Vol 22, No 1 (2018)

PUBLIC LAW: DOCTRINE AND PRACTIC
Legality and Legitimacy of Public Political Power: Theoretical Aspects (on the Basis of Syria)
Klishas A.A.
Abstract

The Article is devoted to theoretical concepts of legality and legitimacy of public political power; it includes analysis of these concepts (including historical aspects of the constitutional evolution) on issues of legality and legitimacy of public political power of the government of the Syrian Arab Republic. The Article includes casual demonstration of vitals of legality and legitimacy of public political power of exercise public political power on Syria territory. The purpose of this analysis is systematic description of doctrinal approaches to such legal phenomena, as legality and legitimacy of public political power, their correlation, as well as content analysis of such legal phenomena on the example of social condition, existing on the territory of particular state at the certain historical period of its evolution. As a result of scrutiny of different approaches to the concepts of legality and legitimacy of public political power, the author comes to the conclusion about the necessity take into consideration particular political and legal contexts during making assertion about legality and legitimacy of public political power exercising at the certain period of its evolution. Specifically, if legal nature of legality of public political power doesn’t afford to use any other criteria excepting compliance such authority with positive regulation within particular legal system, then legitimacy of public political power provides latitude in the choice the criteria of the order of legitimacy. Herewith the author formulates particular criteria the presence of which provides an opportunity to determine the character of public political power as legitimacy, such as recognition of legitimacy object by public or authoritative body, compliance the public order considered as legitimacy with positive regulation and with more developed public order. The Article contains foundation of criteria of legality and legitimacy of public political power exercising on the territory of the Syrian Arab Republic by consideration of the most obvious constitutional peculiarities of the Syrian Arab Republic including the consideration in aspect of the history of constitutional evolution of the state.

RUDN Journal of Law. 2018;22(1):1-20
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Independence of Judges as Immanent Quality of Criminal Justice and Its Severe Problem
Tarasov A.A., Gizatullin I.A.
Abstract

Independence of judges is an objectively necessary condition for the existence of judicial power and justice in the state, it presupposes the freedom of every judge in choosing a legal position on the issue that he resolves, both from the will of the parties to litigation and from any external influence. External to the judge are not only the impact of the parties in the case under consideration or representatives of non-judiciary or court leadership, but also the corporate impact of the judiciary community or mental attachment to the corporate traditions of the professional communities to which the judge previously belonged. Exposure to all these types of outside influence for the judge constitute an equal threat to his independence and to the justice sent to him. No less threat to justice and objective interests of society is the flip side of judicial independence - judicial arbitrariness. The optimal state approach in ensuring the independence of judges implies a balance between the two extremes - judicial dependence on someone else's opinion and judicial arbitrariness. In modern Russian legislation, the «independence of judges» is defined as the principle of all types of legal proceedings, with the allocation of a special article with this title to all procedural codes. In the laws of the judicial reform of the XIX century, the phrase «independence of judges» is not used at all, although the creation of a truly independent court in conditions of absolute monarchy is recognized as the main achievement of this reform. The authors emphasize on the example of criminal justice that the independence of judges is not ensured at all by its special legislative fixation or elevation in the principles of the process, not by repeated repetition of these words in different legal regulations and even more - not by appeals to specific judges to be independent. Independence of judges can be ensured only by the creation of reliable organizational and procedural mechanisms for its implementation, some of which are analyzed in the article. Among them - the expansion of adversarial principles in the use of special knowledge in the criminal investigation of criminal cases, the introduction of elements of the judicial investigation into the institution of special order of the decision of the court decision with the consent of the accused with the charge, the procedural significance of the reasons for the refusal of the public prosecutor from the prosecution, and others.

RUDN Journal of Law. 2018;22(1):21-41
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HISTORICAL AND LEGAL RESEARC
The Spatial and Temporal Grounds of Legal Civilization Development: Concentration or Absorption
Sigalov K.E.
Abstract

The law, like everything in nature and society, is subordinated to universal forms of existence of the material world. At the same time, the general characteristics of objective reality, the most important forms of existence such as space and time determine the essence and specific features of the law formation and development in different regions. First, the Article reveals the features of the legal space. The space is chorus of significant interrelations, the way of organization, the «scale» of the influence of legal remedies on social life, etc. The space contributes to the understand of the law environment as integrity, also due to the space a common language and general rules are possible. For human history the geographical space is permanent and almost unchanged. However, the social practice is becoming less and less dependent only on these conditions. On the basis of his practice, a person seeks to change the social life and the substance of culture. The variety of legal systems is due to various reasons. The Natural and geographical factors, features of civilizational technologies determine the different conditions and needs of life of different countries and communities. Second, the article defines the specificity of the legal time. The time and law are fundamental categories of humanitarian knowledge. At first sight, these categories are not quite proportionate: the time is a category related to all inanimate and living matter, to social phenomena, and also to cognition; the law reflects solely the form of existence of social reality. Nevertheless, in the social sphere and in the field of normativity, the time and law are similar to consider their role in the people's lives. The effect of the law is connected with the effect of the time, because the law specifies the basis for possible behavior. The spatial-temporal characteristics cut across the legal culture and legal life.

RUDN Journal of Law. 2018;22(1):42-65
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Genesis of the Institute of Complicity in the Indian Criminal Law in XIX Century
Krasheninnikova N.A., Trikoz E.N.
Abstract

The Article deals with the history of doctrinal and legal formation of the institute of complicity in the Indian criminal law during colonial period. The mixed nature of the law system assumes some approaches to the criminal conspiracy as from the orthodox tradition (Sanskrit texts, and the treatises of Hinduism), and on the subsystem of the Islamic law. The Article provides the historical analysis of preparatory materials to the Indian Penal Code of 1860 (IPC), the opinions of the leading scientists-criminologists and main judgments. The authors express own opinion on a perspective of group criminality and its influence on the history of the Indian criminal law. Some crime statistics and collecting crime data during the colonial period in India are descript of a criminogenic situation as empirical materials. The prevalence of joint criminal activity and organized groups of local inhabitants was a result of traditional exclusive hierarchy and collective ideology in British India. Religious criminal sect of thugs (a gang of professional murderers and robbers) made the most dangerous category of “criminal tribes” in the colonial period. The organized criminal activity of the thugs was the reason of theoretical search of new criminal policy methods and ways of judicial prosecution in colonial India. As a result, authors have allocated some main figures of British officials who developed the concept of complicity and practically approve “joint participation” in the Indian Penal Code of 1860 during the expanded professional criminality connected with hunger, rebellions, ritual robberies and sacrifices. The Article identifications of some features of the crime partnership in the Indian Penal Code of 1860 (innovative provisions of Macaulay's project), in comparison with the complicity in the common law tradition. The consolidated provisions of abetment in the Indian Penal Code regulated various forms of complicity, grounds for prosecution (liability of abettor), distinction mens rea and actus reus of accomplices, abetting commission of offence by the public or by more than ten persons, abetment if offence be not committed, concealing design to commit offence, etc. In the conclusion authors believe that at the present stage in the Indian Penal Code washing out of initially narrow interpretation of complicity in the crime (abetment of offence) and of judicial interpretation of it’s various forms and questions of punishment of accomplices is observed.

RUDN Journal of Law. 2018;22(1):66-90
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LAW AND NEW TECHNOLOGIES
Artificial Intelligence from the Point of View of Law
Ponkin I.V., Redkina A.I.
Abstract

Artificial intelligence technologies are developing intensively today, including due to the development of technologies of stable neural networks and cloud computing infrastructures, fuzzy system technologies, entropy administration, swarm intelligence, evolutionary computations, and many others. etc. At the same time, the problem of almost complete absence of normative legal regulation and normative technical regulation of the foundations, conditions and features of development, functioning and activities, integration into other systems and control over the use of artificial intelligence technologies is global today. The Article is devoted to the study of the specifics of the legal regulation of the use and development of artificial intelligence. Some approaches to the definition of artificial intelligence and the features of legal regulation of this sphere, which take place in the scientific literature, are considered and the author's definition of artificial intelligence is developed and given through the disclosure of its main features. In particular, according to the proposed definition, artificial intelligence is an artificial complex cybernetic computer-software-hardware system possessing the properties of substantivity, autonomy, and also the ability to perceive and analyze data, to self-learn. The question of positioning the artificial intelligence system as a special form of person (for example, the so-called «electronic person»), that is, granting it a certain legal personality depending on various factors and the field of application of such a system, is considered in this article. The article also notes the main possible approaches to legal support for the use and development of artificial intelligence systems, in particular, such approaches include the preemptive universal-total legal regulation and legal regulation aimed at the regulation of specific artificial intelligence systems. The main risks and uncertainties associated with artificial intelligence (and which are of great importance for the adoption of legislation in this field) have been investigated. There are drawn the conclusions about how to develop legislation on the use and development of artificial intelligence: consistently, taking into account the specifics of areas of its application, as well as balancing the interests of individuals, society and the state with regard to proper security and protection of individual rights, and interests related to the development of innovation for the benefit of the whole society.

RUDN Journal of Law. 2018;22(1):91-109
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INTERNATIONAL LEGAL COOPERATION
The Content of the Future Legal Regulation of the Gas Relations between Russia, European Union and EU Member States
Volkov A.K.
Abstract

There are two types of relations between Russia and European countries in the sphere of gas cooperation. The first type is dominant; it includes long-term contractual relations of Gazprom with the European enterprises. The second type is just emerging and comprises opening up of the respective markets, that is, direct participation of the European companies on Russia’s market and vice versa. However, the actual legal regulation of gas relations does not permit to satisfy the numerous interests of Russia, EU and its members in the natural gas domain. For Russia it is the augmentation of the gas production, attraction of the investments in this sphere. The EU cannot guarantee the energy security, the diminution of the gas prices, the creation of the pan European market and of the conditions of the sustainable development, the reinforcement of the EU positions on the external markets etc. The resolution of the problem could be the development of the relations of the direct participation of the companies on the markets: of Gazprom and other Russian companies on the market of transport, retail, distribution of gas of the EU and of the participation of the European enterprises in the production of gas on the territory of the Russia. The basis of the legal regulation of this type of the relations could be fixed in the international treaties between Russia, EU and the member-states, which will contain the provisions on concurrence, investments and commerce in the gas sphere. The regulation of gas relations between Russia, the EU and its members described could help to solve numerous problems. In terms of investments, it would create the necessary conditions for foreign companies’ activity in Russia’s gas production sector and in the EU retail market. This will be possible largely due to the proclamation of efficient dispute resolution and other guarantees. In terms of competition, the right to submit claims to arbitration, foreseen in the agreement, will play a key role in countering the abuse by antitrust authorities or antitrust violations by enterprises. The rules of cooperation of the treaty will serve as the foundation for the common market. They will also promote the increase in the number of producers, retailers and consumers. The derogations from the competition rules will be important for ensuring energy security and for the attraction of investment.

RUDN Journal of Law. 2018;22(1):110-139
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REVIEWS
Review of Monograph «Application of the Constitution of the Russian Federation as a Legal Safeguard of Civil Peace and State Security». (Moscow, Russian State University of Justice, 2017)
Antsiferov N.V.
Abstract
The Review summarizes the results of studying a monograph prepared by the Department of Constitutional and Legal Research at the Russian State University of Justice, and published under the editorship of Doctor of Law, Professor I.A. Umnova (Konyukhova). The monograph under consideration is devoted to the application of the Russian Constitution in the context of the categories of civil peace and state security. The reviewed monograph is written on the topic that does not allow questioning its relevance. Such categories as «application of the Constitution», on the one hand, and «civil peace», «state security», on the other hand, spark permanent research interest of representatives from various branches of social science. Taking into account the relevance of some threats, this topic obviously will not lose its significance. At the same time, a truly important factor, which predetermines a scientific novelty of the research, is review of respective phenomena in their interrelations, in particular, when the application of the Constitution acts as a mechanism to ensure (guarantee) peace and security. The paper explores various aspects of the outlined problems: theoretical, methodological and constitutional foundations of civil peace and security in the Russian Federation; the practice of implementing the Constitution of the Russian Federation in strategic and policy documents of public authorities; judicial enforcement in the matters of the authors’ interest, etc. The work is executed on a high scientific level, is rather easy to understand and contains numerous examples from law-making and law-enforcement practices. The monograph has some drawbacks that do not affect its overall positive evaluation. In particular, in a number of cases there is a lack of uniformity in understanding the categories important for the research, in different parts of the work. Additionally, it appears that, since the work is devoted specifically to the application of the Constitution, it would be advisable to dwell in more detail on the binding power of strategic and policy documents under consideration, as well as their constitutional predetermination in terms of the content. In general, the monograph makes a notable contribution to the study of both the problems of applying the Constitution and the legal mechanism to ensure civil peace and state security. At the same time, the authors lay a substantial groundwork for further research related to the topic of the work.
RUDN Journal of Law. 2018;22(1):140-145
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