Vol 25, No 3 (2021)


The declining state: Aristotle teachings and post-Soviet reality

Vlasenko N.A.


The substantive aspects of modern post-Soviet statehood are analyzed on the basis of the traditional methodological guideline, called the elemental approach (Aristotle, Jellinek), which presupposes the allocation of key state-forming features. The Aristotle concept of “rejected state” is actively applied. For the purpose of a deeper illustration of the so-called “deviating” moments in the post-Soviet states, metaphorical comparisons are used, such as “imitation state”, “alienated state”, “selective state” and others. Deviating patterns are described through weak systemic strategic planning and the lack of relevant scientific concepts, including in emergency situations, as well as insufficient supremacy of judiciary, plevalence of unitaty tendencies and others. The author's argumentation is supported by data published in various official sources (statistics, results of special sociological studies, current Russian legislation, reports, expert opinions, etc.). The article is intended for specialists in the field of the theory of state and law, political science, sociology, etc. It will be of interest to postgraduate students, state and municipal employees.

RUDN Journal of Law. 2021;25(3):479-505
pages 479-505 views

The concept of “strong state” in the political and legal dimension

Malinovsky A.A.


The concept of “strong state” in the general theory of state and law has not been studied in sufficient detail. In political science, the science of administrative law and in international legal doctrines, this concept is considered mainly from geopolitical, military-strategic and political-administrative positions. In the presented article, a theoretical and legal analysis of the concept of a strong state is carried out. Methodologically, the author adheres to the approaches of political realism and realistic theory of law, which are aimed not at building a model of an ideal strong state, but at studying really functioning strong states with all their problems and contradictions. It is proposed to understand a strong state as a state that effectively uses any legal means to carry out the functions assigned to it in its own political interests. The article in the format of a scientific discussion analyzes the signs and criteria of a strong state, characteristics of the law of the strong. The research subjects also include the problem of a strong state legitimacy, the category of the great power and the process of legal expansion.

RUDN Journal of Law. 2021;25(3):506-526
pages 506-526 views

Trade treaties of Russian and British empires with Yattishar: historical and legal study

Pochekaev R.Y.


The relations of the Russia and Britain with the self-declared state of Yettishar was a striking example of different approaches of two empires to the states and peoples of the Central Asian regions within so called “Great Game’, i.e. Russo-English rivalry in the 19th c. The trade treaties of Yattishar with the Russian Empire of 1872 and with the British Empire in 1874 became a legal reflection of these approaches and are of great interest within the context of the historical experience of the legal status of unrecognized states and positions of the rival “world powers” towards such states. The purpose of the article is a historical-legal analysis of above-mentioned treaties and comparative-legal analysis of them with the similar treaties signed by Russia and England with other Central Asian states during the same period. Author attempts to clarify if treaties of 1872 and 1874 confirmed recognition by both empires of Yettishar as a subject of international relations and how these legal documents reflected confrontation of Russia and England in the region. The study is mainly based on the formal-legal, historical legal and comparative-legal methods. Also author used the methods of legal anthropology and general history. The results of the research to a certain extant correlate with modern approaches in the policy of Russian and western powers in Central Asia in terms of political situation in the region as well as political, legal and cultural traditions of Central Asian states and peoples.

RUDN Journal of Law. 2021;25(3):527-544
pages 527-544 views

Judicial practice in the law reality of Russia: experience of a comprehensive research

Skorobogatov A.V., Krasnov A.V.


The legal nature of judicial practice in the context of legal reality is investigated through prism of phenomenological and axiological analysis. The purpose of the research is to form scientifically proved knowledge of the place and judicial practice role in the legal reality. Methodology is based on complex use of postclassical methods of investigation: integrative approach allows combining within the category both activity of courts on ensuring justice and gained experience. The findings are as follows. Judicial practice is analyzed as a part of social and legal practice. It shows organic unity of knowledge, activity and result. Judicial practice promotes formation of uniform rules of interpretation, formulation of legal norms and decision making in similar situations/cases that removes ambiguity in understanding of norms and clarity of their content. Correlation of ordinary, professional and doctrinal understanding of law as well as rapprochement of social expectations and judicial consciousness, which provide legitimacy to legislation and judiciary practice, is ensured. Conclusions are as follows. Judicial practice covers activity of judicial bodies in administering justice, taking in different values - pragmatist, organizational, logic-intellectual, and formal-legal in a combination of experience generalizations. Due to this, the feedback system between legal norms and individual acts that is reflected in actual formation of models of interpretation and realization of norms, and finally leads to refining legislation is ensured. Judicial practice, thereby, harmonizes legal reality, providing rapprochement of valuable orientations of addressees and senders of law communication.

RUDN Journal of Law. 2021;25(3):545-561
pages 545-561 views

Historical roots and current state of the “public - private law” issue in French legal doctrine

Semitko A.P.


The Soviet legal system did not know the division of law into private and public, because communist ideology did not recognize anything private. The end of communist experiment and transition to legal state, social market economy and respect for human rights naturally led to the need to revive private law and to further develop it; therefore in Russian jurisprudence the issue of dividing the law into private and public has become relevant. The subject is the French legal doctrine on this issue; the study is carried out on the unpublished in Russia sources. The historical roots of the basic division of law and its significance for the French legal system are in the focus. Despite the absence of rigid boundaries in this division, the theory describing it is based on the real legal reality of the Romano-Germanic family of legal systems. This theory is not abstract theorizing; it is useful for practice because it aims to maintain a balance between public law and private law regulation. The issue of basic division of law in the case law system is discussed. A comparative study of the issue in the Russian legal doctrine is conducted. The author comes to the conclusion that human rights are the common part that unites public and private law, and therefore their unity is inextricable: the abrogation of private law, as the experience of building communism in Russia showed, inevitably leads to the destruction of human rights, and then to the transformation of public law into a pseudo-legal system.

RUDN Journal of Law. 2021;25(3):562-585
pages 562-585 views

Legal aspects of environmental safety in the field of medical waste management in the context of the pandemic

Alekseeva N.A.


Medical waste management has always been relevant from a practical point of view, but as a result of the pandemic declared in 2020, this topic has multiplied, leading to significant changes in the legal regulation of medical waste. The realization that re-contamination from medical covid-waste is possible led to the obligation to install disinfectants in medical and pharmacological organizations. The division of medical waste into classes predetermined the assignment of medical covid-waste to class “B”, and after disinfection - to “A”-class, that are possible to transport and dispose after disinfection. However, there is a huge amount of covid-waste outside medical and pharmacological organizations, which is, clearly, are not medical. When mixed with solid household waste and garbage that does not require a transport licence, it increases the likelihood of re-infection of those who handle such waste. The object of the work is to explore these topics and to raise the issue of separation of the accumulation and disposal of non-medical covid-waste in legal regulation, as well as the ways to implement them. Related to this is the issue of environmental pollution in the context of the pandemic, because non-medical covid-waste has increased the amount of plastic that pollutes the environment.

RUDN Journal of Law. 2021;25(3):586-601
pages 586-601 views


“Equality of arms” in criminal procedure in the context of the right to a fair trial

Khalilov F.Y.


The level of realization of the right to a fair trial is one of the crucial indicators of democracy in any state. In order to ensure this right, all the minimum standards deriving from it must be clearly understood by law enforcement agencies and their practice must meet these standards. As ‘equality of arms’, the right to a fair trial, is not directly enshrined in the text of Article 6 of the European Convention on Human Rights (hereafter - the Convention) and is of implicit character; the issues like its essence, content and the way it should manifest in practice are open for discussion. For this reason, the focus on those issues is highly relevant. The aim of this article is, with reference to the case law of the European Court of Human Rights (hereafter - ECHR) and the modern doctrine based on this right, to explain the role of this principle and the essence of its mutual relations with the other elements of the right to a fair trial. Selected case law of ECHR bears great interest compared with other decisions and is discussed in the form of empirical materials of the study. From the doctrinal materials, interpretation of Article 6 of the Convention and theoretical sources related to the European standards in the criminal procedure are also analyzed. The article exercises methods of dialectical comprehension; they are determinism, induction, deduction, case studies and methods of law interpretation. As a result of the study, a unique doctrinal commentary has been obtained in the context of adversariality and impartial and independent court principles of the concept of ‘equality of arms’, as well as, interaction of the minimum rights of persons subject to criminal prosecution, guaranteed by the Convention.

RUDN Journal of Law. 2021;25(3):602-621
pages 602-621 views

Integration of “smart” technologies in the civil proceedings of the People’s Republic of China

Rusakova E.P.


The concept of creating digital justice is not quite new in the modern world, but its implementation takes place in various countries in different ways. China has achieved tangible success, where artificial intelligence technologies are gradually being integrated into judicial proceedings. A robot judge is a real mechanism for resolving a dispute, and people's attitude to this form of protection of the fundamental right guaranteed by the state is mixed, but as practice shows, this method is acceptable in the era of the digital revolution. The research purpose is to identify the main trends in the process of integrating “smart” technologies in the civil proceedings of the People’s Republic of China based on artificial intelligence technologies. The research has identified 1) common for all countries stages collaboration between artificial intelligence and humans; 2) various obstacles to introduction into the judicial system of independent units specilising in dispute resolution that are connected with Internet; 3) basic technologies required to create “smart” courts; 4) main tasks for ensuring social guarantees in the digital form of civil rights protection; 5) main trends in the process of digitalization of civil proceedings. The study led to the conclusion that artificial intelligence technologies have deeply penetrated the Chinese justice system, radically changing all judicial activities, as well as procedural institutions. Close cooperation of IT companies, judicial community and government agencies ensured the success of this process.

RUDN Journal of Law. 2021;25(3):622-633
pages 622-633 views


Close-out netting in the European Union: contract practice and unification of legal regulation

Klementyev A.P.


The article focuses on the general characteristics of the European Union legal framework pertaining to close-out netting; it offers analysis of standard documentation provisions used within European Union for netting. Close-out netting is the process of termination of financial transactions by the parties in case of violation of obligations under master agreements, often with participation of banks and other financial institutions. Currently, EU legislation on netting consists of two major parts (regulatory regimes): the prudential regime and the insolvency regime. The former addresses banks and financial institutions regulating requirements for financial ratios and capital adequacy of these organizations. The insolvency framework is the most complex of the said legal regimes as it is comprised of various directives and regulations affecting performance of netting in the course of bankruptcy procedures. In recent years, the insolvency regime has undergone immense change marking the transition from unconditional legislative support of netting without any exemptions to a more balanced approach aimed at limiting close-out netting possibilities with respect to systematically important financial organizations.

RUDN Journal of Law. 2021;25(3):634-653
pages 634-653 views

Features of exercising control over economic concentration: the experience of Russia, France and USA

Egorova M.A.


The relevance of the topic is due to the comprehensive development of digital technologies and the need for timely legal regulation of new phenomena of public life. Digitalization is not only rapidly penetrating all sectors of the economy, but is a trigger for the creation of qualitatively new economic relations. The digital transformation of the economy and markets, in addition to objective advantages, also carries negative consequences. Negative manifestations are possible in the monopolization of commodity markets. Antitrust laws are changing in line with the expansion of digital markets. The article identifies the main obstacles to regulating monopolies in the digital economy. The practice of antimonopoly regulation of digital platforms is considered. The tasks of adopting the fifth antimonopoly package as expanding the scope of the Federal Law “On Protection of Competition” are outlined. In addition, the concept of economic concentration is analyzed, as well as signs of restricting competition when considering transactions in its conditions. Particular attention is paid to differences in approaches to regulating the digital market in Russia, France and USA. A comparative analysis of the antimonopoly legislation of Russia, France and USA, types of economic concentration, regulations for control over concentrations at the level of different jurisdictions has been carried out. The phases of control over economic concentration, the powers of the antimonopoly authorities, the assessment of criminal encroachments on competition are considered in detail.

RUDN Journal of Law. 2021;25(3):654-672
pages 654-672 views


The concept of integrating artificial intelligence into the legal system

Gavrilova Y.A.


The article is devoted to the issue of artificial intelligence integration into the legal system. The human life is inextricably linked with digital technologies in the digital age. Legal regulation of developing and applying artificial intelligence has a complex influence on the legal system of Russian society. In this regard, the issue is characterized by high scientific and practical significance and meets the strategic needs of the legal policy of the Russian Federation. The purpose of the article is to formulate the main elements of the concept of integrating artificial intelligence into the legal system. Research methods contributing to reaching the aim are formal-legal, analogy, extrapolation, cultural-historical, modeling and forecasting. The results of the study can be outlined as follows. We think that humanistic approach to domestic legal system is the most optimal; within this approach artificial intelligence is naturally and imperceptibly integrated into the human environment as a “smart” intelligence that performs the functions of “smart” regulation. The legal regulation of embodied (robotic) and swarm (collective) artificial intelligence should be introduced with reasonable caution and predictability with regard to technical standards and controlled legal experiments after conducting the widest possible ethical expertise. When forming the concept of artificial intelligence integration into the legal system a number of fundamental factors must be taken into consideration: legal continuity of doctrinal legal knowledge, differentiation of legal regimes and consideration of the cultural and civilizational code and psychology and mentality of the society where such legal regulation is being developed and implemented.

RUDN Journal of Law. 2021;25(3):673-692
pages 673-692 views

Blockchain technology in tax law theory and tax administration

Lyutova O.I., Fialkovskaya I.D.


The article is devoted to the problems of improving the tax legislation of Russia at the stage of active implementation of blockchain technology, which is characterized by contradictory trends in the legal regulation of digital technologies. The relevance of the study of application of blockchain in tax relations is due to the need to assess the tax consequences of transactions using digital financial assets, as well as emergence of new directions for improving tax control based on blockchain technology. The purpose of the study is to analyze the provisions of Russian and foreign tax legislation, as well as doctrinal sources on improving legal regulation of tax relations in regard to blockchain technology. The study shows efficacy of the blockchain analysis for the purposes of tax and legal regulation carried out by developing concepts related to applying such technological solution as a tool in conducting cryptocurrency transactions. The theoretical significance of the study lies in the author’s definition of the concept of blockchain technology for tax purposes, as well as in proving the value of legal regulation of tax relations applying blockchain. The practical implication is connected with voicing the need to develop legal regulation of applying blockchain technology when creating a system of transactional (automatic) taxation and levying the so-called “smart taxes” while fulfilling tax obligations in the context of introducing a goods traceability mechanism. This will also contribute to minimizing tax reporting. The research methodology are general and private scientific methods of knowledge: formal-legal, analysis, comparative-legal, and forecasting and modeling. The last two are often applied in tax law in light of digitalization and globalization.

RUDN Journal of Law. 2021;25(3):693-710
pages 693-710 views


Law is an integral element of culture: to the 85th anniversary of RUDN professor Gennady Illarionovich Muromtsev

Kornev A.V.


Dedicated to 85th anniversary of the Doctor of Legal Sciences, Professor of the Theory of Law and State Department, Dead of the Scientific Direction “Social and Cultural Investigations of Law” Gennadiy Illarionovisch Muromtsev. The scientist’s contribution to legal science has been analyzed. The focus is on his investigations in the sphere of legal and political systems of the developing countries, general theory of law, and comparative law. G. I. Muromtsev looks at the specifics of legal systems of the developing countries in combination with different elements of legal cultures within the national legal systems; this makes their structure, the system of sources of law, the technique of its systematization and so on significantly inconsistent. Professor G. I. Muromtsev for the first time in the theory of law of this country revealed the specifics of the traditional law and law-governed nature of its origin. Also for the first time ever, he gives the universal definition to the notion source of law, which is acceptable not only to European but also to traditional law. He investigates law as an integral part of culture; through this prism he examines contemporary Russian law. He gives original interpretation to legal technique, the code of laws in reference to Russian conditions. He has developed fundamentaly new conceptions of genesis of the law, mononorm, historical typology of the law; for the first time from materialistic standpoint he revealed the law-governed nature of the origin, structure, and evolution of Muslim law.

RUDN Journal of Law. 2021;25(3):711-718
pages 711-718 views

Problems and Prospects for the Development of Local Self-Government in the Russian Federation and Foreign Countries: Review of the All-Russian Conference with International Participation

Chikhladze L.T., Komlev E.Y.


On April 19-23, 2021, an All-Russian conference with international participation “Problems and Prospects for the Development of Local Self-Government in the Russian Federation and Foreign Countries” was held at the Law Institute of the Peoples’ Friendship University of Russia on the basis of the Department of Municipal Law. More than 150 scientists from the Russian Federation and foreign countries took part in the Conference. The Conference has acquired a traditional character and is being held for the fifth time. The 2021 conference was marked by a significant increase in the number of participants, both Russian and foreign. The additional relevance of the Conference was caused by the Russian 2020 constitutional reform, which has a significant impact on the development of local self-government institution in the Russian Federation. This review presents a general description of the conference, the contents of the plenary meeting and sessions.

RUDN Journal of Law. 2021;25(3):719-728
pages 719-728 views

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