RUDN Journal of Law最新文献

{"title":"The theory of legal restraints: the actual limits of the judge’s lawmaking power from the perspective of the neorealist theory of interpretation","authors":"D.A. Fatalieva","doi":"10.22363/2313-2337-2023-27-2-368-382","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-368-382","url":null,"abstract":"The modern methodology of judicial interpretation is characterized by an apology of the realistic style of judicial interpretation. The basic theses of the realistic theory of interpretation are the voluntarism of the author of official interpretation and the lack of the function of a normative text which is different from that attached by the official interpretation. As these theses actually allow the sovereignty of the judiciary, the judicial realism faces a justified criticism. However, representatives of the French legal doctrine deny the tendency to form a new sovereign in the person of the judge and highlight special factors - legal restrains which are due to the configuration of the legal system restrain judges’ reasoning in practice, although they are not normative obligations. The article reveals the main points of the theory of legal restraints based on the works of French scholars in the theory and philosophy of law. Also, since the main tool of the realist theory of interpretation is an empirical approach, the provisions of the theory of judiciary restrains are tested on the example of the international justice practice - the European Court of Human Rights. In fact, we conclude that respect for the principle of subsidiarity and recourse to the European consensus can be seen as examples of legal restrains. As a result of the theory of judicial restrains analysis, the author agrees that although it complements the realist theory of interpretation and can act as a tool for studying political and legal discourse, it has certain limitations. For example, the theory of legal restraints offers no objective criteria for identifying and distinguishing them from the normative obligations of the author of interpretation, and is, in general, descriptive. Moreover, the nature of legal restraints shows that their observance remains at the discretion of the subject of interpretation and, therefore, they cannot completely exclude the possibility of his/her absolute discretion.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48248603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Concession policy of the Soviet state: implementation mechanism","authors":"M. Nemytina, A. B. Krasnov","doi":"10.22363/2313-2337-2023-27-2-321-337","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-321-337","url":null,"abstract":"The article analyzes the experience of the concession policy implementation by the RSFSR and the USSR during the 20s of the twentieth century and the approaches used in its framework, which allowed solving simultaneously a wide range of tasks related to the rise of the domestic economy and overcoming foreign policy isolation. This experience of the Soviet state can be used to solve the challenges the Russian Federation is facing today. The authors substantiate that the concession policy of the Soviet state was a rationally constructed mechanism able to solve a number of tasks. 1) Creation of foreign concessions in the Soviet country contributed to withdrawal from the diplomatic blockade declared by Western countries. 2) Through the concession policy the obligations of the Russian Empire to foreign investors were renewed in the conditions of a socialist economy. 3) By creating concessions the Soviet government headed by V.I. Lenin attracted the material and technological resources of the European countries and the USA for the development of the economy of the Soviet country. 4) At concession enterprises models of industrial relations with a high level of labor organization and living conditions of workers were formed at the expense of foreign investors, which then had to be introduced everywhere. 5) The concession policy covered the national suburbs and contributed to unification of the economic potential of the republics as part of the USSR. The analysis of the legal regulation of concession relationships carried out in this article gives reason to suppose that the concession policy of the Soviet state should not be reduced to the NEP because its implementation started earlier. In fact, it was launched with the adoption of the Decree of the Council of People’s Commissars of November 23, 1920 On General Economic and Legal Conditions for Concessions and within its framework a range of tasks that went far beyond the economic recovery envisaged by the NEP through private law principles was solved. Attention should also be paid to the constitutional nature of the regulation of concession legal relations, which was determined by the “Treaty on the USSR Foundation of 1922” and the Constitution of 1924.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42280850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The application of artificial intelligence in the civil proceedings of the People’s Republic of China: theoretical and legal analysis","authors":"E. Rusakova","doi":"10.22363/2313-2337-2023-27-2-468-480","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-468-480","url":null,"abstract":"The subject of the research of this article is the social relations arising in the process of integrating artificial intelligence technologies into the judicial proceedings of the People’s Republic of China (PRC). The article discusses the legal framework governing this process, as well as the theoretical and legal analysis of the phenomenon of artificial intelligence in the new legal reality. Special attention is paid to the value and essential characteristics of artificial intelligence in justice, its types and components from the standpoint of the methodology of law. Moreover, the objectives, principles, scope and system of the use of artificial intelligence in legal proceedings, as well as measures of state support for this process are analyzed. The research shows that the process of introducing artificial intelligence into legal proceedings is complex and requires serious legal understanding of these technologies in the context of justice administration. The author draws conclusions concerning effectiveness and pragmatism of the process of integrating artificial intelligence into the judicial system of the People’s Republic of China. However, a fully automated process of justice in the courts of the People’s Republic of China can lead to extremely negative consequences for the judicial system, which may cause distrust to the judicial method of protecting rights and reduce society’s commitment to basic socialist values and customs.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44144556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deviated State: Research Methodology","authors":"N. A. Vlasenko","doi":"10.22363/2313-2337-2023-27-2-257-272","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-257-272","url":null,"abstract":"In this article the author analyzes the current domestic state studies, trends and features of its development. It is concluded that legal science practically does not study the so-called blunders in state policy, ineffective strategics, failures of reforms and programs. Classical state science and its representative Aristotle called this a deviation in a state development and used the concept of a deviated (deviating) state . It is proposed to study the causes, types and forms of deviations. The author believes that this approach will allow a deeper analysis of the emerging negative trends and patterns in the European statehood development. The current global crisis, provoked by the situation in Ukraine and around it, only sharpens deviations in the European states’ development. It is emphasized that deviated state theory needs a proper development in the legal science. The problem of the state bodies activities imitation shall be central in the future theory. The author believes that many components of modern statehood do not essentially fulfill their tasks and functions, or, if they do, then partly. The relationship between society and the state is analyzed through the prism of alienation. The state is a product of society; it was created for society and is entirely indebted to it. Legal science must develop criteria for remoteness of the state from society to define the degree of alienation. Within the framework of negative trends, selectivity is also considered as a feature of modern statehood. The author understands selectivity as a special form of coercion. Such states do not carry out heavy repressions; there is a certain point of revenge on individuals, groups, organizations, etc. Among the deviations, the author refers to ignoring the role and importance of social organizations, state’s withdrawal form international human rights organizations, etc. The article ends with the author’s appeal to reasonableness as a condition for resisting deviations. Reasonableness must form the basis for statehood and legal reality. The state, its institutions must be the product of rational human activity. Mankind has long been determined in its own values, which include the state and its companion - law.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46051822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the scientific scope of the “legal drafting” concept","authors":"I. Kozhokar","doi":"10.22363/2313-2337-2023-27-2-273-287","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-273-287","url":null,"abstract":"The article attempts to define the content of “legal drafting”, as well as its place and role in the categorical apparatus of the theory of law. It investigates the main scientific approaches to the definition of the concept and classification of types of legal documents technology. The paper determines its axiological significance through a functional methodological approach, the impact on the effectiveness of legal regulation, as well as the place and role in the categorical apparatus of the theory of law. The findings of the research show that the terminological feature of the concept of “legal drafting” is described through a number of aspects. First of all, this term performs the function of a “framework concept” and is often subjected to erroneous idealization. At the same time, the term “legal drafting” has a polysemantic character and, therefore, enjoys a poly conceptual scientific maintenance; basically, it refers to the instrumental part of legal activity. The research concludes that the legal drafting technique occupies a special place in the categorical system, which is primarily due to the difference in approaches to its interpretation, and the large volume of its content.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42888018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Delegated rulemaking by the Central Election Commission of Russia","authors":"A. Lopatin, Akhmat I. Malkarov","doi":"10.22363/2313-2337-2023-27-2-338-353","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-338-353","url":null,"abstract":"The issue of systematization of legislation is quite relevant and the task of solving it is part of the state legal policy. At the same time, the solution of the above problem is impossible in isolation from the study of a number of issues affecting both the theoretical and practical aspects of lawmaking and law enforcement activities. For example, one of these key issues is the hierarchy of normative legal acts, including those issued by state bodies of the Russian Federation. The issue of standard-setting powers of certain state bodies is quite controversial. The article investigates the practice of implementing the institution of delegated legislation in the Russian Federation on the example of the practice of delegated rulemaking of the Central Election Commission (CEC) of Russia. The study consistently considers issues of the constitutional and legal status of the Central Election Commission of the Russian Federation, including regulatory powers related to it. Various points of view relevant to the scientific community on this issue have been outlined. At the same time, the authors proceed from understanding that rulemaking powers are integral attribute properties of the constitutional and legal status of the CEC of Russia. Based on the tasks set, the issues of the forms of regulatory legal acts of the CEC of Russia as sources of constitutional law are investigated. The authors indicate the need to diversify acts issued by the CEC of Russia within the framework of exercising its direct powers, with acts issued within the framework of delegated rulemaking. In this regard, special attention is paid to legal regulation regarding the new electoral procedure - remote electronic voting. Given the enormous importance for the state and its obligation to ensure transparency and legitimacy in electoral procedures, it is clear that their legislative regulation should be adequate to the level of tasks to be solved. At the same time, the authors believe that acts of delegated rulemaking, subject to certain restrictions and requirements, meet the specified characteristics. The methodological basis of the study includes the dialectical method, methods of analysis, synthesis and analogy, as well as formal-legal and comparative legal methods.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43059964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Public procurement in Russia: concept and content","authors":"V. Kikavets","doi":"10.22363/2313-2337-2023-27-2-397-420","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-397-420","url":null,"abstract":"Based on the analysis of foreign and national legal acts, scientific works and research of domestic and foreign scientists, the article substantiates the relevance of the concept “public procurement” and reveals its content. The outcome of the research on public procurement as a system of legal relations allows the author to verbalize its definition. Public procurement should be understood as a system of legal relations where one party is an authorized representative of public authority who purchases goods, works, and/or services at the expense of the relevant budget in order to realize public interest. The characteristic features of public procurement are highlighted, and the most significant functions of public procurement are substantiated, including social, regulatory, reproductive, innovative, stimulating, and cost optimization. The author offers classification of the main subjects of public procurement, involving authorized representatives of public authorities (entities authorized to regulate and control public procurement, to centralize and conduct joint bidding, as well as all customers), business entities (suppliers, contractors) and derivative entities (banks and credit organizations, electronic trading platforms, specialized organizations). It is emphasized that in order to increase the efficiency of budget spending and optimize the financial support of public procurement, a number of derivative entities may be abolished. The article sustains that legal relations in public procurement are subject to regulation by the norms of financial, administrative, and civil law. It notes that legal relations in public procurement regulated by the norms of civil law (contractual legal relations) arise exclusively after the relations regulated by the norms of public law. It outlines the legal characteristic of the revealed legal relations and justifies the necessity of considering the priority of the norms of public law.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41669748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal support for the development of sustainable and secure information and telecommunications infrastructure","authors":"A. L. Belousov","doi":"10.22363/2313-2337-2023-27-2-500-521","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-500-521","url":null,"abstract":"The relevance of the work is due to the need to adapt regulatory mechanisms to the actively developing digitalization processes. On the other hand, in the context of growing cyber threats and increasing dependence of public relations on information and telecommunications technologies, the directions for the development of legislation that ensure stability and security of the relevant infrastructure are subject to a certain rethinking in the legal aspect. The subject of the study is the legal support for the development of a sustainable and secure information and telecommunications infrastructure. The purpose of the work is to identify key areas for improving legal regulation in the field of functioning and development of sustainable and secure information and telecommunications infrastructure. The study applies methods of analysis, synthesis and comparison, as well as literal and systematic interpretation of the norms of the current legislation in the field of functioning and developing sustainable and secure information and telecommunications infrastructure. Finally, conclusions are formulated regarding the need for the development of legal regulation in this area. The research outlines the specific directions for changing the legal field, which ensure the sustainable development of information and telecommunications infrastructure in the Russian Federation.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44208523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The concept and features of administrative regulations as a source of Russian law","authors":"V. A. Nazaykinskaya","doi":"10.22363/2313-2337-2023-27-2-383-396","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-383-396","url":null,"abstract":"This article is a continuation of a previously published article on administrative regulations as a type of public administration acts. The purpose of this article is to identify the features of administrative regulations as a source of Russian law. It investigates existing shortcomings in the development and adoption of administrative regulations and proposes possible ways of their elimination. The study uses both general scientific and special research methods: analysis and synthesis, induction and deduction, comparative and formal legal methods. The conducted research allows to identify the specifics of administrative regulations as sources of Russian law, to outline the place and the role of these regulatory legal acts in the legal system of Russia. The author gives the definition of administrative regulations, reflecting their most important and essential features. The article studies such negative aspects as the practice of approving administrative regulations, which are codified departmental acts, by simple acts - orders. Also, to date, administrative regulations are not subject to regulatory impact assessment, which is also recognized as a negative phenomenon. The results of the study can contribute to improving the processes of developing and adopting administrative regulations and enhancing the level of legal technology of these regulatory legal acts.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44337849","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial interpreting institutionalization in criminal proceedings: European practices and Russian perspectives","authors":"V. Stepanova","doi":"10.22363/2313-2337-2023-27-2-481-499","DOIUrl":"https://doi.org/10.22363/2313-2337-2023-27-2-481-499","url":null,"abstract":"The research studies the institute of court interpreting in several European countries and the prospects of forming the institute of court interpreting in Russia. It bridges the previous studies concerning professionalization of this activity into the new realia and extends into legal regulation, market, and administration. The research raises awareness of the multifaceted process of forming the institute of judicial interpreting to the benefit of civil society. The issues concerning education of interpreters participating in judicial setting, level of language proficiency, qualification, authorization of legal interpreters and translators, their status, rights and obligations, code of ethics and some others inherent to the process of institutionalization are in the focus. It also highlights the grounds and voices prospects for the development of the institute of legal interpreters in Russia. The research methods are divided into theoretical and analytical, comparative, and contrastive and methods of reasoning, evaluation and summarising allowing to balance the material according to the academic aims. The practical relevance of the work rests in unifying and harmonising legal, administrative, and professional aspects of court interpreting institutionalisation within European space.","PeriodicalId":32648,"journal":{"name":"RUDN Journal of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44856233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}