and expanding the scope of human freedom. At the same time, law, on the one hand, was the most important incentive for the development of the creative potential of mankind as a source of scientific and technical innovations, and on the other hand, it was an effective way to correct deformations within the system of techno-humanitarian balance, guaranteeing against the most dangerous manifestations of technological power. However, with the advent of the 21st century convergent NBIC-technologies, the law increasingly demonstrates its inability to reduce the technological development risks to an acceptable level. The novelty of the situation is that social risks come to the fore. This trend is most clearly manifested in the field of legal regulation of the processes of creating and applying technologies for editing the human genome. A whole series of breakthroughs in the field of studying the human genome, carried out in recent decades, has opened up huge prospects not only for the development of medicine, but also for changing the natural qualities of a person, up to the possibility (so far theoretical) to control the mankind biological evolution. These new opportunities lead to entail proportionate social risks, connected primarily with the danger of an irreconcilable split of humanity into different socio-biological groups. In the current conditions law is not able to cope with the threat of humanity losing its biosocial unity. The hopes expressed in the public space for moral and religious factors to counteract the dangers of technological dehumanization, fraught with a surge of social injustice, seem to be greatly overestimated. There is even less reason to count on the so-called “moral bioimprovement” of mankind. In the current situation, apparently, there is no other way than a difficult creative search, focused on improving social, economic and political relations in line with an equitable legal approach. Successes along this path would provide the conditions under which the human community would be able to preserve the law vector of biotechnological development and, at the same time, avoid its catastrophic consequences.
Gosudarstvo i pravo. 2023;(4):100-110
100-110
Legal, political, philosophical and religious thought
Civil society, “civil theology” and Augustine’s political morality: a comparative analysis with ancient teachings
Abstract
The study is devoted to a comparative analysis of the concepts of “civil society”, “civil theology” in relation to the political morality of Blessed Augustine Aurelius with ancient teachings. The article attempts a hermeneutic analysis of the concept of civil society often used in the theory of state-legal doctrines. The differences are established between the pagan Roman understanding of justice and the proposed by Blessed Augustine, based on Holy Scripture as the basis of state-legal relations in ancient society: according to Augustine, the real reason why classical philosophy makes it impossible to raise virtuous people and leads to self-destruction is not because it is irreligious, but because it expresses itself in a wrong and wrong conception of a deity. And this is most evident in pagan polytheism. It is therefore clear that Augustine, in his attempt to define civil society, follows the classical tradition, emphasizing its essential agreement with Scripture. His main opposition to the ancient pagan philosophers concerns not so much their teaching about the natural ideals of civil society and the need for the existence of justice within it, but their inability to achieve a single just society.
Gosudarstvo i pravo. 2023;(4):111-118
111-118
Dialectics of American constitutionalism
Abstract
The article examines the dialectic of constitutionalism of the United States of America. The evolution of American constitutional doctrines of the XIX – early XXI centuries is insufficiently covered in the works of Russian political scholars. The combination of elements of democracy and anti-democracy in US constitutionalism is in dialectical interaction and reflects the inconsistency of American civilization. There is currently a debate in American political and legal thought about the “basic values of America”, including issues of individual freedom and the provisions of the national Constitution.
Gosudarstvo i pravo. 2023;(4):119-129
119-129
Information law and information security
Legal protection of human life and health in the process of using artificial intelligence
Abstract
The Russian Federation, within the framework of the experimental legal regime, has begun testing automated vehicles controlled by artificial intelligence systems in real conditions. Self-driving cars have become full-fledged road users in Moscow. In special legal regimes created for the operation of artificial intelligence systems, some federal laws and by-laws do not apply, which reduces the legal guarantees of human rights. The article considers the situation when this poses a threat to the right to life and human health. During operation of a source of increased danger, the developer and the user are based on the likelihood of harm to the third parties. Similar situations will occur with automated vehicles. This means that an unmanned vehicle will have to make decisions on whom to hit. The ethical and legal dilemma when artificial intelligence chooses a person, whom it will harm, is not resolved in the domestic law. There is no doubt that such issues should be reflected in the machine code of any information system. To do this, the actions of the creator of artificial intelligence systems should be regulated by law. The author proposes a classification of artificial intelligence systems, which will create three models of legal regulation: systems regulated by “soft” law, systems regulated by machine-readable law, systems on the use of which a temporary moratorium has been introduced. The implementation of these proposals will contribute to the protection of human life and health in the process of using artificial intelligence without a negative effect on the development of digital technology.
Gosudarstvo i pravo. 2023;(4):130-140
130-140
Abroad
Legal regulation circulation of digital rights in United States of America
Abstract
Technological progress in United States of America, the popularization of Internet makes necessary legislative regulation of the rules for circulation of digital rights and protection of digital information. The purpose of the study is: to form a conceptual understanding basics of legal regulation circulation digital rights and protection of digital information in United States. The study used general scientific and specific scientific methods, such as analysis, comparison, structural, systemic and functional approaches, etc. The basis of scientific study were methods of analysis, analytical and functional approaches, which, in turn, made it possible to identify most pressing nuances of legal regulation of protection and circulation digital rights. The study of legislation and judicial practice in the United States allowed us to formulate a conclusion that the level of legal regulation of the protection of the rights of digital data subjects corresponds to global trends in the development of law in general and public interests in particular. Moreover, regulatory legal acts adopted in the United States can be used in foreign countries to regulate the rules of turnover and protection of the rights of digital data subjects.
Gosudarstvo i pravo. 2023;(4):141-146
141-146
On the question of criminal responsibility for crimes against justice in the Socialist Republic of Vietnam (SRV)
Abstract
The article analyzes the theory and practice of applying criminal proceedings against persons for committing crimes against justice in Vietnam. In particular, the problematic issues of the general criminal-legal characteristics of criminal responsibility for crimes of this category in accordance with the provisions of Ch. XXIV Criminal Code of SRV 2015. The author an interpretation of the concept and classification of the crimes.
Gosudarstvo i pravo. 2023;(4):147-154
147-154
Pages of history
Training of legal personnel at the Academy of Social Sciences under the Central Committee of the CPSU (1946–1978)
Abstract
The article is devoted to a previously unexplored page in the history of domestic legal education - the training of legal personnel at the Academy of Social Sciences under the Central Committee of the CPSU. The key issues of the history of the organization of legal scientific and educational training at the law departments of the AON in 1946 - 1978 are highlighted: teaching staff, recruitment and composition of students, organization of the educational process and research work, defense of dissertations, etc.
Gosudarstvo i pravo. 2023;(4):155-168
155-168
Scientific reports
169-174
On strengthening public principles in the legal regulation of entrepreneurship
Abstract
The article considers entrepreneurial activity as the component of the foundations of the economic system of Russian Federation, as a multidimensional economic and legal concept. The legal regulation of entrepreneurship is of a diversified nature, in which civil legislation is of system-forming importance. It is proposed in the article to strengthen public principles in regulating the goals of the activities of commercial organizations, the inclusion of small and medium-sized businesses in the general outline of civil legal regulation, determining the place and role of the obligation associated with the implementation of entrepreneurial activity in relation to the transaction and the contract.
Gosudarstvo i pravo. 2023;(4):175-179
175-179
Instruments for post-contract opportunism in Islamic law
Abstract
In the modern world, the conclusion of a contract is commonplace, but it is still important to prevent opportunistic behavior of market participants at the stage of post-contractual relations. From a financial point of view, it is important to prescribe such terms of the contract so that its violation will cost more for the party that does not comply with the clauses of the contract than further joint activities. However, in Islamic law there are a number of restrictions on the use of traditional tools to ensure compliance with the terms of the contract, which created the prerequisites for this study. The work is becoming even more relevant against the background of the introduction of a bill to the State Duma of the Russian Federation on partner financing activities, in fact, created for Islamic banking, as well as interest from the largest Russian banks. The purpose of this article is to identify tools to deter post-contractual opportunism in Islamic law.
Gosudarstvo i pravo. 2023;(4):180-185
180-185
Public financial control in the financial markets: features and prospects of development
Abstract
The article analyzes public control in the financial market and proves that such control (supervision) is a kind of public financial control. The following features of public financial control in the financial market are highlighted: the limited state intervention in the private sphere, the use of special methods of regulation and control in the financial market; the special purpose of state regulation and supervision in the financial market is to ensure development and stability in the financial market; the presence of a single entity exercising this control, which is the Central Bank of the Russian Federation. It is concluded that the emergence of specific areas of control (for example, behavioral, consulting), as well as special measures to influence violators of financial legislation demonstrates the strengthening of preventive measures and focus on the development of risk-based supervision. Particular attention is paid to the use of information and communication technologies in the field of public control in the financial market.
Gosudarstvo i pravo. 2023;(4):186-191
186-191
Punishability of crimes committed using virtual currency
Abstract
Innovations in the field of computer technology and financial assets affect all spheres of life of society and the state, including its law enforcement and judicial bodies. New types of encroachments, which include crimes committed using virtual currency or in relation to it, which certainly have an increased public danger, often go unpunished due to the lack of regulatory regulation and uniform judicial practice. The greatest risks from the lack of effective criminal legal counteraction to these crimes are borne by society, since the absence of punishment, as the final stage of the mechanism for bringing to criminal responsibility for illegal violations, negates the efforts of law enforcement agencies faced with the impossibility of bringing to such responsibility the perpetrators. To overcome these contradictions and before the adoption of legislative measures, appropriate explanations of the Plenum Supreme Court of the Russian Federation are necessary, since the judiciary should not assume the powers of the legislature and form the directions of the criminal policy of the state.
Gosudarstvo i pravo. 2023;(4):192-196
192-196
Criticism and bibliography
Man in the world of law. D.S. Velieva, M.V. Presnyakov. Legal certainty and human rights
Abstract
The presented review analyzes the monograph by D.S. Velieva and M.V. Presnyakov “Legal certainty and human rights”. Various aspects of the author's suspicion of certainty and legal realization are highlighted. The main scientific researches are studied and the results of their importance for supporting the development of health care are obtained.
Gosudarstvo i pravo. 2023;(4):197-201
197-201
To the question of the principle of justice in Roman Law
Abstract
The article analyzes the specifics of the consolidation of the principle of justice in the sources of Roman Law of the classical and postclassical periods and its implementation in the legislation of procedural and Civil Law. The significance of the translation into Russian of the 7th book of the Codex Iustinianus is substantiated.
Gosudarstvo i pravo. 2023;(4):202-205
202-205