Vol 27, No 4 (2023)

STATE AND LAW IN CONTEMPORARY WORLD

Saving the population in the paradigm of state legal sovereignty: norms, deviations, challenges, solutions

Zhukov V.I.

Abstract

The study examines the content of demographic policy, the impact of the state of the population on ensuring state and legal sovereignty, reveals the role of such factors as natural population growth, its quantitative and qualitative characteristics, the country's ability to strengthen national cohesion and maintain independence in the conditions of aggravating interstate relations and the beginning of digitalization era. Russia's policy of reviving competitiveness and influencing the political world order relies not only on diplomatic, but also on other components of state sovereignty, which can be qualified as territorial, industrial, technological, legal, educational, cultural, informational, as well as other components, among which demographic sovereignty plays an important role. It is ensured by a strong social policy in the field of population conservation, its quantitative and qualitative condition, as well as responsible regulation of migration processes.

RUDN Journal of Law. 2023;27(4):837-858
pages 837-858 views

Rule of law as a political and legal ideal in the Anglo-Saxon legal tradition

Allalyev R.M.

Abstract

The article gives a critical analysis of the rule of law concept in the Anglo-Saxon political and legal tradition. The main criticism concerns its conceptual weakness, isolation from the real economic and political processes dominating in the society. The concept, once widely used both in the legal and political spheres, has become a kind of “buzzword” without clearly defined content. The lack of understanding of the rule of law concept among the public and inability of the scientific community to give any generally accepted explanation of the essence of this concept is ultimately expressed in failure of the population to follow some reasonable norms of behavior. In such a situation, even moral norms surrender to the policy of force and pursuit of selfish interests. The lack of theoretical rigor in the use of the rule of law concept is the reason that ultimately led some critical scientists in the West to question the relevance of the study of various conceptual approaches to it. The rule of law concept, previously presented as the main solution to many modern problems, such as poverty, corruption, terrorism, etc., is currently experiencing a severe crisis. The author concludes that understanding of this socio-cultural phenomenon may be reached not through examining liberal values but through investigating socio-economic development of society.

RUDN Journal of Law. 2023;27(4):859-870
pages 859-870 views

The rule of law in the UK: essence and approaches to determination

Shevchenko M.I.

Abstract

The research is focused on the essence of the rule of law as a constitutional and legal principle as the basis of the UK constitution and approaches to its determination. The rule of law, being a general legal principle, which has been developed in various legal concepts, including the British rule of law, the German rechtsstaat, the French etat de droit, at the present stage has become one of the fundamental constitutional and legal characteristics, both at the national and supranational level. National concepts of the rule of law, having certain differences and peculiarities, are essentially aimed at achieving similar goals. However, their substantive content is formed on the basis of existing features of specific national legal orders. One of the earliest and most developed in terms of constitutional and legal theory and practice is the UK approach to the rule of law. However, the question of its determining remains relevant at the present stage. The object is the concept of the rule of law developed in the UK, the subject is its specific features and manifestations, as well as approaches to its determination in British legal doctrine and practice. The purpose is to explore the issue of determination of the rule of law in the UK and to form a comprehensive approach to understanding its essence. The methodological basis of the research is constituted by 1) dialectical method, 2) general scientific methods including analysis, synthesis, comparison, analogy, deduction and induction, 3) special methods including logical, formal-legal, comparative-legal, and statistical methods. Based on the analysis the author makes an attempt to define the essence of the rule of law as an integral part of the UK constitution and its key features.

RUDN Journal of Law. 2023;27(4):871-885
pages 871-885 views

Legal policy in the field of training scientific and scientific-pedagogical personnel outside the higher education system

Sokolov A.Y., Lakaev O.A.

Abstract

The modern legal policy in the field of preparation of dissertations for the degree of Сandidate of Sciences outside postgraduate education and the degree of Doctor of Sciences in doctoral studies is in the focus. The relevance of the research is determined by the fact that transition to the model of legislative regulation of doctoral studies and preparation of PhD dissertations outside postgraduate studies in the context of exclusively scientific activities has resulted in the lack of a proper legislative basis for functioning of the scientific sphere, while the state of higher education and science, provision of qualified personnel for all branches and spheres depends on the proper organization of doctoral and postdoctoral institutions. The aim is to identify the shortcomings of the legal policy and possible ways to improve it. The article investigates normative and legal regulation of training scientific and scientific-pedagogical personnel outside higher education system; it critically assesses the present condition of higher education, prospects for improving the institutions of doctoral and postdoctoral studies. The general scientific (dialectical method, analysis, synthesis) and private scientific research methodology (formal-legal, system-structural, historical-legal methods) heavily contribute to the research. The outcome allows to substantiate the necessity to clearly establish the rights, duties and conditions of doctoral students and applicants at the legislative level. Detailed guarantees for such participants of scientific activity should promote the increasing demand for highly qualified specialists and realization of their creative potential. Financial incentives for doctoral students and their scientific consultants also need optimization being curently at a low level thus reducing the demand for doctoral and postdoctoral studies.

RUDN Journal of Law. 2023;27(4):886-901
pages 886-901 views

CONSTITUTIONAL AND MUNICIPAL LAW

Local communities as а tool for urban conflict resolution

Larichev A.A., Soldatova L.V., Tabolin V.V.

Abstract

A modern city is a concentration of a whole range of diverse processes and activities, residents with different needs, traditions and beliefs. The city is also an arena of clashing economic, political and social interests. Urban development trends are expressed both in the need for centralized determination of the direction of urban environment, and public demand for greater civic engagement. Accordingly, conflicts cannot be avoided, but it is important not to accept this obvious truth, but to create a tradition of constant thoughtful analysis of ongoing processes, identifying causes and searching for solutions. As awareness of the importance of collective efforts in creating a comfortable urban environment grows, knowledge about the approaches and public technologies used to resolve urban conflicts becomes more in demand. One of the effective tools for resolving urban conflicts are local communities created on sub-municipal territories within the city boundaries. However, the effectiveness of this tool depends on the proper organization of intra-urban communities and provision of legal guarantees for their functioning. This study is carried out using a comprehensive interdisciplinary approach, implying the analysis of urban development and urban environment through the prism of law. The study of Russian and foreign doctrinal sources, along with normative legal acts and materials of judicial and law enforcement practice, allows to form a sufficient picture of the state of urban conflictology and substantiate the role of local communities in their resolution.

RUDN Journal of Law. 2023;27(4):902-918
pages 902-918 views

New technologies in law as a highly effective means of implementing the constitutional principle of equality in conditions of multi-level legal regulation

Isakov I.N.

Abstract

The relevance of the research is due to the significant complication of public relations, their high dynamism, rapid growth of new technologies in the development of modern law and its focus on the implementation of the constitutional principle of equality. An attempt is made to substantiate that the social orientation of the Russian Federation and the use of high technologies in law allows to expand the range of subjects entitled to adopt the norms of primary regulation; as a result, legal regulation necessarily acquires a multi-level character, and high-tech law, due to new properties (feasibility, logistics, research intensity) acts as an effective means of implementing the principle of equality in specific legal relations. The purpose of the work is to substantiate the role of high technologies as an effective means of implementing the constitutional principle of equality in conditions of multi-level legal regulation. The materials for the research are the works of legal scholars, as well as specialists in the field of philosophy, theory of law, sociology, technology, legal practice, regulatory legal framework of the federal, regional, municipal and local levels, and the author’s practical experience in law enforcement and teaching. The research employs the following methodology. The findings are based on general scientific research methods: dialectical, systematic, logical, sociological, as well as private scientific and special. The Results may be formulated as follows: it is proved that new technologies in law significantly correct the basic theoretical principles of primary legal regulation, its paradigms and practical orientation, develop the idea of a multi-level and integrative nature of legal regulation. The author’s interpretation of the concepts of “equality”, “multilevel legal regulation” is suggested. The mechanisms of high technologies in the realization of legal equality are revealed. The positive results of the application of digital public administration, artificial intelligence, e-government, etc. in multi-level legal regulation are demonstrated.

RUDN Journal of Law. 2023;27(4):919-938
pages 919-938 views

ADMINISTRATIVE AND FINANCIAL LAW

Interdisciplinary bioethical approach in public law

Polnyakova E.M., Tagiev E.S.

Abstract

The study is devoted to issues of heterogeneity of bioethics, its connection with ethics, law and administration. It highlights and analyzes some laws both at the federal level and at the level of the constituent entities of the Russian Federation, which directrly or indirectly address issues related to bioethics. Special attention is paid to analyzing the legal positions of the Constitutional Court of the Russian Federation including the issues of presumption of consent to organ and/or tissue transplantation, as well as the ethical side of surrogacy. Given the importance of issues related to bioethics, the work defines the problem of developing an optimal balance between application of legal norms and their effect, as well as the use of bioethics and its principles for the most correct and fair resolution of problems arising in society. Based on the analysis of foreign sources, an attempt is made to review legal regulation of medicine, health care and biotechnology, the most problematic from the point of view of bioethics. The study highlights problems connected with the lack of formally defined and systematic legal regulation of bioethics as well as the position regarding consolidation of provisions aimed at regulating ethical and moral components in regulatory legal acts. Moreover, the work touches upon issues related to the activities of independent organizations whose main activity is the formation of bioethical principles aimed at implementing norms to address emerging ethical issues in Russian legislation.

RUDN Journal of Law. 2023;27(4):939-955
pages 939-955 views

The role of blockchain in improving public administration

Shamrin M.Y., Galkina M.V.

Abstract

The study is dedicated to the most important revolutionary "blockchain" technology, the application of which in public administration will contribute to the improvement of all spheres of the government life. The authors analyze the role of blockchain in the economic sphere (trade, agriculture, finance) and in healthcare. The article looks at correlation between the digital ruble and cryptocurrencies and arguments in favor of implementation of cryptocurrencies into the Russian economy. The purpose of the research is to form an idea of the need for the speedy introduction of blockchain technology in various areas of public administration, primarily in economy and healthcare. The employed methods are logical method, analysis, comparative legal, historical. The findings prove the need to use the blockchain in various areas of public administration; as a result of its implementation, Russia will be able to minimize sanctions pressure and improve realization of state policy in all spheres of public life. The research allows to draw the following conclusions: 1. Blockchain sets up the basis for the successful functioning of public administration in the Russian Federation. 2. The unique structure of blockchain may be looked at as the main element in streamlining all areas of the economy, creating a new generation of economic systems based on mutually beneficial cooperation. 3. Blockchain may contribute solving the problems associated with coordination and exchange of information between independent medical institutions. 4. Blockchain holds the greatest opportunities for agriculture, since its application allows to identify all stages of production, processing, supply of products, their delivery to the store and sale to the consumer.

RUDN Journal of Law. 2023;27(4):956-968
pages 956-968 views

LAND LAW AND ENVIRONMENTAL LAW

Peculiarities of legal protection of natural world heritage sites in Australia on the example of the Great Barrier Reef

Kolobov R.Y., Ditsevich Y.B.

Abstract

The study examines the practice of legal protection of the Great Barrier Reef World Heritage Site located in Australia. It reflects the main content of the decisions of the World Heritage Committee and the International Union for Conservation of Nature on the protection of the Great Barrier Reef, looks at the features of its management as a World Heritage Site (hereinafter also - WHS), as well as regulatory and organisational solutions aimed at preventing threats to the ecological state of the Great Barrier Reef WHS. The analysis of the legal framework and practice of protection of World Heritage Sites allows to conclude that some elements of the Australian experience can be used to strengthen the institutional and legal framework of the environmental regime of Lake Baikal. The proposal to develop a management plan for the Lake Baikal World Heritage Site in accordance with the requirements and standards of the World Heritage protection system, as well as to adopt special strategic development plans has been formulated. According to the authors, to ensure the effective development of specific management decisions, it is necessary to establish normatively the general principles of management plan formation. Based on the practice of engaging local communities in the management of World Heritage Sites and Australian experience of organising Marine Advisory Committees, the authors have verbalized a proposal to create an Advisory Council of representatives of various spheres of society, operating in the territory of the Lake Baikal World Heritage Site, environmental organisations and representatives of the public.

RUDN Journal of Law. 2023;27(4):969-983
pages 969-983 views

CRIMINAL LAW AND CRIMINOLOGY

Place where neonaticide was committed as a feature of the objective side of the crime

Abdulvaliev A.F., Morozov V.I., Losev S.G.

Abstract

Is devoted to the study of the place of the murder by the mother of a newborn child as a feature of the objective side of the crime. The paper provides a detailed analysis of the crime scene from the legal, criminological and geographical points of view. Consider separately the place of birth of the child, the place of the murder of the newborn, the places of burial and the discovery of the body of the neonate. Text analysis of court decisions in criminal cases incriminated under Article 106 of the Criminal Code of the Russian Federation is used as the main method of scientific research. Statistical and geographical methods contribute to study the data on crimes under Article 106 of the Criminal Code, as well as comparative-legal method is used in the study of the act from a criminal law point of view. Conclude that most frequent cases of newborns murder are committed by mothers in regions of Russia with high population density - most often in Central Russia, the North Caucasus, the Volga region, the Kama region and Southern Siberia. In almost half of the cases, this crime is committed in rural settlements. The research shows certain consistency between the high number of committed crimes related to the murder of a newborn child by a mother, the level of income of the population and the level of socio-economic development of the regions. Most often, the place of committing the above acts is a dwelling (house, apartment and bathrooms in them), about 1/4 of the crimes are committed in the yard and/or outbuildings located in it. The authors distinguish separately the places where the bodies of murdered neonates are found, since the place of the crime and the place where the corpse of an infant is found differ due to the desire of recently delivered women to conceal the fact of murdering. Apart from the house, the most common places a newborn corpse is found are garbage dumps, containers and garbage cans, as well as pit latrines and abandoned places in the street.

RUDN Journal of Law. 2023;27(4):984-1006
pages 984-1006 views

Criminal responsibility for crimes against children in USA

Nagornaya I.I.

Abstract

Children require special legal protection, including criminal law protection, in all countries since they are one of the most vulnerable categories of population. Crimes against children inflict harm not only to victims but also affect further development of society as a whole. The US experience in the field of criminal law protection of children has significant specifics and is of scientific interest. The purpose of this paper is to identify and describe characteristic features of American criminal law in this area and its applicability in Russia. To reach the goal formal-legal, comparative-legal and other methods are used. American laws create legal duty to report acts that constitute child abuse. Failure to report constitutes crime. Statutes of several US states contain special chapters devoted to crimes against children. Parents or other caregivers may not inflict harm the child directly but also, by inaction, allow third party to do so. Such inaction is deemed a crime. Using reasonable force to discipline children is legal in the USA if the punishment does not inflict harm greater than transient pain and other legal requirements are met. Parents or other caregivers must control children and never leave them unattended at home if they are younger than state`s law or recommendations of state`s authorities prescribe. «Hot car» laws prohibit to leave children unattended in a vehicle if they have not reached the age prescribed by law. Violation of such duties is a crime in some cases. The applicability of such experience in Russia is analyzed for each criminal law prohibition. It is concluded that many rules of the US criminal law are redundant. The features that are of certain interest for our country have been identified and studied.

RUDN Journal of Law. 2023;27(4):1007-1027
pages 1007-1027 views

A comparative study of the formation of doctrinal directions of the institution of legal protection of crime victims in the USA and the United Kingdom of Great Britain and Northern Ireland

Andrusenko S.P.

Abstract

The United States and the United Kingdom of Great Britain and Northern Ireland have a long history of forming and developing legal protection of the rights of crime victims, which is based on the recognition of state responsibility for the failure to protect society from crime and provision of comprehensive support to crime victims, including compensation, benefits, medical care, social services, support of specialized public organizations. At the same time, the norms of public law regulating state compensation for harm to victims of crime are important. In fact, a study of the leading legal institutions of the United Kingdom of Great Britain and Northern Ireland, which has accumulated positive regulatory and legal experience in ensuring the rights of crime victims and their legal protection, which can be perceived as legislative novelties in the Russian Federation, is indicative. The relevance of the topic is also conditioned by the social significance of the issue of legal protection of the rights of crime victims, as well as the legal reality that has developed in the Russian Federation in the field of legislative regulation of the status of victims of criminal offenses, which directly affects the right to compensation for harm caused to them.

RUDN Journal of Law. 2023;27(4):1028-1042
pages 1028-1042 views

JUSTICE IN RUSSIA AND FOREIGN COUNTRIES

Bargaining inequality: ways to overcome it in international commercial law and in private international law

Fonotova O.V., Belyaeva L.E.

Abstract

The basic tenet of contract law is freedom of contract, including the freedom to negotiate and the autonomy of the will of the parties. However, practice and doctrine show that many international commercial contracts are formed in conditions of actual inequality of counterparties. The present work is the first comprehensive study of the problem of cross-border bargaining inequality among professional merchants. The aim of the study is to systematize and critically evaluate the effectiveness of legal conditions formulated in the unified acts of international commercial law and private international law to overcome inequality of counterparties at the pre-contractual stage. The study is based on logical, formal-legal and comparative-legal methods. The results and conclusions may be formulated as follows: (1) The set of legal means to resolve the problem of unequal position of the contracting parties is represented by a complex of complementary spheres of unified normative regulation - substantive norms and conflict-of-law norms. (2) Universal conventional legal regulation of the pre-contractual stage has not been developed. (3) Recommendatory acts of substantive unification of commercial law enshrine developed models of regulation of the parties’ conduct in cross-border negotiations. The main legal means to balance the position of the counterparties is the institution of the pre-contractual liability based on the principle of good faith. (4) Both in European law and in Russian law, the conflict-of-law issue is resolved through a combination of non-contractual qualification of the pre-contractual relations and the complex nature of regulation involving the consecutive use of contractual and tort-based connecting factors. (4) Where there is inequality, conflict-of-laws must provide for an equitable solution to situations where the choice of law applicable to each of the contracting parties is not truly free, including permitting a deviation from the principle of autonomy of will. (5) In the absence of parties’ choice of applicable law, the list of criteria for establishing the closest connection between the pre-contractual legal relation and the competent legal order should be expanded: the court should be able to consider the law of the future contractual obligations’ place of performance and the law governing other related contracts.

RUDN Journal of Law. 2023;27(4):1043-1064
pages 1043-1064 views

The legal status of the class members during the group litigation

Trezubov E.S., Zvyagina N.S.

Abstract

The study discusses certain rules of group litigation in the civil procedure in the context of the legal status of class members in procedural relations. Attention is paid to the rights and obligations of the person who applies to court with a request to protect the rights and legitimate interests of a group of members. Participants in a class action include the person conducting the case (plaintiff-representative) and group members who joined the collective claim. The comparative legal method and teleological interpretation allow to conclude that there are active procedural relations only between the court and the claimant-representative, which predetermines the possibility of performing administrative actions, proving and appealing judicial acts only by the plaintiff, but not by the other claimants. The extremely curtailed scope of powers of the group members is justified by their voluntary joining a class action lawsuit. Relations within a group of persons are substantive in nature; this allows to highlight the necessity of appropriate private material mechanisms to satisfy the interests of the majority of participants under the rules on decisions in meetings. In view of the possibility of consolidating in a class homogeneous but different in size substantive claims of the group members we believe it is essential to establish the majority criterion, regardless of the price of the claim of each member. The research also reveals the contradiction in legal regulation in the event of a refusal to certify a group of persons after the initiation of proceedings on a class action in civil, arbitration and administrative litigation, substantiates the inexpediency of leaving a class action without consideration, and the need to consider personal claims of group members and allocate relevant cases in a separate production, as provided for in the Arbitration (Commercial) Procedure Code of the Russian Federation. Attention is drawn to the gaps in the legal regulation of group proceedings in terms of establishing the amount and procedure for paying the state fee.

RUDN Journal of Law. 2023;27(4):1065-1078
pages 1065-1078 views

The standards of the foreign defendants notification in the economic disputes resolution

Mokhova E.V., Butakova I.S.

Abstract

Notification of a foreign defendant is of fundamental importance for the effective realization of the right to a fair trial. At the same time judicial practice identifies controversial issues concerning the assessment of such notification. In the new geopolitical conditions, the situation is complicated by the sanctions imposed by the states, thus reinforcing the relevance of the research. The purpose is to examine the standards of foreign defendants’ notification established in the Russian court practice, as well as to analyze the sanctions impact on the conventional notification mechanisms on the example of one of the high-profile cases. The authors rely on general scientific research methods (analysis and synthesis, induction and deduction, dialectical method) and special methods (formal legal, comparative legal). The article concludes that in the Russian court practice a different standard - the so-called standard of effective notification based on evidence of the actual awareness of the party about the foreign proceedings - is formed as a counterbalance to the strictly formal standard of notification. The authors note that the standard of effective notification, fulfilling its useful function, should not lead to unjustified refusal to follow the international conventions on foreign persons notification. These conventions retain their binding effect including exclusive situations where they should be applicable. The authors conclude that it is necessary to clarify both the conditions for effective notification standard application and the requirements for the effective notification standard. The sanctions have affected the application of notification mechanisms: Russian courts recognize a foreign court request to notify a Russian sanctioned person as contrary to public policy in a situation where an anti-suit injunction on a foreign proceeding was previously issued.

RUDN Journal of Law. 2023;27(4):1079-1097
pages 1079-1097 views

Formation of modern regional judiciary in Russia: a case study of courts of general jurisdiction of Novosibirsk Oblast

Salamatova M.S.

Abstract

This study outlines results of the study on regional judiciary conducted in the Novosibirsk Oblast and summarizes analysis on its socio-demographic and professional composition and sources of formation. The study is interdisciplinary in nature; sociological (questionnaires and in-depth interviews) and legal research methods (historical and legal, formal legal, comparative legal) have been applied, 192 judges of courts of general jurisdiction of the Novosibirsk Oblast have been interviewed during the research. The analysis of the outcome of the study shows that a modern regional judge is a young woman who received a full-time legal education at a classical university and has a predominant professional experience in court. The study acknowledges further rejuvenation and feminization of the regional judiciary, due to specifics of personnel policy. The dominant source of replenishment of the regional corps of judges is the court apparatus; this method is most significant for the formation of justices of the peace (JPs) and judges of district courts. The main reasons for the predominance of representatives from the court apparatus in the judiciary corps are the scope of work and requirements for the professional qualities of a judge, among which adaptability to high workloads, significant amount of paperwork, control over procedural deadlines, and effective compliance with the key indicators of the judge’s work form the core. We believe that the trend to form the judiciary mainly through internal sources may negatively affect the authority and status of the judicial profession.

RUDN Journal of Law. 2023;27(4):1098-1112
pages 1098-1112 views

Transforming Digital Dispute Resolution in India

Gronic I.A.

Abstract

The era of digital reality offers and shapes new dispute resolution mechanisms, imposes high demands and sets its own rules to be complied with. The introduction of information and communication technologies and artificial intelligence into judicial and out-of-court dispute resolution proceedings in India has shown innovative results quite rapidly. Transformation of digital modes of dispute resolution continues with new research and development of modern technologies that strive for excellence. The purpose of this study is to analyze transformation of digital dispute resolution methods in India, considering the historical evolutionism that led from the Vedic era to the global digital revolution, formation of a hybrid model that combines several modes of dispute resolution - offline courts, online courts and online dispute resolution using digital technologies and alternative dispute resolution methods. However, the digital system is far from being perfect; it has significant drawbacks associated with the risks of cyber-attacks and leakage of personal data containing sensitive confidential and personal information. Besides, the digital literacy of the Indian population located on the periphery is quite low, which greatly reduces the level of trust in electronic courts and online dispute resolution.

RUDN Journal of Law. 2023;27(4):1113-1124
pages 1113-1124 views

REVIEWS. DISCUSSION FORUMS

Review of the monograph: Panfilov, A.N. (2023) Combating illegal archaeological activities in the Russian Federation: issues of legal regulation and enforcement. Moscow, INFRA Publ.

Klebanov L.R.

Abstract

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RUDN Journal of Law. 2023;27(4):1125-1130
pages 1125-1130 views

Presentations of the RUDN Journal of Law at scientific conferences

Andreeva P.N.

Abstract

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RUDN Journal of Law. 2023;27(4):1131-1133
pages 1131-1133 views

Announcement of the tutorial Andreeva, P.N. (2023) Legal drafting technology: textbook. Moscow, RUDN Publ.

Dovgan X.E.

Abstract

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RUDN Journal of Law. 2023;27(4):1134-1137
pages 1134-1137 views

Project for the Friendship newspaper of RUDN University. Russian Government Prize for the textbook Theory of State and Law

Nikitina V.S.

Abstract

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RUDN Journal of Law. 2023;27(4):1138-1139
pages 1138-1139 views

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