No. 5 (2021): Russian Law: Education, Practice, Research. 2021. № 5

CONSTITUTIONAL LAW

Bylinkina E. V.

The Concept and Types of Electronic Voting in Russia and Abroad: A Comparative Legal Analysis

Technical improvement of the electoral process is one of the main directions of modernization of electoral systems. The use of the technology of scanning ballots, electronic voting systems with direct recording, remote electronic voting, blockchain, biometrics and other technologies gives rise to a large number of new concepts and terms, legal norms, sometimes scattered and contradicting each other and, as a result, giving rise to problems in understanding and law enforcement. practice. In this regard, it seems necessary to develop a unified approach to understanding the terms that are used in national regulatory legal acts and international standards on the electoral process.

The article provides a comparative legal analysis of the definitions of electronic voting and remote electronic voting in accordance with international standards of the European Union and Russian legislation, identifies differences, formulates proposals for amendments to the current Russian legislation. The author's formulations of the definitions of electronic voting and remote electronic voting are proposed.

Key words: digitalization of the electoral process, software and hardware, the concept of electronic voting, types of electronic voting, the concept of remote electronic voting

 

Sadovoi M. V.

On the Variant of Understanding the Category of Independence of the Constitutional Court of Russian Federation

Revealing the constitutionally established principle of the independence of the judiciary, Federal Constitutional Law of July 21, 1994 «On the Constitutional Court of the Russian Federation» № 1-FKZ establishes that in order to protect the foundations of the constitutional system, the fundamental rights and freedoms of man and citizen, to ensure the supremacy and direct effect of the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation exercises judicial power autonomously and independently. In this article the author considers variants of understanding the category of independence as a principle of the activity of the Constitutional Court of the Russian Federation.

The author identifies the main political and legal ideas on which the concept of establishing an independent constitutional control body is based. The following describes the basics of legal regulation of the principle of independence of the Constitutional Court of the Russian Federation in domestic legislation and international law. The article describes the variety of approaches in the legal literature to terminology in the framework of studying both the principle of independence of the judiciary and the principle of independence of the Constitutional Court of the Russian Federation. In conclusion, the author offers a generalizing version of the definition of the category of independence as a principle of the Constitutional Court of the Russian Federation. So the author also describes such terms as independence, autonomy and impartiality.

Keywords: The Constitutional Court of the Russian Federation, the principle of independence, independence, autonomy, impartiality

 

CIVIL AND BUSINESS LAW

Murzin D. V.

"Other Property" in Civil Law: Objects of Absolute and Relative Rights

The article deals with the issues of qualification of varieties of "other property" as objects of subjective civil rights (Article 128 of the Civil Code of the Russian Federation). The meaning of identifying and fixing new objects in the legislation is to link them to specific subjective civil rights. At the same time, the division of objects into things and other property made in Article 128 of the Civil Code of the Russian Federation only determines the question of attributing things to objects of real rights, but does not answer the question of what objects of rights – absolute or relative – "other property" refers to. The article proves that cash and documentary securities (things) are objects of real rights, but non-cash money belongs to the objects of binding rights, and non-documentary securities-to the objects of absolute rights. Corporate rights that are separated in the form of participation interests (including shares and shares in the authorized capital of limited liability companies) are not subjective rights, but the object of absolute rights. Digital rights, on the contrary, are subjective civil rights to property, and depending on the type of this property, digital rights are divided into absolute or relative. The qualification of "other property" as objects of absolute rights serves as a prerequisite for the application of the vindication model to protect the violated rights of persons who own "other property".

Keywords: objects of civil rights, absolute law, things, other property, intangible property, money, securities, corporate rights, digital rights

 

Gavrin D. A.

Features of making transactions using the financial platform

This article is devoted to the issues of making financial transactions using the financial platform. The subject composition of financial transactions and the procedure for their execution are considered. In particular, we are talking about the operator of the financial platform, the consumer of financial services, financial organizations, consumers of financial services, issuers, and the registrar of a financial transaction. A distinction is made between the financial platform and the operator of the financial platform, their functional features and status.

Features of the categorical apparatus "financial platform", "information system", "information aggregator", "financial service", "financial transaction", "consumer" and others. There are difficulties with the terminological unity in the normative legal acts, which are characterized by fragmentary regulation of issues of the digital world. The ratio of the categories "financial platform" and "information system", as well as "financial service" and "financial transaction"is established.

The entities involved in making financial transactions using the financial platform are divided into two groups: the entities that ensure the functioning of the financial platform (the operator of the financial platform, the registrar of financial transactions-the repository), and the entities directly involved in the transaction (the consumer of financial services, financial organizations, issuers).

Attention is drawn to the complex legal and factual composition of transactions, since in addition to making a financial transaction, participants must also be allowed to use the services of the financial platform. The conclusion of a financial transaction using the financial platform is preceded by the conclusion of a contract for the provision of services to the operator of the financial platform.

The specifics of the fulfillment of obligations under a financial transaction made using the financial platform are related to the possibility of using special accounts of the operator of the financial platform, which are opened exclusively in financial organizations.

Key words: financial transaction, financial platform, financial organizations, credit organizations, banks

 

CIVIL AND ARBITRATION PROCEDURE

Mikhailova E. V.

Human and Civil Rights and Freedoms as Objects of Judicial Protection

The article analyzes the concept of human rights, its properties, nature and types. From a philosophical and legal points of view, the concept of legal freedom is investigated, the problem of correlation between the concepts of "law" and "freedom" is solved. It is proved that law is not a material good itself, but a model of behavior established by law. Freedom is a broader concept than law and is an innate property of a person to act at his own discretion. Law as a product of state activity is a mechanism for the state to fulfill its tasks and restrict freedoms. By virtue of this, the adoption by the state of any law must be accompanied by an indication of the common good for all, which will be achievable subject to the adoption of this law. Protection of violated freedoms is the consideration and resolution of disputes by courts over the operation of a particular law. The fact that there are sufficient grounds for the adoption of a normative legal act, the legality of the actions of the body or official that adopted the contested act is subject to proof in court. A citizen demanding that a normative legal act be declared invalid must prove that this act violates his rights or unreasonably restricts his freedoms. Considering that legal conflicts in the public law sphere are considered by state courts, which are public authorities, it would also be advisable to introduce the institution of administrative assessors into procedural legislation to ensure the true independence of the judge considering the case (by analogy with jurors and arbitration assessors). Public figures, well-known legal scholars on an elective basis should be involved in administrative proceedings as administrative assessors.

Key words: human rights, private and public law, freedom, state, natural law, compulsion, protection of rights and freedoms.

 

Novikov N. A.

Judicial Conciliation in Arbitration Proceedings: Theory and Practice

The article deals with the issue of judicial and extrajudicial conciliation when considering cases in the order of commercial proceedings. Based on the analysis of the theoretical concepts of leading legal scholars, as well as judicial practice, the concept of a settlement agreement in commercial proceedings is formulated, its distinctive features are revealed in comparison with out-of-court agreements on reconciliation. It is shown that the settlement agreement has a public law nature and is a procedural act. Accordingly, the most important feature that is absent in out-of-court settlement transactions - enforceability is inherent in an amicable agreement. The legislator operates with the terms “settlement agreement” and “conciliation procedures”. However, they correlate as a mechanism and a result: the result of conciliation procedures can be an amicable agreement. The list of conciliation procedures in the commercial procedural legislation is open, however, one should distinguish between judicial and extrajudicial conciliation procedures. The judicial conciliation procedure should be carried out within the framework of a special procedural form and in compliance with the fundamental principles of reconciliation, the main of which are the principles of voluntariness, equality and cooperation. Special emphasis is made on the fact that the arbitral tribunal does not have the right to compel the parties to conduct a conciliation procedure, threaten to make an unfavorable decision or express judgments about the case or the evidence presented by the parties. On the other hand, the arbitral tribunal must adequately respond to situations where the parties, when they file a motion to postpone the proceedings in connection with the intention to conduct a conciliation procedure, do not really have such an intention and are pursuing the goal of delaying the consideration of the case. In this case, the commercial court should not satisfy the request. It was also emphasized that any information and documents provided by the parties during the conciliation procedure, without their written consent, cannot be admitted to the case and accepted by the arbitration court as evidence.

Key words: commercial proceedings, reconciliation of the parties, amicable agreement, judicial conciliation procedures, extrajudicial and judicial conciliation.

 

CRIMINAL LAW AND CRIMINOLOGY

Doroshenko V. S.

Criminal Liability for Crimes in the Sphere of Illegal Turnover of Oil and Its Products: Retrospective Aspect

Damage to main pipelines, oil pipelines and oil product pipelines for the purpose of theft from them transported hydrocarbon remain an actual criminal problem in Russia. Her exists, opinion to the author, because of the disadvantages of the acting criminal law.

This scientific article presents a common retrospective analysis of all changes in the criminal law, aimed at strengthening the criminal legal counteraction to oil theft from special pipelines.

Based on the primary legislative material and indicators of the criminological state of crime in the studied area, the opinions of scientists, the author draws conclusions about the reasons and disadvantages of the changes to the Criminal Law, their theoretical and practical consequences. Them, in particular, are proposed exclude the concept of pipeline from the criminal legal definition of storage, remove from Article 215.3 of the Criminal Code of the Russian Federation indication of criminal motives, eliminate logical contradictions, admitted to the construction of this crime.

Keywords: storage, pipeline, theft from an oil pipeline, damage to an oil pipeline, an oil product pipeline

 

Poraiko V. V.

On the Question of the Role of the Principles of Criminal Law in the Regulation of Liability for Crimes in the Field of Entrepreneurial Activity

The key reason for the shortcomings and gaps in approaches to the regulation of liability for acts encroaching on the sphere of entrepreneurship is the insufficient consideration by the legislator of the principles of Russian criminal law.

The neglect of the principles of criminal law in the design of the norms of the criminal law leads to numerous negative consequences. Among them: unjust decisions made in cases of crimes in the field of entrepreneurial activity; complication of the work of the law enforcement officer; additional barriers that business participants have to face, and all associated adverse economic consequences; decline in the authority of the state as a regulator of public relations.

The principles of criminal law should apply to all persons who have committed socially dangerous (not necessarily criminal) acts, since the tasks of the Criminal Code of the Russian Federation include the legal protection of public relations not only from criminal, but in general from socially dangerous encroachments. Taking into account the considerations expressed in this article, the author sees it necessary in the articles of the criminal law devoted to the principle of equality of citizens before the law, the principle of justice and the principle of humanism, to replace the term «crime» with the term «socially dangerous act».

Keywords: principles of criminal law, crimes in the field of entrepreneurial activity, criminal liability, crime, socially dangerous act

 

CRIMINAL PROCEDURE

Khlus A. M.

Inspection or Search at the Place of Detention of the Recipient? Process and Tactical Aspects of Production

By checking the citizens' applications for bribery or guided by operational data, the bodies carrying out operational-search activities organize the arrest of the bribe taker red-handed. At the stage of the arrest of the bribe-taker, they do not exercise the right granted to them to initiate a criminal case and conduct urgent investigative actions, which further actualizes the problems of the preliminary investigation. Having completed the mission to arrest the bribe-taker red-handed, the officers of the operational units delegate to the investigator the right to make a decision to initiate a criminal case, providing him with the materials of their activities. In this case, the investigator is deprived of the opportunity to carry out a number of procedural actions, the need for which arises at the stage of the arrest of the bribe-taker red-handed.

After analyzing this situation, comparing the procedural powers of the criminal prosecution authorities, the author came to the conclusion that it is advisable to involve the investigator in the preparation of the arrest of the bribe taker red-handed. After the initiation of a criminal case immediately after the arrest of the bribe-taker red-handed, the investigator faces the problem of choosing an investigative action, the conduct of which is most rational in the conditions of the place of detention: an inspection of the scene or a search at the place of detention. Having considered some of the tactical features of the inspection and search at the place of detention, having analyzed the available publications and practical activities, the author pointed out the disadvantages and advantages of these investigative actions. It was concluded that the place of detention of the bribe-taker in all cases should be subject to inspection. This will ensure the implementation of the principle of procedural economy, as it covers a number of other investigative examinations.

Keywords: receiving a bribe; red-handed detention; investigator; the place of the incident; inspection; search

 

LAW EDUCATION

Nesmeyanova S. E., Kalinina E. G., Gracheva M. V.

Additional Professional Education: Transition to Innovative Mode

The article examines the question that it is necessary to apply innovative educational technologies in the implementation of additional professional education programs. The authors analyzed various points of view of specialists in the field of pedagogy about the types and levels of innovations in the field of education, as well as the main directions of innovation activity. Educational organizations are the main subjects implementing innovative technologies. In the Russian Federation, the implementation of innovative projects/innovative programs is supported by assigning the status of innovation platforms to relevant organizations. In 2021, the status of the federal innovation platform was assigned to the Ural State Law University. The project "Information and analytical portal as a competence resource in the system of additional professional education", which is implemented by the University, is aimed at providing teachers of additional professional education with normative and methodological acts that ensure the educational process. In addition, the Portal contains analytical information about the implementation of additional educational programs in various universities in order to apply effective innovative technologies in the educational process, in their own pedagogical activities. The information and analytical portal should facilitate the teacher's transition to an innovative mode and going beyond the teaching of a specific subject, creating pedagogical innovations that improve the pedagogical process and increase its effectiveness.

Keywords: innovations, education, additional professional education, innovative educational platform

 

Melnik V. D., Skyratovskiy M. L

Economic Justice as Education Specialty Field in Law Schools

The article is devoted to the issues of teaching “Economic Justice” educational program as a sort of higher education specialization.  The article contains a retrospective point of view to the problems of higher legal education, the content, structure and specialization of which has been discussed since the 19^th century.

Being the authors, both the lecturer and graduate have essentially the same point of view regarding to the discussing subject that is also time-tested during the teaching and learning, and they analyze pros and cons of the legal education specialization. Besides, the authors handle in detail the forms, means and methods of Economic Justice teaching, and suggest the recommendations for the educational courses teaching improving.

The authors make the conclusions related to the methodology for would-be judicial sphere specialists training. Firstly, there should be the deeper and close to practice specialization without civil procedure general dispositions duplication since that is the basis of non-criminal procedure. Secondly, so called “core” of “Economic Justice” law school program should involve commercial procedure teaching as a part of general civil procedure that regulates resolving commercial disputes with focus on civil circulation participators remedy. Thirdly, teaching “Economic justice” program requires the use of modern educational technologies such as “case method”, moot courts and colloquiums.

The article may be useful for all law schools’ teachers but especially for those teaching civil and commercial procedure, civil and business law, and, perhaps, for students interesting in learning and wishing to become professionals in theirs interests fields.

Keywords: commercial procedure, economic justice, business law educational specialization, educational specialty field, pleadings, moot court