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Vol 8, No 4 (2021)

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Actual topic

About the Legal Nature of the Termination of Obligation in the Context of Modern Legislation

Ananiev A.G.


In this article, the author proposes a concept for understanding the termination of a civil obligation in the context of modern legislation. The study aimed to build a doctrine on the concept of the legal nature of the termination of obligations in the context of modern domestic legislation. To solve this, the study analyzed the available theoretical approaches, set out in theoretical studies and educational literature on determining the termination of an obligation. It further analyzed law enforcement practices to determine the answer to the question posed, as well as generalization and systematization of the data obtained. To solve the set tasks, the author analyzed the available approaches to understanding the termination of obligations. The paper presents the results of the research performed, based on the analysis of the current rules of civil legislation, aimed at regulating the issues of termination of obligations through the concept of existing legal links between the elements of the corresponding obligation relationship. The methodological basis of the research is the method of analysis, the sequential study of individual aspects, and the synthesis of the results obtained, integrating them into a single whole. The structural basis of the study is made up of aspects of law enforcement practice, in order to establish through them the desired concept, the study of the Soviet and sovereign civilian array, substantiating individual provisions of the declared topic, and building a general picture based on the results of a generalized analysis of the material presented. The study made it possible to conclude that when a civil obligation’s structure is destroyed, due to the interruption of legal ties between any of the elements, which constitutes the legal nature of the phenomenon under consideration, the obligation is terminated by operation of law.

Russian Journal of Legal Studies (Moscow). 2021;8(4):9-16
pages 9-16 views

Protection of the Rights of Obligations

Zhmaeva E.S.


The article is devoted to the study of protecting the rights of obligations. The study aims to resolve the question of whether the possibility of protection is provided for in Article 302 of the Civil Code of the Russian Federation to the rights of obligations. In addition, the author examines the question of whether it is advisable to introduce the protection of a bona fide acquirer of the right of obligations in the framework of an assignment similar to the protection in the form of a vindication. The analysis of judicial practice illustrates that at present the acquirer of the right of obligation under an assignment agreement does not have access to the entire scope of protection provided by law to the acquirer of the thing itself. To answer these questions, the author turns to the theory of binding rights as objects of civil rights. The author concludes that the obstacle to claiming the rights of obligations is the absence of the concepts of ownership of the right and a bona fide acquirer of the right for the turnover of the rights of obligations, both at the level of the law and in the doctrine. The author addresses whether it is possible to own the law of obligations. In connection with his consideration of this issue, the author touches upon the theory of the visibility of law. Based on the analysis of the relevant theory and practice of law enforcement, the author concludes that the category of domination is unsuitable for binding rights, as well as that possession, in its classical sense, is not applicable for binding rights. The author emphasizes that, in the absence of direct legislative regulation, it is not possible to resolve the issue of applying a vindication claim to the rights of obligations. The paper presents arguments in favor of the conclusion that it is now necessary to introduce the protection of the law of obligations (including the right of claim) in a manner similar to the protection provided for in Article 302 of the Civil Code of the Russian Federation. The author anticipates the development of an appropriate mechanism, considering the peculiarities of the rights of obligations as an object of civil rights, and the inapplicability of the theory of the appearance of law for such a mechanism, as a perspective for resolving this issue.

Russian Journal of Legal Studies (Moscow). 2021;8(4):17-22
pages 17-22 views

Theory and history of state and law

The Process of Becoming a Political Personality and the Factors That Determine It (the experience of the German Chancellor Otto von Bismarck)

Baev V.G., Meshcheryakova S.V.


The proposed article attempts to reveal the process of becoming a politician, and not merely an ordinary politician, but one who develops and imposes a large-scale policy that independently determines the options for the development of his country: the creator of the Second Empire in Germany, the great statesman Otto von Bismarck. The goal of the study was to analyze the legal, political, and psychological factors that contributed to the rise of the first civil servant in the empire. The life and fate of each person are in the crosshairs objective and subjective circumstances interact. The role of external, otherworldly forces, colloquially called chance, is also not to be excluded in any such rise. Contrary to popular belief, people are not born clean slates at all. Instead, each bears the stamp of parental education and the personality and health imposed by the genetics of distant ancestors. From the enormous variety of factors, experiences, and relationships within which a personality is formed, the authors of this study chose reference points that, in their opinion, contributed most to forming the contours (or images) of Bismarck as an outstanding politician. These include the aspects of his character that absorbed and reflected the influence of his ancestors and parents (most of all, his mother), as well as the principles that prevailed in the German educational system and the public service of Germany. In this objective review, the subjective (personal) properties of the applicant for the highest administrative position in the state were acutely manifested: a hypermotivation to acquire power and the ability to recognize the importance of representing state interests for themselves.

In their conclusions, the authors relied on collections of Bismarck’s letters, on his parliamentary and political speeches, and other documents that “accompanied” his life. They also relied upon their own interpretation of the distant events of Bismarck’s life and times. The study thus acquired an intersectoral character. Although the historical subtext of our research is obvious, the proposed material will also be of interest to modern politicians.

Russian Journal of Legal Studies (Moscow). 2021;8(4):23-32
pages 23-32 views

Law of Digital Society: Actual Problems and the Way of Development (the Ending)

Razuvaev N.V.


The author believes that attempts to oppose the postmodern society to digital society are scientifically inappropriate for several reasons. First, according to the consensus adopted in the relevant literature, post-industrial society is a stage of sociocultural evolution, at a point when sophisticated technologies, including information technologies, begin to play a leading cultural role, determining the direction of the development of human civilization. Secondly, the cultural, social, political, and legal uncertainties of the Postmodern Era are not encouraged and are rather exacerbated during the digitalization of society and law enforcement. In his conclusion, the author discusses the digitalization of law enforcement as the most important trend of the development of the post-Russian society. Thus, according to the author, the right of digital society develops tendencies, which, in general, are inherent in postmodern civilization and act as a natural manifestation.

As demonstrated in the article, the current stage of digital society is the development of legal communication, as characterized by a greater focus, compared with the preceding stages, on the general accuracy of the means of communicating the law, including digital media, as well as their further extraction from objects acting as referred signs. Consequently, digital design of law enforcement generates several problems that have not received an adequate solution.

The most important problems of this kind include anonymization of the subjects of legal interactions — first, states and legal entities and, in part, individuals also — as well as divorcing objects on which these relationships are being addressed. These trends generate a crisis of confidence among communication participants, which is a key problem of post-industrial law enforcement. To overcome such a crisis, the author offers the reconstruction of the rule of law based on human rights and freedoms, which means ensuring the stability and coherence of legal reality.

Russian Journal of Legal Studies (Moscow). 2021;8(4):33-48
pages 33-48 views

Comparative Analysis of Individual Provisions of the National Security Strategies of the Russian Federation in 2015 and 2021

Titov A.A.


In this article, the author conducted a comparative-legal analysis of national security strategies of the Russian Federation in 2015 and 2021. The author attempts to establish why certain provisions of the 2015 strategy were transferred to the new strategy. In addition, the author considers dynamic national priorities and the issues of information security regulations.

Russian Journal of Legal Studies (Moscow). 2021;8(4):49-54
pages 49-54 views

Methodology of Law

Towards the German Doctrine Interpretation and Criticism of the Construct of Comparative Criminal Law Studies

Kudratov M., Pechegin D.A.


It is difficult to deny the usefulness of the method of comparative jurisprudence. Studying the foreign experience of jurisprudence makes it possible to penetrate deeper into understanding the object of research and, accordingly, to approach the solution of a particular doctrinal problem, including taking into account the latest doctrinal approaches. However, do we realize how correctly this method is or is not used by scientists and researchers in reality? Do we see the grounds for a conclusion presented in any foreign publication made based on its conclusions that can claim the status of an objective experience, not subjective or descriptive knowledge?

The article presents an objective and scientific review of the interpretation and criticism of the construction of comparative legal studies from well-known and respected scientists and various directors of the Institute of International Law and International Criminal Law Max Planck (Freiburg, Germany).

This goal is achieved by solving tasks such as analyzing the functions, methods, and theoretical concepts of comparative criminal law and comparing them to one another. It also identifies negative aspects of a superficial attitude to this method of conducting scientific research, which aspects have consistently been paid close attention by eminent German scientists.

Research methods: method of comparative and historical analysis, method of system analysis, formal-logical method.

The results of the study: the fundamentals of the German legal doctrine of the construction of comparative legal studies on the example of the branch of criminal law are summarized, the actual problems of the comparative method of analysis are outlined, and specific criteria are presented based on which it is possible confidently to assert the scientific nature of the obtained comparative legal knowledge.

Russian Journal of Legal Studies (Moscow). 2021;8(4):55-62
pages 55-62 views

Constitutional Law

Conceptual Approaches to the Legal Regulation of Genomic Researches and Their Use in the Russian Federation

Nikitina E.E., Pomazansky A.E.


This article concentrates on the problem of legislative regulation of public relations on genomic researches and the use of genomic technologies in the Russian Federation. Genomic technologies generate many ethical, social, and cultural issues for modern Russian society and bear significant risks for human rights and freedoms. Further, it presents threats to the preservation of human nature not only for existing, but also for future, generations of Russian citizens. For the protection of these values, it is necessary to create a regulatory system for genomic researches and genomic technologies in the Russian Federation.

The regulatory system in this sphere should be constructed on three levels: the international, national, and self-regulatory levels. The authors concludes that there are no fundamental contradictions between international legal acts and the Russian legislation on human rights protection in the context of genomic research. These circumstances make it possible to join the Convention for the Protection of Human Rights and Dignity of the Human Being relating to the Application of Biology and Medicine of 1997.

The article analyzes the current system of legislative regulation on of relevant issues in federal legislation and considers its further development. According to the authors, primary main models of the development of legislation in this area in Russia should be considered: the “traditional” model, developed based on a quantitative increase in norms in various branches of law; and the “complex” model, based on a single comprehensive legal act, which sets out the tasks, principles, and general approaches to the regulation of single institutions relating to genomic researches and their use. The article describes the positive and negative consequences of adopting each particular model for the development of genomics in the Russian Federation

Russian Journal of Legal Studies (Moscow). 2021;8(4):63-72
pages 63-72 views

Law and Economy

Improvement of the Taxation System and its Theoretical Justification

Seliutina T.S.


Taxes are one of the main levers of government influence on a national economy and, at the same time, the most important tool for replenishing the governmental budget. These considerations justify the enormous importance of the objective, correct and harmonious construction of a given taxation system, without which the effective functioning and sustainable development of the national economic complex of the country is inconceivable. Currently, the tax system in Russia is undergoing certain changes, especially in terms of direct taxation of income of individuals, which require a comparison of the decisions made with regard to the theoretical provisions of tax optimization. Consequently, the theoretical study of applicable and potentially available tax instruments in the current period is of particular relevance. The author's study of the theory of welfare economics as a basis for seeking and making practical solutions in the formation and improvement of the national tax system is a monographic study of the works of foreign authors and the interpretation of their results concerning the realities of Russian tax policy to substantiate the changes made to the latter or to refute the feasibility of them. In achieving this objective, the methods of scientific analysis were used: dialectic analysis and synthesis. The study is based on the review of relevant scientific and periodic economic literature. The authors conclude that the simultaneous application of direct and indirect taxes is advisable, provided that the determination of the mechanisms for their use is based on different principles barizing out of the theory of welfare economics. The authors indicate that the taxation of income of individuals is the one direct tax, the application of which is often based not only on considerations of economic efficiency, but also on political and sociological motives, in particular, the concept of justice, which, by definition, is subjective and differs among different social groups and political parties. Nevertheless, the authors emphasize the mandatory nature of the non-linear taxation of income of individuals from both economic and political positions. The paper also concludes that it is permissible to use indirect taxation, in particular, in the form of a value added tax. However, in the case of the value added tax, in contrast to the income tax, the preference for applying the same tax rates and avoiding the use of exemptions from the tax base is justified.

Russian Journal of Legal Studies (Moscow). 2021;8(4):73-82
pages 73-82 views

Criminal process

Criminal Procedure Terms: Innovations of Constitutional Interpretation and Conflicts of Judicial and Investigative Practice

Kovtun N.N.


The subject of the analysis in this work is the rules for the exact calculation and extension of procedural terms, especially those established for the application of procedural coercion measures that significantly limit the rights, freedoms and legitimate interests of participants in criminal proceedings in Russia. Exploring the gaps and contradictions of the normative regulation, the author, using specific examples of judicial and investigative practice, shows what serious and negative, in fact, collisions these gaps lead to in practice; evaluates and proposes options for eliminating or minimizing these collisions.

Russian Journal of Legal Studies (Moscow). 2021;8(4):83-92
pages 83-92 views

Law enforcement

Information and Analytical Activities of the Prosecutor’s Office: On the Issue of Functional Status

Khatov E.B.


This article analyzes the information and analytical activities of the Russian Prosecutor’s Office, and in doing so highlights a number of its characteristic features. The author, relying on doctrinal and historical research relating to the information function of the state, analyzes various aspects of the Prosecutor’s Office. The areas reviewed include: the Constitution of the Russian Federation and foreign and domestic legislation concerning the prosecutor’s office. Taking into account the progressive informatization of various spheres of public relations, analyzing the practice of work, and comparing debatable objective positions regarding the allocation of its other functions, the author concludes that there is a possibility of giving the studied type of prosecutor’s activity a functional status and the need for appropriate adjustments to the law.

Russian Journal of Legal Studies (Moscow). 2021;8(4):93-102
pages 93-102 views

The Formation of the Judicial Corps as a Function of State Power: the Essence and Problems

Kiryushchenko I.I.


The article examines the issues involved in forming the judicial corps for the national judiciary. Further, it identifies some problems that require legislative regulation. The purpose of the study is to analyze theoretical, legal, and law enforcement documents related to the formation of the judicial corps, to identify its essential nature and problems. The object of the study was the formation of the judicial corps, its essence, and its organizational and legal foundations as a function of state power. The subject of the study was a set of theoretical, legal, and organizational issues arising in connection with the formation of the judicial corps. The study used formal-logical and comparative legal methods, with the help of which the analysis of theoretical materials, normative documents, and law enforcement practice was carried out, which made it possible to give the author's definition of the judicial corps, based on a professional expertise. The result of the study was the author's reasoned position regarding the formation of the judicial corps as a function of state power and also revealed some problems that developed in the process of implementation of the judicial corps. The analysis shows the absence of a conceptual approach to the formation of the judicial corps as a function of state power, which may reduce public confidence in the judicial power. This situation requires further reform of federal legislation through the development of standards for the formation of the judicial corps, ensuring a high level of public confidence, as well as the establishment of comprehensive measures to verify the effectiveness of the realization of this function of state power.

Russian Journal of Legal Studies (Moscow). 2021;8(4):103-110
pages 103-110 views

Reviews and conspects

Review of the Monograph "Comparative Criminal Law: Functions, Methods and Theoretical Concepts". Ed. by Kudratov M.A., Pechegin D.A. (2021)

Trefilov A.A.


The paper presents an overview of the monograph "Comparative criminal Law: functions, methods and theoretical concepts" devoted to the problems of comparative jurisprudence in the field of criminal law. At the same time, the proposed materials can be useful in constructing a comparative study as a whole.

Russian Journal of Legal Studies (Moscow). 2021;8(4):111-114
pages 111-114 views

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