Vol 23, No 1 (2019)

STATE AND LAW IN CONTEMPORARY WORLD
SEPARATISM IS OUTSIDE THE LAW
Klishas A.A.
Abstract

The widespread and increasing activity of certain territorial entities in a number of jurisdictions in recent decades, aimed at establishing their absolute independence from the states to which they belong, and the establishment of their own statehood, poses a threat to the stability of the fundamental constitutional principles of the territorial integrity of the state and state sovereignty. The consequences of the territories actions to secede from the state, bypassing constitutional mechanisms and reasonable political dialogue to find consensus and ensure an equally acceptable solution for each of the parties, are the aggravation of social contradictions, the increase in the level of social tension, the violation of human rights and freedoms. Recent events related to the initiative of Catalonia to secede from Spain, particularly clearly demonstrate the possible result of a non-legal way to resolve the contradictions about the status of a territory within the state. The theoretical basis of this study is represented by the researches of European scientists on the realization of the people's right to self-determination. The empirical basis of the research is the opinions of the European Commission for democracy through law (Venice Commission), the decisions of state and supranational bodies. The methodological basis of the study is the formal-logical method, the method of system analysis, structural and functional method. The article presents the author's legal assessment of modern separate activity in the world (on the example of the process of Catalonia's secession from Spain). The study concludes that the people's right to self-determination should be interpreted only within the provisions of national constitutional acts and international legal instruments that do not provide (with rare exceptions) the admissibility of secede from the state territory in cases, where the population of the territory has the legal and actual ability to administrate within such territory. Broad interpretations of the people’s right to self-determination content, allowing the possibility of establishment by the people of the territory their own state, which not caused by the liberation of the population from colonial regime, or gross violations of the rights of such populations, is conflicting to fundamental principles of international law - the principle of territorial integrity and inviolability of state borders. The people’s right to self-determination, which had emerged as a legal means of combating colonialism, could not be used to destroy already established state borders or to undermine state sovereignty. The secession of a territory from the state is permissible only in exceptional cases and only to prevent a gross violation of human rights and freedoms.

RUDN Journal of Law. 2019;23(1):9-26
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THE ANTI-TERRORIST FUNCTION OF THE RUSSIAN STATE: THE CONCEPT AND THE BASIC SIGNS
Mits D.S.
Abstract

The article compares the important organizational and legal trends and prospects of antiterrorist activity, as well as the associated conceptual apparatus and the essence of terrorism. In the theory of criminal law, terrorism is defined as a threat to public security, in contrast to other areas of knowledge. This criminal phenomenon is implemented through the impact on a third party to the conflict (primarily ordinary citizens), that is, to encourage them to transform the foundations of statehood. In this regard, the system of management of information counteraction to terrorism, extremist activity and other forms of encroachment on the constitutional system, as well as other spheres of state functioning is gaining momentum.

RUDN Journal of Law. 2019;23(1):27-47
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LEGAL RESEARCH METHODOLOGY
THE ROLE OF RATIONALITY PHILOSOPHY IN LEGAL STUDIES (PART I)
Ivanskiy V.P., Kovalev S.I.
Abstract

The relevance of the article, which consists of two parts, is that the various theories of rationality presented only in philosophical works are considered. Meanwhile, it should be noted that in recent decades in scientific works on jurisprudence there is a clear trend of borrowing such terms from philosophy as «classical», «non-classical» or «post-non-classical» science in the description of a concept of law. Nevertheless, in legal studies there is still no concept of rationality, the criteria for its classification, allowing to describe the diversity of manifestations of legal reality. The purpose of the study is: 1) to find new non-classical foundations for the development of legal knowledge; 2) to substantiate the point of view that the category of "scientific rationality" and its typology used in philosophy, it is necessary to introduce into scientific use of legal science, which will push the boundaries of knowledge of legal reality; 3) to describe the features of understanding of the term "scientific rationality" in law in the context of its classification into the following two groups: classical and neoclassical (post-classical), as well as non-classical and post-classical. In the process of studying the philosophy of rationality in legal studies used a diverse set of methodological tools: 1) General philosophical methods (dialectical and idealistic); 2) General scientific methods - analysis and synthesis, deduction and induction, analogy, comparison; 3) and private (special) - logical, comparative-legal, formal-legal, normative-dogmatic; 4) method of interpretation, including the method of problem-theoretical reconstruction. The main results of achieving the goal of the study were proposals on: 1) introduction of the concept of "types and models of legal rationality" into the scientific circulation of jurisprudence; 2) classification of legal rationality into classical and non - classical types and corresponding models-neoclassical (post-classical) and post-non-classical. It should be noted that the post-classical and post-non-classical styles of legal thinking are evolved versions, respectively, of the classical and non-classical types of legal rationality. The basis for the classification of types of scientific rationality in legal science was the anthropological factor-consciousness homo juridicus and methodological tools with which legal consciousness is known. The novelty of the study is that the above classification of epistemological paradigms allows us to look at the law as a multilevel reality, which is simultaneously inherent in the two mechanisms of its Constitution - external and internal. Moreover, the presented criteria-based classification of legal rationality is the basis for the development of legal knowledge.

RUDN Journal of Law. 2019;23(1):48-61
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INTERNATIONAL LAW
COMPULSORY LICENSING MECHANISM UNDER INTERNATIONAL AND NATIONAL LAW
Abashidze A.H., Malichenko V.S.
Abstract

The article highlights the main steps in the formation of compulsory licensing mechanism before the establishment of the World Trade Organization, and analyzes the main provisions of this mechanism implementation under the TRIPS Agreement and the Doha Declaration. Based on the analysis of examples from different regions of the world, the article determines the main advantages of using compulsory licensing with regard to expand of access to medicines, possible impact on quality of the medicinal products being produced and the investment attractiveness of the countries applying this mechanism are assessed. The purpose of this article is to analyze the main approaches to the implementation of compulsory licensing in order to determine the most effective strategy for using this mechanism in the Russian Federation in order to expand the availability of drug therapy for the treatment of life-threatening diseases. Based on the impact of compulsory licensing implementation, the author concludes that it does not correspond to the objectives of the Russian pharmaceutical industry development identified as a priority by Russian Government. Despite a possibility of using compulsory licensing under regulation of many countries, this mechanism is implemented rarely. A possibility of issuing a compulsory licensing is a strong argument in price negotiations with producers. According to the authors position, implementation of compulsory licensing has to be preceded by cost containment mechanism, primarily based on negotiations with producers.

RUDN Journal of Law. 2019;23(1):62-79
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CONSTITUTIONAL LAW OF RUSSIA AND FOREIGN COUNTRIES
RULE-MAKING POLICY OF THE REPUBLIC OF CRIMEA IN THE CONDITIONS OF CHANGE OF CONSTITUTIONAL CYCLES
Bondarchuk I.V.
Abstract

This paper draws on new comparative data from these three cycles of Crimean constitutional process (1992-1994, 1995-1998 and 2014-2018) to provide evidence for a novel approach to changes in political and legal systems - an approach that explains both the impact of constitutional crises as well as the robustness of the systems themselves to a more serious destabilization. Our analyses suggest that the political and legal systems have an inbuilt mechanism that saves them from overheating in times of crisis. The mechanism operates simultaneously on the level of law enforcement and at the level of lawmaking. It is based on the assumption that the political elites are risk-averse. While they react to constitutional crises by looking for new solutions, they mostly do so in “restrained” forms of legal regulation where the consequences of change are easily comprehensible. In political and legal systems that are already relatively complex internal structure, however, the political elite shy away from experimentation and rather rely on tested strategies. Constitutional crises therefore tend to stabilize unstable systems and to destabilize stable ones. They rarely push complex systems over a critical threshold of no return. Based on a positive and contrasting comparison of the three different phases of Crimean constitutional process the period 1992-1994 considered as a transformative constitutional regime in statu nascendi (in the formation stage) with signs of restrained independence in rulemaking. Content analysis of the Crimean constitutions in times of Ukraine (1992, 1995, 1998), fundamental amendments to them and changes in the current legislation, revealed the so-called "negative integration" of the autonomous region into Ukraine (1995-1998). As a result, the legal space of post-2014 was characterized by the presence of both new, not yet tested, and the former, several modified institutions, on the basis of which the current Constitution of the Republic of Crimea 2014 was created. The article presents quantitative data and qualitative "illustrations" of various indicators of the legislation of the Republic of Crimea as a normative component of the legal system using a functional research method.

RUDN Journal of Law. 2019;23(1):80-101
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CRIMINAL LAW
LEGAL ANALYSIS OF THE GENERAL CRIME IN THE RUSSIAN FEDERATION: STATUS AND TRENDS OF DEVELOPMENT
Avdeev V.A., Avdeeva E.V.
Abstract

The current conditions of the ongoing intra-state socio-economic and political-legal transformations inevitably affect the state, structure and dynamics of ordinary criminal mercenary criminality. The conducted legal analysis confirms the urgency of the development and implementation of new, more sophisticated measures to counter theft, fraud, robbery, robbery and extortion, taking into account the development trends of these crimes against property. The renewed renovation of the Russian state system is accompanied by the adoption of the Concept of Long-Term Social and Economic Development of the Russian Federation, the National Security Strategy of the Russian Federation, which predetermine new directions of the criminal legal policy in minimizing the criminalization of public relations to ensure the security of various forms of ownership. The globalization of law, the changing polycentric world predetermine the expediency of following the universally recognized principles and norms of international law, including those aimed at effectively countering ordinary criminal mercenary criminality. Throughout the evolution of social development, the priority task of each state was the inviolability of property interests. Analysis of the state, structure and dynamics of crimes against property, regulated by Art. 158-1596, 161-163 of the Criminal Code of the Russian Federation, allows us to note the dominant position of ordinary criminal mercenary criminality. In this connection, conclusions are drawn on the trends in the development of the criminal situation, and the estimation of the illegality and collision of modern criminal legislation with regard to the construction of criminal law norms is given. The main directions of the criminal and legal policy in the sphere of novelization of the criminal law on counteracting common criminal mercenary criminality are to be understood. The topical issues of legislative and organizational-practical nature in the field of countering common criminal mercenary criminality are considered.

RUDN Journal of Law. 2019;23(1):102-122
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LAW AND DIGITAL TECHNOLOGIES
THE VALUE OF DIGITAL EVIDENCE IN CRIMINAL INVESTIGATIONS
Ostrovsky O.A.
Abstract

Modern information systems, such as e-learning, e-voting, e-health, etc., are often used inappropriately for irregular data changes (data falsification). These facts force to review security measures and find a way to improve them. Proof of computer crime is accompanied by very complex processes that are based on the collection of digital evidence, forensic analysis and investigation. Forensic analysis of database systems is a very specific and complex task and therefore is the main source of inspiration for research. This article presents the fact that classical methods of collecting digital evidence are not suitable and effective. To improve efficiency, a combination of well-known, world-independent database technologies and their application in the field of forensic science are proposed. It also offers new directions for research in this area.

RUDN Journal of Law. 2019;23(1):123-140
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REVIEWS. DISCUSSION FORUMS
PROTECTION OF HUMAN RIGHTS IN THE CONTEXT OF THE DEVELOPMENT OF BIOETHICS AND GENOMICS (THEMATIC REVIEW OF THE INTERNATIONAL ROUND TABLE)
Trikoz E.N.
Abstract
The article presents a description of the main theses of reports and presentations during the thematic meeting in the framework of an interdisciplinary group of scientific experts and students of law schools from Russia and Italy. The problems of the legalization of genetic research, the regulation of ethical, legal-social and international legal issues, as well as the problems of biomedical influence on the sphere of human rights are analyzed.
RUDN Journal of Law. 2019;23(1):141-154
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