Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo最新文献

{"title":"The definition of armed conflict in cyberspace","authors":"S. Y. Garkusha-Bozhko","doi":"10.21638/spbu14.2023.112","DOIUrl":"https://doi.org/10.21638/spbu14.2023.112","url":null,"abstract":"The information technologies development affects all spheres of human activity, including the military activities of States. The level of military information technologies development allows us to talk about a new theatre of military operations — the cyberspace. The likelihood of an armed conflict in cyberspace is also confirmed by the Tallinn Manual, developed in 2013 and updated in 2017 by experts from the NATO States with the participation of the International Committee of the Red Cross. In the context of the high probability of military action in cyberspace, the starting point for applying international humanitarian law to such situations is the definition of a cyber armed conflict. The research of this topical issue of modern international law of armed conflicts is the subject of this article. The author pays attention to the legal definition of cyberspace in general, and to related problems. In the absence of an international treaty regulating this area, it was suggested that such treaty should be developed and adopted. Because there is no definition of “classic” armed conflict in international humanitarian law, this article offers the author’s definition of “classic” armed conflict based on the analysis of the law of armed conflicts, relevant practice and international legal doctrine. Based on this definition, on detailed analysis of the relevant norms of international law, including the norms proposed by the Tallinn Manual on International Law Applicable to Cyber Operations, on the doctrine of international law, and taking into account the specifics of cyberspace, the author gives a comprehensive definition of armed conflict in cyberspace. The author substantiates the need to use the concept of cyber armed conflict, and not the terms “cyberwar” or “information war”. This article focuses on and evaluates the relevant provisions of the Tallinn Manual. The author also made suggestions on possible solutions to the problems discussed in this article.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"87 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83306309","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":"Producer subsidies: Legal problems in the context of economic inhomogeneity","authors":"Margarita V. Kustova","doi":"10.21638/spbu14.2023.302","DOIUrl":"https://doi.org/10.21638/spbu14.2023.302","url":null,"abstract":"Continuing to consistently maintain the public nature of relations on the provision of subsidies to producers of goods, works and services, the author turns to the identification of their economic essence. In this context, we note the legislator’s departure from the classical understanding of a subsidy, the transformation of the gratuitousness nature of subsidies and, in some cases, the obvious conventionality of the legislator’s reference to this instrument. Special attention in the article is paid to the study of economic heterogeneity of subsidies to cover the costs or loss of income of producers, the structure of which is analysed as independent types of subsidies for the reimbursement of relevant costs in the case of imperative involvement of producers in the implementation of public functions; incentive subsidies, and subsidies as an alternative to state (municipal) procurement. The legislator considers the peculiarities of the economic nature of the considered types of subsidies as a necessary prerequisite for ensuring proper legal certainty in the regulation of the relevant relations and increasing the level of guarantees for the protection of their participants. The research into the differences in the economic nature of the relations accompanied by the provision of subsidies to producers to cover costs or loss of income leads the author to the conclusion that there are basis both for the differentiation of approaches at the level of law to establish the legal framework of their public regulation, and for identifying the permissible limits of application of civil law to them. At the same time, the author believes that this does not preclude the universalization, within certain limits, of public rules on subsidies, primarily in terms of establishing basic guarantees of protection for the participants of the relevant relations.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135313236","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":"Search for the optimal model of control and supervisory activities: The experience of Russia and China","authors":"Albert A. Trofimov, Ekaterina A. Dmitrikova, Anastasia A. Karitskaya","doi":"10.21638/spbu14.2023.314","DOIUrl":"https://doi.org/10.21638/spbu14.2023.314","url":null,"abstract":"One of the aspects of ensuring public interest is to determine the order of organization and implementation of state activities, the purpose of which is to minimize the risk of harm to legally protected values caused by violations of mandatory requirements. The achievement of this goal largely depends on the model of control and supervisory activities that will be implemented by the state. The authors see the optimal model of control and supervisory activities as balanced if based on constitutional principles. The authors consider the experience of Russia and China in creating a modern model of control and supervisory activities and propose to consider approaches to their search that would not only achieve the goal of control (supervision), but also ensure that the balance of interests of the state, society and individual individuals is maintained. Such a search has not been completed in both states. Actually there is a unified approach — in Russia and China the legislator seeks to form a model that would ensure a balance of interests. The authors turn to the constitutional principles of state control and supervision as an activity related to interference with the freedom of a private person. The study revealed a difference in approaches to the issue of reforming control and supervisory activities both in terms of the dynamics of changes and the consistency of approaches. In relation to the Russian experience, the development of legislation in the field of control and supervisory activities allowed to identify the characteristics of changes and the correlation of control and supervisory activities in the system with other types of administrative activities. The Chinese experience reveals the ongoing search by the Chinese leadership for a system of legal regulation in the conditions of uncodified legislation, numerous subordinate regulations and the inconsistency and uncertainty of legal norms.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135317263","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":"Special rules against tax avoidance: Taiwan’s experience","authors":"Roman A. Shepenko","doi":"10.21638/spbu14.2023.311","DOIUrl":"https://doi.org/10.21638/spbu14.2023.311","url":null,"abstract":"States and the territories implementation their tax rights in relation to the objects of taxation by concepts of taxation is determined. Tax conceptions to be applied primarily in relation to direct taxes are territorial and global. The territorial conception assumes that taxes are levied on the object of taxation originated or received in the state (territory). This conception is addressed to residents and non-residents. The global conception assumes that taxes are levied on the object of taxation regardless of the place of its origin. This conception is addressed to residents. Ideally, states and territories should limit their tax rights to income from national sources. Accordingly, the principle of non-double taxation will not be violated and there is no need for special rules. Initially, states and territories followed the territorial concept, but over time approaches have changed. As a result, the problem of tax avoidance has become the focus of attention. Their unilateral application does not give the desired result, and therefore international treaties are concluded or amended. Special rules against tax avoidance are on the agenda of the authorities of various states, including unrecognized ones. There is a certain specificity in the regulation in relation to unrecognized states and territories with a special status. Some of these entities are even members of international organizations, but do not have an extensive network of treaties containing tax provisions. In the given article, an attempt to systematize special rules against tax avoidance in Taiwan is made.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"2015 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135317293","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":"Law enforcement practice as an object of constitutional judicial assessment in the Russian Federation: Background, experience, problems","authors":"Aleksei A. Petrov","doi":"10.21638/spbu14.2023.307","DOIUrl":"https://doi.org/10.21638/spbu14.2023.307","url":null,"abstract":"Turning to law enforcement practice has been and remains an important component of the activities of the Russian Constitutional Court. At the first stage of the history of the Russian judicial constitutional control — during the period of the Constitution (Basic Law) of the Russian Federation — Russia of 1978 and the RSFSR Law of July 12, 1991 No. 1599-I “On the Constitutional Court of the RSFSR” — consideration of cases on checking the constitutionality of law enforcement practice was separate authority of the Constitutional Court. In these conditions, law enforcement practice was the direct object of judicial constitutional review. With the adoption of the Constitution of the Russian Federation of 1993 and the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation”, the verification of the constitutionality of law enforcement practice was excluded from the competence of the Constitutional Court. At present, the Constitutional Court, while checking the constitutionality of legal acts, actively uses law enforcement practice as one of the means of establishing the meaning of the contested acts. The article shows that the Constitutional Court is constantly faces with the problems of defining the concept of law enforcement practice, which can receive different content in different situations. The question of the criteria under which law enforcement practice should be recognized as established is also unclear. Nevertheless, the importance of law enforcement practice for the activities of the Constitutional Court is generally increasing, which is confirmed, among other things, by the amendments made to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” in 2020. The conclusion is substantiated that the appeal to law enforcement practice contributes to the adoption of more motivated and balanced decisions by the Constitutional Court.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"124 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135317853","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":"Application of civil law institutions in customs practice","authors":"S. Shokhin, E. Abrosimova","doi":"10.21638/spbu14.2023.108","DOIUrl":"https://doi.org/10.21638/spbu14.2023.108","url":null,"abstract":"The article deals with the issue never explored before in Russian legal research: the application of civil law provisions to the regulation of several types of relationships in customs practices. The issue is acute as with the changes in civil law it is necessary to find out whether we need to synchronize with this process the other branches, seemingly not related to civil law. Moreover, the article gives another case in point to the current process of mutual integration in different spheres and branches of law. The authors expand upon the concept of the complex and predominantly public nature of customs legislation and attempt to find out, what limits the civil law has when dealing with the customs regulations. Another interesting point is the interaction between customs and civil law when applied to relations between businesspersons and customs bodies and officials. The article analyzes particular features of representation, storage and warehousing, pledge and guarantee, insurance, when applied in customs practices and the regulation thereof in customs laws. The research uses comparative methods, showing similarities and differences in the approach of the relevant customs regulations in Russia, foreign countries and integrating units such as EU and EAEU. The authors conclude that customs laws and regulations constitute a perfect example of combined use of legal instruments related to different law branches and of different nature for the sake of efficiency of the influenced and regulated system.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83884724","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":"State policy in the sphere of legal regulation of labor under conditions of digitalization of economy","authors":"M. Sagandykov","doi":"10.21638/spbu14.2023.102","DOIUrl":"https://doi.org/10.21638/spbu14.2023.102","url":null,"abstract":"Digitalization creates new challenges for public policy in the regulation of labor relations. The purpose of the article is to identify the most complex problems associated with the introduction of information and communication technologies in labor relations, and to outline ways of their legislative solution. For this purpose the analysis of Russian and foreign scientific literature, labor legislation, judicial practice, documents of the International Labor Organization, including those adopted in 2020 in response to threats to labor relations caused by the COVID-19 pandemic is used. The inefficient use of already available electronic resources for the implementation of electronic case management is noted. The idea of the need to extend modern technology not only to the electronic exchange of documents, but also to their creation, storage, processing is supported. It is concluded that it is inexpedient to use an enhanced electronic signature of an employee in labor relations, in connection with which it is proposed to use special digital platforms supported by the state. It is proposed to gradually get rid of the practice of duplicating electronic and traditional “paper” records management. Relationships formed in the process of application of distant labor contain all the classical features of the employment relationship, which is facilitated by the employer’s use of modern means of control over the behavior of the employee. Digital technologies create new opportunities for the use of labor resources and make it possible to include new forms of employment in the scope of labor legislation, where to a greater or lesser degree there is economic, organizational dependence of the executor (employee) on the customer (employer), based on innovative means of control and management, as well as the dependant’s need for traditional means of social protection. Differentiation and decentralization of legal regulation is proposed to maintain the stability of labor relations.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"136 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88989156","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":"Protection of personal data in China: Legislation in the digital age","authors":"Gong Nan","doi":"10.21638/spbu14.2023.110","DOIUrl":"https://doi.org/10.21638/spbu14.2023.110","url":null,"abstract":"In the development of China’s Internet industry and digital economy, great importance is attached to the protection of personal data and seriously protects the legitimate rights and interests of citizens’ personal data. Generally speaking, with the development of technology and industry, China’s personal data protection has gone from “indirect protection” to “direct protection” and then to “comprehensive protection”. In the early years of China’s Internet industry, the indirect protection of personal data was mainly achieved through the protection of the “rights to privacy” of citizens. Since the Internet industry of the People’s Republic of China has entered a stage of rapid development, the state began to directly protect personal data in accordance with the provisions of the Chapter “Network Information Security” established in the “Cyber Security Law” of 2016, establishes several principles for the collection and use of personal data, protection requirements information security. Until November 1, 2021, the “Personal Data Protection Law of the People’s Republic of China” (PPD) was adopted to comprehensively protect personal data, reflecting the ideology of development focused on bringing the people to the center, meeting the new needs and aspirations of the people in the new era, and also proposing the creation international digital legal order “Chinese version”. The PPD further expands the scope of the object of personal data protection, comprehensively establishes the rights of individuals to process data, strengthens the obligations to protect personal data processors, creates strict rules for the protection of sensitive personal data and regulates the processing of personal data by public authorities, as well as improving the means of legal protection of personal data, all of which are important points in the legislation. The law incorporates advanced foreign experience, while emphasizing Chinese wisdom, the spirit of the times, and practicality in accordance with the reality of China.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"48 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74092844","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":"New sources of criminal procedural and other judicial evidence in digital reality","authors":"A. Sharipova","doi":"10.21638/spbu14.2023.105","DOIUrl":"https://doi.org/10.21638/spbu14.2023.105","url":null,"abstract":"The attitude of law, practice and science to actively appearing sources of evidentiary information is controversial and belated. Besides some exceptions Criminal Procedure Code does not contain special rules for handling electronic information. Meanwhile evidentiary rules were formulated more than half a century ago and were principally oriented only on receiving analog information. Electronic traces and ways of displaying legally relevant information contained in them are sospecific that previous procedural forms are not usable nowadays. Procedural science develops the theory of electronic evidence on a sectoral basis. However, thecommunity of information-digital technologies which is lying in the core of impetuous growth of importance of electronic information predetermines the possibility of producing consolidated intersectoral rules. Examples of foreign science show the success of this approach. Criminally-remedial practice uses only sourcesby which you can get paper analogs or conduct an examination while proving. The extension of traditional inspection, seizure, search and examination to electronic information lowers its efficiency and does not provide a regime of secrets protected by law. A huge layer of electronic information remains outside the procedural proof. Its real value is confirmed by its use in law enforcement intelligence-gathering activities. Defensive side in criminal proceedings is deprived of even a few evidentiary opportunities in relation to digital information. Civil, Arbitral, Administrative proceedings are more open to recent evidences. Equal rights of the contestants contribute to the development of electronic evidence. A criminal procedure with a monopoly of the prosecution on it strengthens the accusatory bias and impoverishes the proof as a whole. A further spread in the share of electronic evidence in criminal procedural proving requires a change in approaches to it, a rejection of the exclusively classical rules for dealing with them, the extension of civilistic approaches to the relevant activities of the defense.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"17 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74584949","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":"Criminological analysis of the identity of a fraudster in the field of misuse of electronic means of payment","authors":"Maria V. Talan, B. E. Shavaleev","doi":"10.21638/spbu14.2023.107","DOIUrl":"https://doi.org/10.21638/spbu14.2023.107","url":null,"abstract":"The processes of digitalization and technologization developed the social relations, but also acted as a catalyst for the development of illegal activities. A typical example of a crime of this group is fraud using electronic means of payment. Based on the low detection rate of this crime, about 30 %, according to the Ministry of Internal Affairs of Russia, as well as the high degree of latency of illegal banking transactions, the optimization of preventive activities is of particular relevance, which requires research the personality of the offender. Within the framework of this article, the socio-demographic, socio-role and socio-psychological substructures of the offender’s personality are analyzed. The official statistics for the period 2013–2020 were studied, as well as the judicial practice in the amount of 115 verdicts in criminal cases for the same period. The typical gender of the offender, his age, education and territory of residence, his professional affiliation were established. The analysis of the socio-psychological substructure of the personality made it possible to produce a conclusion about the depth and stability of the criminalization of the offender, as well as his criminal motivation. As a result of a comprehensive study, a criminological portrait of the personality of a fraudster in the field of misuse of electronic means of payment was compiled, contradictions were revealed between the portraits of the personality of a general criminal fraudster and a cybercriminal formed in the doctrine of criminology with the data obtained. The results of the study can be used in the framework of improving the prevention of crimes committed using information technology in general, and the misuse of electronic means of payment, in particular.","PeriodicalId":41041,"journal":{"name":"Vestnik of Saint Petersburg University-Law-Vestnik Sankt-Peterburgskogo Universiteta-Pravo","volume":"48 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81631511","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}