Pub Date : 2021-10-20DOI: 10.19073/2658-7602-2021-18-2-228-242
O. Sherstoboev
The issues of criteria for the nullity of administrative acts are considered, the ratio of an illegal and invalid act, as well as a null and void act, analyzed, the possibility of administrative discretion in determining an invalid administrative act is analyzed, the role of vague legal concepts when an administrative act is declared invalid is demonstrated. The Author uses a comparative legal method, including the analysis of the practice of Germany, Great Britain, South Africa, Canada, Japan, South Korea, Russia and other countries. Special attention is paid to the laws on administrative procedures adopted in the post-Soviet territory and the influence of the German doctrine on this process. It is concluded that for the continental legal order the most preferable way to formalize the criteria for the invalidity of an administrative act are laws on administrative procedures or their analogs, while in the common law states, legal doctrine and judicial practice are of great importance. At the same time, many countries avoid recognizing acts as null and void, preferring the construction of their voidability. This is related to ensuring the stability of public administration, the predictability of administrative activities, and the protection of legitimate expectations. In any case, the theory of the reality of the administrative act is prevailing, and nullity is rather viewed as an anomaly. Therefore, only acts that are adopted with the most significant violations, which do not allow talking about the fair consequences of their adoption, are considered invalid. The illegality of an act does not automatically entail its nullity. A similar trend can be traced in Russia, although individual norms of law and practice of courts indicate the possible formation of a doctrine of the invalidity of an administrative act in the Russian legal system. Insignificant acts do not give rise to consequences from the moment of their adoption, legally they do not exist, and nothing can generate anything. With this approach, the courts only fix the criterion of invalidity without a dispute about law. Insignificant acts should be distinguished from contested ones, the latter may turn out to be illegal, but for a number of reasons (for example, protection of trust) the fact of their existence is confirmed along with their consequences.
{"title":"Nullity of Administrative Acts: Grounds, Legal Regime, Discretion","authors":"O. Sherstoboev","doi":"10.19073/2658-7602-2021-18-2-228-242","DOIUrl":"https://doi.org/10.19073/2658-7602-2021-18-2-228-242","url":null,"abstract":"The issues of criteria for the nullity of administrative acts are considered, the ratio of an illegal and invalid act, as well as a null and void act, analyzed, the possibility of administrative discretion in determining an invalid administrative act is analyzed, the role of vague legal concepts when an administrative act is declared invalid is demonstrated. The Author uses a comparative legal method, including the analysis of the practice of Germany, Great Britain, South Africa, Canada, Japan, South Korea, Russia and other countries. Special attention is paid to the laws on administrative procedures adopted in the post-Soviet territory and the influence of the German doctrine on this process. It is concluded that for the continental legal order the most preferable way to formalize the criteria for the invalidity of an administrative act are laws on administrative procedures or their analogs, while in the common law states, legal doctrine and judicial practice are of great importance. At the same time, many countries avoid recognizing acts as null and void, preferring the construction of their voidability. This is related to ensuring the stability of public administration, the predictability of administrative activities, and the protection of legitimate expectations. In any case, the theory of the reality of the administrative act is prevailing, and nullity is rather viewed as an anomaly. Therefore, only acts that are adopted with the most significant violations, which do not allow talking about the fair consequences of their adoption, are considered invalid. The illegality of an act does not automatically entail its nullity. A similar trend can be traced in Russia, although individual norms of law and practice of courts indicate the possible formation of a doctrine of the invalidity of an administrative act in the Russian legal system. Insignificant acts do not give rise to consequences from the moment of their adoption, legally they do not exist, and nothing can generate anything. With this approach, the courts only fix the criterion of invalidity without a dispute about law. Insignificant acts should be distinguished from contested ones, the latter may turn out to be illegal, but for a number of reasons (for example, protection of trust) the fact of their existence is confirmed along with their consequences.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45776831","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}
Pub Date : 2020-12-31DOI: 10.19073/2658-7602-2020-17-4-557-565
A. Khromov
The article provides a comparative analysis of administrative legal norms of the Russian Federation and Finland that regulate the participation of citizens in the protection of public order. The relevance of the chosen topic is determined by the fact that the human rights activities of law enforcement agencies, their importance in the fieldof public law enforcement, personal and public security is often unproductive, especially in the context of the global economic crisis, in which the functioning of law enforcement agencies alone is obviously not enough to protect human rights and freedoms and maintain public law and order. It is known that public tension in the state, including in Russia and Finland, increases sharply in emergency situations: during man-made disasters, epidemics, social crises, and terrorist activities. In such situations, the existence of public organizations whose activities guarantee the protection of public order and the elimination of negative consequences of emergency situations is extremely necessary. The Author considers the concept of public order, reveals its essence and content. The definition of the term “protection of public order” is formulated. It defines the legal regulation of citizens’ participation in public order protection in the Russian Federation and Finland. Common and similar features of such regulation are highlighted. The main legal acts regulating the participation of citizens in the protection of public order in Russia and Finland are analyzed in detail. According to the Author, strict centralization, as well as the lack of proper interaction of law enforcement agencies with society, is one of the key problems of enforcement and protection of public order in the law enforcement system of Russia and Finland. The issue of voluntary national teams functioning both in Russia and Finland is being considered. Attention is drawn to their specific features. In the end, the author concludes that at present, both for Russia and Finland, the issue of protecting citizens who take part in the protection of public order is a difficult one. It can be stated that in comparison with the Russian Federation, Finland provides a much smaller amount of guarantees for the protection of citizens who participate in the protection of public order.
{"title":"Administrative and Legal Framework for Citizens’ Participation in the Maintenance of Public Order in Russia and Finland","authors":"A. Khromov","doi":"10.19073/2658-7602-2020-17-4-557-565","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-4-557-565","url":null,"abstract":"The article provides a comparative analysis of administrative legal norms of the Russian Federation and Finland that regulate the participation of citizens in the protection of public order. The relevance of the chosen topic is determined by the fact that the human rights activities of law enforcement agencies, their importance in the fieldof public law enforcement, personal and public security is often unproductive, especially in the context of the global economic crisis, in which the functioning of law enforcement agencies alone is obviously not enough to protect human rights and freedoms and maintain public law and order. It is known that public tension in the state, including in Russia and Finland, increases sharply in emergency situations: during man-made disasters, epidemics, social crises, and terrorist activities. In such situations, the existence of public organizations whose activities guarantee the protection of public order and the elimination of negative consequences of emergency situations is extremely necessary. The Author considers the concept of public order, reveals its essence and content. The definition of the term “protection of public order” is formulated. It defines the legal regulation of citizens’ participation in public order protection in the Russian Federation and Finland. Common and similar features of such regulation are highlighted. The main legal acts regulating the participation of citizens in the protection of public order in Russia and Finland are analyzed in detail. According to the Author, strict centralization, as well as the lack of proper interaction of law enforcement agencies with society, is one of the key problems of enforcement and protection of public order in the law enforcement system of Russia and Finland. The issue of voluntary national teams functioning both in Russia and Finland is being considered. Attention is drawn to their specific features. In the end, the author concludes that at present, both for Russia and Finland, the issue of protecting citizens who take part in the protection of public order is a difficult one. It can be stated that in comparison with the Russian Federation, Finland provides a much smaller amount of guarantees for the protection of citizens who participate in the protection of public order.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42453111","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}
Pub Date : 2020-12-31DOI: 10.19073/2658-7602-2020-17-4-438-454
I. L. Vershok
The article deals with the dynamic aspects of legal consciousness. It is concluded that the traditional definition of legal consciousness as a set of emotions, ideas and feelings about the current and previously valid law was formed on the basis of the dominant materialistic concept as the ideological basis of knowledge in jurisprudence. Its use as a universal method determined the study of certain aspects of legal consciousness as an object of research activity, existing in the form of a reflection of the surrounding (legal) reality. As a result, the definition of legal consciousness in statics was formed, due to the analysis of individual external (materialized) signs of its manifestation (exteriorization). The existing lack of data on the peculiarities of the internal processes of the dynamics of legal consciousness was compelled to compensate for the study of mental processes and their corresponding parameters only on the basis of introspection. The article clearly demonstrates that this approach leads to various kinds of distortions, entailing errors in solving the fundamental problems of defining the phenomenon of legal consciousness, as well as a decrease in the quality of the practice of lawmaking and law enforcement. In order to overcome the gap that has arisen in theoretical and applied research, it is proposed to consider legal consciousness as a subject of scientific knowledge by constructing an integral theoretical scheme of its dynamics (flow) as a complex socio-psychological process. For this, an interdisciplinary approach is applied to the study of the dynamics of legal consciousness, on the basis of which a number of practical data from psychology, sociology, and cybernetics are synthesized. The definition of legal consciousness is formed on the basis of the decomposition of the concept into separate stages of legal consciousness with an analysis of their functional parameters. The main stages of the course of legal consciousness are recognized as the perception of the subject of legal regulation and its mediating legal norms with the formation of separate perceptual images, then – the corresponding perceptual activity with a certain centralization and cognitive processes with a possible result in the form of constructing mental schemes. The key parameters of legal consciousness are the generic-specific connection with consciousness, the absence of discreteness, as well as the specific formally-legally determined intentional orientation, temporality, coherence and tension of legal consciousness due to the subject's readaptation. Moreover, the target orientation, coherence and tension are largely predetermined by the methods and content of legal impact. As examples illustrating the proposed scheme of dynamics of legal consciousness, the phenomena of the so-called deformation of legal consciousness, approaches to the definition of subjectivity and legal personality, structural and substantive aspects of legal capacity and legal cap
{"title":"Interdisciplinary Approach to the Analysis of the Dynamics of Legal Consciousness","authors":"I. L. Vershok","doi":"10.19073/2658-7602-2020-17-4-438-454","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-4-438-454","url":null,"abstract":"The article deals with the dynamic aspects of legal consciousness. It is concluded that the traditional definition of legal consciousness as a set of emotions, ideas and feelings about the current and previously valid law was formed on the basis of the dominant materialistic concept as the ideological basis of knowledge in jurisprudence. Its use as a universal method determined the study of certain aspects of legal consciousness as an object of research activity, existing in the form of a reflection of the surrounding (legal) reality. As a result, the definition of legal consciousness in statics was formed, due to the analysis of individual external (materialized) signs of its manifestation (exteriorization). The existing lack of data on the peculiarities of the internal processes of the dynamics of legal consciousness was compelled to compensate for the study of mental processes and their corresponding parameters only on the basis of introspection. The article clearly demonstrates that this approach leads to various kinds of distortions, entailing errors in solving the fundamental problems of defining the phenomenon of legal consciousness, as well as a decrease in the quality of the practice of lawmaking and law enforcement. In order to overcome the gap that has arisen in theoretical and applied research, it is proposed to consider legal consciousness as a subject of scientific knowledge by constructing an integral theoretical scheme of its dynamics (flow) as a complex socio-psychological process. For this, an interdisciplinary approach is applied to the study of the dynamics of legal consciousness, on the basis of which a number of practical data from psychology, sociology, and cybernetics are synthesized. The definition of legal consciousness is formed on the basis of the decomposition of the concept into separate stages of legal consciousness with an analysis of their functional parameters. The main stages of the course of legal consciousness are recognized as the perception of the subject of legal regulation and its mediating legal norms with the formation of separate perceptual images, then – the corresponding perceptual activity with a certain centralization and cognitive processes with a possible result in the form of constructing mental schemes. The key parameters of legal consciousness are the generic-specific connection with consciousness, the absence of discreteness, as well as the specific formally-legally determined intentional orientation, temporality, coherence and tension of legal consciousness due to the subject's readaptation. Moreover, the target orientation, coherence and tension are largely predetermined by the methods and content of legal impact. As examples illustrating the proposed scheme of dynamics of legal consciousness, the phenomena of the so-called deformation of legal consciousness, approaches to the definition of subjectivity and legal personality, structural and substantive aspects of legal capacity and legal cap","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45141303","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}
Pub Date : 2020-12-31DOI: 10.19073/2658-7602-2020-17-4-566-574
A. Y. Shatokhin
The article examines the issue of administrative liability of the lessee and the lessor for violations of fire safety requirements in the existing legal regime for leasing buildings (premises). The urgency of the issue under study is substantiated based, first of all, on the existing contradictory judicial practice. The article analyzes the normative legal acts of the Russian Federation that regulate rental legal relations and administrative liability for violation of fire safety requirements, examines specific law enforcement acts, including those of the Constitutional and Supreme Court of the Russian Federation, studies publications of foreign authors on similar issues. The position of a number of judicial authorities on the impossibility of changing the public obligations of the parties to fulfill the fire safety requirements established by the legislation of the Russian Federation by a lease agreement that regulates only their civil obligations is criticized. The study revealed the characteristic features of a lease agreement, such as: direct transfer of things for temporary possession and use, or for temporary use; the temporary nature of the parties' agreement; concessionality of the contract. Considered, proposed by a number of authors, the classification of fire safety requirements into capital (constructive) and regime (operational, functional) and their author's definitions of these terms, based on the results of which their artificiality and incorrectness are justified. The Author has developed a law-based dichotomous classification and corresponding terminology. The possibility of classifying all fire safety requirements into social and technical requirements has been substantiated. It is proposed to consider as social requirements a set of legal norms that establish the rules of human behavior, the procedure for organizing production and (or) maintaining territories, buildings, structures, premises of organizations in order to ensure fire safety. The requirements of a technical nature should include a set of legal norms aimed at protecting people and property from the effects of hazardous fire factors directly related to the structural space-planning features of premises, buildings, technological equipment installed in it, and engineering systems. The following conceptual thesis has been formulated – the lessor is obliged to fulfill at his own expense the fire safety requirements of a technical nature established for the leased property, and the lessee is obliged to maintain the property in good condition, bear the cost of its maintenance and comply with fire safety requirements of a social nature, unless otherwise provided law, other legal acts or lease agreement. The author proposes to reflect the issue of the division of administrative responsibility between the lessee and the lessor at the level of the Supreme Court of the Russian Federation, in the next review of judicial practice.
{"title":"Administrative Liability for Violations of Fire Safety Requirements at Rental Facilities","authors":"A. Y. Shatokhin","doi":"10.19073/2658-7602-2020-17-4-566-574","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-4-566-574","url":null,"abstract":"The article examines the issue of administrative liability of the lessee and the lessor for violations of fire safety requirements in the existing legal regime for leasing buildings (premises). The urgency of the issue under study is substantiated based, first of all, on the existing contradictory judicial practice. The article analyzes the normative legal acts of the Russian Federation that regulate rental legal relations and administrative liability for violation of fire safety requirements, examines specific law enforcement acts, including those of the Constitutional and Supreme Court of the Russian Federation, studies publications of foreign authors on similar issues. The position of a number of judicial authorities on the impossibility of changing the public obligations of the parties to fulfill the fire safety requirements established by the legislation of the Russian Federation by a lease agreement that regulates only their civil obligations is criticized. The study revealed the characteristic features of a lease agreement, such as: direct transfer of things for temporary possession and use, or for temporary use; the temporary nature of the parties' agreement; concessionality of the contract. Considered, proposed by a number of authors, the classification of fire safety requirements into capital (constructive) and regime (operational, functional) and their author's definitions of these terms, based on the results of which their artificiality and incorrectness are justified. The Author has developed a law-based dichotomous classification and corresponding terminology. The possibility of classifying all fire safety requirements into social and technical requirements has been substantiated. It is proposed to consider as social requirements a set of legal norms that establish the rules of human behavior, the procedure for organizing production and (or) maintaining territories, buildings, structures, premises of organizations in order to ensure fire safety. The requirements of a technical nature should include a set of legal norms aimed at protecting people and property from the effects of hazardous fire factors directly related to the structural space-planning features of premises, buildings, technological equipment installed in it, and engineering systems. The following conceptual thesis has been formulated – the lessor is obliged to fulfill at his own expense the fire safety requirements of a technical nature established for the leased property, and the lessee is obliged to maintain the property in good condition, bear the cost of its maintenance and comply with fire safety requirements of a social nature, unless otherwise provided law, other legal acts or lease agreement. The author proposes to reflect the issue of the division of administrative responsibility between the lessee and the lessor at the level of the Supreme Court of the Russian Federation, in the next review of judicial practice.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45602819","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}
Pub Date : 2020-12-31DOI: 10.19073/2658-7602-2020-17-4-545-556
P. E. Spiridonov
The subject of study in this paper are administrative-delict legal relations and the terms associated with this kind of relations. The purpose of the study is to analyze the nature of offences and administrative delicts. It is stated that the use of the term “delictum” it's been a certain evolution from private legal term in the sense of “delicta private” to the term, which can be used both in the sense of “delicta private” and value of “delicta publica”. The conclusion is that the term “delict” may be used in public relations and administrative legal use of the term “administrative delict”. Expanding the range of investigated administrative and delict relations, entails a change and the essential characteristics of administrative offenses, and also creates preconditions for formation of administrative-tort system of prevention of offenses, including not only administrative offences but also other offences that are not related to crimes and civil offenses. In this case, the responsibility should be named administrative and delict, which, in essence, will include a modern administrative and administrative-disciplinary liability. Depending on the nature of the administrative delict may be subdivided into administrative offense and administrative misdemeanor. The essential characteristics of an administrative offense should be upheld, and administrative misdemeanor must be attributed those acts which are now administrative and disciplinary misconduct. With this division of administrative delicts it is possible to realize a codification of administrative and delict legislation, i.e. the creation of Administrative-delict code of the Russian Federation. The work also made the assumption that procedural violations are treated as administrative delict. An attempt is made to distinguish between material legal relations in administrative law and administrative procedural legal relations. Concluded that you cannot mix administrative-tort legal relations, as a kind of material with tort and procedural legal relations. In turn, tort and procedural legal relations are an integral part of administrative and legal proceedings, and administrative delict production is an integral part of the administrative process. The methodological basis of the article is dialectical, formal logical methods, formal-legal method and method of interpretation of law.
{"title":"Administrative Delicts and Administrative Delict Law","authors":"P. E. Spiridonov","doi":"10.19073/2658-7602-2020-17-4-545-556","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-4-545-556","url":null,"abstract":"The subject of study in this paper are administrative-delict legal relations and the terms associated with this kind of relations. The purpose of the study is to analyze the nature of offences and administrative delicts. It is stated that the use of the term “delictum” it's been a certain evolution from private legal term in the sense of “delicta private” to the term, which can be used both in the sense of “delicta private” and value of “delicta publica”. The conclusion is that the term “delict” may be used in public relations and administrative legal use of the term “administrative delict”. Expanding the range of investigated administrative and delict relations, entails a change and the essential characteristics of administrative offenses, and also creates preconditions for formation of administrative-tort system of prevention of offenses, including not only administrative offences but also other offences that are not related to crimes and civil offenses. In this case, the responsibility should be named administrative and delict, which, in essence, will include a modern administrative and administrative-disciplinary liability. Depending on the nature of the administrative delict may be subdivided into administrative offense and administrative misdemeanor. The essential characteristics of an administrative offense should be upheld, and administrative misdemeanor must be attributed those acts which are now administrative and disciplinary misconduct. With this division of administrative delicts it is possible to realize a codification of administrative and delict legislation, i.e. the creation of Administrative-delict code of the Russian Federation. The work also made the assumption that procedural violations are treated as administrative delict. An attempt is made to distinguish between material legal relations in administrative law and administrative procedural legal relations. Concluded that you cannot mix administrative-tort legal relations, as a kind of material with tort and procedural legal relations. In turn, tort and procedural legal relations are an integral part of administrative and legal proceedings, and administrative delict production is an integral part of the administrative process. The methodological basis of the article is dialectical, formal logical methods, formal-legal method and method of interpretation of law.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68353785","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}
Pub Date : 2020-12-31DOI: 10.19073/2658-7602-2020-17-4-455-464
Предпринимательское, Право, Семейное Право, Международное Частное Право
The Plenum of the Supreme Court of the Russian Federation adopted a resolution of December 21, 2017 No. 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction", which sets out important clarifications regarding the application standards contained in this chapter. At the same time, not all issues related to the assignment of the claim were resolved by the above resolution. One of these issues is the definition of the term “essential value of the identity of the creditor” or approximate criteria for such a value in the context of the need to obtain the latter’s consent to the assignment of rights. The presence of this problem is rightly indicated in the scientific literature [3, p. 549–655, 688–713]. The Author examines the Model Rules of European Private Law and the UNIDROIT principles in order to find a solution to the problem. Attention is drawn to the problem of determining the essential value of the creditor for the debtor in the case of assignment of the right of claim, as well as to the consequences of making the assignment without the consent of the debtor under an obligation in which the identity of the creditor was essential.In the Author's opinion, the identity of the creditor is recognized as essential for the debtor when the connection between the debtor and the creditor arose as a result of the conclusion of a transaction that has a personallyconfidential nature, or if the connection arose during the conclusion of other transactions in the case when the connection was broken during the execution assignment of rights entails or may entail a significant deprivation for the debtor of what he had the right to count on when concluding a transaction with the creditor.In addition, situations are considered that are an exception to the presumption of the absence of a significant value of the creditor's personality for the assignment of claims for monetary obligations. The author also points out that the consequence of the transaction on the assignment of rights without the consent of the debtor in the context of paragraph 2 of Art. 388 of the Civil Code of the Russian Federation is the nullity of the transaction on the basis of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation.
{"title":"Assignment of a Claim Under an Obligation in Which the Identity of the Obligee Is Essential for the Obligor","authors":"Предпринимательское, Право, Семейное Право, Международное Частное Право","doi":"10.19073/2658-7602-2020-17-4-455-464","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-4-455-464","url":null,"abstract":"The Plenum of the Supreme Court of the Russian Federation adopted a resolution of December 21, 2017 No. 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction\", which sets out important clarifications regarding the application standards contained in this chapter. At the same time, not all issues related to the assignment of the claim were resolved by the above resolution. One of these issues is the definition of the term “essential value of the identity of the creditor” or approximate criteria for such a value in the context of the need to obtain the latter’s consent to the assignment of rights. The presence of this problem is rightly indicated in the scientific literature [3, p. 549–655, 688–713]. The Author examines the Model Rules of European Private Law and the UNIDROIT principles in order to find a solution to the problem. Attention is drawn to the problem of determining the essential value of the creditor for the debtor in the case of assignment of the right of claim, as well as to the consequences of making the assignment without the consent of the debtor under an obligation in which the identity of the creditor was essential.In the Author's opinion, the identity of the creditor is recognized as essential for the debtor when the connection between the debtor and the creditor arose as a result of the conclusion of a transaction that has a personallyconfidential nature, or if the connection arose during the conclusion of other transactions in the case when the connection was broken during the execution assignment of rights entails or may entail a significant deprivation for the debtor of what he had the right to count on when concluding a transaction with the creditor.In addition, situations are considered that are an exception to the presumption of the absence of a significant value of the creditor's personality for the assignment of claims for monetary obligations. The author also points out that the consequence of the transaction on the assignment of rights without the consent of the debtor in the context of paragraph 2 of Art. 388 of the Civil Code of the Russian Federation is the nullity of the transaction on the basis of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68353633","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}
Pub Date : 2020-12-31DOI: 10.19073/2658-7602-2020-17-4-465-474
I. Grigor'ev
The article analyzes the problems of legal regulation of social services that arise in connection with the use of private law principles in the legislation on social services (contractual structures, the involvement of non-state providers of social services, the introduction of competitive principles, etc.). On January 1, 2015, the Federal Law of December 28, 2013 No. 442-FZ “On the Basics of Social Services for Citizens in the Russian Federation” entered into force, which made significant changes to the system of social services. In this regulatory legal act, a complex of legislative novelties was implemented, aimed at overcoming the crisis situation in social services. It was assumed that ensuring a competitive environment, including through the provision of social services on a contractual basis, would improve their quality, and the involvement of non-governmental organizations would solve the problem of the availability of social services. However, an analysis of the provisions of the current federal legislation and the legislation of the constituent entities of the Russian Federation revealed certain problems of legal regulation that impede the achievement of the goals set (violation of the continuity of legislation, the use of certain private law elements of legal regulation in the regulation of public law relations, etc.). Based on the results of the study, the Author concludes that the goals set for the legislator have not been fully achieved. The involvement of non-state providers of social services did not solve the problem of accessibility of social services. At the same time, at the federal and regional levels, a legal space has been created for “delegating” certain state functions to private organizations, the effectiveness of which raises objective doubts. The use of some private law elements of legal regulation (for example, the legal structure “contract”) does not serve the purpose of ensuring the guarantee of social services, but entails further “commercialization” of relations in the field of social services. The article also examines the experience of using so-called hospital-replacing technologies in certain constituent entities of the Russian Federation (creation of foster families for disabled people and citizens living alone). The Author comes to the conclusion that hospitalreplacing technologies can hardly be considered a really effective means of solving the problem of the availability of social services due to the low level of fees received for caring for single citizens and (or) disabled people.
{"title":"Civil Law Constructions in Social Service Legislation","authors":"I. Grigor'ev","doi":"10.19073/2658-7602-2020-17-4-465-474","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-4-465-474","url":null,"abstract":"The article analyzes the problems of legal regulation of social services that arise in connection with the use of private law principles in the legislation on social services (contractual structures, the involvement of non-state providers of social services, the introduction of competitive principles, etc.). On January 1, 2015, the Federal Law of December 28, 2013 No. 442-FZ “On the Basics of Social Services for Citizens in the Russian Federation” entered into force, which made significant changes to the system of social services. In this regulatory legal act, a complex of legislative novelties was implemented, aimed at overcoming the crisis situation in social services. It was assumed that ensuring a competitive environment, including through the provision of social services on a contractual basis, would improve their quality, and the involvement of non-governmental organizations would solve the problem of the availability of social services. However, an analysis of the provisions of the current federal legislation and the legislation of the constituent entities of the Russian Federation revealed certain problems of legal regulation that impede the achievement of the goals set (violation of the continuity of legislation, the use of certain private law elements of legal regulation in the regulation of public law relations, etc.). Based on the results of the study, the Author concludes that the goals set for the legislator have not been fully achieved. The involvement of non-state providers of social services did not solve the problem of accessibility of social services. At the same time, at the federal and regional levels, a legal space has been created for “delegating” certain state functions to private organizations, the effectiveness of which raises objective doubts. The use of some private law elements of legal regulation (for example, the legal structure “contract”) does not serve the purpose of ensuring the guarantee of social services, but entails further “commercialization” of relations in the field of social services. The article also examines the experience of using so-called hospital-replacing technologies in certain constituent entities of the Russian Federation (creation of foster families for disabled people and citizens living alone). The Author comes to the conclusion that hospitalreplacing technologies can hardly be considered a really effective means of solving the problem of the availability of social services due to the low level of fees received for caring for single citizens and (or) disabled people.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48943952","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}
Pub Date : 2020-12-31DOI: 10.19073/2658-7602-2020-17-4-485-494
M. Tihanyi, S. Mátyás, V. Vári, K. Krasnova
The authors consider the theoretical and applied problems of preventing illicit traffic in drugs and psychotropic substances in Hungary in the legal and criminological aspects. The relevance of the study is determined by the fact that the Hungary's third drug strategy expires in 2020 (2013-2020), so a new strategy needs to be developed, but it is not yet known what guidelines it will have, what priorities will be offered to set in it.The study was conducted with a view to considering the legal framework for the prevention of illicit traffic of drugs and psychotropic substances and the problem of its improvement in Hungary. To achieve this goal, the authors analysed statistics on drug use, types and quantity of drugs seized by law enforcement agencies for the last five years. The authors give a description of the drug situation, territorial features of drug use and a multilevel system of measures to counter illegal traffic in drugs and psychotropic substances at the national level. The authors pay special attention to the age and gender characteristics of drug use, which makes it possible to identify the most vulnerable groups, which should be supported by state preventive programs. The authors also analysed data on mortality from drug use and concluded that from 2010 onwards methadone and other non-opiate drugs predominated in death.Based on the results of the study, current trends in drug use in Hungary were summarized. The results obtained are important for the development of an anti-drug strategy and the improvement of legislation, as well as for the prevention of law enforcement agencies, both Hungary and other European countries.
{"title":"Drug Policy in Hungary: Current Trends and Future Prospects","authors":"M. Tihanyi, S. Mátyás, V. Vári, K. Krasnova","doi":"10.19073/2658-7602-2020-17-4-485-494","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-4-485-494","url":null,"abstract":"The authors consider the theoretical and applied problems of preventing illicit traffic in drugs and psychotropic substances in Hungary in the legal and criminological aspects. The relevance of the study is determined by the fact that the Hungary's third drug strategy expires in 2020 (2013-2020), so a new strategy needs to be developed, but it is not yet known what guidelines it will have, what priorities will be offered to set in it.The study was conducted with a view to considering the legal framework for the prevention of illicit traffic of drugs and psychotropic substances and the problem of its improvement in Hungary. To achieve this goal, the authors analysed statistics on drug use, types and quantity of drugs seized by law enforcement agencies for the last five years. The authors give a description of the drug situation, territorial features of drug use and a multilevel system of measures to counter illegal traffic in drugs and psychotropic substances at the national level. The authors pay special attention to the age and gender characteristics of drug use, which makes it possible to identify the most vulnerable groups, which should be supported by state preventive programs. The authors also analysed data on mortality from drug use and concluded that from 2010 onwards methadone and other non-opiate drugs predominated in death.Based on the results of the study, current trends in drug use in Hungary were summarized. The results obtained are important for the development of an anti-drug strategy and the improvement of legislation, as well as for the prevention of law enforcement agencies, both Hungary and other European countries.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41445416","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}
Pub Date : 2020-12-31DOI: 10.19073/2658-7602-2020-17-4-514-522
D. Bakhteev
The modern capabilities of computers have returned interest in artificial intelligence technologies. A particular area of application of these technologies is pattern recognition, which can be applied to the traditional forensic task – identification of signs of forgery (imitation) of a signature. The results of forgery are differentiated into three types: auto-forgery, simple and skilled forgeries. Only skilled forgeries are considered in this study. The online and offline approaches to the study of signatures and other handwriting material are described. The developed artificial intelligence system based on an artificial neural network refers to the offline type of signature recognition – that is, it is focused on working exclusively with the consequences of the signature – its graphic image. The content and principles of the formation of a hypothesis for the development of an artificial intelligence system are described with a combination of humanitarian (legal) knowledge and natural-technical knowledge. At the initial stage of the study, in order to develop an experimental-applied artificial intelligence system based on an artificial neural network focused on identifying forged signatures, 127 people were questioned in order to identify a person's ability to detect fake signatures. It was found that under experimental conditions the probability of a correct determination of the originality or forgery of the presented signature for the respondent is on average 69.29 %. Accordingly, this value can be used as a threshold for determining the effectiveness of the developed artificial intelligence system. In the process of preparing the dataset (an array for training and verification of its results) of the system in terms of fraudulent signatures, some forensically significant features were revealed, associated with the psychological and anatomical features of the person performing the forgery, both known to criminalistics and new ones. It is emphasized that the joint development of artificial intelligence systems by the methods of computer science and criminalistics can generate additional results that may be useful outside the scope of the research tasks.
{"title":"Features of Signature Verification By a Person as a Primary Criteria for Developing an Artificial Intelligence System","authors":"D. Bakhteev","doi":"10.19073/2658-7602-2020-17-4-514-522","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-4-514-522","url":null,"abstract":"The modern capabilities of computers have returned interest in artificial intelligence technologies. A particular area of application of these technologies is pattern recognition, which can be applied to the traditional forensic task – identification of signs of forgery (imitation) of a signature. The results of forgery are differentiated into three types: auto-forgery, simple and skilled forgeries. Only skilled forgeries are considered in this study. The online and offline approaches to the study of signatures and other handwriting material are described. The developed artificial intelligence system based on an artificial neural network refers to the offline type of signature recognition – that is, it is focused on working exclusively with the consequences of the signature – its graphic image. The content and principles of the formation of a hypothesis for the development of an artificial intelligence system are described with a combination of humanitarian (legal) knowledge and natural-technical knowledge. At the initial stage of the study, in order to develop an experimental-applied artificial intelligence system based on an artificial neural network focused on identifying forged signatures, 127 people were questioned in order to identify a person's ability to detect fake signatures. It was found that under experimental conditions the probability of a correct determination of the originality or forgery of the presented signature for the respondent is on average 69.29 %. Accordingly, this value can be used as a threshold for determining the effectiveness of the developed artificial intelligence system. In the process of preparing the dataset (an array for training and verification of its results) of the system in terms of fraudulent signatures, some forensically significant features were revealed, associated with the psychological and anatomical features of the person performing the forgery, both known to criminalistics and new ones. It is emphasized that the joint development of artificial intelligence systems by the methods of computer science and criminalistics can generate additional results that may be useful outside the scope of the research tasks.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68353705","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}
Pub Date : 2020-12-02DOI: 10.19073/2658-7602-2020-17-3-300-309
M. Soboleva
The socio-economic situation in Russia over the past decades has undergone serious changes that could not but affect the health system. There have been prerequisites for the development of private medicine, which has been supported by the state. Currently, there is an increase in the share of medical services provided on a paid basis. Widespread private practice, covering the chronological period of the Russian Empire, was interpreted by the authorities in the Soviet period as a relic of the capitalist system, contrary to the basic principles of proper health care organization. The Soviet period of Russian history appears to us as a chronological gap, that is, a time gap that characterizes the specifics of the linear existence of paid medical services. In this regard, it seems relevant and timely to conduct research on the historical aspects of the formation and development of the legal status of consumers of paid medical services in the Russian Empire. In our opinion, such research is of both theoretical and practical interest. The first is due to the lack of development of this topic in the historical and legal literature. The second one will allow us to identify existing shortcomings in legal regulation in the sphere of public health protection based on the generalization of historical experience and formulate practical recommendations for improving the legislation of the Russian Federation in this area. From the perspective of this work, we aim to assess the legal status of consumers of paid medical services in the XVIII – early XX century, comprehensively examining such elements of legal status as rights, freedoms, interests and duties. The article analyzes the influence of belonging of the inhabitants of the Empire to a particular social group on the formation of the legal status of consumers of paid medical services. For the first time, the main types of rights of consumers of paid medical services are separated from the regulatory legal acts in the field of healthcare of the Russian Empire and formed into a group. Based on the results of a detailed analysis, we conclude that in the Russian Empire, the duties of consumers of paid medical services took priority over the rights, since it was believed that if the obligations were met, the rights would exist regardless of their formal Declaration. The analysis helps to understand the development of regulation of health ser-vices and allows us to draw historical parallels with the existing regulatory framework of the health care system in Russia.
{"title":"The Formation and Development of the Legal Status of a Consumer of Paid Medical Services in the Russian Health Care System in the XVIII – Early XX Centuries","authors":"M. Soboleva","doi":"10.19073/2658-7602-2020-17-3-300-309","DOIUrl":"https://doi.org/10.19073/2658-7602-2020-17-3-300-309","url":null,"abstract":"The socio-economic situation in Russia over the past decades has undergone serious changes that could not but affect the health system. There have been prerequisites for the development of private medicine, which has been supported by the state. Currently, there is an increase in the share of medical services provided on a paid basis. Widespread private practice, covering the chronological period of the Russian Empire, was interpreted by the authorities in the Soviet period as a relic of the capitalist system, contrary to the basic principles of proper health care organization. The Soviet period of Russian history appears to us as a chronological gap, that is, a time gap that characterizes the specifics of the linear existence of paid medical services. In this regard, it seems relevant and timely to conduct research on the historical aspects of the formation and development of the legal status of consumers of paid medical services in the Russian Empire. In our opinion, such research is of both theoretical and practical interest. The first is due to the lack of development of this topic in the historical and legal literature. The second one will allow us to identify existing shortcomings in legal regulation in the sphere of public health protection based on the generalization of historical experience and formulate practical recommendations for improving the legislation of the Russian Federation in this area. From the perspective of this work, we aim to assess the legal status of consumers of paid medical services in the XVIII – early XX century, comprehensively examining such elements of legal status as rights, freedoms, interests and duties. The article analyzes the influence of belonging of the inhabitants of the Empire to a particular social group on the formation of the legal status of consumers of paid medical services. For the first time, the main types of rights of consumers of paid medical services are separated from the regulatory legal acts in the field of healthcare of the Russian Empire and formed into a group. Based on the results of a detailed analysis, we conclude that in the Russian Empire, the duties of consumers of paid medical services took priority over the rights, since it was believed that if the obligations were met, the rights would exist regardless of their formal Declaration. The analysis helps to understand the development of regulation of health ser-vices and allows us to draw historical parallels with the existing regulatory framework of the health care system in Russia.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49619933","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}
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