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ECONOMICS. LAW. SOCIETY

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Vol 8, No 4 (2023)
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Theory of State and Society

CIVIL LAW

14-22 728
Abstract

This article discusses a number of topical issues related to the use of such a method of protecting civil rights as compensation for moral damage. These issues are considered in connection with the analysis of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 33 “On the practice of application by courts of norms on compensation for moral damage” dated November 15, 2022. In particular, the issue of establishing the presumption of moral damage to the victim in the case of committing any offense against him is being considered. The issue of the possibility and conditions for the transfer of the right to compensation for moral damage in the order of universal and singular succession is also being considered. The work uses general scientific and special research methods, including the method of analysis and synthesis, generalization, formal-logical, systematic, comparative, etc. As a result of the analysis carried out in the work, it was concluded that there are sufficient grounds for applying, on the basis of existing legislation and materials of judicial practice, the presumption of causing moral harm to the victim in the event of any violation of his rights. Regarding the possibility of singular and universal succession with respect to the claim for compensation for moral damage, it is concluded that such succession is possible not only in relation to compensation for moral damage established by a court decision that has entered into force, but also by an out-of-court agreement on compensation for moral damage caused to the victim.

23-29 108
Abstract

The development of civil circulation also determines the development of the language of civil law, the bearer of which is the widest range of legal entities, including individuals and legal entities. The significance and relevance of the study is confirmed by the fact that the language of Civil Law defines the following sublanguages: the sublanguage of the constituent documents of a legal entity; the sublanguage of contracts, including a power of attorney, which, in accordance with Civil Law, is a unilateral transaction; sublanguage of documents formalizing individual civil rights (to property, to protected results of professional activity). Innovations in the language of civil legislation are largely due to the expansion of the range of objects of Civil Law regulation against the backdrop of digitalization and informatization of modern society. In this article, the authors propose an approach to studying the language of Civil Law, which includes the complementarity of linguistic and legal research methods. In order to identify and study lexical innovations in the field of civil legislation, a description of frames was used, which represent an hierarchy of interacting elements.

30-34 255
Abstract

The article examines the essence of the legal and corporate nature of a joint-stock company – the most advanced entrepreneurial organization in Russia – as a legal entity, proves the advantage of the specified organizational and legal form of a legal entity over limited liability companies and other forms of business, which are also common in Russia and enjoy a simplified creating procedure. In addition, the legal status of the management bodies of the joint-stock company, its relationships with competitors and consumers in the process of implementing various forms of entrepreneurial activity are analyzed. As practice shows, in Russia it is the joint-stock form of business that consumers and partners associate with reliability, sustainability and corporate spirit, in contrast to the more common limited liability companies at present. Considerable attention in the article is paid to the legal status of the corporation’s management bodies, the structure of a public joint-stock company in particular. Referring to the points of view of modern civil law scholars and researchers of the legal nature of a legal entity, the author proves the effective nature of the activities of joint-stock companies, especially public joint[1]stock companies (PJSC), since the largest and most famous representatives of business choose this particular form, which attracts a significant number of both Russian and foreign investors through open subscription and sale of shares. However, the article also draws attention to the fact that the joint-stock form of business, to a much greater extent than other organizational and legal forms, is subject to supervision and control by the state. For that reason the entrepreneurial activity of joint-stock companies faces various kinds of obstacles and administrative barriers, and its subjects represented by the management bodies of a legal entity are often forced to adapt to the interests of public authorities rather than consumers.

35-40 204
Abstract

The article discusses various approaches used in determining the persons under whose control a legal entity is located, if shares in the authorized capital of such a legal entity are part of a closed mutual investment fund. In such situations, the identification of the beneficial owner, for example, for the purposes of fulfilling the requirements of the legislation on countering the legalization (laundering) of proceeds from crime, or for fulfilling the requirements of antimonopoly legislation, is significantly complicated, since under the legislation on investment funds, a mutual investment fund is not a legal entity. In addition, the trustee manages the property that makes up the mutual investment fund on the basis of a trust management agreement. Such a trustee is a professional participant in the securities market – a management company with activities licensed by the Bank of Russia. In turn, the management company of a mutual investment fund, as an independent business  entity, may have controlling persons who are in no way related to the owners of investment units – the legal owners of the property that makes up the mutual investment fund, who do not take any part in real transactions with such property.

41-46 79
Abstract

The article deals with the issues of responsibility of the sole executive body of the company, the distribution of the burden of proof when filing a claim for recovery of damages from the executive body of a legal entity, as well as the issue of the existence of an independent will of a legal entity. The relevance of the topic is caused by a significant increase in the number of foreign companies selling business in Russia in 2022–2023. These processes are often associated with the disposal of commodity residues and raw materials in order to protect intellectual property and avoid illegal trafficking of their products. However, such actions may not coincide with the interests of the new owner (new participant) of the company whose shares are being sold. In such a situation, a new participant of the company has the right to make claims to the sole executive body of the company for recovery of losses, since it was the executive body that realized the will of the previous participant by carrying out actions that caused damage to the company. The methodological basis of the research for writing the article consists of logical, systematic and formal-legal (dogmatic) methods. As a result of the study, conclusions were drawn about the identity of the will of the participant of the company and the will of the company itself, in connection with which, when changing it and submitting requirements to the executive body of the company, the principle of estoppel is subject to application. These actions should be qualified as an abuse of the right, and therefore the satisfaction of such requirements should be also refused

47-54 188
Abstract

The article is devoted to the problems of law enforcement of smart contracts in civil turnover. Smart contracts, or self-executing digital contracts, attract the attention of specialists by their advantages, such as, for example, automation of processes, cost reduction and increase in the speed of transaction execution. But despite this, their application in civil circulation faces a set of legal and technological challenges. This paper investigates such issues as the legal validity of smart contracts, problems of their execution and legal risk assessment. This paper may be useful both for digital technology professionals and for students or lawyers studying law or practicing in the field of legal regulation of digital technologies. The author explores the history of the emergence of the concept of "smart contract", as well as various approaches to determining the nature of a smart contract. The author notes that the advantages of the smart contract system are the possibility of entering into legal relations without the involvement of intermediaries, in the automatic execution of the terms of the transaction, the mandatory regulation of the terms and the impossibility of changing the program code underlying the smart contract. This work can be useful both for specialists in the field of digital technologies, and for students or lawyers studying law or practicing in the field of legal regulation of digital technologies

55-60 117
Abstract

The article considers the principal juridical characteristics of legal means of payment, which allow to neutralize numerous discussions regarding the legal nature of the digital ruble, the introduction of which is conditioned by the strategy of digital transformation of public administration. The author has chosen a multidisciplinary approach to use the achievements of both law and economics. In particular, the problem of legal definition of monetary surrogates has been studied. The article states that the consequence of such a step will be that all the usual means of payment that are actively used in civil circulation along with coins, banknotes and non-cash funds will fall into the category of illegal funds. The introduction of a legal definition and, as a consequence, the clarification of legal objects that fall under the concept of a monetary surrogate, will potentially lead to the fact that their use on the territory of the Russian Federation can constitute an offense, which will create a situation of uncertainty for economic relations. There are also questions connected with the use of digital ruble identified with the digital currency and, respectively, unable to be a legal means of payment and a monetary unit. Neither is the digital ruble an electronic monetary instrument. The arguments given in the article allow forming a holistic view of the legal characteristics of legal means of payment and justifying the legality of the digital ruble.

61-65 130
Abstract

This article discusses the issues of digitalization of entrepreneurial activity in the field of public procurement, taking into account the increase in the effectiveness of contractual relations. Among the main areas of improvement of the Russian procurement system, the improvement of the functioning of the Unified Information System in the field of procurement in the Russian Federation is considered (developed since 2016 and fully put into operation from 2019), which ensures the unity of data on all types of competitive procurement procedures conducted in accordance with the general requirements for procurement on the state electronic platform, as well as consideration of modern information tools, created to help in making decisions in the field of business analysis Business Intelligence systems. After analyzing scientific works, the authors came to the conclusion that business analysis systems, which have recently received significant development, thanks to innovative methods, expand existing procurement planning capabilities, allowing visually presenting procurement data and conducting their in-depth analysis without involving additional IT specialists

66-71 153
Abstract

This article aims to understand the content of digital rights, digital financial assets, digital currency and cryptocurrencies. Representatives of legal science have not yet been able to come to a consensus. Having moved from the category of exclusively spontaneous social relations, the relations of their holders with their issuers (regulators) and other persons into the category of the institution of current legislation, digital rights, digital financial assets and digital currency have undergone significant changes. So cryptocurrency has become one of the types of digital currency, and digital currency is not a digital right. The article criticizes the legislative definition of digital rights, which enshrines both the principle of legality and the list of legal signs of the digital nature of the right

DIGITAL TECHNOLOGY AND LAW

72-77 137
Abstract

The article discusses the legal aspect of the use of digital rights in the context of sanctions. The subject of the study is the legal regulation of the turnover of digital financial assets issued in the Russian Federation, as well as their analogues in friendly countries. This will not only solve the current problems arising in the regulation of digital rights, but also ensure the full integration of this institution in the international financial market. The article uses a number of methods of scientific research, in particular, the method of analysis, comparative legal, formal logical methods and the method of comparative jurisprudence. The scientific novelty lies in the fact that during the study an attempt was made to determine the possibilities of mutual placement of the issue of digital assets of the Russian Federation and friendly countries. It is determined that the mutual placement of the issue of digital assets is possible if two conditions are met. Firstly, a friendly country should have a legal regulation of the turnover of digital financial assets, similar to the Russian one. Secondly, the legislation of friendly countries should provide the possibility of placing foreign digital financial assets on their platforms. The study resulted in the conclusion that many countries which are friendly to the Russian Federation do not have regulations in their legislation that would regulate the issue of digital financial assets and their turnover. Only in some countries, work is currently underway to create a specialized regulatory framework. The study also showed that in some countries, despite the lack of specialized legislation, the issuance and execution of transactions with digital financial assets can be carried out.

78-84 73
Abstract

Rapid development of computer information and communication technologies that promote the spread of telemedicine in clinical practice and the growth of the role of artificial intelligence in the health care sector generate many new problems and controversial situations that arise between doctors and patients. The application of artificial intelligence technologies in healthcare is actively spreading and causing growing interest from medical organizations. However, currently there is insufficient legal regulation in this area. In connection with this, this article analyzes the legal aspects of the application of artificial intelligence in remote interaction between medical workers and patients (their legal representatives) by means of computer or mobile devices through telemedicine services. In particular, the author pays special attention to the issue of civil liability for possible damage caused by medical assistance using artificial intelligence. The article also analyzes in detail the role and importance of legal regulation in the field of application of artificial intelligence technologies in the health care sector and identifies potential risks and problems associated with this process. The author of the article offers some recommendations that will help medical organizations effectively implement and use artificial intelligence, while complying with legal and ethical norms, as well as reducing possible harm that can potentially be caused when assisting with artificial intelligence.

CONSTITUTIONAL LAW

85-91 99
Abstract

The subject of the research in the article is the theoretical aspects of planning activities for the preparation of draft laws and the adoption of laws in the subjects of the Russian Federation. The paper studies the content and features of planning at various stages of the regional legislative process in Russia. The conclusion is that planning can be effectively applied not at all stages of the legislative process, but only at two of them – law preparation and legislative activity. In this regard, the author infers that it is incorrect from the theoretical and legal positions to use the concept of “planning lawmaking”, as well as the need for an integrated approach to the study of planning. This approach implies that the planning of activities for the preparation of draft laws and the planning of activities for their consideration by the legislature and the adoption of laws should be considered in a single system as interrelated parts of one process. In terms of the integrated approach, the expediency of using the concept “planning of law drafting activities in the subjects of the Russian Federation” in scientific research and regulatory legal acts is substantiated, and the author’s definition of this concept is also given.

Administrative Law and Proceedings

92-98 88
Abstract

The subject of the research in this article is the proceedings on cases of contesting decisions of administrative bodies on bringing to administrative responsibility in arbitration courts. The article analyzes the current state of the consideration of cases, raises the issue of the objects of appeal, discusses the problem of legislative regulation of the prosecutor’s participation in the consideration of cases in arbitration courts challenging the decisions of administrative bodies on bringing to administrative responsibility, while not only the norms of the Arbitration Procedural Code of the Russian Federation, but also departmental acts of the prosecutor’s office are subjected to critical study. The author, noting the imperfection of the legislative regulation of the considered type of production, comes to the conclusion that it is necessary to fill the legislative gaps that have formed. Using the example of the materials of judicial practice, the author discovers a number of contradictions between the legislation and the established law enforcement practice when considering cases of challenging decisions of administrative bodies on bringing to administrative responsibility. The author offers her own vision of options for the legislative completion of paragraph 2 of Chapter 25 of the Arbitration Procedural Code.

Ecology Law

99-105 94
Abstract

The relevance of the topic is first of all connected with practical circumstances. The danger of unpredictable changes in the stable state of the biosphere is so great that current generations are faced with the task of urgently improving all areas of life in accordance with the need to preserve the existing circulation of substances and energy in the biosphere. With the growing number of global environmental problems in recent decades, many countries have been obsessed by the “green agenda”, which is based on a gradual transition to sustainable models of production and consumption. The survey on the environmental situation conducted by the All-Russian Center for the Study of Public Opinion showed that in 2023 every second respondent had noted its deterioration over the previous 2–3 years. The Review of the State and Pollution of the Environment in 2022 in Russia showed exceeding the maximum permissible concentrations (MPC) of certain pollutants in most of Russian cities. This means that the quality of atmospheric air does not meet environmental requirements and poses serious risks to human health. Thus, the need for a scientific analysis of law and order in the environmental sphere becomes decisive in relation to other elements of the integral system of law and order in society. Legal regulation of relations in a particular area should be comprehensive and carried out in view of their mutual determination, the «connection of state». Only this approach can ensure proper law and order in all areas of society. In the general theory of law, in works of N. G. Aleksandrov, V. V. Borisov, V. N. Kazakov, L. S. Yavich and others, the general theory of the rule of law was created. In addition, at present researchers analyze the rule of law in various aspects of existence, but do not address the problems of the specificity of the rule of law in certain spheres of social life. The methodological basis of this article is made up of general scientific and special research methods, such as formal-logical, systemic and comparative methods, methods of analysis and synthesis, generalization method. The article formulates the concept of environmental legal order and highlights the features that characterize this legal category. The relationships between the concepts «legal order», «law», and «operation of law», «legal relation» are analyzed. The conclusion of the research is that the environmental legal order is a scientific category that allows understanding the essence and mechanism of implementation of environmental legal regulations.

INVESTMENT LAW

106-112 133
Abstract

In the context of unlawful economic sanctions against the Russian Federation, the regulation of foreign investment within the framework of international agreements with friendly states is becoming extremely important. A qualitative change in the political and legal support of such agreements should be considered the inclusion in them of conditions that provide for the mandatory consideration of the interests of both investors and the state that accepts investments. It is substantiated that such rules allow protecting the national interests of the state and avoiding further foreign political pressure. In the context of anti-Russian sanctions, the development of measures to create a procedure for admitting foreign investment and establishing legal guarantees remains highly relevant for the legal regulation of foreign investment. The position is argued that the Russian Federation should develop cooperation with the countries of the Eurasian Economic Union, which are friendly jurisdictions, belong to the same legal family, are largely similar in legal and law enforcement regulation. No less important is the fact of the joint historical development of these states, due to which the doctrinal and legal concepts of foreign investment are quite similar. On the example of Russia's investment interaction with the Republic of Armenia and the Republic of Kazakhstan, the features of the existing political and legal mechanism of cooperation and the prospects for its improvement are shown. Legal methods are proposed to improve the efficiency of Russia's investment relations with friendly jurisdictions in order to level the negative consequences of economic sanctions.

113-125 103
Abstract

The study’s subject is the state of the mechanism for legal regulation of public relations currently emerging regarding the conclusion and implementation of investment agreements with a public partner in the Russian Federation. For this purpose, the study uses both general scientific methods (synthesis, analysis, induction, functional method) and private legal methods (historical and legal, formal legal, comparative legal methods). In particular, to achieve the goals set in the study, as the selection of regulatory federal level legal acts adopted in our country was studied in order to ensure the rights and legitimate interests of private investors in cases when they formalize legal relations with public partners, so as the overview of specific norms from these documents was given. The scientific research’s novelty lies in the critical review of distinct provisions of the current investment legislation and the possibility of their effective implementation in practice on the territory of Russia. The final conclusions drawn in the study boil down to the following theses: Russian investment legislation does not yet demonstrate a uniform approach to the terms “investment” and “investment agreements” precise understanding; a private investor can hypothetically use several legal regimes for his economic activities at once, based on the norms of different specialized federal laws, however, the parameters of such a combination are not accurately described in these laws; domestic legal acts remaining in force in the field of regulation of investment partnerships often perceive the legal category of investment objects differently, which can be seen as some imperfection of their legal technological tools in this matter; the mixed sectoral affiliation of some legal norms related to the financial support for private investments, and, thus, the mechanism of proper legal regulation they propose, remain both not fully defined yet; private investors’ individual rights guaranteed by law, in particular land property rights, have not received sufficient procedural and legal support for their full implementation in the federal investment projects realization sphere, what cannot be said about the more successful experience reflected in the legislation of the Russian Federation regions.

SPORTS LAW

126-137 79
Abstract

The unfriendly political influence exerted on Russia in all major areas of socio-economic development by the United States and their satellites has resulted, among other things, in an actual ban for Russian athletes to participate in major international competitions under the Russian flag, which leads to a temporary loss of the national identity of Russian sports and objectively requires the development of traditional and introduction of innovative approaches in the field of interaction of Russian sports subjects with sports organizations in the context of sanctions and deglobalization processes which contribute into the formation of multipolarity. During the research logical, comparative, empirical, analytical, historical-legal, descriptive and other methods were used as the main means of cognition. The paper presents the results of the study of the main approaches to the development and improvement of interaction in the sports field with the use of the methods of sports diplomacy as an integral part of public diplomacy. The scientific novelty of the study is the conclusions according to which it is advisable in modern conditions for Russian sports teams to begin using the capabilities of Equipe Unifee through supranational sports bodies operating in the CIS frame (the CIS Council for Physical Culture and Sports) and other regional international organizations in which Russia participates to overcome sanctions bans at the initial stages acting as a permanent member-participant, primarily EAEU and SCO, up to the complete elimination of obstacles for the full-fledged return of national Russian sports teams to big sports. Proposals have also been made to improve the legal support for cooperation at the international level in this area.

138-146 106
Abstract

The nature of relations between athletes (sports teams), sports agents, clubs, sports clubs (sports federations) is based on equality, freedom of contract and autonomy of the will of the parties, i. e. on relations regulated by private law. This scope of public relations, like any other, is undergoing an initial stage of development, which is characterized by a legal vacuum – the absence of legal norms regulating it. However, even in this case, it is regulated by the general rules of private law contracts, which can be unified (either by the state or by one of the parties to public relations). In addition, it is obvious that private law contracts are a priori subject to the norms of current legislation. This article is an attempt to identify the main problematic issues of legal regulation of relations in the field regulated by contractual norms in order to determine the direction of its development.

INTERNATIONAL LAW

147-152 163
Abstract

The article discusses the features of the formation and development of the legal system of the Eurasian Economic Union at the present stage. The author of the article highlights the structure of the emerging legal system of the EAEU. Also, the subject of the research conducted in this article concerns the question of determining the place of the legal acts of the EAEU in the national legal system of each of the member states of the integration association. The law of the EAEU is a special legal system that does not coincide with the system of international law and does not structurally enter into national legislation either. The key difference between the EAEU law and the EU law is the refusal to expand the scope of the norms of Eurasian law due to the so-called “implied” powers that are absent in the constituent documents of the EAEU. Thus, the choice was made in favor of the certainty of legal regulation.

Criminal Law and Proceedings

153-166 214
Abstract

The publication is aimed at studying deviant behavior of migrants in the social space, and mechanisms of forced regulation of migrants’ unlawful behavior in Russia. The study’s subject matter includes the dynamics and structure of migrants’ crime in Russia, as well as the mechanisms of forced regulation of migrants’ unlawful behavior involving the state power institutions. The author’s study contains not only the analysis of migrants’crime spread geography, and monitoring of migrants’ and stateless persons’ deviant activities in Russia, but also revelation of specifics of the criminological and social/demographic image of convicted migrants and stateless persons. Authors of the publication are focusing on the analysis of existing channels of migration to Russia and the existing forms of forced repatriation of migrants and stateless persons, including deportation, administrative expulsion and readmission. The methodological basis underlying the study is composed by the systematic, institutional and dialectic approaches to analysis and consolidation of information derived from various sources. The study was performed using the method of statistical quantitative analysis of the data provided by different state bodies in the Russian Federation such as the State Prosecutor’s Office, the Judicial Department of the Supreme Court, the Labor Migration and Social Protection Department of the Eurasian Economic Commission, Rosstat and the Ministry of Internal Affairs for the period from 2018 to 2022, as well as on the basis of the analysis of the national legislation in the field of migration policy, the international, administrative and criminal law.

167-173 82
Abstract

The article deals with the problems of restricting attorney-client privilege. Special attention is paid to the ethical side of the restriction of attorney-client privilege, taking into account the modern realities of the need to protect human life and health. The purpose of the study is to establish a balance of private and public interests when deciding on the limitation of attorney-client privilege. The subject of this study is the Russian legislation regulating the procedure for the preservation of attorney-client privilege, as well as the positions of the Constitutional Court of the Russian Federation expressed in its rulings and resolutions. While writing the article, general scientific and special methods of cognition were used. The result of the research is that it is necessary to approach the issue of restricting attorney-client privilege very carefully and solve it taking into account the need to protect human life and health.

174-179 135
Abstract

The article discusses changes and supplements to the criminal procedure legislation, providing for new opportunities in the production of individual investigative actions, as well as new types of investigative actions. Attention is paid to the problem of the lack of a legislative definition of investigative actions, which would contain an indication of the main features characteristic of all investigative actions. In view of the importance of timely, effective investigative actions for the collection and verification of evidence, the article analyzes the new opportunities that the legislator has provided in the work of the investigator (inquirer) for certain types of investigative actions. In addition, the analysis is given which concerns legislative changes that have expanded the traditional list of types of investigative actions, supplementing it with such varieties as the seizure of property of individuals and legal entities, the sale and destruction of physical evidence. Such a supplement to the list of types in the system of investigative actions practically erases the differences between the procedural actions of the investigator and the actual investigative actions.



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ISSN 2411-118X (Print)