No. 4 (2021): Russian Law: Education, Practice, Research. 2021. № 4

CIVIL LAW

Bublik V. A., Semyakin M. N.

Ideas of the Formation and Development of Property Law Abroad

Property law is being intensively modernized, as a result a number of trends in its further development have been identified that need deep scientific research. The authors analyze the civil literature, considering the definition of the concept of property rights. Using the methods of comparison and retrospective analysis, the authors conclude that despite the long history of development of the institute of property rights, today many states apply normative legal acts, the prototypes of which were laws regulating property relations in the era of the formation of Roman private law.

Various principles of ownership forms are considered. Much attention is paid to the disclosure of the principles of physical unity of property and the opposite principle of horizontal division of property. Each of these principles was the basis of property law in different historical periods. The authors also formulate the main ideas of the formation and development of property law abroad.

The analysis of the regulatory framework and scientific literature has shown that in modern realities it is necessary to move away from the principle of physical unity of property to the principle of horizontal division of property.

Keywords: personal easement, property, property rights, the phenomenon of property rights, the principle of physical unity of property, the principle of functional unity of property

 

Tikhonov A. N.

Legal Relations Arising out of a Foster Family Agreement

In the paper, on the basis of the works of O. A. Krasavchikov devoted to the study of legal facts, legal prerequisites are highlighted, as well as legal facts – the grounds for the emergence and dynamics of legal relations arising out of a foster family agreement. It is proved that the relations arising from the appointment of citizens wishing to become foster parents, guardians (trustees), as well as relations for monitoring the activities of these citizens by the guardianship bodies, are attributed to administrative and legal relations. The relations between foster parents and children arising from the implementation of upbringing, as well as the protection of their legal rights and interests, have a family legal nature.

As a result, the characteristic features of the legal relations between foster parents and foster children were identified. The legal relations under study are long lasting; they are not limited to the exercise of those rights and obligations that form their content; they can stop only in cases directly specified in the law; their main volume is made up of personal non-property relations.

Keywords: placement of children left without parental care, foster family, foster family agreement, guardianship

 

CIVIL PROCEDURE

Branovitskiy K. L., Yarkov V. V.

Possible Ways of the Civil Procedure Transformation under Digitalization and Pandemic: Predictive Justice

The development of artificial intelligence and its possible application in justice are very popular topics in various scientific forums. At the same time, discussion is focused more on general philosophical issues (a cyber judge and the limits of artificial intelligence) than on procedural aspects of the matter.

The approach proposed by the authors allows considering the practical advantages of using predictive justice in the context of Russian reality. First of all, we are talking about the possible partial filling in this way of such gap as the absence in the national doctrine of the institution «richterliche Hinweispflicht» developed by the German procedural doctrine. In some cases, the lack of an equal dialogue with the parties and their representatives following from this institution leads to a violation of the right to be heard («Anspruch auf richtliches Gehör») and the adoption of «unexpected» judgments for the participants in the proceedings. Particular emphasis is placed on digitalization and the pandemic, which are also driving the development of predictive justice. The authors substantiate the limits of the use of predictive justice based on the current concept of the judiciary.

Keywords: civil procedure, German civil procedure, right to be heard, digitalization, pandemic, judicial leadership, predictive justice

 

Vatamanyuk V. O.

Conclusion of a Settlement Agreement in the Group Proceedings of Foreign Countries

The experience of using the institution of group proceedings in foreign countries illustrates that most cases end with the conclusion of a settlement agreement between the parties. The article reviews the procedure features of concluding a settlement agreement in the group proceedings of the United States, Great Britain, Sweden, Germany and the Netherlands, shows the procedural features of the conclusion of a settlement agreement when considering disputes involving a large group of members.

The main attention is paid to the procedural features of the conclusion of a settlement agreement depending on the model of group proceedings – opt-in or opt-out. The author studies an issue of independent conclusion of a settlement agreement by the group members. It is discovered that in most legal systems that are based on the opt-out proceedings the right to conclude a settlement agreement belongs to the group representative. The issue of concluding a settlement agreement in foreign countries that base group proceeding on the primacy of the will of the group members of the opt-in group is resolved in different ways. The author concludes that the presence or absence of an initially expressed consent to join the group’s action – opt-in or opt-out – is not a factor that determines the procedural features of concluding a settlement agreement in the group proceedings of foreign countries.

Keywords: settlement agreement, amicable settlement of a dispute involving a large group of members, group action, group proceedings, protection of the rights and legitimate interests of a group of persons, model of group proceedings

 

INTERNATIONAL LAW

Anichkin Ye. S., Serebryakov A. A.

Models of Regulatory Support for International Scientific and Technical Cooperation and Management of the Results of Joint Research

Many aspects of international scientific and technical cooperation do not have an appropriate regulatory framework. This is especially true for the emerging regional integration unions. One of the problematic issues is the definition of an adequate approach to the management of the results of joint research. Some of them may be protected intellectual property that is created in the course of international scientific research. For this reason, it is important to formulate proposals for building an appropriate model of international legal support for such results.

Based on a comparative analysis of the legal acts of the European Union, the Commonwealth of Independent States and the Eurasian Economic Union, three models of legal regulation of international scientific and technical cooperation are distinguished: decentralized, centralized and sectoral models. It seems that they are not alternatives to each other, since their application is determined by the level of integration of the states that are part of the respective regional unions. The main principles are highlighted, on the basis of which a model of legal support for the management of the results of joint scientific research in the framework of international cooperation should be built. In particular, it is a fair distribution of intellectual property rights created as a result of such cooperation, and income from its use; obligatory provision of the participants of cooperation with open access to scientific publications and research data, etc.

Keywords: international scientific and technical cooperation, international law, legal regime of scientific research results, data management, regional international organizations, European Union, Commonwealth of Independent States, Eurasian Economic Union

 

LAND AND ENVIRONMENTAL LAW

Vinnitskiy A. V., Vagina O. V., Gaevskaya E. Yu.

Rules for the Construction of Buildings on Garden Land Plots and the Consequences of Their Violation

The paper analyzes the system of updated legal sources regulating the construction of buildings on land plots provided to citizens for gardening. Special attention is paid to the Code of Rules 53.13330.2019, which establishes the rules for the development of land for horticultural associations.

Attention is focused on the requirements for the minimum margins from the borders of neighboring land plots when constructing buildings on garden land plots. The analysis and generalization of relevant judicial practice for 2019–2020 on the demolition of illegally erected buildings were carried out. It was found that the courts either refuse to claim for the demolition of an illegally erected building on the grounds of insignificance of violations, or seek other ways to restore the violated rights and legitimate interests of the plaintiffs, not involving the demolition or transfer of a building erected with a deviation from the established requirements.

In conclusion, the authors note the need to improve and more thoroughly regulate the legal institution of neighbor law in order to ensure the implementation of the principle of rational use of land plots; the need to establish reasonable restrictions taking into account the rights and legitimate interests of adjacent land users was also pointed out.

Keywords: neighbor law, minimum indents from the borders of neighboring land plots, illegal construction, demolition of illegally erected buildings, garden land, gardening non-profit partnership

 

Voronin B. A., Chupina I. P., Voronina Ya. V.

Agrarian Law as a Regulator of Relations in Modern Agriculture

Using the methods of analysis, synthesis, generalization, comparative jurisprudence and legal forecasting, the authors consider agrarian law as an independent branch of Russian law. The main normative acts regulating agrarian relations are given in the paper. They include the Land and Civil Codes of the Russian Federation, and certain federal laws.

The authors studied and presented the principles of modern agrarian law, noting that many of them are the legacy of agricultural law. In this regard, it is concluded that it is necessary to re-evaluate the principles of modern agrarian law, taking into account the current state of Russian agriculture and the prospects for its development. The authors propose to formulate new principles of agrarian law based on the principles of agrarian policy established in the Federal Law «On the Development of Agriculture». These principles are aimed at the formation of institutions of agrarian law and the development of this industry.

Keywords: agrarian law, agrarian legal relations, agricultural activity, regulation of public relations

 

CRIMINAL PROCEDURE

Kazakova A. V.

Can a Copy of the Document be Used as Evidence in the Russian Criminal Procedure?

Persons involved in judicial legal relations are often deprived of the opportunity to transfer the originals of documents to the judicial authorities. At the same time, in some cases copies |of documents cannot be considered as a proper alternative to the original ones. The breadth of judicial discretion regarding the admissibility / inadmissibility of using copies of documents forms controversial judicial practice, which, in turn, negatively affects the authority of the judiciary in the eyes of lawyers.

The author analyzes the norms of the Criminal Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Code of Civil Procedure of the Russian Federation using the comparative legal method. As a result, the criteria for the admissibility of copies as evidence are established. The author also draws attention to the ambiguity of the approach in this matter, depending on the type of justice. It is concluded that the basic legal provisions regarding the handling of copies of documents developed within the framework of civil and arbitration court procedures cannot be applied to criminal proceedings. The criminal procedure has its own internal logic aimed at establishing the truth, which minimizes the use of copies as evidence. Based on the results of the research part, the peculiarities of the introduction, establishment and evaluation of copies of documents were formulated.

Keywords: freedom to evaluate evidence, another document as evidence, mode of work with copies of documents, features of the assessment of information confirmed by copies

 

Ramenskaya V. S., Nikitina E. V.

Problems of the Interaction of Private and Public Law on the Example of Compensation for Harm in the Framework of Criminal Proceedings

In the paper, an attempt has been made to comprehensively consider the problem of compensation for harm in criminal proceedings. The aim of the study was to find ways to compensate harm, taking into account the causes of its occurrence. The authors propose to divide all cases of harm into several groups. The first group should include all cases when harm is caused by a crime. The second group unites cases of when harm is caused by illegal or unjustified criminal prosecution. The third group includes all other cases of harm, among which it is proposed to single out harm caused by public authorities (we are talking about situations not related to the rehabilitation of a citizen).

The relations included in each of the groups have not only specific grounds for occurrence, which should determine the approach to their legal regulation, but also a special subject composition, the principles underlying the interaction between them.

The methods of criminal procedural law are obviously not enough to achieve this goal, therefore the authors decided to look at the situation more broadly and use a systematic approach to find the best ways to compensate for the harm of each group. Revealing the content of the systematic approach and its main regularities, the authors proposed to apply it to develop mechanisms for the restoration of rights, taking into account the functional similarity of the objects of regulation.

Keywords: compensation for harm, criminal process, interaction between private and public law in criminal proceedings, a systematic approach to improve the current legislation

 

LABOR LAW

Gubareva A. V.

Russian Legislation Regulating the Use of Foreign Labor

The author points out that migration in the Russian Federation is regulated at the level of international legal acts, federal laws, by-laws and regional laws. This paper is devoted particularly to the issues of legislative and subordinate regulation of this area.

The provisions of the basic Federal Law «On the Legal Status of Foreign Citizens in the Russian Federation» are given. They establish the possible statuses of foreign citizens in Russia and the documents required for their employment. The Labor Code of the Russian Federation defines
the features of the regulation of the labor of such workers. The article also discusses the issues of their taxation, medical, social and pension insurance. By-laws (decrees of the President of
the Russian Federation, decrees of the Government of the Russian Federation, orders of the Ministry of Internal Affairs of the Russian Federation) establish the migration policy of the Russian Federation, rules for obtaining visas, patents, residence permits and temporary residence permits, as well as restrictive measures on labor migration that protect the labor market.

Keywords: foreign labor, migration, migration legislation, use of foreign labor

 

LAW ENFORCEMENT AGENCIES

Mitin A. N., Rassokhin A. V.

Management Process in the Prosecutor’s Office:Tasks and Improvement Mechanism

The article deals with the legal and organizational aspects of improving the management process in the activities of bodies and organizations of the Prosecutor’s Office of the Russian Federation. The paper analyzes the current legislation and the opinions of leading scientists in the field of public administration, substantiates the need to overcome obstacles in improving the management process of bodies and organizations of prosecutor’s offices in the period of their digital transformation.

The two most important tasks of the prosecutor’s office bodies and organizations are analyzed. These are improvement of internal management and information support. The authors consider internal management in the bodies and organizations of the prosecutor’s office as a type of public administration, and note the role of the President’s messages to the Federal Assembly in it. In terms of information support for the bodies and organizations of the prosecutor’s office, attention is drawn to the introduction of departmental information systems and software systems, the influence of information and analytical activities on the work of the prosecutor’s office is emphasized, and information security issues are touched upon.

Keywords: management process, prosecutor’s office, internal administration, information support, functions

 

HISTORY OF STATE AND LAW

Zhabreev M. V.

From the History of the Entrepreneurial Law Development in Russia and the Urals during the NEP Years

The article is devoted to the emergence of the entrepreneurial law in the RSFSR and the «revival» of entrepreneurial activity in Russia and the Urals during the period of the new economic policy in 1921–1929. The Soviet state completely refused the legislation of the Russian Empire in the field of regulation of entrepreneurial activity, therefore new law was formed. It was based on the administrative-legal (public) regulation of entrepreneurial activity, while civil (private) law played only an auxiliary role.

The author considers the key policies introduced by the Russian government. These include the establishment of the cost accounting principle at a state enterprise, the permission of private entrepreneurship and the lease of state enterprises, etc. The paper pays particular attention to studying such policy as attracting foreign capital, equipment and technologies for the creation of industrial concessions. For instance, the description of the concession of A. Hammer, which developed asbestos mines in the Urals, is given. The author emphasizes that despite the high profitability of such enterprises, their share in the total volume of production in the country was small.

Keywords: new economic policy, entrepreneurial law, business accounting, private entrepreneurship, foreign concessions, archival sources, memoirs of eyewitnesses