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Legal thought: history and contemporarity
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4–33
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The article is devoted to academic work of V.N. Kudryavtsev (1923–2014), an outstanding legal researcher, academician, state and public figure, whose centenary is celebrated this year. His name is primarily associated with criminal law and criminology though the range of his professional interests was much wider. He fulfilled researches in theory and sociology of law, criminal politics, legal cybernetics, legal political science, and legal conflictology. His academic works were always dedicated to pressing and insufficiently studied issues of legal science and the promising directions that still retain their potential for the future. V.N. Kudryavtsev significantly enhanced the doctrine of criminal law and elaborated the theoretical aspects of the objective side of crime and created as a result the general theory of crime qualification. He also addressed the subjects of criminalization/decriminalization of socially dangerous acts and modeling of criminal law norms. He was one of the first to recognize the potential of using cybernetics in legal practice and showed the possibilities of computer programming in application of legal rules. V.N. Kudryavtsev’s contribution to the revival and development of Russian criminology and creation of its scientific foundation is invaluable. In studies dealing with causes of crime and genesis of individual criminal behavior he also addressed one of the fundamental issues of sciences about humans i.e. the ratio of biological and social in human development. V.N. Kudryavtsev first headed the State Institute for the Study of Causes and Development of Crime Prevention Measures, and afterwards the Institute of State and Law of the Academy of Sciences, where he contributed to development of new areas of legal research and introduction of sociological and mathematical methods. Later, as vice-president of the Academy of Sciences, he supervised the work of academic social sciences institutes. V.N. Kudryavtsev’s legacy is extensive and diverse and, unfortunately, not fully appreciated by modern scholars. To pay tribute to his memory and to remind the basic, most fundamental and absolutely up-to-date academic ideas of V.N. Kudryavtsev, that was the purpose of the authors of this article. |
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34–55
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The author attempts to formulate modern trends in domestic criminal law, continuing the traditional approaches to the definition of historically existing schools in the theory of criminal law (primarily classical and sociological). They were based on the alleged answers of the doctrine to the most important tasks facing criminal law, and, first of all, the problems of constructing criminal law prohibitions and punishments and other coercive measures of a criminal nature, criminalization, decriminalization, relying on their commission. The specification of these main controversial (in modern criminal law doctrine) issues is carried out in the article on a number of aspects of the theme. These include: the prospect of administrative responsibility as a prerequisite for criminal responsibility and punishment; the idea of introducing into the Criminal Code of the Russian Federation, along with the concept of crime, also the concept of “criminal misconduct”; clarification of the definition of normative (formal) sources of criminal legislation; the legal nature of the recommendations of the Plenum of the Supreme Court of the Russian Federation on the application of criminal legislation (and in a broader sense — the role of judicial interpretation, the possibility or impossibility of taking it into account when considering a particular criminal case); the problem of introducing criminal liability of legal entities into criminal legislation. The content of the article is based on a generalization of doctrinal views on the topic under consideration in the theory of criminal law, a generalization of the law-making practice of the domestic legislator, law enforcement judicial practice, including the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, official statistics on the registration of the number of crimes committed in the country and punishments imposed by courts for their commission. Certain variants of these doctrinal ideas are linked to the specifics of the changed geopolitical conditions (including those related to the modern confrontation between the West (USA, EU-NATO) and Russia. |
Russian law: conditions, perspectives, commentaries
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56–77
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The fruits of research and technological progress are being introduced in various spheres of society practically on a daily basis. “Smart technologies”, actively developing in urban space, form “cities of the future”, highly intelligent territories based on advanced innovative technologies that fully meet the needs of modern mankind. The purpose of this article is to analyze the technologies of the “smart city”, the mechanism of their legal regulation, as well the possibility of solving local issues with their help by local governments. Based on general and specific methods of legal research, the authors come to the conclusion that at present in Russia there are both legal and technical opportunities for the population and local governments to resolve issues of local importance using Smart technologies. However, the practice of their implementation indicates the presence of serious difficulties in the process of digitalization of municipalities. According to the authors, the creation of conditions for the introduction of technologies of a smart city must be carried out in all the most important areas of the urban life. Improving the safety and comfort of the urban environment, developing civic participation and increasing the transparency of management, optimizing the use of infrastructure and resources through the introduction of digital solutions can have a multiplier effect and seriously increase the indicators of comfortable life in urban areas. At the same time, although all of the identified areas are somehow consistent with the mechanism for resolving issues of local importance, determined by municipal legislation, examples of their effective development indicate the need for coordinated work at all levels of government — from federal to municipal. In this regard, the relevant legal regulation also needs to be developed, since the existence of ministerial acts is not enough for the coordinated implementation of measures in all areas of the development of “smart cities” in Russia. The authors maintain the need for the development of complex legislation in the sphere mentioned, that would envisage connected powers of public power bodies at all levels, including the municipal level. |
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78–103
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“Sustainable Development” theory currently turns into action. “Sustainable Development Goals” and “ESG” are categories that once attracted only a narrow circle of subjects involved in their implementation processes, have now become significant for an extremely wide range of subjects. Various management tools and investment mechanisms are used to ensure sustainable development. The recognition of public-private partnership (PPP) as one of the mechanisms to achieve the SDGs caused a change in the traditional PPP model and raised the question of whether the legal regulation of PPP should be transformed. Although in recent years the concept of sustainable development has become increasingly important in regulating a wide range of relations, the search for and implementation of legal means to ensure sustainable development in the implementation of investment activities, including on the basis of PPP agreements, is limited. The subject of the study became the doctrinal and legislative approaches to the regulation of PPP in relation to the SDGs and ESG-factors, other forms of “sustainable” infrastructure investment projects with the participation of the governments; the purpose is to assess the legal regulators necessary to build a model of regulation of the relations arising in this regard. Using an interdisciplinary approach in conducting the research, the article defines the goals, forms and main elements of the PPP legal regulation model as a means of achieving the SDGs and compliance with ESG factors. Based on the results of the study, the author developed the concept of “sustainable development clauses” in the PPP agreement. It is concluded that the transformation of the legal regulation of PPP should affect the principles of regulation, forms of PPP, the processes of determining the effectiveness and comparative advantage of PPP, prequalification requirements and competition criteria for the right to conclude a PPP agreement, as well as the terms of the PPP agreement. In the broader context of legislation and law enforcement practice it is proved that civil legislation and civil-law contractual structures can be used as a tool for implementing the social and climate agenda. |
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104–127
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The article represents the result of a practical analysis of the business accelerators operating in the Russian Federation in order to identify the mandatory components of their activities, as well as approaches to their definition and interpretation. As part of the study, the conditions of participation in acceleration programs and internal documents of business accelerators were analyzed in order to generalize and systematize the data obtained. The article summarizes and organizes the obligatory and optional elements of business accelerators, gives their legal assessment in the absence of normative legal regulation, makes non-obvious comparisons and parallels with the current normative acts. The analysis of the structural elements of the business accelerator allows for further research in the field of their classification and determination of the principles of business accelerators: for example, the allocation of financial flows within the accelerator and their legal regulation depend on the composition of participants, as well as the availability of a competitive basis for the selection of applications depends on the level of entry barriers to the accelerator and the availability of participation in acceleration programs for potential participants. The conclusions described in the paper have high practical and academic value and novelty. On the one hand, the results obtained are an actual expression of the reality and represent analytical data necessary for further research. On the other hand, the findings and collected data can be further used in the formation of the concept of the legal model of the business accelerator, including may be prerequisites for legal regulation and legalization of the business accelerator model in Russia. And finally, the results obtained at this stage of the development of business accelerators can be applied when launching new acceleration programs in such a way that newly launched projects meet the correct parameters and criteria of the business accelerator and allow them to operate based not on spontaneous principles of trials and errors, but with a stable understanding and transparent mechanism, ensuring equal and fair access for participate in acceleration programs. |
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128–153
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The information society of our time is characterized by large-scale and intensive use of computer technologies in most areas of economic relations. Many procedures of interaction between people and business entities are computerized and digitized. Remote technologies used on the Internet allow groups of people, in particular, to perform mathematical calculations and use the data obtained in the interests of participants in such collective calculations. The totality of such electronic data in the Russian Federation is legitimized as a digital currency. The legal content and place of digital currency in property turnover and the system of its state regulation seems to be an actual object of scholar development. The article solves the following tasks based on the study of domestic legislation and doctrinal publications: the legal content of digital currency as encrypted information and the type of other property is substantiated; legislative constructions providing for the functioning of digital currency as a means of payment and investment are analyzed; qualitative features of digital currency inherent in the object of civil rights are identified. Digital currency is studied as a set of electronic data and information, the author’s definition of digital currency is presented. Digital currency in circulation is disclosed as encrypted information, settlement and exchange equivalent and investment asset. The fallacy of the legislative recognition of digital currency as a means of payment is argued. The legal constructions on the possibility of using digital currency as an investment are critically evaluated. The features of turnover and the development of regulatory regulation of digital currency in the Russian legal order are analyzed. A legal analysis of the parliamentary bill on the “mining” of digital currencies is being carried out. The essence is substantiated; the definition of activities aimed at obtaining digital currencies by mathematical calculations on private computers is formulated. Digital currency is considered as a kind of other property, the conclusion is made about the possibility of recognizing the “coin” of digital currency as an object of civil rights. The article examines the modern doctrinal developments of mainly Russian researchers on the subject of research, as well as encyclopedic and normative sources. Proposals are being made to improve the legal regulation of public relations in the field of property turnover of digital currency. |
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154–172
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The article examines theoretical and practical issues related to the legal status of a representative in the civil law process at the present stage. To resolve problematic issues arising in judicial practice when considering civil cases with the participation of a representative, it is necessary to refer to the theory of procedural legal science. The issues of judicial representation were the subjects of academic research even in pre-revolutionary Russia and in the Soviet legal doctrine. However, until now, the place of the representative in the system of subjects of civil and arbitration proceedings has not been determined. The author has proved that the representative’s lack of personal interest in the case, and the absolute dependence of his procedural powers on the will of the principal, determine that he has no independent procedural status and the right to express his own opinion on all issues considered by the court. The concept of a “procedural plaintiff” developed by procedural science does not correspond to the legal nature of a legal representative, as a result of which a representative cannot be called a person participating in the case “in a procedural sense” (following the example of a prosecutor). Accordingly, the court, when considering a case with the participation of a representative, should always strive to find out the legal position of the principal himself— that is, the person participating in the case — and it is on it to base its conclusions. The court has the right to ask questions to the person participating in the case directly, but this person has the corresponding right to delegate the authority to give a reasoned answer to the question to his representative. Deprivation of this right and coercion to answer a question in person may mean deprivation of the right to judicial protection. The issue of compliance of the requirement for a representative of higher legal education with the legal positions of the Constitutional Court of the Russian Federation was also considered. The initiative to establish state legal bureaus was supported. It was proposed to implement into the current procedural legislation the provision, enshrined in the Code of Civil Procedure of the Russian Federation in 1964, that the court independently decides on admitting a representative who does not have the status of a lawyer or an individual entrepreneur in the process, as well as that the services provided for judicial representation by these individuals should not be systematic and should be carried out free of charge. |
Law in the modern world
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173–191
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The rise in the level of the world ocean due to global climate warming and the active melting of the glaciers of Antarctica, the Arctic and Greenland has created serious threats to the population (numbering more than a billion) of the low-lying places of the planet, which are threatened with complete flooding of their territories, so that some states located on them may completely cease to exist. At the end of the twentieth century, the Pacific island States, whose height above sea level does not exceed 10 meters, called on the international community to pay attention to the issue. They are taking measures for the construction of protective walls, etc., but most of these countries are developing, and such structures require them to incur exorbitant costs. Four elements that make up the concept of the State are generally recognized. Its population and Government can operate on the territory of other States, but without the territory where the State exercises its sovereign rule, it cannot exist. Still alienating those in a small number of cases, it was committed by the State itself, and for the most part — as a result of the commission of an international crime, such as conquest or occupation. There were no examples of the termination of the state as a result of natural phenomena in the world. The institution of responsibility arises in a new way: no one is to blame for catastrophic events; the international community is responsible for ensuring the normal existence of threatened States and their populations. The positions expressed by the States show that the island States themselves and other members of the international community presume the continuation of the international legal personality of the submerged States. In the practice of States, there are examples when they have changed the status of part of their territory, sometimes unusual, such as, for example, joint sovereignty. Joining another state, formation of a federation or confederation, cession or lease of territory are more common. There is not a single promising assumption yet. It is clear that the international community will play a decisive role in the fate of the flooded States. The UN International Law Commission and the International Court of Justice are involved in the analysis of a complicated problem. |
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192–220
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In the doctrine, there are a variety of approaches to understanding the principles of international law, their role in regulating interstate relations. The study of principles in international law for the most part comes down to the consideration of its basic principles that form the basis of the international legal order. At the same time, the principles of international law are a multifaceted phenomenon and include their most diverse types. Revealing the legal nature of the principles of international law, revealing their essence and versatility is both theoretical and applied. The work is devoted to the study of the principles of international law as a social and legal phenomenon. Despite their fundamental, stable nature, the possibility of their evolution is shown. A classification of the principles of international law is presented, which makes it possible to more fully reveal their various essential aspects and specific features. On the basis of the dialectical approach, as well as the use of general research methods, the content of various types of principles of international law is presented. Their role in the regulation of interstate relations, law enforcement practice is shown. Much attention is paid to the study of the normativity of the principles of international law, their various types. The legal nature of the principles of international law, which have written and unwritten forms of their existence and expression, is considered. The complexity of deducing the unwritten principles of international law is shown. The interrelation of the principles reflected in various sources of international law is presented: international customs, international treaties, as well as those presented in the general principles of law. It was shown that the principles of international law: are an important legal category, a complex and multifaceted social and legal phenomenon, the basic regulator of interstate relations; contain the main ideas and approaches that reflect the state and needs of the development of interstate relations, the vital interests of the world community, its moral and political attitudes; had a decisive influence on the development of international law itself; predetermine the structure of interstate relations, their consistency and stability. It is especially emphasized that without them the functioning of international law, as well as adequate law enforcement and law-making activities, is impossible. |
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221–244
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The article examines the historical, economic and legal aspects of the evolution of free of capital flow in the European Union, contemporary stage of ensuring that was the construction of the Capital Markets Union. The authors identify the correlation between ensuring the freedom of capital movement and control mechanisms for such flow, defining the legal means of EU institutions aimed at establishing an appropriate balance in its legal regulation. The authors characterize the features of the construction and functioning of the Capital Markets Union, touch upon the organizational and legal mechanism herein, and also explore the correlation of the Capital Markets Union with other projects of European financial integration development (Economic and Monetary Union, Single Market in Financial Services and European Banking Union). In this regard, special attention is paid to the European Financial Supervision System, mainly to the European supervisory authorities, which unites various financial integration projects. In addition, the authors draw focus to the correlation between the method of harmonization and the method of unification in the implementation of further steps by EU institutions in the field of financial integration. To achieve the research goal, two groups of research ways and means were used: general research ones (methods of cognition, description, analysis, induction, deduction, comparison) and special methods of study (formal legal, comparative legal, structural legal, historical methods). As a result of the analysis, the authors conclude that the construction of a Capital Markets Union makes it possible to ensure the reliable implementation of the free capital flow under the European Union jurisdiction in the long term. The creation and functioning of the Capital Markets Union is a complicated process indeed, as it correlates with other financial integration projects within the European Union, including contributing to the construction of a single integrated financial market. At the same time, a striking feature of such financial integration is the gradual transition from the harmonization method to the unification method, which allows for the establishment of uniform regulatory rules on specific issues for all member states, which strengthens the role of supranational regulation of European Union financial markets and supervision of them by European supervisory authorities. |
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245–267
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On November 30, 2022, OpenAI launched ChatGPT conversational artificial intelligence; with the latest version update, ChatGPT has demonstrated an impressive ability to understand natural language, making it an attractive tool for companies and individuals looking to provide customer service and support. GPT-3 uses textual data, mostly from publicly available information on the Internet, as training data. GPT-4, on the other hand, uses a large number of images in addition to textual data for training, and thus can process both textual and graphical data. The emergence of generative AI has greatly impacted human life, but it can be said that intelligent technology is a double-edged sword:rapid development of generative artificial intelligence (AI) technologies, on the one hand, it can improve efficiency and productivity, reduce costs and open new opportunities for economic growth, but on the other hand, the use of generative AI services to create synthetic content in the form of text, audio, video and images poses possible risks. To date, different regions around the world are at different stages of development of normative acts concerning generative AI.Using the comparative legal method and the method of system analysis, this article analyzes in detail the main models of legal regulation of generative AI in the modern world on the example of the UK, the USA, the European Union and China, noting the different approach in the development and adoption of relevant normative legal acts in the field of regulation of generative AI services.It especially reveals the Chinese government’s position on “development and security” and “innovation and governance” at present. The main trends of improving the regulation of generative AI services by China are proposed, and it is concluded that it is necessary to balance “rule of law” and “innovation” and promote the healthy development of generative AI. |
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