Vol 7, No 3 (2023)

Cover Page

Full Issue

General Theory and History of Law and the State

Identification of social significant interests for draft regulatory legal act development in the digitalization era: impact on legal relations’ dynamics

VOLKOV I.A.

Abstract

The development of technologies used in the law-making process related to significant social interests’ identification is possible with the gradual, consistent development of scientific ideas about them, as well as the technologies’ practical application issues’ legal regulation level corresponding to the achieving law-making decisions’ effectiveness goal. Interest is considered as a legal regulation’s transformation determinant in public life various spheres. The research analyzes some technological solutions to consolidate the interests considered in the work, their legal security issues, as well as improving the procedure for citizens’ participation in the discussion of draft regulatory legal acts on the Internet. It is concluded that the artificial intelligence development has the prospect of transforming the existing approaches to the sources’ analysis from which the legislature can extract information about relevant interests in order to further their legal mediation. Along with this, it is stated that the participation of a person (a carrier of knowledge, values) as a processes’ administrator for identifying interests, it is not only rational due to the need for constant and of digital technologies’ in-depth improvement, but also in order to level the interests’ distortion risks, law abuse.

Current Issues of the State and Law. 2023;7(3):363-369
pages 363-369 views

Crimes’ forensic characteristics features in the computer information field

KISELEV A.S., GORBUNOVA K.A.

Abstract

The purpose of the research is to identify the main crimes’ forensic characteristics features in the computer information field, inasmuch it makes a great importance in the modern world, as computer crimes are becoming more widespread and threaten the information security, critical infrastructure, personal life and citizens’ finances, organizations and the entire state. The terminological apparatus is analyzed, the classifications of modern cybercriminals are studied, the main approaches to the commission of crimes in the field of computer information are determined. The following methods are used in the research: analysis and synthesis, induction and deduction, system method, dialectical and materialistic methods, formal legal method. The study and analysis of the forensic characteristics allows us to determine the most common ways of committing such crimes, to develop effective counteraction measures. It is established that the main difficulty in the investigation of these crimes is the complex technological nature and the order of their commission. Many criminals are constantly improving their skills, the most qualified of them try to be careful, develop their own countermeasures against law enforcement agencies, using ciphers, special remote access programs to make it as difficult as possible to collect evidence and search activities. Among other things, the difficulty of cybercriminals holding liable is complicated if intruders are located in another state, and unfortunately, one cannot count on international cooperation in the field of law and order and public security with many Western countries today.

Current Issues of the State and Law. 2023;7(3):370-378
pages 370-378 views

Материальное право

Representative of the authorities in criminal law

DROZDOV D.E.

Abstract

The representative of the authorities concept in the criminal law of the Russian Federation is researched. Being key for a significant number of crimes, understanding its essence, content, and specific features eliminates problems in the process of qualifying socially dangerous acts. The definition is analyzed taking into account the judicial interpretation that has emerged in Russia, contained in a number of the Russian Federation Supreme Court Plenums’ decisions. The features, prerequisites and the concept transformation patterns in criminal legislation are structured, taking into account the method of historicism. Various scientific approaches are studied and summarized, during which specific differences are established. The author’s definition is proposed, indicating key features, including the legality of the performance of duties, the limits of the exercise of power, and the generation of legal consequences. The approach to the dual understanding of a representative of the authorities is substantiated. The crimes provided for in Chapter 30 of the Criminal Code of the Russian Federation (against state power, the interests of public service and service in local government bodies) reveal the essence of a representative of the authorities as a function. For crimes regulated by Chapter 32 of the Criminal Code of the Russian Federation (against the order of management), a representative of the authorities is defined as an official. Understanding a representative of the authorities as a function and as an official eliminates the contradictions existing in doctrine and judicial practice, since in one case the representative of the authorities acts as a subject of a crime, in another as a special victim.

Current Issues of the State and Law. 2023;7(3):379-385
pages 379-385 views

Problems in determining substantive law norms to protect museum objects and collections as intellectual property

ZOLOTOV G.B.

Abstract

The importance of the research is conditioned by the ongoing commercialization and expansion of masterpiece and museum objects use limits, as well as museum collections in the context of ensuring the rights and legitimate interests of museums as corresponding intellectual property objects’ right holders. This predetermined the study of museums’ participation peculiarities in civil legal relations taking into account the legal regime of museum objects and museum collections as the purpose of this research. The tasks include the establishment of the museum’s civil legal status as a relevant legal relations subject, civil turnover characterization of museum objects and museum collections and their legal regulation sources, current legislation norms’ application practice analysis on the use of museum objects. The theoretical basis of the research is provided by civilization science representatives’ works of recent years, the subject of which affects public relations connected with the museum objects and museum collections protection as intellectual property objects. The normative basis is formed by the legislation provisions on culture, museum legislation, legislation on intellectual property. The empirical basis is the materials of court cases on disputes on the museum objects use and collections for commercial purposes.

Current Issues of the State and Law. 2023;7(3):386-394
pages 386-394 views

Theoretical specifics of safeguarding materials from additional professional education programmes as intellectual property objects

ZOLOTOVA V.B.

Abstract

The importance of the topic is due to the wide advancing and dissemination of additional professional education, the development and functioning of educational services market, which increases the educational content misuse’s risks and threats as an intellectual property object (IP rights). The purpose of the research is to identify and determine the theoretical features of additional professional education programs’ materials’ protection. Such tasks as basic categories identification, analysis of the court disputes’ current practice related to educational materials protection as intellectual property objects, as well as the measures definition established by law to protect the additional professional education programs’ educational content as intellectual property objects are defined. Through the study of empirical data, primarily expressed in the materials of judicial practice, an attempt is made to generalize and systematize additional professional education programs’ protection legal regulation theoretical issues as intellectual property objects in the field of education. It is concluded that training materials fall under the definition of a work, and taking into account their properties expressed in the means of visualization through, in most cases, presentations and video courses with the independence signs presence and self-sufficiency, additional professional education programs training materials are recognized as composite works.

Current Issues of the State and Law. 2023;7(3):395-403
pages 395-403 views

The role of court decisions in overcoming the uncertainty of legal regulation of dismissal for absenteeism

ZOLOTOREV V.G., SHCHEDRINA J.V.

Abstract

On the basis of current legislation and judicial practice, the problems of regulatory regulation and the courts position on the issue of dismissal of an employee at the initiative of the employer under subparagraph “a” of paragraph 6 of part 1 of Chapter 81 of the Labor Code of the Russian Federation are considered. The study relevance was substantiated, its methodology was characterized (such research methods as comparative legal, formal legal, as well as analysis, synthesis, system method were used). The definition of absenteeism given in the Labor Code of the Russian Federation is considered, the main problems of qualification as absenteeism of the absence of an employee in the workplace are highlighted. The courts positions are analyzed on the issue of whether a break for meals and rest is included in the definition of absenteeism and whether this break interrupts the continuous absence of the employee from the workplace. It is substantiated that the current legislation does not contain an exhaustive list of reasons for determining the validity of an employee’s absence from the workplace. Based on the analysis of judicial practice, a number of reasons are identified that the courts recognize as valid, and the ambiguity of the legal positions of the courts on this issue is also shown. It is concluded that in conditions of legal uncertainty, it is the courts that become the subject that fills in the gaps in the legislation in relation to specific cases. The main results of the study can be applied in the future in law enforcement practice, as well as in the teaching of legal disciplines.

Current Issues of the State and Law. 2023;7(3):404-412
pages 404-412 views

Legal regulation of the bioprinting process: problems and development prospects in the Russian Federation

KRAVCHENKO N.V., TRUFANOVA A.Y.

Abstract

The relevance of this topic is due to the fact that the development of medical engineering has reached a level where it is possible to create a prototype organ using 3D bioprinting technology. The purpose of this study is to conduct a legal analysis of the implementation of this procedure in the Russian Federation and determine ways to resolve the existing contradictions. To date, we are not yet talking about the mass production of biomedical implants, however, understanding the importance of 3D bioprinting in the future of regenerative medicine, we consider it necessary to develop legislative regulation of this area of activity. The methodology consists of dialectical, structural, formal legal and comparative legal methods, analysis and synthesis. As part of the study, the legal structure of legal relations in the field of creating organs and tissues by using the functions of a 3D bioprinter was analyzed; their subsequent transplantation into the human body. It is noted that the legal issues of the implementation of transplantation of created organs and tissues using bioprinting technology remain unresolved. Their solution is seen in a comprehensive change in the current legislation governing the 3D bioprinting procedure use and the further products circulation created with its help.

Current Issues of the State and Law. 2023;7(3):413-421
pages 413-421 views

Special subject and objective side peculiarities in the corpus delicti of non-assistance to patient, which caused by negligence the death or serious harm to health infliction

OGNERUBOV N.A.

Abstract

The importance of the presented topic is explained by the high social risk expressed in the occurrence of medical negligence’s adverse consequences, especially when it entails serious harm to the patient’s health or his death. The aim is to establish the revealing proper crime subject peculiarities of non-assistance to patient, which caused by negligence the death or serious harm to health infliction and the causal link between his act and the adverse consequences. The study of the signs of a special subject in the considered corpus delicti, objective side’s conditions and containment identification, as well as the criminal cases consideration practice analysis and the criminal record status under part 2 of article 124 of the Criminal Code of the Russian Federation are defined as tasks. The empirical basis is provided by statistical data on the criminal record for the studied crime, as well as judicial practice materials, in which the author conducted a content analysis. According to the research results it is noted that the key criterion distinguishing the crimes committed under part 2 of article 124 of the Criminal Code of the Russian Federation from crimes under part 2 of article 109 and part 2 of article 118 of the Criminal Code of the Russian Federation is professional-destructive (bona fide) medical defect expressed in the criminal legislation as special subject omission without valid reasons.

Current Issues of the State and Law. 2023;7(3):422-433
pages 422-433 views

Процессуальное право

Issues of jurisdiction of disputes for arbitration proceedings. Italian Republic’s legislation analysis

GAVRILENKO V.A.

Abstract

Economic turnover subjects’ disputes subordination issues to proceedings through non-state arbitration and the arbitration institutions competence to resolve specific disputes types are analyzed. The Italian Republic legislation and Italian arbitration institutions’ activities are investigated. The above-mentioned state is characterized by a sufficiently developed economy and a large trade turnover, which entails a large number of agreements between business entities both within the country and within the framework of international economic relations. Consequently, commercial arbitration, as a dispute resolution means, has a rich history and a high development level within the Italian legal system. The scope of commercial arbitration in Italy and the legal regulation of the disputes jurisdiction and the arbitration institutions’ competence are considered in detail. Conclusions are drawn about the features and problems in these legal and economic sectors.

Current Issues of the State and Law. 2023;7(3):434-440
pages 434-440 views

Law enforcement trends at the stage of initiating a criminal case (empirical analysis)

TSVETKOV Y.A.

Abstract

The study object is the criminal procedure activities main directions of the preliminary investigation bodies at the stage of initiating a criminal case. The study is built in an inductive order (from facts to conclusions) and is aimed at solving a key research task – to identify objective trends in law enforcement at this criminal process stage. The main empirical basis of the study was the data of federal and departmental statistical observations on the number of incoming reports of crimes, the results of their verification, the stability of procedural decisions to refuse and initiate criminal proceedings, the effectiveness of prosecutorial supervision, departmental (procedural) and judicial control over the validity and legality of these decisions. Along with certain problems, a generally positive dynamics of law enforcement at the stage of initiating a criminal case has been established. The thesis of a number of scientists about the alleged inefficiency of the existing procedural mechanisms for checking reports of a crime and the need to abandon the institute of initiating a criminal case is refuted.

Current Issues of the State and Law. 2023;7(3):441-449
pages 441-449 views

Национальная безопасность

Comprehensive child safety is a new type of national security in the strategic planning system

KOLOTKINA O.А., YAGOFAROVA I.D.

Abstract

The article presents a theoretical and legal analysis of the concept of “comprehensive child safety”, which is new to Russian legislation, and is enshrined in the Strategy of comprehensive child safety in the Russian Federation for the period up to 2030, approved by the President of the Russian Federation Decree no. 358 of May 17, 2023. It is emphasized that it is necessary to develop a definition of “comprehensive safety” concept at the doctrinal level due to the absence of an appropriate prescription establishing its content in the strategic planning document itself. The purpose of the research is to determine the content of “comprehensive child safety” concept to substantiate the possibility of considering the latter as a separate type of national security focused on specific strategic national interests’ implementation stated in the National Security Strategy 2021. Comprehensive child safety is an individual security integral part as a whole, but at childhood development stage. Ensuring the child safety issues in an integrated relationship with national interests, strategic national priorities and strategic planning as a whole are not studied at the doctrinal level and require theoretical development. General scientific and private scientific methods, including special legal ones, were used as research methods. The main research methods used are analysis, comparative legal and formal legal methods. Based on the strategic planning documents’ analysis, the author’s definition of “comprehensive child safety” concept is formulated, its content elements are indicated. The conclusion is made that the main purpose of ensuring the comprehensive child safety is to achieve the unhindered realization by minors of their rights and legitimate interests provided by current legislation norms. Ensuring such a state will allow achieving the harmonious development of the child as a person in the future.

Current Issues of the State and Law. 2023;7(3):450-457
pages 450-457 views

Обзор законодательной и правоприменительной практики

The project of a united type institution according to the provisions of the Concept for the penitentiary system development until 2030

TSAREVA E.A.

Abstract

In order to implement the norms of the Concept for the penitentiary system development of the Russian Federation until 2030 on the creation of a united type institution, an attempt was made to develop a model of such a correctional institution. The study addresses the issue of creating the legal and organizational foundations for the functioning of a united institution. To fix any phenomenon at the legal level, first of all, a theoretical model should be created, its scientific justification should be proposed. At the same time, both in the national penitentiary legislation and in the foreign one, there are already elements of the model of the united type institutions proposed by the Concept for the development of the penitentiary system. At the Russian Federation legislative level, a change in the correctional institution type is provided, either by increasing the rights and freedoms scope of the convict, or by reducing it. Statistical data confirm the practical implementation of these institutions, in connection with which there is a need for the sites presence of a colony-settlement and a prison as the design model part of a united type institution. The model of the united type institution could be supplemented by correctional colonies without distinguishing their regimes, but with the allocation of conditions for serving sentences within one correctional colony. Also, in the proposed model, it is necessary to provide for the placement of a pre-trial detention center, which will ensure a consistent corrective working process with persons who have committed a crime. As for the site creation for juvenile convicts, it raises doubts. Since the specificity of the special contingent in the form of juvenile convicts implies a separate content from adult convicts. The most optimal idea seems to be about a single complex of correctional institutions for persons who have committed a crime before they reach the age of eighteen, which is a combination of a pre-trial detention center, educational and correctional colonies on the same territory. The model of a united type institution can be structurally represented as follows: pre-trial detention center; Correctional Facility; a room in a prison regime; the colony area.

Current Issues of the State and Law. 2023;7(3):458-464
pages 458-464 views

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