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Vol 9, No 2 (2022)

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Actual topic

Legal Mechanisms for the Protection of State Digital Sovereignty: a Comparative Legal Aspect

Pechegin D.A.

Abstract

The rapid development of digital technologies, which has become a distinctive feature of modernity, determines the vectors of the evolution of public relations and modifications of their regulators, among which both technology and law are critical. Transport, economy, manufacturing, energy, agriculture, education, healthcare, and finance are just some of the areas that, being keys for the development of modern society and the state, are subject to digital transformation. The large-scale penetration of digital technologies into the jus publicum environment is mainly owing to the effectiveness of the tools available to achieve the goals set. Digitalization tools, such as big data, machine learning, neural networks, artificial intelligence, virtual reality, the Internet of Things, and robotics, make it possible to achieve automation, such that the current state of the market is confidently predicted at the particular moment of receiving, processing, and analyzing the data. This allows a swift determination of the most effective behavior model and maximizes profits, especially in the business environment. Digital technologies are thus becoming the basis for supporting competitiveness today, not only for the business community, but more importantly, the state. However, the problem is that the digitalization of public relations covered by jus publicum and statehood today is based on solutions and algorithms that are developed and put into practice by private companies and involve the construction of service-oriented relationship architectures that exclude the independence (integrity, completeness) of the digital products (goods, services). Consequently, the risks of losing the independence and supremacy of state power increase significantly; hence, the need to find alternatives. This article is devoted to the analysis of legal mechanisms for the protection of (digital) sovereignty in a comparative legal aspect.

Russian Journal of Legal Studies (Moscow). 2022;9(2):9-20
pages 9-20 views

Philosophy of Law

Law time in Philosophical and Legal Research

Skorobogatov A.V., Krasnov A.V.

Abstract

Research is devoted to the category of law time, which is urged to unveil features of functioning and development of temporary characteristics of the law as the dynamic phenomenon of law reality.

The relevance of the subject lies in the basic specifics of time in law and the definition of the place and role of time in law, in the context of law processes.

The purpose of this research is the formation of evidence-based knowledge of the essence, contents, and types of law time as a social construct.

The methodology is based on a synthesis of sociological phenomenology and integrative law consciousness that allows a consideration of law time in the categorial and substantial relation at various levels of law reality.

In the category of philosophy of law, law time is considered in this article through a prism of law communication during which there is a designing and functioning of this category. Law time is shown in horizontal and vertical law communication.

As the social construct, the period, speed, and a vector, are used, which reveal the properties and characteristics of law time. Law time is characterized by its limitation in a chronological framework; the continuity assuming continuity and changes mainly of quantitative character; recurrence, in combination with operation of the dialectic law of denial of denial; fractality, which assumes the accounting of both internal and external factors, including both the situational, and strategic analysis; unevenness occurring in the law reality of processes; by intensity, which determines the pace of law communication; and by intentionality, which determines the temporal orientation of law communication.

Law time is investigated by the authors chronologically as limits of the relevant law acts and processes; temporal as perception and interpretation of the law phenomena from the point of view of their direction and sequence; conceptually, from the point of view of the most abstract perception of time and an orientation of the processes happening in law reality in the context of law being in general.

Russian Journal of Legal Studies (Moscow). 2022;9(2):21-34
pages 21-34 views

A Proposed Classification of Legal Symbols

Goncharova N.S.

Abstract

Despite the wide variety of legal symbols, there is currently no scientific comprehensive classification of them. The author has researched and analyzed the classifications of legal symbols available in the existing legal literature, according to various criteria, such as the form (method) of external expression, subject of legal regulation, subject of law, state structure, semantic meaning, sphere of public relations, degree of stability of the form, method of origin, and functional role.

A system of symbols existing within the legal system of modern society is proposed as follows: 1) according to the external form (subject, symbols–actions, pictorial, sound, having a material expression, and not having one); 2) in relation to the law (legal symbols and symbols having legal significance (used in law); 3) according to the method of legal protection (protected by measures of administrative law, civil law, criminal law); 4) according to the type of law in which symbols may take place (symbols of substantive and procedural law); 5) on a territorial basis (federal, symbols of the subjects of the Federation, local self-government bodies); 6) by the author of the creation (state and non-state); 7) by content (as a rule of law and as a means of legal technique).

In conclusion, the proposed classifications are not the only ones in science and do not exhaust the possible grounds for dividing legal symbols. The multiplicity of classifications is explained by the variety of symbols functioning in the legal system, which in itself determines the objective need for further research into the nature and social purpose of their various types.

Russian Journal of Legal Studies (Moscow). 2022;9(2):35-40
pages 35-40 views

Constitutional Law

Local Self-government in the System of Civil Society Institutions

Nikitina E.E.

Abstract

Changes in public relations and a high level of civic engagement have led to the constitutional amendment and adoption of such categories as “civil society” and “institutions of civil society.” An important result of constitutional modernization was the normative consolidation in the text of the Constitution of the Russian Federation of the main forms of interaction between civil society institutions and public authorities. For the implementation of the constitutional provisions, it is necessary to develop theoretical ideas concerning the activities of the structural elements of modern society on their interrelations with public authorities.

The legal characteristics of a civil society institution are studied in the context of local self-government. It is opined that local self-government is not even remotely qualified to be regarded an institution of civil society because it lacks the attributes of independence and autonomy of activity. In accordance with the legislation of the Russian Federation, a significant part of the activities of local self-government bodies, including their formation, takes place in the public sphere. Only certain elements of their activities — in particular, the forms of direct democracy — can be attributed to the sphere of civil society. It is suggested that local self-government be considered from the general law view as a form of interaction between civil society institutions and the public authorities.

Special attention is paid to the relationship between local self-government and civil society. An analysis of the current regulations on the interaction between civil society institutions and local self-government bodies leads to the conclusion that the existing legislation does not fully provide for the implementation of various forms of direct participation of citizens and their associations in the local self-government affairs. Therefore, it is necessary to improve legislation in order to increase the effectiveness of the interactions between local self-government bodies and civil society institutions.

Russian Journal of Legal Studies (Moscow). 2022;9(2):41-47
pages 41-47 views

Law and Economy

Competence of the Tax Authority: Structure and Development Issues

Karaseva M.V.

Abstract

This article deals with the structure and features of the development of the competence of the tax authority in modern conditions. It is noted that the competence of the tax authority is, first of all, special — i.e., competence in the field of finance — because it is a state body specially created to carry out management in the field of finance. However, by exercising special competence, the tax authority manifests itself in two ways. In some cases, it acts in a tax legal relationship on its own behalf and is a state-authorized body. In other cases, it acts in a tax legal relationship on behalf of the state, being its representative. At the same time, the tax authority exercises general competence, which has become very noticeable in the last decade, owing to judicial practice. The general competence of the tax authority is manifested in its powers to file lawsuits arising from tax legal relations, in defense of the civil law interests of public law entities. However, these powers should be considered precisely as part of the general competence of the tax authority, because virtually every state body in its field of activity has such powers (to file claims). The development of the competence of the tax authority today is very noticeable and occurs both by expanding its general competence and ”translating” general competence into special competence.

Russian Journal of Legal Studies (Moscow). 2022;9(2):49-55
pages 49-55 views

Jurisdictional and Non-jurisdictional Forms of Patent Rights Protection: Russian and Foreign Experience

Diakonova M.O., Pechegina P.D.

Abstract

The features of patent disputes determine the variety of mechanisms for their consideration and resolution. A review of the Russian and foreign experiences (Germany, Norway, United States, France, Sweden, Japan) show the applicability of various forms of patent rights protection, including administrative and judicial.

Administrative bodies that protect patent rights generally include divisions of patent offices and other executive authorities.

In the judicial systems of the states under review, special judicial structures function in the nature of courts with general competence to consider civil cases, while specialized courts for the protection of intellectual property rights — including patents — have been created.

The authors conclude that in the modern period, the arbitration and mediation of patent disputes are becoming increasingly widespread, offering a number of advantages, including confidentiality of the case and the necessary level of specialization of arbitrators (mediators). At the same time, however, it is hindered by the lack of uniformity in resolving the issue of the arbitrability of patent disputes.

Russian Journal of Legal Studies (Moscow). 2022;9(2):57-64
pages 57-64 views

Criminal law and process

Legal Translation: Professional Activities at the Periphery of the Juridical Field

Maslovskaya E.V.

Abstract

The relevance of this topic is defined by the growing involvement of legal interpreters in legal proceedings. This article aims to study the peculiarities of the professional activities of interpreters in criminal legal proceedings involving migrants from post-Soviet states. The main characteristics of the field of legal translation are analyzed, and the peculiarities of the recruitment of legal interpreters and their interaction with the procedural parties in courts of different jurisdictions are revealed. The theoretical framework of the study is composed of Pierre Bourdieu’s sociological theory, including his analysis of the juridical field, and contemporary approaches in the anthropology of professions. The main empirical methods include semi-structured interviews and nonparticipant observation. The study singles out the criteria of stratification of legal interpreters, and demonstrates how the institutional and sociocultural contexts influence the professional activities of interpreters. The forms of interaction of interpreters with procedural parties and the judge were analyzed, demonstrating the costs of communication between the interpreters and different actors of the juridical field. According to the results, legal interpreters follow informal rules that have been formed in the process of their everyday interaction with their main clients — law enforcement bodies. Structural and epistemic disagreements between jurists and interpreters were revealed. The research data also demonstrate that interpreters are not full-fledged actors of the juridical field, but they fulfill a technical function within that field. A conclusion is made about the weak structuring of the field of legal translation and predominance of precarious employment of actors of this field. The revealed problems could be solved by the institutionalization of the expert position of court interpreters.

Russian Journal of Legal Studies (Moscow). 2022;9(2):65-74
pages 65-74 views

The Structure of Judicial Reasoning in the Evaluation of Evidence in the Court Sentence

Astafyev A.Y.

Abstract

This paper examines the essence of the court sentence as a legal document, the logical–compositional and substantive features of which are strictly regulated by law. It asks the question on the place of legal reasoning in the structure of the court sentence, and analyzes the methods used in the presentation and evaluation of evidence. In the analysis of the court verdict, the author uses some provisions of text linguistics and functional stylistics. It is argued that in the text of the sentence, argumentation is the main method of discourse used.

Russian Journal of Legal Studies (Moscow). 2022;9(2):75-80
pages 75-80 views

Disconnecting Russia from the SWIFT System: Possible Legal Risks

Sedova D.A.

Abstract

There has been talk for a long time about the possible disconnection of the Russian Federation from the SWIFT system. On one hand, it is a promising vector of development, because it allows the Russian Federation to advance in the digital market. It opens opportunities to offer alternatives to existing foreign technologies and systems, and introduce fintech into the companies’ activities. On the other hand, the national system is currently vulnerable to foreign digital giants, among which, of course, are the United States and China. External developments and technologies may harm national systems in the near future, which in turn may violate the right of the Russian Federation to digital sovereignty. How relevant the issue of digital sovereignty is now can be judged by how many states are trying to limit the influence of external actors in every possible way. These states include Austria, Germany, and some other EU countries. Therefore, the issue of ensuring national security and protecting digital sovereignty is currently critical, and will require a definite answer in the near future.

Russian Journal of Legal Studies (Moscow). 2022;9(2):81-86
pages 81-86 views

Law enforcement

The Role of the Prosecutor's Office in Ensuring Environmental Law and Order

Vinokurov A.Y.

Abstract

In this article, the role of the Procurator of the Russian Federation in ensuring environmental law and order was determined, taking into account the requirements of the legislation for the purposes of the activity and appointment of the Institute of the Prosecutor's Office. It is concluded that the ensuring of law and order, particularly in environmental protection, is not a direct activity of the Prosecutor’s Office. Instead, its role is indirect and is carried out through the implementation of its functions, the most important of which is supervisory.

Russian Journal of Legal Studies (Moscow). 2022;9(2):87-92
pages 87-92 views

Review

Review of the Monograph "Comparative Criminal Law. Functions, Methods and Theoretical Concepts" (Ed. by Kudratov MA, Pechegin DA. 2021. 244 p.)

Volodina N.V.

Abstract

Collective monograph "Comparative criminal Law. Functions, methods and theoretical concepts" is relevant in the period of globalization for the formation of unified approaches and the development of joint models or programs in the field of "internalization of law", for which comparative studies play an important role. The scientific material  includes works by Hans-Heinrich Jeschke, Albin Ezer, Heike Jung, Walter Perron and Ulrich Sieber. In these works, the special value of creating a system of conceptual apparatus, solving problems of international cooperation on criminal law issues is noted. The possibility of harmonization of national justice in the judicative analysis of foreign legal systems is considered. The means, methods and functions of comparative criminal law and its tasks at national, regional and supranational levels are studied. Attention is paid to the possibility of harmonization and unification of different criminal legal systems, analysis of legal policy, issues of evaluative and competitive comparative studies.

Studying the ideas of foreign authors expands the opportunities for Russian science to learn new approaches and methodology, which has not only theoretical but also practical significance for improving criminal law and creating so-called "international" criminal law, assuming intergovernmental cooperation in this area.

Russian Journal of Legal Studies (Moscow). 2022;9(2):93-96
pages 93-96 views

Main Problems and Development Trends in Nuclear Forensics

Nitrean A.I., Stebelkov V.A.

Abstract

An analysis of the materials and reports on international forums organized by the International Atomic Energy Agency resulted in the compilation of a description of incidents involving illicit trafficking in nuclear and other radioactive materials (NRM). Mistakes made during the incident investigations were revealed, which include the lack of interaction between NRM specialists, forensic experts, and law enforcement agencies during the investigation of criminal cases, collection, examination of evidence, and formulation of insufficiently justified conclusions. The informativeness of the analytical methods is shown, the most informative of them are identified; further, the directions for the development of the methodological support of the forensic examination of nuclear weapons are determined. Additionally, the approaches of training in the field of nuclear forensics and the possibilities of involving the resources of international organizations in this activity are identified.

Russian Journal of Legal Studies (Moscow). 2022;9(2):97-106
pages 97-106 views

Legal Regulation of Artificial Intelligence: Foreign Practices

Matyuk Y.S.

Abstract

The rapid development and increasing use of artificial intelligence (AI) technologies bring to the fore issues related to the legal regulation of these technologies. Currently, more than 80 countries have developed conceptual and policy documents and doctrinal acts that define the framework, principles of regulation, and key guidelines for the development of digital technologies. In this context, one of the key objectives of this study is to make a comparative analysis of the international experience in the use and legal regulation of digital technologies, and in particular, AI in digital public communications. A comparative research methodology was chosen, which was used to study legal experiences of regulating AI worldwide. The doctrinal-political and ethical documents and the current regulatory legal acts of different states were analyzed. It was not possible to consider all the sources available today within the framework of this study; thus, the study was limited to the legal experiences of countries with the highest levels of development of AI technologies and their corresponding legal regulations. The results of the study showed that currently, the main legal instruments in the regulation of AI are strategies and conceptual and program acts. Their significant drawbacks are the focus on commercial purposes, problems of optimizing the management process, and provision of public services. The formation of institutions and complexes, as well as effective mechanisms for protecting the rights, freedoms, and legitimate interests of citizens and their organizations, is given very little importance. There is a global trend of transitioning from acts of a recommendatory nature to generally binding legislative regulation in this sphere. Ethical coding and professional sociotechnological standards seem to be the primary options for the social regulation of the development and implementation of AI technologies, and legal regulation is effective in the field of coding the operation of these technologies.

Russian Journal of Legal Studies (Moscow). 2022;9(2):107-115
pages 107-115 views

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