№ 11 (2023)
Institute of State and Law of the Russian Academy of Sciences: towards the centenary
M.S. Strogovich: theorist of the Soviet Criminal Procedure
Аннотация
The article is dedicated to the life, work and scientific heritage of the outstanding Soviet scien-tist-proceduralist, Corresponding Member of the USSR Academy of Sciences, Doctor of Law, Professor Mikhail S. Strogovich (1894–1984).The main stages of the scientist’s professional path are considered: from studying at a gymna-sium and institute to well-deserved recognition as the leader of Soviet criminal procedure sci-ence. The author’s most significant publications are analyzed, which are devoted to the nature of the criminal process, adversarialism, the presumption of innocence, ensuring individual rights and other important issues that arise in connection with the preliminary investigation and trial of criminal cases. Expressed by M.S. Strogovich evaluates the positions from the point of view of their relevance for the development of modern criminal procedure doctrine, modern legislation and law enforcement practice.When preparing the article, materials from personal file were used M.S. Strogovich and other documents from the archives of the Institute of State and Law of the Russian Academy of Sci-ences.
Gosudarstvo i pravo. 2023;(11):7-28
7-28
Capitalism and plutocracy
Аннотация
In this article the author analyzes the dialectical interdependence of capitalism and plutocracy. The definition of plutocracy is proposed. The author reveals two important and diametrically opposed trends in how various segments of the ruling elites in modern states define their values and, accordingly, what specific practical actions they take. Attention is focused on the fact that the pro-Western, which is very active in our country, consists not only of liberal-minded people of creative professions, but also individual representatives of power structures. The author expresses strong support for a part of the domestic establishment and the associated patriotic intelligentsia that aim at a comprehensive revival of the power of Russia. At the same time, the author is sure that in order to achieve victory over the collective West the mobilization of all institutions of the state and society, understood in a broad sense, is necessary, which is impossible without abandoning the substantial political, economic, spiritual and moral foundations of the bourgeois system.
Gosudarstvo i pravo. 2023;(11):29-37
29-37
Regionalism and regionalization: problems and prospects in law
Аннотация
In the article of the spatial development of the state is based on the institutional meaning and significance of the region as the original polysystemic category of science and legislation. In the subject of legal regulation, the concept of a region is revealed in the structural connection of economics, jurisprudence, and sociology. The study of regional development involves clarifying the relationship between the concepts of “regionalism” and ‘regionalization”. In the concept of the author’s understanding, it is the identification basis of the region, and regionalization is the practical transformation of public authority. Based on this, the author proposes approaches to the categorization of regionalism and regionalization in the conceptual apparatus of modern jurisprudence.
Gosudarstvo i pravo. 2023;(11):38-48
38-48
Sociology of law
Review of the concepts of legal anomie in foreign and domestic socio-legal thought
Аннотация
The article examines the approaches that exist in relation to the understanding of legal anomie in the works of foreign researchers. The history of the emergence of this concept is analyzed, the relationship between legal and social in the process of conducting relevant research is considered. Concludes that there are several approaches to understanding anomie in general and its legal component in particular. The conditions of occurrence of legal anomie are identified and classified. It is noted that some of these conditions are also present in the Russian Federation. Based on the study of the existing criteria for the allocation of types of social and legal anomie, the authors proposed own classification of the types and concepts of legal anomie. The conclusion is formulated about the applicability of foreign concepts of anomie from the perspective of domestic approaches and traditions to legal research.
Gosudarstvo i pravo. 2023;(11):49-63
49-63
Court, prosecutor’s office, bar, notarial system
Protection of the rights and interests of the parties in recovery from the developer for the breach of the terms of transfer of the object of sharing construction to the shareholder
Аннотация
The article describes a variety of approaches to determining the amount of a penalty for violation of the terms of transfer of an object of shared construction that exist in practice. It is noted that the lack of uniformity in the methodology for calculating the size of such a penalty reduces legal certainty and, as a result, trust in the judicial system. It is proposed to adhere to a literal interpretation of the law when setting the date on which the size of the key rate of the Central Bank of the Russian Federation should be determined for calculating such penalties, namely, to proceed from the day of signing the act of acceptance and transfer of the shared construction object. The use of a different size of the discount rate often leads to infringement of the rights of equity holders, and the penalty ceases to be a tool to protect the weak party in the relationship of equity participation in construction. If the amount of the penalty with this method of calculation turns out to be clearly disproportionate to the consequences of the violation, to restore the balance of interests of the parties, you can use the mechanism for reducing the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation, taking into account the peculiarities of each specific situation.
Gosudarstvo i pravo. 2023;(11):64-71
64-71
Discussions and debates
Objective law in the light of modern materialistic theory of law Review of the discussion materials of the book by V.M. Syrykh “Fundamentals of the materialistic theory of law: in 4 vols. Vol. I. Objective law and forms of its expression”
Аннотация
The review presents the materials of the discussion of the book by the Doctor of Law, Professor, Honored Scientist of the Russian Federation V.M. Syrykh “Fundamentals of the materialist theory of law”: in 4 vols. Vol. I. Objective law and forms of its expression”. The discussion took place as part of the Discussion Platform of the International Scientific Conference “Actual vector of state-legal research: valid law as a form of reflection of conflict and cooperation strategies in the modern society (general theoretical and sociological and legal aspects)”, held in Derzhavin Tambov State University. The discussion was attended by scientists from different Russian regions, as well as a number of foreign countries. During the discussion, V.M. Syrykh in his introductory remarks outlined how the work on the book was carried out, what caused it to be written, what goals and objectives were set in the context of this work, expressed interest in receiving meaningful feedback on the proposed scientific publication; the participants of the discussion, in turn, shared their opinions about the monograph, expressed their recommendations and wishes, asked the author questions, to which they received answers.
Gosudarstvo i pravo. 2023;(11):72-85
72-85
Canonical Law in modern theological and legal cognitionю V.V. Bagan. Genesis and ontology of the Canonical Law of the Orthodox Church: scientific-theological and scientific-legal research
Аннотация
The review article reveals the significance for modern legal science of the monograph of Priest Vladislav Bagan (Bagan Vladislav V.), dedicated to the scientific-theological and theoretical-legal understanding, generalization and conceptual explanation of the Canonical Law of the Orthodox Church. There is a high level of theoretical generalizations and the importance of this kind of research for modern legal understanding. Among the advantages of the work: a deep analysis of the ontological foundations of Canon Law in the context of the problems of legal understanding, a description of the essence of law in the Orthodox worldview; recognition of the Canon Law of the Orthodox Church as the most important element of the Rule of Law of post-secular society; description of the main directions, schools and concepts of Canon Law; review of the largest studies in the field of Canon Law and a number of others.
Gosudarstvo i pravo. 2023;(11):86-92
86-92
Legal force of the source of law: the problem of foundations
Аннотация
The article analyzes the category of “legal force” from the standpoint of determining its nature and content features. The main attention is paid to the factors influencing the origin of legal force and the sequence of its formation. The interdependent relationship is justified of the categories “legal force” and “source of law” is argued, the expression of legal force is considered on the example of formal sources of law. The author draws attention to the international nature of the category of “legal force” and expresses his views on the applicability of the stare decisis doctrine to substantiate the legal force of formal sources of law.
Gosudarstvo i pravo. 2023;(11):93-98
93-98
The use of image category in the process of proving in criminal cases (formulation of the problem and its solution on the example of investigator’s activity)
Аннотация
The author of the article substantiates the need to use the category of image in the process of proving in criminal cases. He argues that the creation of prerequisites for the digitalization and visualization of images, the development and implementation of “self-developing” programs of investigation and trial with the use of elements of artificial intelligence will depend on the depth of knowledge and taking into account the features of the content and form of images used in proving. Consequently, the qualitative increase in the efficiency of criminal proceedings depends on this. The researcher offers his own classification of images created and used by the investigator in the process of proving.
Gosudarstvo i pravo. 2023;(11):99-107
99-107
Rights and freedoms of a man and a citizen
Civilizational approach to human rights: on the 75th anniversary of the Universal Declaration of Human Rights
Аннотация
Documents and materials related to the adoption of the Universal Declaration of Human Rights and related international documents 75 years ago show the close relationship between the processes taking place in the world and the state of human rights. Over the past decades, human rights have remained among the most acute problems of law and politics, and not only theoretical discussions were conducted around them, but a real ideological struggle unfolded. Disputes and contradictory assessments of the significance of the Universal Declaration and its impact on the further development of legal systems continue to this day. Tools and solutions that allow taking into account national interests while observing International human rights standards are being actively discussed. For example, with the help of a civilizational approach, an attempt is being made to solve the problem of fulfilling International human rights obligations while preserving the fundamental cultural, historical and religious differences of individual civilizations and regions. At the Institute of State and Law of the Russian Academy of Sciences, this approach was developed by a Corresponding Member of the RAS E.A. Lukasheva.
Gosudarstvo i pravo. 2023;(11):108-123
108-123
Civil and entrepreneurial law
Reimbursement of losses and insurance: essence, similarities and differences
Аннотация
The article compares the institution of reimbursement of losses incurred in the event of the occurrence of circumstances specified in the contract with the property insurance contract. Certain economical similarity of the considered legal relationships is mentioned, as well as existing economical differences and specifics of legal regimes are reflected.
Gosudarstvo i pravo. 2023;(11):124-131
124-131
Strengthening of legality and struggle with criminality
Criminal law protection of public relations in field of digital financial assets and digital currency
Аннотация
Differences in the definitions of digital financial assets, digital currency and cryptocurrencies cause difficulties not only for law enforcement officers, but also in the science of Criminal Law. The author’s research has shown that the term “cryptocurrency” is not included in the concept of digital currency, and moreover cryptocurrencies are not digital financial assets. Cryptocurrencies are defined by the author as a virtual asset that can be an object of financial activity and, together with digital rights and digital currency, all types of virtual assets are involved in monetary circulation, and, accordingly, the relations that develop in this area are subject to criminal protection as a type of financial activity. The author substantiates the conclusion that the list of objects protected by criminal law should include economic (financial) relations, part of which are legal relations in the sphere of turnover of virtual assets. The place of such legal relations in the section of crimes against the economy has been determined.
Gosudarstvo i pravo. 2023;(11):132-138
132-138
Law and economics
On the consistency of legal policy in the field of organization of special administrative and legal regimes of economic activity
Аннотация
The article discusses the levels of consistency of the Russian legal policy in the field of organization of special administrative and legal regimes of economic activity are considered. The relevance of the study is determined by the presence of factors hindering the implementation of the principle of systematic legal policy in this area and destabilizing the links between its components, which determines the inadequate state of the relevant legislation and the practical implementation of models to stimulate economic growth in territories with preferential business regime. The aim is to determine the need for a systematic approach to the formation of legal policy in this area and the current state of its implementation. The negative trends that determine the insufficient level of systematic legal policy in the relevant area are revealed, the expediency of systematization of legislation on preferential business regimes, freed from the shortcomings of their existing model, is substantiated.
Gosudarstvo i pravo. 2023;(11):139-146
139-146
Budget, taxes, banks
Financial market of the Russian Federation: concept, main vectors of development
Аннотация
The article considers the financial market as a set of monetary relations that ensure the accumulation, redistribution and investment of funds. The author lists its elements, provides a list of regulatory legal acts regulating relations in certain areas of the financial market and so on. Analysis of the acts of the Central Bank of the Russian Federation as a mega-regulator of financial markets allows us to identify five main directions of financial market development in the near future. The author also consistently reveals the tasks that need to be solved for the implementation of each direction, and author’s comments are given. In conclusion, the relevant research conclusions are formulated.
Gosudarstvo i pravo. 2023;(11):147-154
147-154
Information law and information security
The real world as augmented metaverse (coming transformations of law)
Аннотация
This article deals with legal issues of metaverse – a new digital environment that uses virtual and augmented/extended reality technologies. With further developments, virtual worlds could become widely accessible in the foreseeable future and provide new opportunities in education, healthcare, economics and other areas of public and social life. Experts predict that the economy within metaverse will exceed the size of the real world economy fast. Along with positive, metaverse also has negative sides including increase of current risks associated with use of information and communication technologies and emergence of new ones dealing with security and privacy of users’ personal data and effective counteraction to cybercrimes. In this regard, the authors underscore the importance of legal regulation of metaverse and management of novel risks, also in the field of legal regulation concerning application of the underlying highly complex technologies. Principles and rules to regulate relations in metaverse should be developed the sooner the better and in prospect of further developments, because in the near future they could have a significant impact on the law of real world. The authors introduce the concepts of “observation” and “observer”, which formalize in legal context the idea of a legal view and discuss possible – depending on the position of the observer – approaches to the legal framework of metaverse governance, virtual law and its relationships with the real world law.
Gosudarstvo i pravo. 2023;(11):155-169
155-169
In the countries – members of the Commonwealth of Independent States
Prerequisites for the adoption and essence of the main provisions of the Concept of Legal Policy of the Republic of Belarus
Аннотация
The article analyzes of the Concept of Legal Policy approved by the Decree of the President of the Republic of Belarus No. 196 dated June 28, 2023. The author characterizes the prerequisites for the adoption of this document: geopolitical conditions, internal political and legal factors, vectors of constitutional transformations. The article reveals the potential of the Concept of Legal Policy as a basis for eliminating negative trends in the development of the legal system of the Republic of Belarus and increasing positive trends, defines the role and significance of the document in the evolution of legal enlightenment and upbringing, education and science. The author substantiates the importance of the Concept of Legal Policy as an ideological matrix of the development of the legal system, enriched with a set of postulates that determine the directions of development of all legal processes in the country.
Gosudarstvo i pravo. 2023;(11):170-177
170-177
Abroad
Universalism in Social Policy of the Scandinavian States
Аннотация
The article deals with the role of the principle of universalism as the “cornerstone” of the social policy of the Scandinavian states. It is emphasized that Scandinavian universalism is traditionally based on a higher level of social equality than the level that is present within other social welfare systems aimed at a selective approach and social stratification. The Scandinavian social welfare model has recently been facing a number of problems related to globalization, increased competition on the labor market, demographic changes and an expanding influx of migrants. In the current situation, this model is becoming more economical and market-oriented, and existing social programs are being adjusted by reducing their excessive generosity. There is a growing understanding of the need to expand the principle of universalism and introduce much greater differentiation into social policy, taking into account the real needs of individual segments of the population.
Gosudarstvo i pravo. 2023;(11):178-184
178-184
Assistance to justice in the modern muslim model of criminal proceedings (on the example of criminal procedure legislation Islamic Republic of Afghanistan)
Аннотация
The article analyzes the institute for the promotion of justice in the Muslim system of law on the example of the criminal process of the Islamic Republic of Afghanistan (based on the Code of Criminal Procedure), but using the canons of the sacred religious scriptures. Within the framework of the conducted research, the conclusion is formulated that in the criminal process of the Islamic Republic of Afghanistan, the persons assisting in the administration of justice should include a witness, an expert and an interpreter, a doctor and a specialist. It is noted that their procedural status is not fixed in the hotel rules, but at the same time, the existence of the rights, duties and responsibilities of these participants mentioned by the legislator in the Criminal Procedure Code of the Islamic Republic of Afghanistan is traced. It is established that the criminal procedure legislation of the Islamic Republic of Afghanistan does not allow to fully ensure the safety of persons assisting justice, since it is limited only to ensuring the safety of a witness (Chapter 7 of the Criminal Procedure Code of the IRA).
Gosudarstvo i pravo. 2023;(11):185-192
185-192
Pages of history
Regulation of trade and supply by the government of general Denikin during the Russian Civil War
Аннотация
The article examines the little-studied problem of state regulation of trade and supply in the territory of the South of Russia in historical and legal science. It is revealed that until the summer of 1919, the Denikin government regulated the commodity distribution sphere based on pre-revolutionary legislation on the grain monopoly and the distribution of grain and fodder in the provinces. In the summer, the legislator abolished the grain monopoly, but introduced compulsory military service for the supply of food and fodder to the army. It is established that the government's hopes for the procurement of agricultural products through cooperatives did not justify themselves due to unsuccessful administration to establish low and unprofitable purchase prices for peasants at a high cost of the industrial goods they need, as well as due to delays in payment for the deliveries made and unsatisfactory organization of commercial transportation. It is revealed that the involvement of large private traders and firms in the supply of grain and fodder after the abolition of the grain monopoly led to the corruption of the state apparatus, rampant speculation and the formation of a black market, which the government failed to cope with, despite the adoption of a rather harsh law on speculation. It is stated that the legislative and administrative activities of the government in the field of trade and supply were not able to provide the army with food, fodder and equipment. Because of which the commanders of the units were forced, in violation of the law, to engage in self-sufficiency of their troops by conducting requisitions that caused outrage among peasants or exchanging captured trophies for food.
Gosudarstvo i pravo. 2023;(11):193-200
193-200
Scientific reports
“Soft power” and its prospects in the context of the crisis of the state as a form and mode of human existence
Аннотация
The article is devoted to the concept of “soft power”, its forms and content. The term “soft power” was introduced relatively recently, but in its practical implementation it has a centuries-old history. In a certain sense, the word “soft power” has been meaningfully used since the times of the states of Ancient Rome and Ancient Iran. The article notes the ambiguity of the “soft power” policy, since its form can vary according to the interests of the state, as well as its socio-political structure. Thus, the use of «soft power» to the Soviet Unions was qualitatively different from the “soft power” used by states with a capitalist way of life. It is important to see the difference between “soft power” and economic expansion, especially since the border between them can be very conditional.An important idea of the presented article is that in the conditions of the crisis of the state as a form and way of being of a person, the influence of transnational companies is significantly increasing, which, in fact, squeeze out the state and seek to replace it with themselves. At the same time, the nature and essence of transnational corporations is very different from the nature and essence of the state, therefore, there is a process of transformation of “soft power”, filling it with new meanings and motives. If for states in their classical understanding, culture with its traditions, spiritual categories, and universal values could become the semantic content of the “soft power” policy, then for transnational corporations, the economic motive usually forms the basis of the policy. This kind of motive will easily result in the exploitation of some people by other people and the loss by society of such traits that define it as human. Thus, in the form in which the concept of “soft power” was relevant at the end of the twentieth century, it now looks like a vestige of a bygone historical era. Nevertheless, the degree of development of information technologies, the level of their accessibility can become a new content of «soft power» in the foreign policy of states.
Gosudarstvo i pravo. 2023;(11):201-206
201-206
Scientific life
Comparative Constitutional Law: new approaches, concepts and categories (All-Russian the “Round Table”)
Аннотация
On April 18, 2023 the Institute of State and Law of the RAS hosted the All-Russian the “Round Table” “Comparative Constitutional Law: new approaches, concepts and categories”. It was attended by representatives of leading Russian scientific and educational institutions, as well as researchers from Belarus and Uzbekistan. The “Round Table” examined a wide range of problems related to modern trends in the development of Comparative Constitutional Law, new concepts of constitutionalism, constitutional reforms, synchronous and diachronic comparison of constitutional institutions, comparative research of human rights, the use of comparative methodology in the practice of national and supranational judicial bodies.
Gosudarstvo i pravo. 2023;(11):207-215
207-215
Review of the materials of the Scientific and Practical Forum with international participation “Actual problems of comparative-historical jurisprudence and theoretical-legal research”
Аннотация
The review of the materials of the Scientific and Practical Forum with international participation “Actual problems of comparative historical jurisprudence and theoretical and legal research”, held in March 2023 at the Faculty of Law of the Higher School of Economics. Within the framework of the Forum, the “Round Table” “The scientific heritage of N.A. Krasheninnikova: to the 95th anniversary of the Professor” was held.
Gosudarstvo i pravo. 2023;(11):216-223
216-223
Criticism and bibliography
224-226