DOI: 10.7256/2454-0706.2021.12.34868

Abstract: The goal of this research lies in determination of the core philosophical-legal concepts in foreign social philosophy and sociology, which are relevant in modern era for the effective solution of political and administrative tasks. The article examines the views of the prominent foreign philosophers and theoreticians in the field of sociology of law (M. Weber, E. Durkheim, H. Kelsen, D. Nelken, D. Balkin, and others). In light of the uniqueness of their views, they can be encapsulated into the following perspectives: law is the order of relations between people who comprise the society, i.e. social order; politics is one of the regulators of social order, determines the relations between the government and individuals; such political order alongside the economy and culture is one of the three global social systems that are closely intertwined with each other and permanently affect each other. The essence of sociological interpretation of legal ideas can be formulated in three positions: 1) law should be understood as an aspect of social relations, since it is utterly associated with coexistence of individuals in social groups; 2) social phenomena of law should be viewed empirically, through detailed consideration of variability and continuity of social coexistence in the actual historical models, rather than in respect of idealized or abstractly imagined social conditions; 3) social phenomena should be examined systematically: from the empirical fact of social reality to socio-philosophical theory. Sociological comprehension of legal ideas methodologically expresses the own disparate and diverse characteristics of law. It must inform about the legal ideas and provide their interpretation for solving particular tasks of politics and public administration.

DOI: 10.7256/2454-0706.2021.12.37176

Abstract: This article examines the nature and specificity of the criticism of psychologism as a theoretical-methodological orientation towards studying law and its interpretation, which in particular was associated with such version of interpretation of law as the “Pure Theory of Law” of Hans Kelsen. More in-depth representations of modern legal theory in understanding the patterns of law and its essential aspects requires the due coverage of the history of psychological and anti-psychological approaches towards law that form of the major oppositions in the development of legal though at the turn of the XIX – XX centuries. Multiple aspects of H. Kelsen's legal views are yet to be examined, including the correlation of his doctrine with other doctrines, as well as the nature of substantiation of law and the analysis of legal phenomena. The scientific novelty of lies in the fact that based on the analysis of legal views of the Austrian jurist Hans Kelsen wirh his pronounced claim to exclude all “non-legal’ elements, it is revealed that a significant part of conceptual-logical apparatus of Kelsen’s teaching and the approaches towards substantiation of law were psychological in nature. Unlike the objective-idealistic positions of H. Kelsen, legal Neo-Kantianism was methodologically more accurate in elucidation of interrelation between the actual legal phenomenon and the role of gnoseological methods of perception and comprehension of law. The assessment of H. Kelsen’s doctrine as the theory of law is subject to criticism in this article, since in reality it is limited to the issues of legal methodology.

DOI: 10.7256/2454-0706.2021.12.37170

Abstract: The subject of this research is the problem of improving the effectiveness of conciliation procedures, their relevance to the citizens, and increasing the role and importance of the forms of pacific settlement of the dispute within the Russian system of justice in the conditions of digitalization of judicial activity. The goal of this article is to prove online reconciliation as a method for improving access to justice, as well as substantiate the integrated model of reconciliation in judicial activity using digital services and platforms. Leaning on the works of the Russian and foreign researchers (V. M. Zhuykov, S. K. Zagaynova, V. V. Yarkov, and others), the conclusion is made that the institution of reconciliation, including mediation, is historically built around the judicial system. Hindsight analysis of the judicial and non-judicial forms of dispute settlement indicates their coherent development. The implementation of the digital platform “Justice Online” in judicial activity allows improving citizens’ access to dispute resolution in or without judicial proceedings using pacific means. In the current context, reconciliation is viewed within the structure of judicial activity and consists in implementation of reconciliation procedures, including online reconciliation, in the courthouse or with the involvement of court, or via digital judicial platforms. The application of comparative legal analysis substantiates the integrated mod el of reconciliation, which has the following characteristics: access to mediation services in the courthouse; granting authorities to the court staff for elucidation of the possible methods of dispute settlement; accretion of power of reconciliation judges; integration of technological services of online reconciliation with the digital judicial platform; merger between the website of the court and the websites of mediation organizations.

DOI: 10.7256/2454-0706.2021.12.37185

Abstract: The subject of this research is the legal doctrine of the leading representative of English legal positivism of the last quarter of the XIX – first third of the XX centuries of Thomas Erskine Holland. The article is dedicated to examination of the two key aspects of his concept – comprehension of the nature of jurisprudence as a science, and law as a type of social norm. Leaning on the classic work of the British jurist “The Elements of Jurisprudence” (1880), the author defines the understanding of jurisprudence and law, reveals the historical-cultural meaning of Holland's legal doctrine for the subsequent development of English jurisprudence. Methodological framework is comprised of the historical approach, elements of biographical approach, techniques and procedures of legal hermeneutics, rules and techniques of formal logic, and elements of comparative-legal method. The scientific novelty lies in the fact that this article is first within Russian legal science to conduct the concept analysis of the key theoretical-legal definitions (jurisprudence and law) of T. Holland’s doctrine, as well as reveal the ideological interrelation between the views of the British jurist and the founders of analytical jurisprudence. The author also substantiates the position, according to which Holland's approach towards comprehension of the nature of jurisprudence as a science can be defined as dogmatic. T. Holland's contribution to the development of legal positivism consists in argumentation of the formal and analytical nature of legal science, as well as in carrying out gradual differentiation of positive law from natural and social norms, and analysis of the crucial theoretical concepts of legal science.

DOI: 10.7256/2454-0706.2021.12.37237

Abstract: This article is dedicated to the legal issues of protection of the rights of individuals who have concluded civil transactions under psychological duress, namely hypnosis. The object of this research is civil law relations that emerge in conclusion of transaction by individuals. The subject of this research is the person’s will and its characteristics in deciding to conclude a transaction under psychological coercion unrelated to physical violence, as well as legal consequences of concluding such transactions. The author examines the factors that contribute to conclusion of transactions under psychological coercion and possible reasons for psychological coercion. The article examines civil and criminal law methods of protection of the rights of citizens who concluded transactions with a defect of volition, but are legally capable and aware of their actions. The conclusion is made that the only effective way to protect the individual from concluding such transaction lies in cultivation of the will. It is noted that the key evidence in challenging such transactions is forensic psychiatry evaluation; however, its commission depends solely on the judge’s decision on a particular dispute. The author assumes that the implementation of punitive measures for coercing into conclusion of such transactions is improbable, since the law enforcement authorities would refuse to initiate a criminal case due to civil nature of the dispute. The scientific novelty of consists in carrying out a comprehensive analysis of both, civil and criminal law methods of protection of the rights of citizens who have concluded transactions with the defect of volition, and the possibility of their practical implementation.

DOI: 10.7256/2454-0706.2021.12.36659

Abstract: This article examines the admissibility of interpretation contra legem, which the courts resort to in specific legal cases. The author reveals the reasons for the ongoing debates on admissibility of interpretation of contra legem, presents arguments of the opponents of such interpretation, and conducts their critical analysis. Leaning on the doctrinal sources and judicial practice, the author determines the conditions that allow the courts resorting to the interpretation of contra legem, as well as offers its balanced model for reconciling the requirements of legal certainty and justice. The relevance of this research lies in the lack of theoretical development of the problematic of interpretation of contra legem which is commonly applies in practice of the highest courts of the Russian Federation. The conclusion is drawn that the admissibility of interpretation of contra legem is predetermined by the recognition of nonidentity of law and normative act. However, due to the fact that the requirement of legal certainty is one of the aspects of justice, the courts may resort to the interpretation of contra legem in determination of the teleological gaps in the normative act (when literal compliance with its prescriptions leads to unjust and unreasonable decision), eliminating them based on the principles of law (both general legal and sectoral). The theoretical conclusions are supported by the examples from the practice of the highest courts of the Russian Federation – the Constitutional Court, the Supreme Court, and the Supreme Arbitration Court. The use of the balances model of interpretation of contra legem can be traces in the decisions of these courts.

DOI: 10.7256/2454-0706.2021.12.36505

Abstract: This research is dedicated to the issues of rendering public and municipal services via information and communication technologies as the element of e-democracy. The relevance of this topic is substantiated by the overall digitalization of public relations, including the provision of public services. The article covers the question of the emergence and development of the institution of public and municipal services; determines the essence of rendering public and municipal services along with the peculiarities of their legal regulation; demonstrates the transformation of the right of citizens to appeal to the government; describes the purpose of the administrative reform and the concept of its implementation; characterize the powers of the executive authorities exercised through multifunctional centers; establishes the forms of interaction between the executive authorities and multifunctional centers in the context of administrative reform; indicates the current state of the model instilled in the existing concept of rendering public services. The scientific novelty consists in the fact that within the framework of legal research of the problems and prospects of rendering public and municipal services via information and communication technologies as the element of e-democracy, substantiation is given to the authorial approaches towards definition of public (municipal) services provided in digital form. The conclusion is formulated that the prospect for the improvement of the quality of public services became the concept MFC 2.0, which suggests that 90% of the country's population would have access to the system of rendering public and municipal services in digital form. This creates a reliable platform for the activity of institutions of e-democracy, as well as participation in democratic processes and procedures in digital format.

DOI: 10.7256/2454-0706.2021.12.37016

Abstract: The institution of testamentary trust, which was Introduced as a result of the 2018 Russian inheritance law reform  and updated with the amendments to the Civil Code of the Russian Federation coming into force in March 2022, aims to ensure the efficient and lossless succession of assets by Russian citizens. The question is raised whether the current regulation of norms describing the process of incorporation meets the criteria of reasonableness and is it capable to mediate the uninterrupted transfer of the mass of succession from the control of the deceased testator to the testamentary trust. The examination of all technical legal procedures related to the emergence of a new heir allows assessing the immediacy of succession by the testamentary trust, detecting the existing flaws in legal regulation that complicate the implementation of rights and legitimate interests of the testator and beneficiaries of the testamentary trust. There are currently no scientific research dedicated to the procedure for establishing testamentary trust from the perspective of practical implementation of all stages of this process. The scientific novelty is substantiated by the absence of law enforcement practice; the testamentary trusts are not duly registered in the Russian Federation. In conclusion, the author indicates the complicated regulation of the capability of the notary to comply with the shortest terms set for the creation of testamentary trust. The author also believe that the requirement for the filing order of receiving the affidavit of heirship by the testamentary trust is unnecessary.

DOI: 10.7256/2454-0706.2021.12.37093

Abstract: Succession law implies several types of testament, one of which is the testament in emergency circumstances. From the scientific perspective, such form of expression of will is referred to as atypical and acts as a subject of this research. Such method of documentation of the last will of the testator is intended to facilitate the usual form of testament due to the extraordinariness of the situation the person found himself in. However, the analysis of the civil legislation of the Russian Federation and judicial practice demonstrates that the norms on the testament in emergency circumstances contain more impediments than facilitation of the procedure. This determines the problem of the legal phenomenon under review. The article examines the norms of succession law that regulate the testament in emergency circumstances, doctrinal provisions on the effectiveness of its legal regulation, as well as judicial practice on the matter for the detecting the problems and ambiguities of this legal phenomenon, which is given special attention, since all shortcomings of the legislator are usually manifested through law enforcement. The novelty of this research lies in analysis of the practice of application of the institution of testament disposal in emergency circumstances in order to determine the range of relevant issues and proposals aimed at the improvement of legal regulation of the atypical form of testament. The conclusion is made on the possibility of using electronic or technical means for certification of testament in emergency circumstances; refutation of the provisions of the Chapter 2, Paragraph 1 of the Article 1129 that stipulate the validity of such testament, presence of two witnesses, and handwritten expression of last will with the signature of the testator as mandatory requirements; need for legislative consolidation of the signs of extraordinariness of situation, and determination of situations that should be regarded by law enforcement officials as life-threatening, which also include sudden deterioration of health.

DOI: 10.7256/2454-0706.2021.12.37223

Abstract: Based on the vast array of archival materials, the article reconstructs the discussions that took place in the process of adoption of the 1918 Constitution of the RSFSR. It is worth noting that the issues that are somehow related to the model of the Soviet federation were the most discussed. Such situation existed due to the fact that the Marxism-Leninism ideology was initially internationalistic, and the Bolsheviks were enormously interested in expanding their influence. The federation was also a fully legal instrument for uniting the communist parties of various countries into economic, military and political alliance. Although V. I. Lenin had a dialectical perception of federation and the state, this did not diminish the interest of the members of the commission to this problematic. The question of federalism was strictly practical and tactical, since the fate of the world socialist revolution depended on the extent to which the federation would be proletarian and unique. Therefore, the members of the commission had to solve the issues associated with the type of federation, ethnic question, the administrative-territorial division of the state, and representation in the councils. The latter was of crucial importance, since both the social base of the political regime and the governability of the entire Soviet state depended on the content of the Soviet institutions. Therefore, the Bolsheviks placed emphasis namely on the representation of workers, rather than peasants. The conclusion is made that the legal issues of the structure of the Soviet federation were equally as important as the ideological arrangement of the Soviet state.