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MAIN PAGE > Journal "Legal Studies" > Contents of Issue 09/2021
Contents of Issue 09/2021
Kudelkin N. - Legal issues of compensation for damage caused to the environment as a result of oil spills pp. 1-12

DOI:
10.25136/2409-7136.2021.9.36218

Abstract: The subject of this research is the set legal norms that regulate public relations arising in the process of compensation for damage inflicted to the environment as a result of oil spills. The goal of this work consists in formulating the theoretical and practical conclusions and proposals on the improvement of the institution of compensation for environmental damage as a whole, and the legal aspects of compensation for damage inflicted to the environment due to oil spills in particular. The relevance of this topic is substantiated by the statistical data; for example, in the Arctic Zone of the Russian Federation, the total area of disturbed land as of 2019 was 218,641 hectares, and most of them (according to the data for the entire observation period) were formed due to the extraction of mineral resources, as well as a result of oil and spills during their transportation. In 2019, 17, 000 accidents related to oil spills took place in the Russian Federation, among which 10, 500 were the accidents on oil pipelines. The article explores the questions associated with compensation for environmental damage. The analysis of the effective legislation in this sphere and its practical implementation allowed making a range of conclusions It is noted that the mechanism of compensation for environmental damage in the Russian Federation has significant flaws, namely with regards to compensation for damage in kind, offsetting the costs incurred by the infliction of environmental damage to repair such damage. The issues related to the procedure of disbursement of compensation for environmental damage to restore the state of the environment remain open and virtually unresolved. Recommendations are made on solution of the indicated problems.
Questions of current interest
Sidorenko E.L., Khalizeva E.A. - System of offences associated with securities fraud in the Russian Federation (Part 2) pp. 13-21

DOI:
10.25136/2409-7136.2021.9.36342

Abstract: This article is a sequence of research conducted by the authors on the topic of offences related to digital securities fraud (Part 2). It completes the design of the system of such offences, determining the “subsystem” that considers the economic nature of the Central Securities Depository. For this purpose, analysis is conducted on the articles of the Criminal Code of the Russian Federation that form the system of offences related associated with the fraud of non-digital securities (Articles 185-186) from the perspective of their applicability to digital securities and peculiarities of such application. The research is based on the systemic approach, comparative-legal method, logical techniques of analysis and synthesis of information, as well as the method of deduction. The authors conclude on applicability of the Articles 185, 185.1, 185.2 and 185.4 of the Criminal Code of the Russian Federation to unlawful acts related to digital securities, taking into account the specificity of their legal regulation, namely the absence of necessity of state registration of stocks in the form of digital financial assets, the registration of rights to central securities depository by the information system operator that issued them, etc. Summarizing the results of this research with the results acquired in the Part I, the authors form the system of offences associated with the digital securities fraud, which includes the aforementioned elements, as well as the elements stipulated in the Article 187.1 “Organization of illegal trafficking of digital Rights” of the Draft Federal Law “On Amendments to the Criminal Code of the Russian Federation”. The Russian legal science unfortunately does not give due attention to examination of this problem, and such system is developed for the first time. The authors anchor hopes that the system of offenses they have designed would be effectively used in the law enforcement practice in the context of classification of unlawful action associated with central securities depository.
Belikova K.M. - The role of cryptography in ensuring cybersecurity and protecting information about technologies of strategic and advanced development in the context of protection of sci-tech achievements in the BRICS countries pp. 22-62

DOI:
10.25136/2409-7136.2021.9.36508

Abstract: The subject of this research is the role of cryptography in ensuring cybersecurity and protecting information about technologies of strategic and advanced development in the context of protection of sci-tech achievements in the BRICS countries. The relevance of the selected topic is substantiated by the fact that modern countries, for example, the founder of computer industry – the United States along with the BRICS member-states, realize the importance and practical significance of cryptography in different spheres (military, civil) and aim to develop the means and systems of information security, establishing legal regulation for various aspect of its application. Such approach needs elaboration on the development and implementation of cryptography from the perspective of supranational and international law. It is determined that the currently used encryption methods are essentially based on the methods that use special mathematical algorithms built in computer software. Such methods are a substantial  but surmountable obstacle for acquiring copyright and patent protection. The examined legal orders evolve by encouraging the development of national cryptographic and software systems, and ensuring its protection by patent law under certain conditions and based on a number of principles that are taken into account in national legislation of the BRICS countries. Correlation of the effectiveness of ensuring information security using only patented encryption or with application of additional protection based on the provisions on commercial secret, demonstrated futility of using the latter. From the perspective of international (or supranational) law, cryptographic software is controlled within the framework of international agreements on distribution of technical data, military and dual-purpose products.
Mazein A.V. - Administrative-legal regulation of proactive forms of public administration: current state and prospects pp. 63-80

DOI:
10.25136/2409-7136.2021.9.36501

Abstract: This article examines the legal regulation of proactive form of exercising administrative activity. In the domestic practice, proactive activity became widespread in 2019–2020. Leaning on the analysis of scientific literature, the author underlines that the content of the principle of proactivity, defined in the existing normative legal acts, reflects the well-known scientific approaches. As a result of the content analysis of normative legal acts, the conclusion is drawn that the principle of proactivity is currently applied in the spheres of social security, public health, tax administration, and state control. The author offers to extend application of the principle of proactivity to the spheres of enforcement of public order, uninterrupted supply of public utilities, and road management. The article summarizes the provisions of legal acts that regulate proactive administrative activity and proposes the structure of elements of its legal consolidation. Among the elements that should be defined by law, the author suggests to include the subjects and objects of activity, as well as the content of administrative action, including technologies and instruments that ensure proactive administrative impact. The normative legal acts that may establish the corresponding elements are the administrative regulations for ensuring state (municipal) services. At the time of carrying out the research, out of 103,000 administrative regulations effective on the regional and municipal levels, only 575 ( 0.6%) indicate the ability or inability of proactive rendering of services. The conclusion is made that in the future the number of such legal acts would increase.
Trofimov E.V., Metsker O.G., Paskoshev D.D. - Administrative prejudice in cases of petty theft (the Article 7.27 of the Code of the Russian Federation on Administrative Offenses and the Article 158.1 of the Criminal Code of the Russian Federation): how the big data of judicial acts reflect humanization and quality of justice pp. 81-124

DOI:
10.25136/2409-7136.2021.9.36521

Abstract: The subject of this article is the public relations arising in the context of committing petty theft, as well as research means and methods for assessing the optimization of legislation and law enforcement. Due to the specific structure of administrative prejudice, the article presents the methodology and results of the analysis big data of judicial acts in cases of petty theft (the Code of the Russian Federation on Administrative Offenses and the Article 158.1 of the Criminal Code of the Russian Federation) for assessing the quality of justice and optimization of legal regulation. The research is founded on the original interdisciplinary methodology, which contains the indicator approach along with the set of legal and computer aided techniques, including intellectual text and data mining, as well as machine learning. It is demonstrated that the judgments of conviction do not have considerable differences in the semantics and logical complexity of decision-making in comparison with the ruling on imposition of administrative penalty; the logic of making decisions on the choice of administrative or criminal penalty for petty theft varies, whereby the choice of administrative penalty is more differentiated. Despite the identity of acts related to administrative prejudice, their regulation by different laws leads to different enforcement results. Administrative-tort regulation is more optimal. Administrative responsibility for petty theft is rather humane for the society overall, although for victims, criminal responsibility appears to be more humane. Having analyzed the array of information, the author extracts certain knowledge on the administrative-tort and criminological characteristics of petty theft alongside peculiarities of court proceeding and imposition of penalties, as well as concludes on applicability of the developed methodology towards analyzing big data of case law on administrative and criminal offenses.
Jurisprudence
Popova I. - The problem of optimal selection of methods for studying everyday legal awareness in the Russian folk tales pp. 125-142

DOI:
10.25136/2409-7136.2021.9.36082

Abstract: This article is dedicated to problem of optimal selection of methods for studying everyday legal awareness in the Russian folk tales. Attention is turned to the complexity of such choice due to intricacy of the empirical base. The article provides an overview of the study of Russian folk tales by the representatives of various sciences: philology, folklore studies, philosophy, culturology, and psychology. The author believes that the methods of analysis (criticism) of the written sources, generalization, comparison, and specific historical methods are optimal on the empirical stage of research. On the theoretical stage, these are the methods of abstraction, analysis, system-structural method, induction, deduction, sociocultural approach. Hermeneutical and phenomenological methods rather carry significant risks. The author demonstrates the advantages of “morphological analysis” of tales proposed by V. Y. Propp. The author outlines the result of studying the legal phenomena in the Russian folk tales, namely acquisition of objective, reliable and scientifically proven knowledge on the system of natural correlation between the reflection and translation of legal ideas of the early period in the Russian tales, as well as on the inverse determining links between legal ideas of the early period and their reflection in folklore. The article provides the original definition of legal archetype as an element of the collective unconscious, which represents a prototype of the ideas on justice, norm and extent, reward, freedom, property, essence of agreement and its force, power, and judgment. The conclusion is made that the plotline of the Russian folk tales reflect the process of establishment of legal awareness based on individualization of self-consciousness of a person. At the same time, the sociocultural approach towards studying the phenomenon of tales is considered central, since the described in Russian folk tales sociocultural reality is the determinant of the development of law in the objective sense.
Questions of current interest
Antipova K. - Methods of big data definition: Russian and foreign experience pp. 143-157

DOI:
10.25136/2409-7136.2021.9.36591

Abstract: This article explores the main approaches of Russian and foreign authors towards big data definition; reflects the classification of data, components of big data; and provides comparative characteristics to legal regulation of big data. The subject of this research is the legislation of the Russian Federation and legislation of the European Union that regulate the activity on collection, processing and use of big data, personal data and information; judicial and arbitration practice of the Russian Federation in the sphere of personal data; normative legal acts of the Russian Federation; governmental regulation of the Russian Federation and foreign countries in the area of processing, use and transmission of data; as well as legal doctrine in the field of research dedicated to the nature of big data. The relevance of this research is substantiated by the fact that there is yet no conceptual uniformity with regards to big data in the world; the essence and methods of regulating big data are not fully explored. The goal of this research is determine the legal qualification of the data that comprise big data. The task lies in giving definition to the term “big data”; demonstrate the approaches towards determination of legal nature of big data; conduct  classification of big data; outline the criteria for distinguishing data that comprise the concept of big data; formulate the model for optimal regulation of relations in the process of activity on collection, processing, and use of the data. The original definition of big data in the narrow and broad sense is provided. As a result, the author distinguishes the types of data, reflects the legal qualification of data depending on the category of data contained therein: industrial data, user data, and personal data. Attention is also turned to the contractual form of big data circulation.
Ostroushko A.V. - On the key vectors of legal protection of intellectual rights of the Russian participants of the foreign megascience projects pp. 158-173

DOI:
10.25136/2409-7136.2021.9.36404

Abstract: Globalization of scientific research entails a range of complex legal problems substantiated by the organizational aspects of creation and functioning of large research projects, such as the absence of the uniform legal approach towards creating “megascience” project, imbalance between legal force of the norms of international agreements and national norms within the legal system of the accepting country depending on the organizational form of the project. The object of this research is the complex of public relations that influence the building of legal protection mechanism for intellectual rights of the Russians participating in foreign “megascience” projects. Within the framework of this research, the author analyzes the questions of participation of the Russian scholars in “megascience” projects, including the problems of protection of their intellectual rights. The questions are studied in the context of the uniform system of specificity of problem situations that emerge in the course of implementation of “megascience” project. The main conclusion lies in the thesis that indicates the need to provide Russian scientific organizations and individual scholars participating in “megascience” projects with the necessary s methodological recommendations in form of an optimal model of legal protection of their rights and legitimate interests in conducting research within the framework of foreign megascience projects or using “megascience” installations. The activity of Russian scholars engaged in foreign “megascience” projects requires information-legal and organizational-legal support for the effective protection of intellectual rights. The novelty of this work consists in examination of the questions of participation of Russian scholars and scientific organizations in “megascience projects” abroad without reducing it to solely financial and scientific component problem.
Human and state
Rouvinsky R.Z. - Social credit mechanisms and modern standards of legal protection of personal data: correspondence problems pp. 174-189

DOI:
10.25136/2409-7136.2021.9.36520

Abstract: The subject of this article is the problem of correspondence of the practices of digital profiling and social score, which imply collection and analysis of biographical (reputational) information, to the worldwide-accepted standards of protection of personal data and privacy. Analysis is conducted on the legislation of the People's Republic of China – the country that in recent years has implemented the “Social Credit System” in the sphere of public administration. This project consists of management practices, which are viewed through the prism of the legal model of personal data protection formed by the Law in Protection of Personal Information adopted in 2021. The peculiarity of this research is its comparative legal nature: the provisions of China’s legislation are juxtaposed to the provisions of the General Data Protection Regulation adopted in the European Union and Russia’s Federal Law “On Personal Data”. Assessment is given to the European and Russian models of regulation of operations with personal data in the context of possible implementation of digital profiling practices, social score (ranking, grading), and automated law enforcement decision-making. Having determined the gaps in the current Russian and EU legislation on personal data, and indicating the risk caused by the presence of blanket rules, the conclusion is made according to which the modern legislation on personal data can be an obstacle for arbitrary use of such data; however, it cannot stop the implementation of innovative technologies, mechanisms and practices that suggest using registry and biographical information of individuals for the purpose of social control into the public administration.
JUDICIAL POWER
Novitskaya N.P. - Criminogenic role of private patronage as a corruption-causing factor in the judicial act in light of the activity of modern mafia groups pp. 190-217

DOI:
10.25136/2409-7136.2021.9.35444

Abstract: This article explores the causes for the emergence of “corruption-causing factors” in judicial acts, indicates correlation between “corruption-causing factors” and “private patronage” on the part of mafia institution (modern mafia groups), which is the highest “specific economic enterprise or industry that produces, encourages, and sells private patronage”, including interference in justice through corruption and bribery. The case law on the topic is analyzed. The object of this research is the activity of judges in assessing legally valid circumstances in relation to the responsibility of judges. The subject of this research is the norms of Russian legislation that regulate the activity of judges in assessing legally valid circumstances, as well as the texts of judicial acts on claims under the Article 125 of the Criminal Procedure Code of the Russian Federation, civil and administrative cases of the courts of St. Petersburg, and the responsibility of judges. The author notes the absence of definition of “corruption-causing factor” in the judicial act, its characteristics, responsibility of the judges for decision-making that contain “corruption-causing factor”, effective judicial bodies that “investigate” the disciplinary misconduct of judges. It is underlined that the implementation of the institution of investigative judge was anticipatory. The scientific novelty is substantiated by the fact that this article is first to outline the concept of “corruption-causing factor” in the judicial act as the grounds for bringing the judge to disciplinary responsibility. The conclusion is made that this is a comprehensive issue; thus, the longer it would take to solve the questions of effective legal regulation of the mechanism of judicial responsibility, the more it would augment the risks of proliferation of the “corruption-causing factor” in the judicial system, which destroys confidence in the government authorities and deteriorates the state from within.
Purge A.R. - On the property responsibility of genetic parents under the surrogacy agreement: experience of the Russian Federation and the Republic of Tajikistan pp. 218-227

DOI:
10.25136/2409-7136.2021.9.35923

Abstract: The object of this research is the institution of property responsibility of genetic parents under the surrogacy agreement established in legislation of the Russian Federation and the Republic of Tajikistan, as well as the problematic of practical implementation of the surrogacy agreement. The subject of this research is the legislative norms that regulate the procedure of bringing genetic parents under the surrogacy agreement to property responsibility in the territory of the Russian Federation and the Republic of Tajikistan; corresponding materials of law enforcement practice; statistical data and reports published in the official mass media. The scientific novelty of consists in analysis of the problems of property responsibility of genetic parents under the surrogacy agreement, which was concluded in the territory of the Republic of Tajikistan. The main research results lies in the development of the original pointwise proposals on the long-term solution to these issues (it is worth noting that such proposals have not been previously expressed in the context of legal experience of the Republic of Tajikistan).
History of state and law
Medvedev V.G. - State regulation of taxes and fees by the governments of the Generals A. I. Denikin and P. N. Wrangel during the Russian Civil War pp. 228-237

DOI:
10.25136/2409-7136.2021.9.36377

Abstract: The subject of this research is the poorly studied in the domestic historical legal science problem of legislative and administrative activity of anti-Soviet authorities in the territory of the Armed Forces of South Russia in the tax sphere during the Civil War. It is determined that tax legislation and law enforcement practice of the white governments were based on the laws of the former Russian Empire and the Provisional Government, which underwent adequate amendments over time. For pumping up the budget in the environment of economic devastation and rapid inflation, the legislator increased the rates of direct and indirect taxes, as well as introduced the new sources of taxation and revision of tax incentives. The author concludes that due to tax evasion of the population, the revenue from direct taxes into the budget, including commercial and industrial classes, were insignificant. Attempts of the government to concentrate legislative and administrative activity on indirect taxation also did not bring expected results; indirect taxes or non-taxable fees barely covered the expenses on the rapidly expanding bureaucratic bodies of civil administration. It is revealed that the supply of warring armies in such conditions was mainly through the uncontrolled issue of banknotes, which boosted inflation, and thus, plundered the public treasury. Being the main source of filling the state budget, it became one of the methods of comprehensive compulsory taxation. It is stated that due to shortage of budgetary funds, military commanders were forced supply the troops via conducting contributions and requisitions, which in fact was tax in kind and negatively affected public image of the government.
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