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Legal thought: history and contemporarity
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4–24
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The subject of this article is the question of ontological status of the human embryo in vitro, on whose decision the determination of its moral and legal status depends, which is of exceptional importance for the ethical and legal regulation of manipulations with embryos in the process of scholar research and in clinical practice of the reproductive technologies. Various approaches to solve the problem of the embryo status historically developed in different countries and regions of the world the author considers from the standpoint of Christian anthropology. The thesis is substantiated that the idea of human likeness to God, formed in Christian culture, which gave a powerful impetus to scientific and technological progress, initially contained deep ideological prerequisites that could block the possibility of the most dangerous intrusions into the human nature, created in the image of God. One of these premises is the idea that the human embryo from the moment of its conception is a spiritualized person. This intention contained in the depths of the Christian worldview, to recognize the human embryo as a person was actualized in the last decades of the 20th century under influence of the legalization of abortion and the possibility of development of the embryo in the laboratory, its cryopreservation, manipulation of its genes to the prospect of genetic improvement of the future child. As a result, countries whose cultural matrix does not contain such moral and religious constraints, in the context of the development of the scholar and technological sphere, receive advantages in global competition that in a certain sense also has a civilizational character. This circumstance has become one of the factors contributing to the emerging changes in international ethical and legal regulation, defining the boundaries of genetic research on human embryonic development. The main vector of changes is set by the weakening of the previous restrictions, the origins of which go back to the dogmas of Christianity. Moreover, the latest innovations in this area demonstrate the desire of the biomedical community to share responsibility for the development of regulatory policy in the field of human embryo research with researchers of other branches of science and with the public. |
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25–47
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The communicative theory of law was formed in Russia at the beginning of the 21th century in the works of Andrei Polyakov. It is based on a very wide range of previous concepts in the philosophy of law. The article systematizes the main ideological sources of the communicative theory of law on the basis of the identification of three groups — the Russian pre-revolutionary philosophy of law, social phenomenology, supplemented by the theory of communication, and the basic provisions of the methodological search for an integral legal understanding. The development of the communicative theory of law was carried out in line with the theoretical searches of the Petersburg school of law. Therefore, the communicative theory of law recreates doctrinal connections with the Russian philosophy of law of the early twentieth century, among which the ideas of L.I. Petrazhitsky about imperative-attributive emotions source as the basis of law internal to a person, approaching the understanding of their intersubjective nature were used as a basic ideological; P.I. Novgorodtsev’s teaching about “inspiring morality”, initiating rational and moral self-disclosure of the essence of human personality; I.A. Ilyin’s idea of recognition as the basis of legal communication of people. The phenomenological complex of sources served both to substantiate the eidetic meaning of law in the communicative theory of law and to develop its intersubjective perspective. It includes the ideas of Husserl about pure consciousness, intentionality, intersubjectivity, the life world, the ideas of A. Schutz about the everyday intersubjective life world, the program of social constructivism of P. Berger and T. Lukhmann, revealing the dialectic of the subjective, individual and objective, collective in the formation of social knowledge as the foundation of social reproduction. Socio-phenomenological ideas about intersubjective interaction are calibrated in the communicative theory of law by such an ideological source as the theory of communication, generalizing the schemes of the communicative act. The last group of sources is the domestic search for integral jurisprudence at the turn of the millennium, namely, the definition of basic criteria for a methodological synthesis combining the main types of legal understanding The considered ideological sources determine the qualitative methodological originality that distinguishes the Russian communicative theory of law from the Western one. |
Russian law: conditions, perspectives, commentaries
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48–69
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The article examines the forms of parliamentary activity and powers of deputies directly related to the constitutional goal of realizing mandate of national confidence. Legislative regulation of forms of the activity has changed more than once, therefore differentiated approaches to understanding the system of forms of deputy activity appeared. The purpose of the study is to classify and systematize the forms of deputy activity. Its forms can be divided into loyal and oppositional, basic (fundamental) ones and control. The basic forms of activity of national representatives include: interaction with voters, participation in meetings of a representative body. Control forms of activity of deputies include interpellation, non-confidence vote, resolution of censure, parliamentary investigation. Within the framework of the study, the author determines the type of constitutional and legal norms establishing the powers and forms of activity of deputies. The norms on the powers of the people’s representatives are usually substantive, while the norms defining forms of deputy activity predetermine their free political activity aimed at realizing mandate of popular confidence. The result of analysis of powers and forms of parliamentary activity at the federal level of public power is the conclusion about ensuring the mandate of popular trust through visits and participation in the work of collegial bodies of state power. At the same time, author draws attention to the need to eliminate the inaccuracies that have arisen in the legislative regulation of the concepts of “participation in meetings” and “participation in work”. As a result of the study, author formulates a conclusion about the need to differentiate concepts of the form of deputy activity and of deputies powers, emphasizing their differences, including by comparing the individual powers of parliamentarians not related to the expression of public power. These include participation in the execution of instructions from the chambers, organization of parliamentary hearings, submission of a parliamentary or deputy inquiry, and addressing questions to members of the Government. The author notes weakening of the deputy’s request role as a control mechanism, its transformation into an official appeal to other officials. In turn, addressing a question to a member of the Government of the Russia acquires control functions. Accordingly, the democratic nature of constitutionalism, among other things, is predetermined by a sufficient variety of individual and collective forms of parliamentary work, which should be very extensive. |
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70–91
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The growing workload on the courts both in Russia and in foreign countries actualizes the issue of allocating sufficient financial resources to the courts to deal with the growing volume of cases. There is a growing need for an adequate budget for the workload of the courts, considered not only as a financial instrument, but also as a guarantee of the independence of courts and judges. The subject of the work was the problem of court financing, which provides sufficient resources for the administration of justice in full, the definition of a court budgeting model corresponding to the modern period. The author comes to the conclusion that the procedure for financing the courts, fixed by law, as not related to the workload and results of the activities of the courts, cannot be considered a tool for the further development of the Russian judicial system. The transition to a different technology for the formation of the budget of the courts is substantiated, focusing on the efficiency and results of their work. The purpose of the article is to develop theoretical provisions on the financing of courts, including the sufficiency criteria and features of planning the budget of the judiciary, using the proven experience of financing courts in foreign countries, as well as formulating, on this basis, proposals for improving the current Russian legislation. The article analyzes the varieties of the resultoriented budgeting model operating in the Netherlands, Finland and France, which differ in the degree of obligation for the formation of the budget of information on the results of the work of the courts. It was revealed that the basis for planning the budget of courts is information about their workload, calculated according to the methodology for calculating the weighted average complexity of cases. The limitation of the application of traditional ideas about productivity and efficiency as economic categories to judicial activity, the quality of which cannot be described by simple quantitative indicators of cases considered, is argued. The values of justice set the objective limits of productivity, and the norms of the workload of judges and court staff, fixed by law, will make it possible to correct the excessive workload of the courts and determine the necessary resources for proper justice, including staff units and financial allocations. |
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92–113
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The article is devoted to the relationship between principles of unity and independence in the construction of a budgetary system. The first of the points of view is that unity is dominant because it corresponds to the constitutional principle of unity of the state. Another position is that the primary is the independence of budgets. The author details the existing arguments in favor and against these positions and formulates a different point of view that these principles are actually not opposite, but complement each other. In this regard, various arguments are made, including the provisions of system theory related to the isolation of monocentric and distributed systems and the concept of system scalability. The historical experience of regulating the budgetary system in the USSR is analyzed. At this time there were a model of “socialist federalism” and principle of “democratic centralism”. The article also addresses the issue of the connection of optimal regulation of the budgetary independence of the regions and the problem of preventing secession in a federal state, which is always relevant for Russia. As a general conclusion, the idea is formulated that the principles of unity and independence of the budgetary system are connected into a single whole. It is an eternal problem for a complex state to find a balance in the distribution of financial powers between the federal centre, regional and local levels of government, in connection with which a simplified understanding of this issue should be abandoned. More suitable to describe the combination of unity and independence in the construction of the budgetary system of Russia, the author believes the expression “distributed unity,” when the basic property is the unity of the budgetary system, but autonomy is needed for its elements in order to achieve maximum efficiency of the financial activity of the state. Perhaps in this case it will be necessary to complete the budget system. In fact, current “de facto” state of affairs, when the federal budget, acting as the center and basis for the budget system, remains its ordinary element, should be corrected. |
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114–138
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The subject of research in the article is the category of economic solidarity and its constitutional and legal content. The plurality of understanding of economic solidarity in modern science and current legislation is stated, among which is the understanding of economic solidarity as: a constitutional principle; constitutional value; factor of evolution of human and civil rights and freedoms in the economic sphere; manifestations of the principles of constitutionalism; constitutional basis for development of economic diversity, competition, differentiation of economic statuses; forms of communication, forms of interaction between participants in public relations; vectors of economic and social interaction; the plane of intersection of economic interests of individual, public authorities, business, social institutions and other participants in economic relations; criterion of the level of development, maturity of economic interaction, criterion of sustainable economic development; properties, qualitative characteristics of economic interaction at a certain stage of socio-economic development; criteria for effectiveness of public administration in the economic sphere; an indicator of dependence or connectedness of participants in economic and social interaction; a systemic, complex institution of a constitutional, economic, axiological and organizational and managerial nature. The understanding of economic solidarity as a constitutional principle and constitutional value for Russia is relatively new and requires doctrinal understanding. The article highlights theoretical approaches to the positioning of economic solidarity (in the constitutional and other dimensions); the conclusion is made about the leading role of the state in preserving and ensuring economic solidarity in society; the prospects for the use of interdisciplinary approaches to the study of economic solidarity are outlined. |
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139–164
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In modern geopolitical and economic realities the role of labor law and its functionality are radically changing. More over the relations are formed that are built according to the certain rules but there may be no legal regulation; among them are: atypical employment including attracted labor, gig employment, self-employment, spot employment, etc. At the same time, the role of integration associations in the field of labor and transnational corporations is changing. In addition, digitalization in labor law is reaching a qualitatively new level today. Therefore the article offers current research directions of these and other relations within the framework of new challenges for labor law in the digital age. In December 2022 the State Duma held a meeting of the working group on the draft of new Federal Law “On Employment in the Russian Federation”. However, the draft raised a lot of questions and was completely revised. But while the draft has not passed yet into the status of a law, additional changes and clarifications are possible, which makes the proposed topic even more relevant. Therefore, an important vector of today is the need to develop a concept of a new type of employment and improvement of legislation on employment of the population. In addition, robotization in the field of labor relations is reflected not only in the positive use of industrial robots capable of performing the same type of repetitive tasks with great efficiency, but also carries various kinds of risks. Employment of the population is also threatened by increasing use of artificial intelligence. Digitalization in the field of labor relations logically entails atypical forms of using already classical institutions, for example, new opportunities are opening up in the application of the institute of social partnership, namely, in the activities of sector trade unions in the aspect of regulating collective labor relations, which will also be discussed in this paper. Also, in the research are analyzed legislative changes concerning electronic interaction between an employee and an employer within the framework of performing remote work. |
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165–189
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Based on analysis of the Russian Constitutional Court decisions issued from 2002 to 2021 inclusive, author examines influence of legal positions developed by the Constitutional Court on the Russian Labor Code. The paper presents a classification of the decisions of the Constitutional Court adopted following the results of the verification of compliance with the Constitution of the Russian Federation with the norms of the Labor Code. The paper presents data that show that in the last 10 years the role of the Constitutional Court in influencing labor legislation has increased significantly. The author identified six final decisions of the Constitutional Court that recognized certain provisions of the Labor Code inconsistent with the Constitution, fifteen decisions that are interpretative (explanatory) in nature, four definitions with positive content and four more with quasipositive content. The paper analyzes the importance of the legal positions contained in these decisions for labor relations. The author has identified the most popular norms of the Labor Code are most often challenged in the Constitutional Court. These turned out to be the norms on the deadlines for applying to the court and on dismissal due to a reduction in the number or staff. The paper shows how such dynamics affected the legal regulation of these types of relations, in particular, the development of judicial positions of the Supreme Court of the Russian Federation from the point of view of recognizing a valid reason for missing the deadline for going to court as filing a complaint against the actions of the employer to the prosecutor’s office or labor inspectorate. Through the prism of the legal positions of the Constitutional Court the norms on dismissal by reducing the number or staff are studied, the subject composition of applicants is analyzed, it is established that the prevailing number of legal positions of the Constitutional Court is formed on the basis of appeals from employees and only a small part on appeals from employers, courts, trade unions and deputies of representative (legislative) bodies of the members of the Russian Federation. The conclusions presented in the paper can be used as a basis for legislative work in terms of improving labor legislation, as well as for theoretical studies of the impact of the role of the Constitutional Court of the Russian Federation on the legal regulation of labor relations. |
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190–212
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The question of the relationship between the provisions of paragraph 2 of Article 1065 of the Civil Code providing for suspension of production activities that create a risk of causing new (repeated) harm, and Article 3.12 of the Administrative Code regulating the suspension of activities as a type of administrative punishment. The subject of the study is the complex institute of suspension of activity in Russian law, as well as the public relations regulated by it and the practice of its enforcement. The purpose of the study is to explore grounds for suspending activities provided for by civil legislation and legisla explore grounds for suspending activities provided for by civil legislation and legislation on administrative offenses, their correlation and interaction. The general method of historical materialism, general scholar methods of generalization, analysis, synthesis and comparison, and a special legal method were used to conduct the research. The article presents an analysis of the works of researchers concerning the correlation of liability and protection measures in general and the provisions of Article 1065 of the Civil Code and Article 3.12 of the Administrative Code in particular. Taking into account the conditionality of a number of criteria proposed in the doctrine for the correlation of the studied socio-legal phenomena, an attempt has been made to construct a complex institution of suspension of activity in Russian law with the allocation of different in nature, purpose and prevailing function of the legal grounds for its application. A brief description of the named institute, the grounds and conditions for its application, and the procedures for its implementation are given. Particular attention is devoted by author to the question of partial coincidence of the grounds for the application of the suspension sanction specified in codes mentioned. The problem occurs if the danger of causing repeated (new) harm is caused by industrial activity, and the behavior of the person performing it contains signs of an administrative offense, for that a penalty in the form of suspension of activity is provided. The possibility of alternative or combined application of these legislative provisions is substantiated. The necessity of resolving the highlighted issue at the legislative level is substantiated. |
Discussion club
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213–240
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The current legal realities convincingly indicate that manipulation as a widely spread means of influence upon social relations is also actively used in the process of legal regulation, which cannot and should not be ignored by researchers in the field of general theory of law as well by other legal scholars. The article substantiates that manipulation by means of legal goals is an independent type of lawful behavior, the study of which will not only significantly enrich the instrumental theory of law, but also increase the effectiveness of the mechanism of legal regulation, diversify traditional approaches to the analysis of legal goals and means and their potential, and facilitate recognizing unfair use of legal means in achieving manipulative legal goals. Particular attention is devoted to the study of the manipulation by means of legal goals as a phenomenon inherent to regulation of social relations, its nature, content, signs and consequences. On specific examples, the position is substantiated that the manipulation by means of legal goals is a form of lawful behavior, despite the fact that the achievement of the goals of the manipulator is carried out at the expense and to the detriment of the interests of the object of manipulation. The fundamental method of the research was materialistic dialectics that has made it possible to substantiate the heterogeneous nature of the manipulation by means of legal goals and demonstrate its role in balancing the interests of the individual, society and the state. The formal legal method in combination with the laws of logic and the structural-functional approach were used in formulating the author’s definitions of manipulation as a generic concept, as well as in defining manipulation by means of legal goals as an independent legal category. The author actively used the provisions of hermeneutics and various technologies for interpreting the texts of legal acts, methods of analysis and synthesis, deduction and induction, abstraction and analogy. The conclusion is that despite the fact that the manipulation by means of legal goals transforms the needs and interests of the participants in legal relations in favor of the position of the subject of management, misleads the object of manipulation and impedes the effective functioning of the mechanism of legal regulation, it is a kind of response to the request of society as well as socially conditioned way of making impact on participants in legal relations. It also complies with current legislation and allows to realize unpopular decisions. It is emphasized that the manipulation by means of legal goals needs further research. |
Law in the modern world
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241–274
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The case law and doctrine in Germany have created the concept of the essential competence (wesenseigene Zuständigkeit) for the cases where the applicable foreign law orders to the court to perform the actions are not compatible with the essence of the court in German law. The article is dedicated to that theory. First of all, this article has a task to establish whether that theory has the right to exist. To solve this task it is dealt with the spectrum of the cases in the German judicial decisions in which the question of the essential competence was arisen. The cases in which the court has to take evaluative decision, in which the subject of claims unknown to lex fori and in which the spouses wanted to get divorced according to the islamic law having religious origin, all these cases can be dealt by the German court and so they are covered by the essential competence of the German court. The German literature and after all the German courts have decided like this. But only one, very rare, the case of the divorce according to the religious Jewish law which is still the positive law in Israel can be true example of the absence of the essential competence (lack of machinery). Indeed, the applicable substantive (religious Jewish) law requires that the court should take part in a religious ritual, the thing, which cannot be provided by a secular court. For this rare case is set the second task: to establish the place of the essential competence in the system of the judicial competence. Having rejected the options of the distinction of the competence between branches of judicial power in the State and of the special subject competence, the author agrees which the prevailing view according to which that is the kind of the international competence, i.d. the distinction of the competence between the systems of domestic and foreign courts making a comment that the foreign courts are not any, taken abstractly court, but only the religious court of the defined country, whose lex causae is to be applied in this case according to the choice of law-rule of the court. |
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