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No 6 (2023)
Articles
The Russian idea in the Philosophy of Law
Abstract
The Russian idea concept is revealed in the article, its manifestation in the Russian Philosophy of Law is shown. It is noted that the concept of the Russian idea was in the center of attention of many figures of Russian culture, who tried to comprehend the essence of Russian history, culture and statehood. The concept of the Russian idea included at least three components: the Philosophy of History, the Philosophy of Culture and the Philosophy of Law. The Russian Phi-losophy of Law has become the logical conclusion of reflections on the history of the Russian people, its national identity and statehood. The Russian Philosophy of Law, its indissoluble connection with the national worldview and Russian statehood are shown in the article. The conclusion is formulated that the Russian Philosophy of Law is a great value, making a signifi-cant contribution to national and world culture.
Gosudarstvo i pravo. 2023;(6):7-23
7-23
Legal security and legal certainty of the individual: constitutional and legal aspect
Abstract
In this article doctrinal approaches to the concept of legal safety are analyzed. In domestic jurisprudence legal safety, as a rule, is considered, first, as safety is right (a legal system, positive law) and, secondly, as legal security (security the right) from the most various threats.Meanwhile, in the first case the subject approach to a problem is almost completely ignored, and legal safety is presented in the form of set of certain requirements to quality of the law. In the second - the concept of legal safety excessively extends as practically all spheres of public life are to a degree covered by legal regulation. From this point of view the subnotion of legal safety gets, for example, ensuring labor protection or criminal protection of interests of society and the person.At the same time both approaches don’t consider “a human factor”: the person in this case is considered only as subject to protection. In this regard legal safety is considered as “part” or “component” of national security. At the same time, there is also an alternative point of view which was developed mainly in the foreign doctrine. According to her legal safety is considered as security of the personality from legal risks. From this point of view legal safety assumes lack of retroactive effect of the law, maintenance of legitimate trust, etc. In this sense legal safety approaches a concept of legal definiteness.On the basis of the analysis of the scientific points of view and legal positions of the Constitutional Court of the Russian Federation the authors come to a conclusion that legal safety represents the requirement of the actual or material legal definiteness. The fundamental principle of such material definiteness - maintenance of trust to the law and actions of public authorities that assumes not only formal aspect of lack of retroactive effect of the law, but also verification of the positive legislation of the rights which are rather affirmed by the constitution and freedoms of the person and citizen.
Gosudarstvo i pravo. 2023;(6):24-35
24-35
Court, prosecutor’s office, bar, notarial system
Legal status of the prosecutor in arbitration proceedings
Abstract
The article examines the legal position of the prosecutor in the system of participants in arbitration proceedings. Based on the analysis of the nature of arbitration proceedings and civil cases considered by arbitration courts, it was concluded that, despite the consolidation of the independent constitutional status of arbitration proceedings as a separate procedural form of protection, it is still impossible to draw a clear distinction between civil and arbitration proceedings. Both in civil and in arbitration proceedings, both private law and public law disputed legal relations are the subject of judicial activity. This circumstance determines the commonality of the goals and objectives of civil and arbitration proceedings, which directly affects the procedural status of the persons involved in the case. The prosecutor traditionally treats the legislator to the persons participating in the case, both in civil and in arbitration proceedings. A retrospective look at Russian procedural legislation led to the conclusion that it is necessary to maintain the supervisory function of the prosecutor not only in civil, but also in arbitration proceedings. The truncated powers of the prosecutor in the arbitration process do not correspond to the tasks he performs in the field of civil jurisdiction, and it is proposed to expand them in a number of areas.
Gosudarstvo i pravo. 2023;(6):36-44
36-44
Discussions and debates
Nuremberg Tribunal as a symbol of the triumph of justice at a turning point in modern human history A.N. Savenkov. Nuremberg: A Verdict for name of Peace
Abstract
It would seem that today a huge number of works have been written about the Nuremberg Trials, in which various facets of this unique example of justice in the history of mankind are considered in great detail. But this is only at first glance, because after getting acquainted with the monograph of Professor A.N. Savenkov, it becomes obvious that it touches upon such layers of the International Military Tribunal that were not previously the subject of a special study. In addition, the publication of this remarkable book is justified by at least three more reasons. First, today many authors tend to idealize the first International Military Tribunal, established ad hoc, although it is not a tuning fork of justice in its current sense. It was, above all, an organ of transitional justice. Therefore, with all its historical, political and legal merits, it was not free from certain shortcomings of a legal and moral nature. In this regard, it is enough to refer, for example, to his verdict, in which not all the crimes committed by high-ranking officials and institutional structures of Nazi Germany during the Second World War found their reflection or due legal assessment. Secondly, this work is one of those exceptions in a series of numerous works about the Nuremberg Trials, which gives a historically more reliable and legally, better grounded assessment of the events that took place in the Palace of Justice of the German city of Nuremberg from November 20, 1945 to October 1, 1946, where the trial of the main Nazi criminals was held. Key words: Nuremberg Tribunal, IMT Charter, crimes against peace and humanity, justice, accuser, defendant, defender, verdict, punishment, execution of the verdict.
Gosudarstvo i pravo. 2023;(6):45-50
45-50
The search for the “legal Grail” has been completed (Reflections on the fields of fundamental research “Military Law” in the era of transformation of the current world order)
Abstract
The fundamental monographic study “Military Law” comprehensively examines the issues of legal regulation of public relations related to the functioning of the military organization of the state, provides a detailed theoretical justification of the independence of Military Law as a branch of Russian law, its key sub-branch - the law of armed conflicts.
Gosudarstvo i pravo. 2023;(6):51-55
51-55
About non-federal justice Part I. Should the constitutional (statutory) ones have been abolished courts of the subjects of the Russian Federation?
Abstract
In this article, the first of a series of articles, devoted to the problems of domestic non-federal justice, examines a set of issues related to the constitutional (statutory) courts of the Russian Federation. The author, considering the role and importance of this institution of justice in Russia, the presence of a huge scientific and legal component of its foundation and other factors, as well as the insufficiency of the grounds for its abolition, came to the conclusion that it is necessary to restore it. Taking into account the main drawback of the named institution in the public consciousness – its “high cost” and low “productivity”, the author makes specific proposals to offset this shortcoming when recreating – on a new legislative basis – this institution of domestic justice.
Gosudarstvo i pravo. 2023;(6):56-72
56-72
To the question of the concept of reforming the budget legislation
Abstract
The changes caused by the imposition of economic sanctions by unfriendly states predetermine the need to improve budget legislation. The formation of budgetary resources, their distribution among the links of the budgetary system, and the financing of state measures should be coordinated with national projects, which are now being formed separately from budget planning. The article touches upon possible measures to reform the budget legislation, as well as ways to increase the efficiency of revenue sources for financing national projects. Important is the creation of a special legal regime for mobilizing funds to the budgets and making expenditures provided for the implementation of national programs and for other purposes; it was proposed to allocate these monetary resources to the category of “budgetary ruble”.
Gosudarstvo i pravo. 2023;(6):73-80
73-80
Global crisis in the context of law, physical economy and energy value theory
Abstract
The transition to new technologies and the energy crisis provoked has become a source of a global economic, political, cultural and civilizational crisis. Against this background, studies of the correlation of energy and technological transitions, as well as their impact on the transformation of socio-economic systems, are of particular relevance. Understanding social, cultural, technological processes and phenomena based on traditional values and accumulated cultural and historical experience is one of the Foundations of the state policy for the preservation and strengthening of traditional Russian spiritual and moral values, approved by Decree of the President of the Russian Federation of November 9, 2022 No. 809. The object of research in the article is the global crisis, and the subject is its specific manifestations: energy, economic, social crises. The purpose of the study is to conduct an experiment on the application of the energy theory of value as a direction of physical economics to the analysis of the global crisis. Based on the goal, the main task of the study is to determine the direction of social development based on the energy theory of value. The article concluded that a civilizational shift is inevitable, the social structure of society is rebuilt, cultural values are rethought, and new universal equivalent - a value meter, as which the author offers the cost of energy.
Gosudarstvo i pravo. 2023;(6):81-90
81-90
Labor law and social security law
Suspension of a labor contract
Abstract
The article deals with the problems of legal regulation of the statics and dynamics of labor relations. An analysis of scientific research on the suspension of an employment contract is carried out. The necessity of fixing the suspension of the employment contract as an institution or sub-institution of labor law is substantiated. It is proposed to fix the legal definition of the relevant concept in a separate article of the Labor Code of the Russian Federation, indicating the main forms of suspension of the employment contract through references to other articles of the Labor Code of the Russian Federation. It is argued that the institution of suspension of an employment contract is supplemented with norms regarding workers involved in the performance of work in order to ensure the defense of the country and the security of the state, their enrollment in special formations during the period of mobilization and in wartime, involved in the performance of work for the needs of defense, liquidation of the consequences of the use of enemy of weapons, restoration of damaged (destroyed) economic facilities, life support systems and military facilities, in the fight against fires, epidemics and epizootics, joining special formations and units of territorial defense during the period of martial law, as well as those called up for military service.
Gosudarstvo i pravo. 2023;(6):91-98
91-98
Environmental law
Experience of organization of tourist-recreation zones in territories with special conditions of environmental management (by the example of Lake Baikal)
Abstract
The article discusses the features of organizing tourist and recreational activities in territories with a high degree of territorial and institutional uniqueness, presents a theoretical and methodological approach to identifying and determining the development goals of the territories of priority tourist and recreational development – tourist-recreational zones on the coast of Lake Baikal. Lake Baikal is a territory with special conditions of use, which has unique natural characteristics and a powerful system of environmental and legal regulation of public relations in the field of environmental protection. For effective planning and regulation of recreational activities in the context of strict environmental requirements for biodiversity conservation, an environmental legal mechanism is involved. This allows you to determine the priority right to use the territory, relying on the norms of environmental law. In the geoinformation environment, using the tool of legal ecological zoning, which manifests the effect of all legal norms in a particular area of the territory, tourist-recreational zones have been identified that allow the legitimate development of recreational activities within the established boundaries. The correlation of the current permitted standards of recreational load with the real state of “local ecosystems” allowed zoning of the tourist-recreational zones in terms of the intensity and nature of recreational loads. The selected categories of legal zoning make it possible to clarify the permitted types of activities on the territory within the boundaries of plots of various categories of land and determine the specific purpose of their use, the types of objects that can be placed. Further analysis of the tourist-recreational zones on the resistance of their constituent ecosystems to recreational loads made it possible to determine possible scenarios for the development of the situation and formulate goals for the development of the tourist-recreational zones with detailing to the level of recreational functions of the territories. Selected tourist-recreational zones can be proposed for the formation of specially protected areas of recreational purpose of regional significance on them and included in urban planning and program documents with the subsequent detailing of the territorial structure of tourism and regular monitoring of environmental, social and economic parameters of the development of recreational activities.
Gosudarstvo i pravo. 2023;(6):99-108
99-108
Law and economics
On the question of legal regulation of investment activities in the Russian Federation
Abstract
The article provides a comparative legal analysis of the legislation in force in the Russian Federation that regulates various aspects of investments and investment activities. Duplication of the norms of laws, as well as their contradictions. Problems of inconsistency, lack of harmonization of the norms of individual regulatory legal acts. The author formulated the conclusion was made about the complexity and intricacy of the material norms in this area. All this creates problems in law enforcement practice, as evidenced by the accumulated series of judgments issued of arbitration courts of the Russian Federation. Some aspects of law enforcement practice on taxation of investment projects subjects of the Russian Federation. In conclusion, proposals are made to improve the legislation on investment activities.
Gosudarstvo i pravo. 2023;(6):109-116
109-116
Protection of competition as a necessary condition for ensuring economic security
Abstract
The article is devoted to the protection of free competition in the context of ensuring the economic component of the national security of the Russian Federation. The author gives a general picture of the state of competition, special attention is paid to the protection of competition in the field of procurement for state or municipal needs, including state, defense orders, in the field of preventing the conclusion of anti-competitive agreements and in the field of countering unfair competition. The article makes use of official statistics and the practice of the Federal Antimonopoly Service on complaints and inspections.
Gosudarstvo i pravo. 2023;(6):117-126
117-126
Family, marriage, law
Agreements and contracts in the field of family relations: correlation and features of legal regulation
Abstract
In the article, the author presents the differences between categories “agreement” and “contract”, analyzes their features of application in the field of family relations, criteria are defined for their differences in Civil and Family Law. The author proves the backbone relationship between the grounds for the emergence of agreements, contracts and their content in the field of family relations, determines their essence, concludes that there is a certain “mixture” of these categories in the norms of the Family Code of the Russian Federation. The article substantiates that it is unacceptable to consider “agreement” and “contracts” as identical categories, since this leads not only to their incorrect application in practice in the regulation of family relations, but also does not allow them to be differentiated from contracts used in the field of civil relations. Such a theoretical “gap” leads to the impossibility of a clear distinction between transactions under Family and Civil Law.
Gosudarstvo i pravo. 2023;(6):127-135
127-135
Information law and information security
Natural and artificial intelligence: dialectics of interaction and legal regulators of deviations
Abstract
The article examines the theoretical and legal aspects of digitalization as the main direction of socio-economic progress, reveals the dialectic of interaction between natural and constructed (artificial) intelligence, the legal subordination of robotics units and their creators. The paper systematizes the basic concepts that reveal the purpose of the main products of digitalization. Taking into account the real danger posed by the race to use artificial intelligence systems in the field of military technologies, the role of International Law as a guarantor of human security and the preservation of earthly civilization is revealed. At the same time, deviations from the norms of law are analyzed when they seek to endow robotics with legal subjectivity. In essence, the development of anthropoid systems that are not limited by the requirements of legislation represents a dangerous deviation for humanity and predetermines the increasing role of law as a universal regulator of all processes related to the development of digitalization.
Gosudarstvo i pravo. 2023;(6):136-148
136-148
Big Data in healthcare: cybersecurity and legal protection of personal data
Abstract
Digitalization of Russian healthcare leads to an increase of digital medical data, which eventually becomes Big Data and requires secure ways to collect, process, store and use such information. In this article, the authors analyze legal acts that govern ways to protect medical information in digital form, as well as those that establish the legal regime of personal data. The authors draw attention to the risks of re-identification of anonymized medical data and difficulties to comply with some requirements of the personal data legislation in use of Big Data technologies. In discussion on liability for offences and crimes in the sphere of computer information, the authors propose to consider healthcare information systems containing personal data as objects of critical information infrastructure of the Russian Federation. Such regime would allow to charge unlawful access to the information contained and other criminal acts under Article 274¹ of the Criminal Code of the Russian Federation. Prevalence of information and communication technologies as a method of encroachments on the digital medical data, and ultimately an intrusion into privacy, leads authors to the conclusion about expediency of addition of Article 137 of the Criminal Code of the Russian Federation with the relevant aggravating circumstance.
Gosudarstvo i pravo. 2023;(6):149-160
149-160
Law and international relations
The specifics of states and the harmonization of international human rights norms
Abstract
This publication reveals the content and specifics of the complex process of interstate harmonization of human rights norms against the background of the formation and development of modern International Law as the main regulator of international relations. The author believes that an analysis of the experience and practice of this coordination will help to better understand not only the key cause of the current crisis in international relations, but also the possibilities of overcoming it. The article traces the different approaches of states to the formation and observance of the principles and norms in the field of human rights - from the Cold War to the warming of the international situation, and then in the conditions of modern interstate relations. The publication concludes with the conclusion that the geopolitical situation in the world has a serious impact on modern International Law. Today, International Law is at a turning point: in which direction the main vector of its movement will be directed will become clear in the near future.
Gosudarstvo i pravo. 2023;(6):161-168
161-168
Pages of history
Prosecutor in the court debate of the parties in the criminal process of the Russian Empire
Abstract
The article analyzes the legal status and the actual role of the prosecutor in the judicial debate of the parties in the criminal process of the Russian Empire. The overall result of the consideration of the criminal case largely depends on this part of the trial. And the study of historical experience is necessary for a better understanding and solution of the problems of modern criminal procedure, which is based on many principles established by the judicial reform of 1864. The judicial debates were a manifestation of the new principle of adversarial in criminal process. In their accusatory speeches, the prosecutors often not only went beyond the established limits of the debate, but also did not comply with moral requirements in relation to defendants and defenders. In some cases, there were conflicts between prosecutors and defense lawyers in the trial, and the most gross violations of the rules of conduct by the parties of the debate led to the cancellation of the verdicts by the Governing Senate. At the initial stage after the judicial and military-judicial reforms, the prosecutors in court were correct and unbiased. However, in the 1880s, the tendency of their accusatory bias increased, mainly in political cases
Gosudarstvo i pravo. 2023;(6):169-177
169-177
Scientific reports
Topical issues of the formation of the legal status of independent experts accredited to conduct anti-corruption examinations
Abstract
The article examines the patterns of formation and implementation of the legal status of independent experts, accredited to conduct anti-corruption expert examinations. Scientific research is based on many years of experience in conducting independent anti-corruption expert examinations of normative legal acts and their drafts as an independent expert accredited by the Ministry of Justice of the Russian Federation. The author came to the conclusion about the lack of clear legal regulation of the status of independent experts, which prevents its formation as an effective preventive mechanism against corruption. In order to improve the effectiveness of independent experts and to avoid problems arising in practice, it is necessary to specify at the legislative level all elements of the legal status of independent experts (rights, duties, responsibilities, guarantees), as well as the procedure of relations with public authorities in case of disagreement on the results of an independent anticorruption expertise.
Gosudarstvo i pravo. 2023;(6):178-182
178-182
Scientific life
Public power. Law and order. Human rights (Review of the International “Round Table” “The Russian state and the challenges of the XXI century”)
Abstract
The review of the International “Round Table” “The Russian state and the challenges of the XXI century”, dedicated to the 70th anniversary of the birth of the famous jurist, Doctor of Law, Professor, Honored Lawyer of the Russian Federation Valery Nikolaevich Butylin, held at the Academy of the Ministry of Internal Affairs of Russia on December 16, 2022, is given.
Gosudarstvo i pravo. 2023;(6):183-197
183-197
Criticism and bibliography
The innovative word of Academician I.M. Ragimov I.M. Ragimov. On the morality of punishment / foreword by H.D. Alikperov
Abstract
We would like to note right away that we are dealing with the work of Doctor of Law, Professor, foreign member of the Russian Academy of Sciences I.M. Ragimov, Honored Lawyer of the Republic of Azerbaijan, in which he offers to reflect on this important and practically undeveloped problem – the relationship between morality and punishment – not only to lawyers, but also to a wide range of representatives of all social and humanitarian sciences. And even more – to all readers, one way or another interested in the knowledge of law and such an important problem as the nature of punishment. This is especially important for a mass audience, since the book is written in a good Russian literary language, which clearly and clearly sets out difficult legally complex problems. Usually in the social science literature, the relationship between law and morality is analyzed in terms of how and on what grounds they differ from each other. It shows how their interrelationship changed during a particular historical period, among a particular people, and how this was reflected in legislation. I.M. Ragimov offers a unique idea – to consider the problems of morality of punishment itself, the limits of its understanding, possible interpretation and use under a variety of circumstances. This innovative idea, in our opinion, goes back to the same approach in law, which was laid down by Russian lawyers at the beginning of the twentieth century – B.A. Kistyakovsky, N.M. Korkunov, P.I. Novgorodtsev et al, who drew attention to why legal acts are not reflected in the minds and consciousness of people and why many laws remain formal documents and remain the lot of only the legislators themselves. In other words, those who deal with the adoption of laws should know how they reach and are fixed in the public consciousness and behavior. The purpose of this review is to analyze this phenomenon on the basis of such an important scientific and applied concept as “social contract”, which is mentioned in the monograph, but only from certain positions. It is on him, taking into account the philosophical, sociological, socio-psychological approach, that we will focus our attention.
Gosudarstvo i pravo. 2023;(6):198-202
198-202