2018. No. 2

The aim for elimination of administrative burdens in order to develop science andtechnology, to increase the efficiency of legal regulations in intellectual property sphereis imposed in leading documents for transformation and modernization of the Russianeconomy. In this case analysis of different elements of the governmental regulations,difficulties signification for its proper administrating are of a significant importance.The purpose of the research is to determine what an administrative burden is to formupthe ways of its overruling on order to develop the intellectual property sphere, todetermine the functions and structure of the administrative bodies, to expose legaland regulative gaps as a fundamental guideline for optimization of the scientific andtechnologic development. Methods used are: dialectical and formal logic, functional andother general scholar methods; specific research methods, in particular legal dogmaticmethod, were applied too. The results include characteristics of administrative burdens,the meaning is defined narrowly and generally; the ways of overruling are determined atdifferent levels: strategic, scheduled and current. The main aims and purposes for betterstatutory administration of the IP sphere are proposed. Conclusions: the paper revealedthat the strategic aims and principles are not settled down in major documents for currentregulations. The absence of the main, single administrative body — “megauthority” — inthe intellectual property sphere leads to the decrease in the governmental regulationsand to uprising of the burdens for the science and technical development. At the levelof particular administrative burdens, some blocking legal mechanisms for registration ofintellectual property rights and their protection have been identified, in particular in thefield of pharmacology.

The development of property relations involves improving the legal regulation of realestate turnover and the forms land-use. Historically, the legal regulation of easements,the resolution of disputes and the search for a balance between the interests of theowner and the servitor, on the one hand, and the accumulation, generalization anddevelopment of scientific ideas about the specifics and place of servitudes in a system oflimited property rights, on the other hand, have traditionally been the most controversialissues of corporate law in terms of the development of legislation, law enforcement anddoctrine. Legal regulation of easements as a kind of limited property rights reveals thespecifics of the formation and content of a specific national system of law. The perceptionof easements as both private and public law is observed not only in Russian, but alsoin foreign law, while the discussion on the validity of such a division remains relevantboth in Russian and in foreign law. In Russia, the disappearance of private ownershipof land in the context of the ideological struggle of Soviet law with the system and theprinciples of private law entailed not only oblivion of the sub-sector of property law withits basic institutions, but also the refusal of the legal regulation of the division of thingsinto movable and immovable. Accordingly, for many years, the research into the natureand location of servitudes in the legal system has lost relevance. The need for legalregulation of easements has already emerged in the post-Soviet space in the conditionsof the development of market relations, which was originally implemented at the levelof departmental regulation (Provisional Guide to Land Use Inventory approved by theCommittee on Roshydromet on May 17, 1993). For the first time the concept of “publiceasement” in modern Russian legislation appeared in the Presidential Decree “On themain provisions of the state program of privatization of state and municipal enterprisesin the Russian Federation after July 1, 1994”. And only after the entry into force of thecivil and land codes (Article 23 of the Land Code, Article 274 of the Civil Code), therewere grounds to talk about the legal delineation of private and public easements. Thecurrent state of the development of Russian legislation, the incompleteness of the reformof Russian civil legislation with regard to the modernization of provisions on proprietaryrights, the accumulated approaches to law enforcement practice in resolving disputeson the application of easement legislation, raise questions about the improvement oflegislative provisions on easements and set new tasks and objectives for future research.

The article is devoted to the definition of the legal nature and limits of the legal regulationof financial and regulatory technologies, including the creation of crypto-currenciesusing them. The interest of the authors of the article is related to the law enforcementrequirement and the simultaneous uncertainty of the use of new categories for theRussian state that are of primary importance for its development in the conditions of thedevelopment of the digital economy. The aim is to determine the boundaries and objectivesof legal regulation of Fintekh and Regtekh; to identify on the basis of scientific analysis thelegal essence of these concepts, as well as related categories. The methods used areformal-logical, comparison, analysis, synthesis, comparison, generalization. The resultsare analysis of the current situation on the use and regulation of financial and regulatorytechnologies in the Russian Federation, as well as the approaches to determiningtheir legal nature; identification of risks in the application of financial and regulatorytechnologies, formulating proposals for their prevention and leveling; identification ofstages and main directions of legal regulation of financial and regulatory technologies inthe Russian Federation; analysis of foreign experience in the legal regulation of financialand regulatory technologies, including in the field of taxation; formulation of proposalsfor the taxation of certain elements of Fintekh and Regtekh in the Russian Federation.The conclusion is that the state determined the need for legal regulation and identifiedthe main vectors of the movement in the legal field. National legal regulation is at thestage of origin; at present, attempts are made to legalize key concepts in the financial andregulatory technologies market (digital financial asset, digital transaction, digital entry,digital transactions register, mining, crypto currency, token, smart contract, etc.). It isnoted that the key objectives of the legal regulation should be the minimization of risksfor the financial system of the state and national security, as well as replenishment ofthe revenue side of the budget through taxation of services rendered on the market offinancial services and Regtekh, including taxation of operations with crypto currenciesand tokens.

Phenomenology in its Greek literal interpretation is the doctrine of phenomena, i.e.phenomena or events under observation. In modern philosophy, it acts as a method ofscientific analysis of consciousness and immanent, a priori structures of human existence.This article is the result of applying this method to setting and understanding the best waysto solve the problems directly related to the investigation of computer oriented crimes.Having resorted to historical generalizations, the author made an attempt to find an answerto the question why against the backdrop of the doctrinal achievements of domesticcriminalistics with so many new ideas, concepts, technologies, forensic algorithms andinvestigation programs, the progress in combating crime remains underestimated? Themain cause of this situation is seen in the fact that Russian criminalistics for a long timedeveloped apart from the leading foreign research schools. In turn, this situation is stillpreserved despite the global integration processes that have taken hold practically all thecountries of the world. As the main direction of overcoming the crisis phenomena, theauthor positions the implementation in the scientific resources of domestic criminalisticsof modern information technologies in general, and, to increase the effectiveness ofcombating crimes committed using computer and network capabilities, in particular. Heconsiders the fight against them to make an international problem, since the measuresto prevent, detect, uncover and investigate crimes committed using modern informationtechnologies cannot be effective only at the national level, because of the transnationaland transborder nature of the Internet itself. Given the continuing increase in the numberof its users, which naturally causes their dependence on the information community andthe vulnerability of all kinds of cyberattacks, a scientific analysis of the current state ofinvestigation of crimes of this kind is made and recommendations are formulated to raisethe effectiveness of this activity.

One of the most important issues in the law of international custom is the definition ofthe forms of acceptance of general practice as a legal norm (opinio juris). The lack ofconsensus on this issue at the international level and the common position in scienceresults in the poor effectiveness of the legal regulation of inter-state relations. Researchwork often uses non-objective approaches. The present article contains separatebut important theoretical provisions and proposals to address this problem. Thus,the existence of opinio juris is an inherent subjective element of the customary rule ofinternational law, as is the existence of practices that satisfy the necessary requirementsof customary rule formation. Only states and other subjects of international lawparticipating in international norm formation process can be recognized as subjects ofrecognition. Such actions may be manifested in the actions of state authorities and theirofficials, who may act on their behalf in accordance with international law and/or the lawof States. Opinio juris from the part of states is generally implemented in the course ofgeneral practice. Recognition must be exercised by legal means and be legitimate underthe law of the state and its international obligations. Among the main forms of recognition,together with acquiescence, are: a unilateral statement by the head of state (government),another state-authorized official, the head of the international intergovernmentalOrganization, other subject of international law; the inclusion of a rule of conduct in adomestic legal instrument; the inclusion of a rule of conduct in an international treatyor other based on it, a legally binding international legal act adopted by its parties inview of these documents as acts of unilateral recognition; under certain conditions, ajudicial decision in a state. The basic condition of the universal acceptance of the ruleof international law is its acceptance by the majority of states (established by the worldcommunity) whose interests are most affected by the application of this rule. This requiressome legal formalization, the codification of qualitative and quantitative criteria and thecorresponding indicators of the formation of the customary rule of international law. Theelaboration and adoption of a convention on the law of international customs would helpto reconcile the differences in the positions of subjects of international law and develop aunified approach in that regard.

The paper is devoted to the theoretical issues of developing and promoting Eurasianintegration on the basis of humanistic values formed under the auspices of the Councilof Europe and the European Union. The research focuses on the activity of the Council ofEurope Commission for Democracy through Law (Venice Commission) from the point ofview of the theoretical and international legal analysis of its law enforcement activities inorder to implement the promotion of European humanistic values. The aim of the articleis to analyze the approaches developed within the Council of Europe and the EuropeanUnion in promoting humanistic values and the opportunity of using it for the developmentof integration within the framework of the Eurasian Economic Union. Among the scholarmethods used in the article are: dialectical method, philosophical method, formal logicalmethod, system-structural method, historical method, formal-legal method, method ofinterpreting law, comparative legal method, method of expert evaluation, method of legalmodeling and forecasting. When applying the general methods of cognition mentionedabove, structuring, description, content analysis, synthesis of the results of work wereused as research techniques too. Based on the analysis the article draws the conclusionsabout the necessity in further development of the law of the Eurasian Economic Unionnot only as an exclusively economic integration association, but with the addition of newimportant spheres of international legal cooperation of member states to the competenceof the Union through international legal channels. In this regard, the analysis of legalregulation in the European Union, as well as the Council of Europe, suggests that thescope of international legal regulation of the Eurasian Economic Union can include theissues of human rights protection, the expansion of judicial cooperation, the developmentof a joint anti-corruption policy on the basis of a relevant international document, theregulation of the interaction of the member states of the Eurasian Economic Union on theprevention and elimination of emergency situations of natural and man-induced disasterson the basis of a special international agreement, the creation of a united ecological andenvironmental policy.

The principles of the criminal process are the pillars that reflect its structure, essence,progress through the stages, the system of criminal procedural functions and coercivemeasures. In 2007, the single Code of Criminal Procedure was adopted in Switzerlandfor the first time, replacing 26 earlier cantonal CPCs. The work on the Code continuedfor more than 30 years; its development involved theoretical scientists and practitioners,as well as foreign experts. It reflects the latest approaches to many criminal justiceinstitutions, including its fundamental principles, which will be discussed in this article. Itis shown that among them there are those that the Code of Criminal Procedure does notspecify: good faith, the principle of accusation, the independence of the criminal justiceauthorities, the prohibition of re-prosecution, etc. However, the Swiss Code of CriminalProcedure does not fix certain principles stipulated in the Russian Federation criminalprocess: immunity, the protection of human and civil rights and freedoms in criminalproceedings, the inviolability of the home, the secret of correspondence, telephoneconversations, postal, telegraphic and other dispatches, competitiveness, ensuring theright to defense, the right to appeal procedural actions and decisions. Further, the authoranalyzes the principles of legality, publicity, respect for human dignity and the principleof justice, the prohibition of abuse of law, the principle of independence, the demandfor acceleration, the principle of accusation, the presumption of innocence, and thefree evaluation of evidence. The analyzed principles show the pronounced continentalcharacter of Swiss criminal justice. Many of them are due to the investigative maxim (theneed to establish objective truth), which determines the most important functions of thecourt, the prosecutor’s office, the police. The author shows that actual approaches andlegal principles reflected in the code under consideration can be used by the modernRussian legislator in the course of further modernization of the Code of CriminalProcedure of the Russian Federation, as well as in the development of the concept of thedevelopment of the domestic criminal process.

Argentina is one of the most developed countries in the Latin American region, whichcertainly stimulates the legislator to pay great attention to improving the nationalregulation of cross-border relations. The Private International Law of Argentina was firstcodified in the Civil Code (1869), but always developed mainly through the “internationaldimension”, and the “national dimension” always had a “residual” character and didnot adequately reflect modern trends in the regulation of private international relations.In 2015, the new Civil and Commercial Code entered into force in Argentina, Title IV“Provisions of Private International Law” of which contains a rather large-scale and detailedregulation of the issues of Private International Law and International Civil Procedure. TheArgentine legislator has chosen the path of intra-branch complex codification of PIL /ICP — in the act of general codification of civil law the rules for selecting the applicablelaw and jurisdictional norms are included as a separate special section. Compared withthe previous regulation, the new PIL of Argentina underwent significant modernization,primarily under the influence of the European approaches — the Swiss PIL Law and theEU regulations on jurisdiction, applicable law and enforcement of foreign judgments. Thearticle analyzes the most significant novelties affecting the institutions of the General Partof PIL: the establishment of the content of foreign law, the qualification of legal notions,the renvoi, flexible connecting factors, the autonomy of will of the parties, the techniqueof dépeçage and the adaptation of conflict rules. It is concluded that, in general, the newPIL of Argentina produces a positive impression. On the other hand, there are a numberof serious shortcomings in the regulation of general issues of the PIL, in particular: 1) therenvoi institution is formulated very broadly and indefinitely; 2) there is no special rule onprior, preliminary and collateral conflict issues; 3) the institution of qualification of legalnotions is not legally regulated. It appears that these shortcomings are the costs of theintra-branch method of codifying PIL, and they could have been avoided if Argentina hadfollowed the path of complex autonomous codification of PIL / ICP.

The article is dedicated to the main directions of reforming the legal system of the KyrgyzRepublic at the modern stage in the context of the dualism of law. The main branches ofprivate and public law are studied. The methodology of conceptual analysis of the legalsystem of the Kyrgyz Republic reform is applied. The basic directions of public law reforminclude the reform of criminal and administrative legislation. The novels of criminal, criminalprocedural, civil, civil procedural and administrative procedural legislation are analyzed. Themain directions of criminal legislation reforming are the humanization of justice, transitionfrom repressive measures of criminal-legal influence, unloading of the penitentiary system,as well as the development and implementation of new mechanisms of influence onconvicts and measures of their re-socialization are examined.Theoretical and legal analysisof the introduction of the three-tier system “felony, misdemeanor, offence “ allows toanalyze the tendencies of the criminal legislation development. In 2017, a new version of theCriminal Code of the Kyrgyz Republic, the Code of the Kyrgyz Republic on Misdemeanorsand the Code of the Kyrgyz Republic on Offences were adopted. They will come into legalforce on January 1, 2019. The novels of the criminal legislation are misdemeanor andprobation supervision. The international experience of applying misdemeanor on theexample of countries of Anglo-Saxon (common) law and Romano-German law is analyzed.In order to humanize criminal legislation, the Code of the Kyrgyz Republic on Misdemeanorswas firstly adopted, that contains 122 misdemeanors, among them crimes of small gravityof varying degrees of public danger and some administrative offenses. As part of legalreform in the Kyrgyz Republic, the Administrative Procedural Code of the Kyrgyz Republicand the Law of the Kyrgyz Republic “On Mediation” were adopted for the first time.The implementation of mediation as an alternative dispute resolution is a significant stepin the development of civil society, democratic and lawful state in the Kyrgyz Republic.Reforming the legal system of the Kyrgyz Republic should begin with the preparationof a conceptual framework, which provides determination of a single direction of itsdevelopment.

The article raises the issue of the paradigm shift of constitutional law in modernconditions related with transition of Russian Federation to a fundamentally new stageof its constitutional development at the end of the 20th century. The reconstruction ofconstitutional legal understanding is connected with overcoming of legal, political andideological problems of the transitional period. This study involves the application of arational methodology of clarifying traditional humanitarian concepts of constitutional lawbased on natural legal understanding. The doctrine of supremacy of the constitution isexamined in terms of the predetermination of its legal content towards the positive law asthe result of the activities of state authorities. Discussing the mythological construction ofthe establishment of legal order in traditional communities contained in the Old Testament,the author suggests construction of the formation of social relations by regulators of naturalorigin. Highlighting the traditional and religious basis of the content of regulators of socialrelations specific to the “pre-state monoethnic communities” the author reveals their“constitutionality” on the basis of concept of “constitutional culture”. Such an approach tothe sources of law allows to obtain a more precise idea of the categories of constitutionallaw and to justify their natural-legal origin based on rational modeling. Within framework ofnatural legal understanding a model of constitutional regulation of social relations basedon a fundamental system of constitutional principles has been constructed. The analysisof content of decisions of the bodies of constitutional justice allowed to determine themechanism for regulating of social relations by constitutional principles (constitutionalregulation) which is different from the mechanism by the normative regulation. The conceptof Right of the Constitution as a natural-legal form of constitutional regulation is formulated.Its application leads to the representation of the legal positions of the ConstitutionalCourt of the Russian Federation as “flexible doctrines” the creation of which correctsand predetermines constitutional development of the state. Judicial resolution of thedichotomy: constitutional regime/legislative regime by the constitutional court throughthe constitutional regulation allows to emphasize a law-making characteristic on theactivity of Constitutional Court of Russian Federation and thus to clarify its place and rolein the system of interaction between a person, society and a state.

Review of a book by A.E. Lubarev. Development of Electoral Systems: Historical Context.Moscow: Liberal Mission, 2016. 632 p.