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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 09/2020
Contents of Issue № 09/2020
Law and order
Berchanskiy K.A. - Criminal law characteristics of medical sorting (triage): COVID-19 and shortage of resources pp. 1-13

DOI:
10.25136/2409-7136.2020.9.34067

Abstract: The subject of this research is the legal norms that regulate the procedure of determining priority of patients (triage) in the Russian Federation, as well as the grounds for bringing to criminal responsibility of the representatives of medical profession for causing death during this process. The object of this research is the social relations arising in terms of prioritizing  treatment  of patients under the circumstances of severe shortage of medical resources, namely in case of mass infection. Analysis is conducted on the established by Chapter 8 of the Criminal Code of the Russian Federation conditions that exclude criminal nature of the act. The conclusion is made that on their inapplicability in similar circumstances. The author examines the nature of the process of medical sorting  – allocation of patients according to certain characteristics and order of their treatment, regulatory norms, as well as analyzes  the trends in the context of COVID-19 pandemic. Due to the fact that the Russian criminal law science does not feature special research dedicated to triage, the article provides a brief overview of the works of foreign legal scholars along with similar positions of national scholars, as well as determines the circumstances that affect the criminal nature of patient's death that takes place in the conditions of severe shortage of resources. The novelty lies in the cross-sectional study of the norms of Russian criminal law and the corresponding norms of medical law, based on which the author develops solution to the problem that did not previously receive due coverage in the Russian science. The author answers the question regarding criminal responsibility for the death of one of the two patients when it is not feasible to provide simultaneous medical treatment to both. It also The article also describes potential amendments to the sectoral medical legislation for the purpose of consolidation of legal status of medical professionals, protect their rights from unsubstantiated criminal prosecution,  protect rights of the patients, and maintain ethical well-being of medical profession.
Questions of current interest
Ermakova I.V. - Impact of networkization of the economy upon changes in the provisions of competition law (on the example of blockchain and smart contracts in the area of advertising and intellectual property law) pp. 14-32

DOI:
10.25136/2409-7136.2020.9.34183

Abstract: The subject of this research is the legal norms that regulate legal relations in the context of application of blockchain technology and smart contracts based on it in the area of online advertising and intellectual property. The object of this research is the social relations emerging in the indicated spheres. Analysis is conducted on the concepts and characteristics of blockchain technology and smart contracts. The author also reviews some controversial theoretical and practical issues, such as terminology, legal nature of blockchain, smart contracts, and related concepts. Examples are provided of the currently existing blockchain platforms and services premised on them. The novelty of the conducted research consists in focusing on the relevant problems that emerge in the conditions of network economy in such spheres as online advertising and intellectual property. On the example of blockchain platforms functioning in the indicated spheres, the author reveals the problems the can be resolved using such technologies. The author also underlines certain practical difficulties that arise in the process of application of blockchain and smart contracts, particularly associated with the absence of legal definition of a number of concepts. The examples of corresponding court decisions are provided. A proposal is made on the need for consolidation on the legislative level of definitions of such concepts as “blockchain”, “smart contract”, “cryptocurrency”, and “token”.
JUDICIAL POWER
Trofimov E.V., Metsker O.G. - Indicators for optimization of legislation and law enforcement, methods of their identification and usage based on big data (experience of computational experiments on the judicial acts on administrative offenses established by the Chapter 18 Of the Code of Administrative Offenses of the Russian Federation) pp. 33-46

DOI:
10.25136/2409-7136.2020.9.34149

Abstract: The subject of this article is the research tools and assessment methods with regards to optimization of legislation and law enforcement. The paper reveals the experience of computational experiments on the judicial acts on administrative offenses established by the Chapter 18 of the Code of Administrative Offenses of the Russian Federation. The research employs various computer methods, including knowledge modeling, methods of natural language processing and machine learning, as well as the related within the framework of interdisciplinary paradigm methods of systemic analysis and expert assessment. Computational experiments were conducted on the empirical basis formed out of texts of 50,438 judicial acts. On the example of big data on administrative offenses, the article demonstrates the interdisciplinary (from computer and legal perspectives)  interpreted results in the context of usage and identification of a number of indicators for optimization of legislation and law enforcement, primarily – time indicator, indicator of individualization of punishment, and indicator of subject uniformity. The conclusions and generalizations are made pertaining to legislation and law enforcement in this area under consideration. Computational methods and the set of indicators can be the groundwork for making decisions in law policy. The advantages of the proposed methodology consist in objectivity of the conclusions that based on methodology open to public verification, as well as big legal data that ensures accuracy of research.
Transformation of legal systems
Vecherina O., Putalova I.B. - Structure of the Russian institute of mediation: present, past, and future pp. 47-63

DOI:
10.25136/2409-7136.2020.9.34287

Abstract: This article is dedicated to examination of the traditional structure of the Russian institute of mediation and its possible transformations in light of the provisions of the new draft law “On Settlement of the Disputes Trough Mediation in the Russian Federation". Based on the principle of historicism and systemic analysis, the authors consider the established structure of the Institute, and highlight the three stages in development: latent, euphoria and stagnation. It is assumed that such peculiarities of development are substantiated by its implementation “from the top”. The current state of the institute of mediation, despite the fact that it remains at the “initial” level of development, can be characterizes as a years-long stagnation. Therefore, the draft of the new Federal Law on Mediation, developed by the Ministry of Justice, which in case of enactment significantly changes the structure and functional concept of mediation, became the subject of intense discussion within the professional community, since the intended radical reform is planned to be implemented “from the top”, without consideration of the opinion of professional community and interested stakeholders. Having analyzed separate elements of the institute of mediation and changes therein, the authors came to the following conclusions. One of the three key reasons for the established situation in the area of mediation is the low level of professional qualifications of mediators; incompetence of mediators impedes conducting mass mediation and further development of the institute of mediation. The second reason consists in incompetence and disunity of the professional community of mediators, absence of an authoritative body nationwide. The third reason lies in discrepancy of the development of two vectors of mediation — traditional and academic as a special trend in reconstructive approach. The presented analysis allows reassessing the current state and potential of the Russian Institute of mediation, as well as forecasting further ways of its development.
History of state and law
Litvinenko D.A. - Retrospective view of the norms of inheritance as a historical foundation of establishment of the institution of inheritance fund pp. 64-75

DOI:
10.25136/2409-7136.2020.9.34261

Abstract: This article is aimed at determination of the factors and circumstances, which in different historical periods most significantly impacted the formation of the norms of inheritance that regulate inheritance of a business, and currently contribute to the formation of legal constructs of the inheritance fund. The author believes that such reasons are of both, sociocultural and political nature. Widening the circle of heirs from immediate family through paternal lineage to the possibility of leaving to any person, as well as drawing up a will upon the condition of creation an inheritance fund, the mission of which could be only philanthropic, and reflect the development of legal thought and freedom of a testator the correspond to the relevant needs of the society. The main conclusion consists in tracing the causal link between the relevant needs of civil circulation and the arising need of providing its participants with the efficient tools for hereditary succession a business in different periods of development of national legislation. The importance of providing extensive tools for inheritance planning is justified by the complexity of modern business structures and objects that can be a part of them.  Rapidly changing economic and social conditions of modern world dictate the responsibility of a legislator to render the subject of law flexible and thought-out tools for inheritance planning. Establishment of the institution of inheritance fund, as a result of the conducted reform of inheritance, became a naturally occurring stage in improvement of the Civil Code of the Russian Federation.
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