Vol 24, No 3 (2020)

STATE AND LAW IN CONTEMPORARY WORLD

LEGAL AND THEORETICAL APPROACHES TO THE DEFINITION OF CORRUPTION

Proshunin M.M., Kumukov M.S.

Abstract

In legal literature there is a big amount of definitions of corruption due to the complexity of this phenomenon. The article considers various legal and theoretical approaches to the definition of corruption. The Author mentions the problem of notional proximity of different definitions of corruption and proposes a method of identification of definitions which are close in meaning. The author also proposes to consider social and psychological aspects in definition of corruption as these aspects are regarded as an integral part of corruption.

RUDN Journal of Law. 2020;24(3):497-512
pages 497-512 views

ENSURING LEGAL ENVIRONMENTAL SECURITY IN THE CONTEXT OF GLOBALIZATION, WORLD THREATS AND CHALLENGES ON THE EXAMPLE OF A PANDEMIC

Nematov A.R., Sobitdukht N.

Abstract

The pandemic is one of those contemporary world challenges that today poses a global deadly threat to all mankind. Addressing the pandemic and ensuring human health through the lens of legal environmental safety seems to be timely. Adverse sanitary and epidemiological conditions, among other reasons, may arise out of the lack of a well-founded legal framework supporting the realization of the constitutional right of citizens to a favourable environment. The purpose of this article is to show the role of environmental security in preventing the sanitary and epidemiological crisis and ensuring public health. The article tried to analyse how environmental norms, rules of food and household hygiene were justified in the oldest monument of the Tajik people - Avesta, how the Zoroastrian religion explained the need to ensure sanitary and epidemiological safety of society and human health. Currently legal regulation of environmental protection and safeguarding public health attaches particular importance to such categories as health , life and safety . The last concept is increasingly filled with medical content worldwide. This is due to the fact that the category security is generally universal, and its application in legislation, obviously, implies certain reasons and consequences. The article briefly analyses the legal policy of the Republic of Tajikistan in the field of environmental legislation and public health. Mechanisms and directions for improving the current legislation in the field of environmental protection have been studied, and legal decisions on ensuring public health have been considered.

RUDN Journal of Law. 2020;24(3):513-529
pages 513-529 views

LEGAL RESEARCH METHODOLOGY

THE CHOICE OF AN OBJECT OF STUDY IN THE THEORY OF LAW

Bekbaev E.Z.

Abstract

The relevance of the problem of choosing the object of study in the theory of law is determined by the need to tackle the debatable issue of pluralism in understanding of law. It is noted that one of the reasons for theoretical and legal pluralism on the concept of law is the lack of uniform criteria for identifying the object of study in the general theory of law. The situation with the concept of law in legal science, including with the pluralism of opinions, is considered largely as a result of the scientists and practitioners’ attitude described as “first understand the law” and then create a “single” concept of law. The fundamental research carried out in legal science and wide discussions on the concept of law are taken as positive; one of the parameters is the principle of separation of the object and subject of legal science. It is shown that when constructing a scientific theory of law, the primary question is the object of study, that is, the question of law itself as a special fragment of the real world, but not a disputable issue of the concept of law. However, in practice, when identifying the object of scientific knowledge in the general theory of law, scholars choose to study the most diverse fragments of the world, although they designate them with the same term law. Since various objects called law are subjected to scientific research, one cannot expect to derive a single concept of law. With regard to the analysis of the concept of law and the data of modern science, the following set of attributes for identifying law as an object of study in law theory is proposed for consideration: “Law is a set of social norms enshrined in written language by the state and designed for people to interact with each other and with public authority such as state and other entities”.

RUDN Journal of Law. 2020;24(3):530-546
pages 530-546 views

PHILOSOPHICAL AND LEGAL NATURE OF THE LAW PRINCIPLE: METHODOLOGICAL PROBLEMS OF RESEARCH

Skorobogatov A.V., Krasnov A.V.

Abstract

The article explores the legal nature of law principles from the perspective of philosophical and legal analysis. The purpose of the article is to form scientifically based knowledge on the philosophical and legal nature of the category law principle using postclassical methodological tools. Research Methods: The methodology of the article is based on the postclassical scientific rationality. The authors use an integrative approach to the study of legal reality in combination with a phenomenological and synergetic methodology, thereby using a number of general scientific and special scientific methods in a particular logical system, which makes it possible to study law principles both ontologically, in terms of their role in law in general, and epistemologically as well as axiologically. Moreover, the content, functioning and development of law principles are considered phenomenologically, as well as in the context of law communication. Results: The law principle in the ontological aspect is a fundamental form of law, reflecting the most significant ideas concerning regulation of public relations; the law principle is used as a direct regulator along with the rule of law. The epistemological law principle can be interpreted as a generalizing category, reflecting interpretation and assessment of legal reality from the standpoint of postclassical methodology. From an axiological point of view, the law principle embodies the law and social values and traditions that are dominant within the framework of a given socio-cultural chronotope, and is also used as one of the fundamental tools for constructing legal reality and its development. Conclusions: the law nature of law principles is determined with the account of postclassical methodology onto-logically, epistemologically and axiologically, in terms of their dual role in formation, development and construction of legal reality at all of its levels, in the context of both objective and subjective factors. The findings can be applied in drawing up concepts of legal and judicial reforms in terms of targeted construction of legal reality, as well as in the process of predicting the development of the Russian legal system.

RUDN Journal of Law. 2020;24(3):547-571
pages 547-571 views

SUBJECT OF PROCEDURAL LAW: METHODOLOGICAL APPROACH TO DEFINITION

Belyaev V.P., Ninciyeva T.M.

Abstract

The purpose of the study of this article is a general theoretic analysis of scientific views on the essence of legal regulation and its object for the development and formation of a definition of the object of procedural legal regulation. General scientific and special scientific methods including formal-legal and comparative-legal, as well as logical techniques, have been chosen for the research; they allowed to reveal the essence of the legal regulation and its object, and eventually - to formulate the author 's definition of the object of procedural-legal regulation. A review of scientific publications shows that legal regulation generally implies a streamlining effect on social relations on the part of authorized entities. The essence of legal regulation lies in the legal impact on social relations with a view to their regularization, carried out by authorized entities through legal activities. The object of legal regulation is a set of social relations subject to legal regulation, which is the starting point for understanding the concept of the object of procedural and legal regulation. In turn, social relations, as a stable connection of interacting subjects, meet such criteria as social importance, conscious will, typology, frequency, formal equality of subjects of legal life and others. As a result of the research, it was concluded that the object of procedural and legal regulation should be understood as a scope of certain social relations regulated by the rules of procedural law and procedural activities of specially authorized entities.

RUDN Journal of Law. 2020;24(3):572-590
pages 572-590 views

HISTORICAL AND LEGAL RESEARC

HISTORICAL-LEGAL FUNDAMENTALS OF THE STATE RUSSIAN POLITICS IN XVI-XVIII CENTURIES TOWARDS ABORIGINAL PEOPLES ON THE EXAMPLE OF THE MORDVINS

Sushkova I.N.

Abstract

The rationale of the study is the uniqueness of the system of the multi-national and multi-confessional Russian state. Peoples' inclusion into a single state legal framework determined the need to develop a relevant ethnic legal policy. In this regard, this paper is aimed at articulating the legal fundamentals of the Russian politics in XVI-XVIII centuries towards aboriginal peoples on the example of the Mordvins. The paper discusses the key aspects of the Mordvins’ life under the Russian law. It looks into 16th-18th centuries regulations regarding non-Russians that determined the specifics of their adaptation within Russia. The study is mainly based on the formal-legal, historical-legal methodology with emphasis on sociocultural and legal-anthropological approaches, which made it possible to historically and legally assess laws and regulations that reflect specifics of Mordvins’ position in the 16th-18th centuries. The paper has a practical value for improving the legislation for inter-ethnic relations and strengthening the foundations of federalism as the key characteristic of the Russian state.

RUDN Journal of Law. 2020;24(3):591-607
pages 591-607 views

LAW AND DIGITAL TECHNOLOGIES

THE PROBLEM OF MEANING OF LAW IN A DIGITAL SOCIETY

Gavrilova Y.A.

Abstract

The article is devoted to the evolution of law in a digital society in a semantic approach. The rapid development of digital technologies is characterized by contradictory trends. The new technical and technological reality can be terminal for the development of society if people entrust themselves to a "digit" and will not reasonably and responsibly organize their social relations in terms of legal regulation. A more humane version is to consider digital models as a tool for solving social problems. In this way, law should acquire the quality of the main tool of such transformations and along with new functions; those functions are expert-analytical, forecasting, priority adaptation, standardization of technological control. The problem of meaning of law in a digital society can be attributed to most important problems. It covers a wide range of debatable issues: the relation-ship between the real and the virtual in law, consideration of artificial intelligence as a possible subject of law, distinction between truth and plausibility in law, se-miotic nature and methodology of cognizing the meaning of law in the world of signs, symbols, codes, etc. The purpose of the article is to formulate the author's view on the dynamics of the law’s meaning in a digital society from the point of view of ontology, epistemology, methodology and applied aspect of knowledge. Research methods: formal legal, analysis, interpretation, forecasting, and modeling. The results of the study. In a digital society, law is being transformed into digital semiotic and augmented reality, with technology as an integral part of it. In these conditions, law, according to author, will preserve the regulatory and value potential for human society on condition that software machine codes are integrated into the human environment, and used to the benefit of a human being. There-fore, the traditional procedures of law-making, interpretation, concretization, application of law and dynamic meaning-making will remain relevant; by analogy with them, the software allowing to interact with the machine will be created and developed. The article arrives at the concludion that cognition of the meaning of law in a digital society rests in the search for the truth: law is a human reality and scientific and technological progress is evaluated in compliance with it.

RUDN Journal of Law. 2020;24(3):608-628
pages 608-628 views

CONTROL OF THE INTERNET IN THE SYSTEM OF FUNCTIONS IN THE MODERN STATE

Strukov K.V.

Abstract

The article discusses the development of state functions concerning Internet. It focuses on the analysis of the main problems that impede the development of control function. The research suggests proposals for the development of such function by the state. Based on the studies, a forecast about the prospects for further strengthening of state control over the Internet has been made.

RUDN Journal of Law. 2020;24(3):629-657
pages 629-657 views

NEUROMARKETING AND FREE WILL IN CIVIL LAW

Likhter P.L.

Abstract

The research is devoted to topical issues of law in the field of neuromarketing. The transition from commodity economy to economy of impressions is largely due to application of modern methods of monitoring brain functioning in order to increase efficiency of production and trading strategies. Due to the potential ability to influence the decision-making process of clients, neuromarketing attracts mixed opinions from lawyers and psychologists. The current legislation does not provide an appropriate level of regulation of neuroscience and their results in the market. At the same time, the precontractual impact on the consumer may contain signs of distorting the principles of freedom of contract, good faith, and reasonableness. The article proposes to consider the rational behavior of an individual - one of the main presumptions of civil law - from a new perspective, given the current results of neuropsychological research and ethical and legal aspects of social relations. The results of the work allow to speak about fundamental possibility of limiting the dynamic form of free will in a contractual obligation (up to the refusal of a transaction) if there are conditions related both directly to the psychophysiological characteristics of the counterparty and the pe-culiarities of neuromarketing effects under a specific contract. The relevance of hierarchical concepts of autonomy of will is noted; these are the situations when an individual choice is subject to legal protection, if it reflects a genuine will, consistent with the essential goals and values of the person. The absence of defects in awareness and voluntariness in such cases is a key aspect of principles of freedom of contract and reasonableness associated with a conscious decision when entering an obligation.

RUDN Journal of Law. 2020;24(3):658-672
pages 658-672 views

ADMINISTRATIVE AND FINANCIAL LAW

THE NEW EUROPEAN UNION FINANCIAL MARKET ECOSYSTEM: DIGITALIZATION AND SUSTAINABILITY

Frolova E.E.

Abstract

The article is devoted to the analysis of a new concept - the ecosystem of the financial market of the European Union. It is proved that the new ecosystem of the financial market of the European Union, aimed at the priorities of "sustainable financing" has developed and become the objective reality of new public relations. In this regard, a comparative analysis of the above issues is of particular importance. The study showed that the European Union in December 2019 presented its vision of regulating a new ecosystem of the financial market: the cornerstones of this regulation were identified - the regulation on information disclosure, the regulation of low-carbon standards, the draft regulation on taxonomy. Given the fact that the above normative acts apply not only to participants in the EU financial market, but also to third countries, Russia needs to determine its position on this issue. A lag in the legal regulation of these issues can lead to serious losses for Russian legal entities offering financial services. The purpose of the study is to form an understanding of the principles of legal regulation of “sustainable financing” in the European Union based on an analysis of regulatory acts and scientific sources. The article uses General scientific methods of cognition: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic. Private scientific methods were used: legal-dogmatic and the method of interpretation of legal norms.

RUDN Journal of Law. 2020;24(3):673-694
pages 673-694 views

OBJECT OF TAXATION UNDER DIGITALIZATION

Lyutova O.I.

Abstract

The article investigates the problem of content change of the concept object of taxation in the Russian tax law on the path to digital economy. The purpose of the article is to analyze the provisions of the Russian tax legislation, international norms, as well as academic literature devoted to identification of certain new goods and phenomena as possible objects of taxation, thus updating the concept of the object of taxation itself. The development of information technologies generates the following unavoidable problems related to the object of taxation concept content, which allows reviving the discussion about the content of this tax and legal category: the impossibility to assess implementation operations as potential tax objects with the help of the classical triad «product, work, service»; recognition in certain situations (for example, in case of electronic money payment) as the object of taxation is not one, but a set of legal facts (cause of action); the need to establish the object of taxation through the so-called «tax relationship» between the object and the subject of taxation. In connection with the first problem, the author proposes to unambiguously define in the Tax Code the legal nature of transactions with digital products for tax purposes, treating them as a new type of service. The conclusion is based on the experience of international regulation and suggests supplementing the provisions of the Tax Code in terms of legal regulation of the concept taxation object as well as VAT taxation. The re-search of the second problem leads to the conclusion that it is necessary to clarify the rules of the Tax Code when the counterparties carry out taxable transactions, whose settlements are made with electronic money. In this situation, the object of taxation is not single, but suggests several legal facts-actions of the potential tax-payer. On the third problem the author raises the issues of identification of the taxpayer in case of certifying the taxable transaction by the digital signature analogue. Taking into account international experience, as well as national civil law regulations, it is considered necessary to include provisions on digital certificates and digital signatures in tax legislation.

RUDN Journal of Law. 2020;24(3):695-716
pages 695-716 views

CRIMINAL LAW AND CRIMINOLOGY

COMPUTER TECHNOLOGIES FOR COMMITTING SABOTAGE AND TERRORISM

Klebanov L.R., Polubinskaya S.V.

Abstract

The article discusses the problems that arise in connection with the crimes against state and public security committed by use of computer and network technologies. This topic is becoming relevant because some states have already experienced the effects of “combat” computer viruses, which can be regarded as waging war using cyber weapons. The most famous example is the attack by the Stuxnet computer virus on an Iranian uranium enrichment plant. The virus was created specifically to disable industrial control systems. The use of unmanned ground and air vehicles to carry out terrorist acts is of particular danger. The Russian military in Syria is constantly confronted with terrorist attacks: the Khmeimim aerospace forces base is regularly attacked with unmanned air vehicles - drones. Terrorist acts with the use of computer and network technologies are no less dangerous. The destructive potential of cyberterrorism is determined by the widespread computerization of state and public life, the implementation of projects to create smart cities, including smart transportation, as well as the intensive development of the Internet of things. The purpose of the article is to analyze new criminal threats to state and public security, as well as to study high-tech ways of committing crimes such as sabotage, terrorist acts, and other crimes of a terrorist nature. The cost of their consequences for society is very high, and criminals do not always need to attack social objects directly - it is enough to spread panic among the population using online media, social networks and websites of authorities of various levels, after obtaining illegal access to them. The article describes some of the techniques already used to commit crimes of sabotage and terrorism. The authors draw attention to the priority of cybersecurity both for engineers of devices with elements of artificial intelligence, and for lawmakers who should pay attention to methods of technical forecasting when developing legal norms aimed at prevention of new ways of committing such crimes. When writing the article, the authors used a wide range of Russian and foreign sources of legal, statistical, sociological and other information. The authors used such research methods as analysis, synthesis, deduction, induction, formal legal method as well as comparative legal method.

RUDN Journal of Law. 2020;24(3):717-734
pages 717-734 views

PROCEDURAL LAW. PROSECUTOR SUPERVISION

PRE-TRIAL PROCEDURE FOR QUALIFYING INFORMATION MATERIALS AS EXTREMIST AS A CONDITION FOR APPLYING TO COURT

Zhenetl S.Z.

Abstract

The article is devoted to the pre-trial procedure for qualifying information, information materials, posted on information and telecommunication networks, including the Internet, as extremist and prohibited for distribution as a condition for applying to court. The object of the study was a complex of public relations aimed at countering extremism. As a result of the study, the author concluded that part of the complex of preventive measures, carried out by the authorized bodies in order to counter extremism, can be assessed by the court as a pre-trial procedure for qualifying information as extremist. The author draws attention to the lack of certainty in the terms “extrajudicial procedure” and “pre-trial procedure”, which requires improvement of the legislation; the need to determine the mechanism of pre-trial procedure of applying to court by establishing criteria, specific and sufficient actions of the authorized bodies to apply to court.

RUDN Journal of Law. 2020;24(3):735-759
pages 735-759 views

SEPARATION OF POWERS BETWEEN PROSECUTOR AND THE HEAD OF THE INVESTIGATIVE BODY

Babich N.V.

Abstract

Problems related to the delimitation of powers between the prosecutor and the head of the investigating body, as well as ways to resolve them, are in the constant focus of attention of representatives of legal science. The concept and model of differentiation of powers between such participants in criminal proceedings that was introduced in 2007, has led to serious problems, which are expressed in: - decrease in the quality of prosecutorial supervision of the preliminary investigation body in order to protect human and civil rights and freedoms at the stage of preliminary investigation; - lack of procedural independence of the investigator, priority of interdepartmental control over prosecutorial supervision; - duplication of prosecutor’s supervision; - large accusatory bias of the court, prosecution and investigation body and others. The negative side of such problems is that the rights and freedoms of man and citizen are violated in the first place at all stages of criminal proceedings. In this regard, the properly organized delineation of powers and functions between the prosecutor and the head of the investigating body will be standard for ensuring the rule of law; it will contribute to the fight against crime and speedy preliminary investigation in order to create the court basis to reduce the cases of incorrect court decision. The purpose of the scientific article is to analyze the provisions of the current concept and models of separation of powers between the prosecutor and the head of the investigating body, identify the main systemic problems in this area and formulate proposals for their elimination. To achieve this goal, the scientific article explores the features and problems of individual concepts and models for their implementation in organizing activities of prosecution body and preliminary investigation bodies to delimit the powers between the prosecutor and the head of the investigating body. In a scientific article, the author came to the conclusion that reforming the current concept and model of separation of powers between the prosecutor and the head of the investigating body in order to eliminate significant problems is not possible without a reform. A return to previous concepts and models is also unacceptable due to historical experience of their application. The necessity of reforming the foundations of the entire law enforcement system of criminal justice body as a whole and reviewing the legal status of the prosecutor at all stages of criminal proceedings is noted.

RUDN Journal of Law. 2020;24(3):760-779
pages 760-779 views

INTERNATIONAL LAW

STATE OF ENVIRONMENTAL PROTECTION IN THE OIC COUNTRIES: GENESIS, ONGOING INITIATIVES AND RECOMMENDATIONS FROM HUMAN RIGHTS PERSPECTIVE

Butt M.S.

Abstract

The article focuses on the state of environment protection at global and regional levels. It dwells in detail on the definitions, history, causes of climate change and the efforts made by the international community to address this existential threat in a just and efficient manner, as well as the ongoing efforts to salvage the future of humanity by embarking on the road to sustainable development. The article also focuses on explaining the state of environmental degradation from a human rights perspective and suggests requisite measures that ensure the promotion and protection of human rights of the most disadvantageous persons and segments of every society. The special emphasis is placed on the origin of Islamic ecological thought, the dichotomy between Islamic precepts, which are fully in line with the just and sustainable use of natural resources, and the contradictory practices of Muslim countries. Equally important in this regard are the various initiatives, policies and decisions taken by the Organization of Islamic Cooperation (OIC) to address the challenge of environment protection at the national, regional and international levels, as part of the global community. In dealing with the state of environment protection in the OIC countries, the article also situates the overall debate within the context of the right to a healthy environment and the concept of climate justice. It accordingly makes a number of recommendations to different stakeholders including the primary target of the article i.e. the OIC countries both from a developmental and human rights perspective.

RUDN Journal of Law. 2020;24(3):780-800
pages 780-800 views

REVIEWS. DISCUSSION FORUMS

REVIEW ON THE MONOGRAPH BY DENIS A. DOBRYAKOV “THE SYSTEM AND TYPES OF CRIMINAL PUNISHMENTS IN THE RUSSIAN FEDERATION AND THE REPUBLIC OF KOREA”. MOSCOW, YURLITINFORM PUBL., 2020. 192 р.

Utkin V.A.

Abstract

The review of the monograph by the candidate of legal sciences Denis A. Dobryakov “The System and Types of Criminal Punishment in the Russian Federation and the Republic of Korea” reveals and evaluates content of the study’s key results. In addition to the analysis of the work, the review outlines some provisions that require additional attention of the author. In general, it can be noted that the monograph is of value to legal science and can serve as the basis for subsequent studies in the field of comparative criminal law.
RUDN Journal of Law. 2020;24(3):801-805
pages 801-805 views

REVIEW ON THE MONOGRAPH BY R.KH. MINNEBAYEVA “THEORETICAL PROBLEMS OF OPTIMISING ACTUAL COMPOSITIONS”. MOSCOW: YURLITINFORM PUBL., 2020.184 р.

Tsukanova E.Y.

Abstract

The article reviews the monograph by R.Kh. Minnebaeva «Theoretical problems of optimization of Actual Compositions» assesses the content of a monographic study devoted to solving some issues of improving the list of elements and their structural relationships within the actual composition. Particular attention is paid to the debatable aspects of the author's approach to solving the studied problems.
RUDN Journal of Law. 2020;24(3):806-812
pages 806-812 views

ANNOUNCEMENT OF “PROBLEMS OF THE THEORY OF STATE AND LAW” EDITED BY DOCTOR OF LEGAL SCIENCES, PROFESSOR N. A. VLASENKO. MOSCOW, “NORMA” PUBLISHING HOUSE, 2020. 544 р.

Mongush A.M.

Abstract

The article contains an overview of the published textbook “Problems of the theory of state and law”. The publication is devoted to topical and controversial issues in the theory of law and state, contains interesting materials for the study of modern problems of the methodology of legal science, approaches to understanding of law, etc. The textbook will familiarize the readers with the points of view of various authors and their arguments on many issues. The educational publication is a complex work of a team of authors and is intended for a wide range of readers.
RUDN Journal of Law. 2020;24(3):813-820
pages 813-820 views

VIRTUAL SCOPE OF LEGAL SCIENCE AND NEW OPPORTUNITIES FOR THE PROFESSION IN THE POST-PANDEMIC PERIOD

Trikoz E.N.

Abstract

The further “digital” changes in the field of law, and the pandemic-induced transformation of legal practice and the profession of a technocratic lawyer are analyzed. The author forcasts appearance of the so-called virtual (digital) law as a new trend in jurisprudence. The problem of technical security and legality of the online court hearings is raised.
RUDN Journal of Law. 2020;24(3):821-829
pages 821-829 views

ON PREPARING THE NEW NOMENCLATURE OF SCIENTIFIC SPECIALTIES IN JURISPRUDENCE

Vlasenko N.A.

Abstract

The article looks at the process of preparing a new nomenclature of scientific specialties in Russia. Special attention is paid to the development of a model of the nomenclatur of scientific specialties in law. The reasons for optimising the current nomenclature of scientific specialities are analysed as well the goals and objectives are set up for developers in regard to this document. A new design of scientific specialties in law is presented. Attention is drawn to its features, including compactness and avoiding excessive differentiation of scientific branches.
RUDN Journal of Law. 2020;24(3):830-833
pages 830-833 views

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