No. 3 (2020): Russian Law: Education, Practice, Research. 2020. № 3

Brodowski D., Jahn M.

Digital Evidence in German Criminal Proceedings at the Stages of Preliminary Investigation, Substantive Review and Revision

The article is a translation from German of a comprehensive study of Matthias Jan and Dominik Brodowski. The translation is accompanied by a scientific and practical adaptation commentary.

The essence of the concepts of digital traces and digital evidence is revealed, and the classification of digital traces is given. The authors analyze the main means of collecting digital evidence during preliminary investigation, as well as the rules for presenting, researching and evaluating evidence at the stages of the German criminal process. It is especially difficult to obtain data during an online search in connection with the operation of the communication secrecy regime and the threat of violation of the sovereignty of other states.

Attention is drawn to the fact that when verifying the verdict, the higher court cannot identify and investigate the uncertainty and contradictions in the conclusions of the court based on the assessment of digital evidence: the data carrier on which the relevant information related to the content of the verdict is stored remains out of sight of the court of cassation. In this regard, it is proposed to expand the powers of the court of cassation to investigate and evaluate digital evidence.

Keywords: digital trace, digital evidence, online search, crime investigation, criminal procee-dings

 

Puchkov V. O.

Is Smart Contract a Contract? (To the Issue of the Digital Transformation of the Doctrine of Civil Law)

The study explores the smart contract phenomenon in the view of civil law doctrine and dogmatics. The purpose of the article is to show, how the civil law doctrineʼs methodological defects (i. e. the basic conceptsʼ uncertainty) lead to the problems of the smart contract legal conceptuali-zation.

Having studied the philosophical (hermeneutics, dialectics), metascientific (system approach, classical logics) and special legal means of cognitions, the author comes to conclusion that the problems of smart contract conceptualization are methodologically driven by the civil law scienceʼ categorical uncertainty. The Russian civil law doctrine would be able to formulate the heuristically based smart contract construction only after clarifying the basic civil law categories (firstly, the contract, the obligation, the securing of the obligation performance). The author concludes that a smart contract can be defined as an electronic (digital) form of a civil law contract, as well as a technical way of performing an obligation, the object of which is a particular digital asset (virtual object).

Keywords: smart contract, legal doctrine, methodology, digital technologies, contract, obligation, security for the obligation performance

 

Neznamov Al. V., Neznamov An. V.

Using Artificial Intelligence at Legal Proceedings: First Experiences and First Conclusions

The domestic and foreign doctrine concepts about the expected advantages, consequences and risks of the use of artificial intelligence systems in legal proceedings are considered. The article analyzes the first experience of the use of such systems in foreign countries (the investigation against Rolls-Royce, the N. Aletrasʼs group experiment on predicting the outcome of cases in the ECHR, the case of E. Lumis, USA).

It is concluded that the expected effects of the use of AI in legal proceedings were largely justified. In most of the cases AI systems have a positive impact on the quantitative characteristics of legal proceedings, while the possibility of directly improving the qualitative characteristics of justice in this way is still questionable. In addition, it is pointed out that the use of AI in legal proceedings is still limited to rare experiments, it is still impossible to evaluate how fair the risks expressed in science are. At the same time, some of these risks (especially technical, long-termed social and economic consequences) are definitely not without reason.

Keywords: digital technologies, artificial intelligence, legal proceedings, automated evidence processing, predictive justice, quality of justice

 

Naumov V. B., Butrimovich Ya. V., Kotov A. A.

Ensuring the Quality of Law Regulation of Experimental Legal Regimes

We live in the era of changes brought by digitalization, its impact is only heightened by the current pandemic. In the new realities after the crisis, the world will continue expanding the digital interaction though its regulation is already lagging behind the current pace and needs of development. In view of the significant changes in social relations, the legal system must adequately ensure the conditions for the development and application of new technologies, while safeguarding the rights of citizens.

In order not to violate the principle of legal certainty through the adoption of laws that are not effective or responsive to technical progress needs and demands, the legal order should provide suitable tools for the «crystallization» of sources of law. Experimental legal regime is one of such instruments. In the article, mechanisms of functioning and requirements for experimental legal regime have been examined in the context of the main type of regime, namely the «regulatory sandbox», in the light of international experience and analysis of legislation in this area being prepared and / or already adopted in Russia. 

The author also analyzes the pros and cons of the possible introduction of the construction of a «regulatory sandbox», on the basis of which recommendations for the legislator were created, suggesting that this legal construction is only a useful addition, but not the main incentive for development. It should be subject to enhanced requirements connected with the certainty of the rules of operation and equal access to it for its participants.

Keywords: experimental legal regimes, experiment, regulatory sandboxes, sources of law, development of statutory law, artificial intelligence, personal data, transfer of data, identification

 

Bezrukov A. V., Savos’kin A. V., Meshcheryagina V. A.

Constitutional (Statutory) Legislation of the Subjects of the Russian Federation on the Citizens’ Right to Appeal (Condition and Development)

The constitutional right to appeal is the subjective right of the petitioner. It could be additionally regulated by the acts of the subjects of the Russian Federation. At the same time, after the adoption of the Federal Law «On the Procedure for Considering Appeals of Citizens of the Russian Federation», most subjects of the Russian Federation repealed their laws. Only in recent years there has been a tendency to expand regional legislation on citizensʼ appeals. This trend is very relevant since in the Federal law there remain gaps and uncertainty regarding some legal categories.

A systematic analysis of the constitutional legislation of the Russian Federation and the constitutional (statutory) legislation of the subjects of the Russian Federation is conducted, the limits of competence of regional parliaments are established, the features of acts of subjects of the Russian Federation on petitions of citizens are considered; the features of securing additional guarantees
of constitutional right to appeal in the constitutions and charters of the subjects of the Russian Federation are investigated; the limits of the laws of the subjects of the Russian Federation on
additional guarantees of the right of citizens to appeal are determined; the regulation of the subjective composition of legal relations for the implementation of the relevant subjective law is studied; the place of the by-laws of the authorities of subjects of the Russian Federation in the mechanism
for the exercise of the constitutional right of citizensʼ appeals is determined.

Conclusions are formulated on the usefulness of the legislation of certain subjects of the Russian Federation which establish additional guarantees for the exercise of citizensʼ right to appeal.

Keywords: constitution of the Russian Federation, constitutional legislation of Russia, constitutional (charter) legislation of the subjects of the Russian Federation, law, constitutional rights and freedoms of citizens, right to appeal, constitutional rule of law

 

Selkova A. A.

Applying the Jura Novit Curia Principle in Arbitration

The author notes a pronounced tendency to challenge arbitral awards precisely on the basis of the incorrect application of the jura novit curia principle in determining the content of the law chosen by the parties. This poses a problem with regard to arbitrators exceeding their powers, which is increasingly encountered by arbitration institutions around the world. The author explores the issue of how arbitration should apply the jura novit curia principle, and gives examples from the practice of foreign arbitration institutions.

Considerable attention is paid to the analysis of understanding the jura novit curia principle in the law of various jurisdictions. Two possible options for interpreting the jura novit curia are highlighted. In the first sense, this concept assumes that the parties do not need to prove the content of the law they have chosen. According to the second one, the court is not limited to the legal qualifications and arguments that the parties cited during the proceedings.

The author concludes that the arbitrators have broad powers to apply certain legal norms that the parties did not refer to, re-qualify facts that the parties did not refer to, and interpret the courtʼs positions reflected in earlier arbitral awards. However, this should in no case violate the adversarial nature of the proceedings. In this regard, it is highly important to provide the parties with the opportunity to be heard before the court.

Keywords: arbitration, jura novit curia principle, panel of arbitrators, legal qualifications, applicable law

 

Karepanov N. V.

Concept of Traces in the Modern Science

The article sets out provisions on formation of knowledge about traces, philosophical and terminological foundations, concepts, classification of traces. Traces, in the authorʼs opinion, include objects of reality (material bodies and physical fields), altered phenomena or events that occurred in result of motion, processes and actions. It is impossible to consider the concept of traces without the use of philosophical theories and categories – «reflection», «being», «reality», «motion» and many others.

It is concluded that the understanding of traces in the narrow sense no longer satisfies the needs of either investigative practice or human life. Trasology as a study of only mechanical traces is losing its leading position. Objects that one cannot perceive with oneʼs senses are also traces. Such thoughts cause a necessity to develop a new approach to understanding and classifying traces

Keywords: traces, material bodies, physical fields, changes, reflections, phenomena, events, motion, physical processes, chemical processes, biological processes

 

Gaskarov I. F., Shishkina E. V.

Some Problems the Search for Minors Who Arbitrarily Left State Institutions

For the purposes of an effective search for minors, it is proposed to consider as synonyms the concepts of «missing», «disappeared without a trace», «absent» and to take immediate measures to search for these children in cases they are absent in places of their permanent or temporary stay, regardless of the nature of the initial information. The efficiency of the search depends on the information support of this activity, which includes all the information about the identity of the minor, the circumstances and reasons for his / her disappearance. Information about the individual should include not only socio-demographic, but also psychological and biological properties of the child. Special attention is to be given to information about his friends, relations, affections. Establishing the causes of absence involves the analysis of information on the timing of application, on the personal traits of the missing, and the circumstances preceding the disappearance.

Search versions are based on analysis of the entire set of information received at the screening stage of the application, including forms of deviant behavior, most often determine the choice
of mode of behavior of the child after the escape. The search direction may depend on the specifics of the area, its social characteristics, infrastructure and other regional features. In this regard, there is a need of the «social procurement» from the concerned public authorities at the regional level to current research of the problems associated with the unauthorized departures of minors from the state institutions. These problems have a complex nature, so the research should be done by legal scholars, psychologists, educators.

To improve the efficiency of the search of minors who commit systematic escapes from social institutions, it is proposed to form data banks on these individuals, to simplify the investigation of cases, as well as to improve escapes prevention.

Keywords: minors, state educational institutions, unauthorized withdrawal, disappearance, missing, wanted, informational support, search versions

 

Penizev M. V.

Main Approaches to Understanding the Institute of Lawyers’ Monopoly in Russian and International Practice

The reform of the legal services market in Russia has passed the first stage and established a monopoly of persons with legal education on judicial representation. The next step may be the gradual transition and establishment of a lawyers’ monopoly. However, even today we do not have a final vision of the future system of the legal services market. Disputes between supporters and opponents of the reform do not directly concern the terminology used. A the same time, according to the author, the problems in forming a scientific and applied understanding of the essence of the reform, are caused by the fact that interdisciplinary terminology contradicts the ideas of monopoly among citizens and the final plans of the legislator.

The article studies the international experience of establishing lawyers’ monopoly in European countries based on analytical materials of the European Commission on the effectiveness of justice. The author analyzes the term «lawyers’ monopoly» from the point of view of jurisprudence and economics.

Keywords: advocate, advocacy, lawyers’ monopoly on legal representation, monopoly of lawyers, monopoly of the bar, reform of the legal profession, legal services market

Nasibullin R. A.

The Case of Professor A. M. Vinaver and the Dispositive Principle in the Soviet Civil Procedure

The tragic incident from the life of professor A. M. Vinaver at the Sverdlovsk Law Institute is described on the basis of archival materials and memoirs introduced into scientific researches for the first time. He was persecuted for incorrect, anti-Soviet coverage on the classification of lawsuits and the dispositive principle in Soviet civil proceedings at a lecture on August 19, 1946. Professor Vinaver was right in arguing that in the Soviet civil procedure the above-mentioned principle is narrower than in the bourgeois civil procedure. The issue of distinguishing reform lawsuits is controversial in the Soviet science of civil procedure.

The Academic Board of the Sverdlovsk Law Institute recognized the merits of A. M. Vinaver as an expert in the field of Roman law, but pointed out that due to pre-revolutionary education and upbringing, the professor does not know Marxist-Leninist methodology and is apolitical. As a result, A. M. Vinaver was excluded from teaching at the correspondence branch of the All-Union Extra-Mural Law Institute, but continued teaching at the Sverdlovsk Law Institute. The persecution could hasten his death on March 16, 1947.

Keywords: Vinaver, institute, professor, teacher, lawsuit, dispositivity

Kozachenko I. Ya., Sergeev D. N., Vasil’ev A. M.

Legal Reconciliation: Compromise or Concession? Overview of XVII International Research-to-Practice Conference Dedicated to the Memory of M. I. Kovalyov

The XVII^th International research-to-practice conference dedicated to the memory of the founder of the Ural scolar school of criminal law and criminology professor M. I. Kovalyov was held in Yekaterinburg on 13–14 February 2020. It united more than 1500 scientists and experts from 20 countries. During the conference, the discussion of the following questions took place: should the state abandon its monopoly on resolving disputes? What are the reasonable limits for conciliation procedure usage in public law branches? Should the state interfere in all «criminal – victim» relations?

Keywords: science of criminal law and criminology, criminal law, liability, reconciliation

Fedotova D. S.

Booking as an Element of Certain Civil Contracts

Booking is applied on many types of transport. However, its legal nature has not been revealed. Civil law experts propose mutually exclusive options for its qualification as a proprietary lease, prior request, shipping contract, fee-based service, preliminary agreement, etc.

The article proves that booking is not a contract, because it has no independent mandatory elements of a contract (subject, price, mutual rights and obligations, etc.). It cannot be considered a form of preliminary agreement for the same reason, and cannot be recognized as a service. The words «booking» and «reservation» do not have the same meaning in Russian language and are different concepts in the legal field.

The author concludes that booking is a secondary right. It has legal regulation and precedes a certain legal relationship. It represents a legal opportunity and cannot be violated by the counterparty. The right belongs only to the booking applicant. Booking is secured by limiting the carrier’s rights to act in relation to the property protected by booking.

Keywords: booking, reservation, passenger carriage contract, secondary right