Pub Date : 2023-01-01DOI: 10.17072/1995-4190-2023-60-330-348
L. A. Chegovadze
Introduction: the article looks at the contract as a source of the private law of the parties and shows that in this capacity the contract performs the function of legal regulation of actions to be taken under the contractual obligation. Purpose and objectives: to characterize the contract as a normative (norm-establishing) agreement and reveal the regulatory function of the contract, proving that its content is the regulatory terms of the private law agreement agreed upon by the parties and binding on them, while the rights and obligations of the parties, derived from the terms of the agreement, are the content of a civil legal relationship. Methods: a set of methods of scientific cognition, including the comparative legal method, systematic approach, analysis. Results: the article shows that the contract is traditionally considered as the basis of contractual obligations, which were originally institutionalized as an independent type of civil legal relations. This is explained by the fact that the Russian legislator includes general provisions on the contract in the general part of the law of obligations, and the contract is named among the grounds for the emergence of civil rights and obligations. However, in the modern period of the development of civil law, scientists and law enforcers should not consider the contract only as a legal fact, as a legal relationship, and as a document. The legal nature of the agreement of the parties in the form of a binding contract allows us to substantiate its special role as a means of fulfilling regulatory functions – the contract performs these as a source of private law. This necessitates determining the role and place of sources of contract law in the system of sources of civil law and the improvement of contract lawmaking. The approach outlined in the article supplements theoretical provisions on the contract not only as a legal fact and legal relationship but also as an agreement of the parties containing their private law. Conclusions: the effect of the contract is triple in nature: a contract legalizes the legal relationship of the parties in the form of an obligation, creates the source of the content of this legal relationship, and, as a source of the private law of the parties, regulates the ‘breakoff’, i.e. termination of the legal relationship. The private law of the parties to a contract is woven into the legal matter and performs a regulatory function; the law-generating effect of the contract is expressed not only in the consequences of concluding the agreement but also in the consequences resulting from the execution by the contract of its regulatory function.
{"title":"A CONTRACT AS A NORMATIVE SOURCE OF PRIVATE LAW","authors":"L. A. Chegovadze","doi":"10.17072/1995-4190-2023-60-330-348","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-60-330-348","url":null,"abstract":"Introduction: the article looks at the contract as a source of the private law of the parties and shows that in this capacity the contract performs the function of legal regulation of actions to be taken under the contractual obligation. Purpose and objectives: to characterize the contract as a normative (norm-establishing) agreement and reveal the regulatory function of the contract, proving that its content is the regulatory terms of the private law agreement agreed upon by the parties and binding on them, while the rights and obligations of the parties, derived from the terms of the agreement, are the content of a civil legal relationship. Methods: a set of methods of scientific cognition, including the comparative legal method, systematic approach, analysis. Results: the article shows that the contract is traditionally considered as the basis of contractual obligations, which were originally institutionalized as an independent type of civil legal relations. This is explained by the fact that the Russian legislator includes general provisions on the contract in the general part of the law of obligations, and the contract is named among the grounds for the emergence of civil rights and obligations. However, in the modern period of the development of civil law, scientists and law enforcers should not consider the contract only as a legal fact, as a legal relationship, and as a document. The legal nature of the agreement of the parties in the form of a binding contract allows us to substantiate its special role as a means of fulfilling regulatory functions – the contract performs these as a source of private law. This necessitates determining the role and place of sources of contract law in the system of sources of civil law and the improvement of contract lawmaking. The approach outlined in the article supplements theoretical provisions on the contract not only as a legal fact and legal relationship but also as an agreement of the parties containing their private law. Conclusions: the effect of the contract is triple in nature: a contract legalizes the legal relationship of the parties in the form of an obligation, creates the source of the content of this legal relationship, and, as a source of the private law of the parties, regulates the ‘breakoff’, i.e. termination of the legal relationship. The private law of the parties to a contract is woven into the legal matter and performs a regulatory function; the law-generating effect of the contract is expressed not only in the consequences of concluding the agreement but also in the consequences resulting from the execution by the contract of its regulatory function.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"148 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":"135156060","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-60-349-377
S. I. Afanaseva, O. V. Dobrovlyanina
Introduction: the article analyzes the essence and innovative significance of digital evidence in criminal proceedings, discusses the procedural ways of collecting evidence that contains digital information during preliminary investigation and in court proceedings, justifies the need to modernize evidence-collecting activity. Purpose: based on the analysis of scientific sources and materials of investigative and judicial practice, to shape the understanding of a new regime of evidence-collecting activity in criminal proceedings resulting from the introduction of updated procedural methods for the collection of evidence containing digital information. Methods: general scientific dialectical method, universal scientific methods (analysis and synthesis, induction and deduction, structural-functional method, formal-logical method), special legal methods (comparative legal method, method of system interpretation). Results: we analyzed the judicial and investigative practice of applying and scientific commenting on the norms of the Criminal Procedure Code of the Russian Federation and other domestic procedural codes regulating the performance of procedural actions on the collection of evidence containing digital information. The analysis showed the need to improve the conceptual apparatus in the light of the digitalization of criminal justice procedure; revealed polarization of the legislator’s approaches to the turnover of evidence in various forms of legal proceedings. Following the analysis results, we propose unified standards of electronic evidence-collecting tools in Russian procedural legislation and the practice of their application. Conclusions: it is proposed to understand ‘digital evidence’ as both information in digital form and an electronic method of recording and storing digital data; to ensure an updated systematization of procedural actions on the collection of evidence having a digital component in pre-trial and trial proceedings; to expand the range of electronic tools of preliminary investigation and judicial review in criminal cases.
{"title":"ON THE INTRODUCTION, DEVELOPMENT, IMPROVEMENT OF ELECTRONIC METHODS OF COLLECTING EVIDENTIARY INFORMATION IN CRIMINAL CASES","authors":"S. I. Afanaseva, O. V. Dobrovlyanina","doi":"10.17072/1995-4190-2023-60-349-377","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-60-349-377","url":null,"abstract":"Introduction: the article analyzes the essence and innovative significance of digital evidence in criminal proceedings, discusses the procedural ways of collecting evidence that contains digital information during preliminary investigation and in court proceedings, justifies the need to modernize evidence-collecting activity. Purpose: based on the analysis of scientific sources and materials of investigative and judicial practice, to shape the understanding of a new regime of evidence-collecting activity in criminal proceedings resulting from the introduction of updated procedural methods for the collection of evidence containing digital information. Methods: general scientific dialectical method, universal scientific methods (analysis and synthesis, induction and deduction, structural-functional method, formal-logical method), special legal methods (comparative legal method, method of system interpretation). Results: we analyzed the judicial and investigative practice of applying and scientific commenting on the norms of the Criminal Procedure Code of the Russian Federation and other domestic procedural codes regulating the performance of procedural actions on the collection of evidence containing digital information. The analysis showed the need to improve the conceptual apparatus in the light of the digitalization of criminal justice procedure; revealed polarization of the legislator’s approaches to the turnover of evidence in various forms of legal proceedings. Following the analysis results, we propose unified standards of electronic evidence-collecting tools in Russian procedural legislation and the practice of their application. Conclusions: it is proposed to understand ‘digital evidence’ as both information in digital form and an electronic method of recording and storing digital data; to ensure an updated systematization of procedural actions on the collection of evidence having a digital component in pre-trial and trial proceedings; to expand the range of electronic tools of preliminary investigation and judicial review in criminal cases.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"95 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":"135158111","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-60-194-214
E. V. Aristov, V. N. Shchepetilnikov
Introduction: the analysis of Russian legislation adopted after the introduction of extensive amendments to the Constitution of the Russian Federation in 2020 gives grounds to assert that our state and civil society have taken a straight course toward a new state system. The events related to Russia’s special military operation have confirmed and accelerated this process. If we trace the chronology of events and look at the chronology of the adoption of certain normative legal acts regulating the public power (public authority) issues, it becomes obvious that the country needs strong presidential power to ensure its sovereignty and state integrity. Purpose: to analyze legislation of the Russian Federation in its chronology through the prism of current events and processes in their relationship with the constitutional amendments of 2020 concerning a unified system of public power; to determine the main vector in the new concept of the Constitution of the Russian Federation. Methods: empirical methods (description, interpretation); theoretical methods (formal and dialectical logic); special scientific methods (legaldogmatic method and the method of legal norms interpretation). Results: conceptual provisions are proposed for further discussion of the ongoing constitutional reform. Conclusions: today, the Constitution of the Russian Federation and the head of state as its guarantor solve the task of ensuring the country’s unconditional sovereignty on a worldwide scale.
{"title":"FORMING A UNIFIED SYSTEM OF PUBLIC POWER (PUBLIC AUTHORITY) IN RUSSIA AS A VECTOR OF NEW CONSTITUTIONALITY","authors":"E. V. Aristov, V. N. Shchepetilnikov","doi":"10.17072/1995-4190-2023-60-194-214","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-60-194-214","url":null,"abstract":"Introduction: the analysis of Russian legislation adopted after the introduction of extensive amendments to the Constitution of the Russian Federation in 2020 gives grounds to assert that our state and civil society have taken a straight course toward a new state system. The events related to Russia’s special military operation have confirmed and accelerated this process. If we trace the chronology of events and look at the chronology of the adoption of certain normative legal acts regulating the public power (public authority) issues, it becomes obvious that the country needs strong presidential power to ensure its sovereignty and state integrity. Purpose: to analyze legislation of the Russian Federation in its chronology through the prism of current events and processes in their relationship with the constitutional amendments of 2020 concerning a unified system of public power; to determine the main vector in the new concept of the Constitution of the Russian Federation. Methods: empirical methods (description, interpretation); theoretical methods (formal and dialectical logic); special scientific methods (legaldogmatic method and the method of legal norms interpretation). Results: conceptual provisions are proposed for further discussion of the ongoing constitutional reform. Conclusions: today, the Constitution of the Russian Federation and the head of state as its guarantor solve the task of ensuring the country’s unconditional sovereignty on a worldwide scale.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"51 12 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":"135158117","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-61-428-450
D. M. Khudoley, K. M. Khudoley
Introduction: the article studies the structure, formation procedures, and powers of parliaments in the CIS countries. These are considered through the prism of the theory of separation of powers. We also carried out a comparative study of the status of parliamentarians in the countries of the ormer Soviet Union – their rights, duties, restrictions, and responsibilities. The purpose of our research is to trace the mutual penetration of all the branches of power into the functions of one another, which has an impact on the powers of legislative bodies in the CIS countries and the way they perform their functions. Methods: apart from general scientific methods, we employed specific scientific methods, including comparative legal and systemic ones. Results: the study has shown that many ex-USSR countries tend to adopt so called rationalized parliamentarism, a system borrowed from the constitutional practice of France and some other foreign countries. There are noted two major trends in the CIS countries: the strengthening of the powers of heads of state in some countries and their weakening in others, which cannot but affect the structures and powers of the parliaments. In countries such as Kazakhstan, the powers of the parliament are expanding and the influence of the head of state on the formation of the parliament and its autonomous activities is reducing. However, in Belarus and Turkmenistan, an opposite trend has been observed. Conclusions: in some states, the methods mostly typical for the parliamentary practices of Anglo-Saxon countries are applied, namely the parliamentary shuttle method and pocket veto. Thus, parliamentarism in the CIS countries turned out to be open to adopting various legal institutions and norms that cannot be found within the framework of a single national legal system in other foreign countries. The article describes the structure of parliamentary immunity in the CIS and Baltic countries, including parliamentarians’ immunity and indemnity (non-responsibility and witness immunity as well as the right to remuneration).
{"title":"PARLIAMENTS IN THE STATES OF THE FORMER SOVIET UNION","authors":"D. M. Khudoley, K. M. Khudoley","doi":"10.17072/1995-4190-2023-61-428-450","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-61-428-450","url":null,"abstract":"Introduction: the article studies the structure, formation procedures, and powers of parliaments in the CIS countries. These are considered through the prism of the theory of separation of powers. We also carried out a comparative study of the status of parliamentarians in the countries of the ormer Soviet Union – their rights, duties, restrictions, and responsibilities. The purpose of our research is to trace the mutual penetration of all the branches of power into the functions of one another, which has an impact on the powers of legislative bodies in the CIS countries and the way they perform their functions. Methods: apart from general scientific methods, we employed specific scientific methods, including comparative legal and systemic ones. Results: the study has shown that many ex-USSR countries tend to adopt so called rationalized parliamentarism, a system borrowed from the constitutional practice of France and some other foreign countries. There are noted two major trends in the CIS countries: the strengthening of the powers of heads of state in some countries and their weakening in others, which cannot but affect the structures and powers of the parliaments. In countries such as Kazakhstan, the powers of the parliament are expanding and the influence of the head of state on the formation of the parliament and its autonomous activities is reducing. However, in Belarus and Turkmenistan, an opposite trend has been observed. Conclusions: in some states, the methods mostly typical for the parliamentary practices of Anglo-Saxon countries are applied, namely the parliamentary shuttle method and pocket veto. Thus, parliamentarism in the CIS countries turned out to be open to adopting various legal institutions and norms that cannot be found within the framework of a single national legal system in other foreign countries. The article describes the structure of parliamentary immunity in the CIS and Baltic countries, including parliamentarians’ immunity and indemnity (non-responsibility and witness immunity as well as the right to remuneration).","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"152 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":"135158906","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-59-142-158
L.R. Safin
Introduction: punishments not associated with isolation from society traditionally hold an important place in the system of criminal law measures. The author of this article adheres to the periodization concept according to which the development of criminal legislation on the discussed problem is divided into periods based on the content of the main normative acts (monuments of law) regulating such punishments. In the course of development, they transformed from vira (or wergeld, subsequently – a monetary fine), ‘putting to sack and pillage’ (which obtained the form of confiscation of property), to forced labor in its various forms (hard labor, correctional labor, compulsory labor, all alternative to imprisonment). Punishments not associated with isolation of the convicted person from society are restrictions of a right (or a combination of those) affecting different aspects of the convict’s status, including restrictions on freedom (exile, expulsion) or labor/property rights (correctional, compulsory works, fines, etc.). Purpose: to form an idea of the nature and process of legal regulation of punishments not associated with isolation from society under the criminal law of Russia on the basis of analysis of scientific sources, historical monuments of law, and foreign literature. Methods: comparative-legal and historical analysis, description, interpretation; theoretical methods of formal logic and synthesis; system-structural method; concretization, methods of deduction and induction. Results: the analysis of scientific commentaries, historical monuments, and foreign literature showed that during the Soviet period, the transformation of the complex of punishments not involving isolation from society consisted primarily in the use of public means of influence (public censure). Conclusions: the legal analysis revealed gradual abandoning of the type of punishments under discussion, with preservation of fines, various kinds of forced labor (obligatory, corrective, compulsory works), and confiscation of property as a supplementary measure of the criminal law nature.
{"title":"A HISTORICAL ESSAY ON THE LEGAL REGULATION OF PUNISHMENTS NOT INVOLVING ISOLATION FROM SOCIETY UNDER RUSSIAN CRIMINAL LAW","authors":"L.R. Safin","doi":"10.17072/1995-4190-2023-59-142-158","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-59-142-158","url":null,"abstract":"Introduction: punishments not associated with isolation from society traditionally hold an important place in the system of criminal law measures. The author of this article adheres to the periodization concept according to which the development of criminal legislation on the discussed problem is divided into periods based on the content of the main normative acts (monuments of law) regulating such punishments. In the course of development, they transformed from vira (or wergeld, subsequently – a monetary fine), ‘putting to sack and pillage’ (which obtained the form of confiscation of property), to forced labor in its various forms (hard labor, correctional labor, compulsory labor, all alternative to imprisonment). Punishments not associated with isolation of the convicted person from society are restrictions of a right (or a combination of those) affecting different aspects of the convict’s status, including restrictions on freedom (exile, expulsion) or labor/property rights (correctional, compulsory works, fines, etc.). Purpose: to form an idea of the nature and process of legal regulation of punishments not associated with isolation from society under the criminal law of Russia on the basis of analysis of scientific sources, historical monuments of law, and foreign literature. Methods: comparative-legal and historical analysis, description, interpretation; theoretical methods of formal logic and synthesis; system-structural method; concretization, methods of deduction and induction. Results: the analysis of scientific commentaries, historical monuments, and foreign literature showed that during the Soviet period, the transformation of the complex of punishments not involving isolation from society consisted primarily in the use of public means of influence (public censure). Conclusions: the legal analysis revealed gradual abandoning of the type of punishments under discussion, with preservation of fines, various kinds of forced labor (obligatory, corrective, compulsory works), and confiscation of property as a supplementary measure of the criminal law nature.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"257 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":"135105742","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-60-257-284
A. K. Gubaeva, Jewoo Lee, M. V. Kratenko
Introduction: the authors examine the jurisprudence on claims concerning compensation for moral harm including that systematized in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 33 of November 15, 2022. The first explanations concerning compensation for moral damage were published almost 30 years ago, in 1994. Since then, great changes have occurred in social, economic, and cultural spheres, not to mention the development of legislation. The emergence of the citizens’ new legal interests and expectations with regard to the level of protection has required a more modern interpretation of the institution in question. Purpose: to identify trends in the interpretation and application of the rules on compensation for moral harm; to assess the legal positions set out in Resolution No. 33 in terms of their compliance with the legal doctrine, the potential for filling gaps in the legislation, the significance for the distribution of the burden of proof and more effective resolution of relevant disputes. Methods: dogmatic, historical, and comparative legal analysis. Conclusions: Resolution No. 33 generally reflects the approaches developed in the legal doctrine and judicial practice with regard to the grounds and conditions under which compensation for moral harm can be recovered, to the understanding of who the parties to this obligation are. The Resolution reflects the tendency toward expansion of the list of grounds for awarding compensation (for example, in case of damage to things of great non-property value to the victim; in case of illegal seizure of part of income and inability to maintain the previous standard of living). At the same time, the positions of the Supreme Court are characterized by excessive caution with respect to proof issues. The Plenum limited the effect of the presumption of moral harm to only some cases of violation of a natural person’s rights (damage to life or health, violation of consumer rights). There is no attempt in the Resolution to explain the criteria of causation and no mention of presumption of a causal link in certain circumstances, including in relation to illegal acts of public authorities and medical malpractice, where proving this precondition of liability may be difficult for the victim. Provision of detailed criteria for establishing the amount to be recovered as compensation for moral harm, instead of focus on the application of average amounts recovered in similar cases, is unlikely to have a significant impact on the practice of courts determining the amount of compensation in a rather arbitrary manner.
{"title":"BASIC DISCOURSE ON TORT LAW IN THE CONTEXT OF THE SUPREME COURT’S EXPLANATIONS ON COMPENSATION FOR MORAL HARM","authors":"A. K. Gubaeva, Jewoo Lee, M. V. Kratenko","doi":"10.17072/1995-4190-2023-60-257-284","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-60-257-284","url":null,"abstract":"Introduction: the authors examine the jurisprudence on claims concerning compensation for moral harm including that systematized in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 33 of November 15, 2022. The first explanations concerning compensation for moral damage were published almost 30 years ago, in 1994. Since then, great changes have occurred in social, economic, and cultural spheres, not to mention the development of legislation. The emergence of the citizens’ new legal interests and expectations with regard to the level of protection has required a more modern interpretation of the institution in question. Purpose: to identify trends in the interpretation and application of the rules on compensation for moral harm; to assess the legal positions set out in Resolution No. 33 in terms of their compliance with the legal doctrine, the potential for filling gaps in the legislation, the significance for the distribution of the burden of proof and more effective resolution of relevant disputes. Methods: dogmatic, historical, and comparative legal analysis. Conclusions: Resolution No. 33 generally reflects the approaches developed in the legal doctrine and judicial practice with regard to the grounds and conditions under which compensation for moral harm can be recovered, to the understanding of who the parties to this obligation are. The Resolution reflects the tendency toward expansion of the list of grounds for awarding compensation (for example, in case of damage to things of great non-property value to the victim; in case of illegal seizure of part of income and inability to maintain the previous standard of living). At the same time, the positions of the Supreme Court are characterized by excessive caution with respect to proof issues. The Plenum limited the effect of the presumption of moral harm to only some cases of violation of a natural person’s rights (damage to life or health, violation of consumer rights). There is no attempt in the Resolution to explain the criteria of causation and no mention of presumption of a causal link in certain circumstances, including in relation to illegal acts of public authorities and medical malpractice, where proving this precondition of liability may be difficult for the victim. Provision of detailed criteria for establishing the amount to be recovered as compensation for moral harm, instead of focus on the application of average amounts recovered in similar cases, is unlikely to have a significant impact on the practice of courts determining the amount of compensation in a rather arbitrary manner.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"114 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":"135158113","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-60-312-329
N. V. Syropiatova, E. Yu. Martyanova
Introduction: openness is a new global standard permeating all spheres of activity. The creation of open data arrays by universities and their placement on the Internet has become a common practice both in Russia and abroad. However, a full-fledged theoretical understanding of the nature of such data has not been achieved, a regulatory platform has not been formed in Russian law. The abovementioned creates risks of violation of both private and public interests. Purpose: to determine the structure of the legal regime of open data of universities. Methods: general scientific methods, including analysis, synthesis, concrete historical method, systematic approach, comparative legal and legal-dogmatic methods. Results: the study revealed that the criteria for classifying data as open should be divided into technical, hermeneutical, and legal. It was established that the data sets that are required to be published online in accordance with Article 29 of the Federal Law ‘On Education in the Russian Federation’ do not belong to the category of open data. The authors have developed a three-stage test to resolve the question of whether research data is open data. The key directions, goals, and risks of implementing the open data policy of universities are identified. According to the criterion ‘(un)identifiability of the list of users’, two types of openness are distinguished and described: endo-openness and exo-openness. The paper presents proposals on changes in the legislation regarding the establishment of the procedure for licensing of open data. Conclusions: open university data is an object of information and educational relations in the absence of a proper legal framework governing the generation, placement, use, updating, transmission, storage, and deletion of such data. The creation of a regulatory framework for the regulation of these relations is a new challenge facing the legislator and requiring a prompt response.
{"title":"ARCHITECTONICS OF A UNIVERSITY’S OPEN DATA LEGAL REGIME","authors":"N. V. Syropiatova, E. Yu. Martyanova","doi":"10.17072/1995-4190-2023-60-312-329","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-60-312-329","url":null,"abstract":"Introduction: openness is a new global standard permeating all spheres of activity. The creation of open data arrays by universities and their placement on the Internet has become a common practice both in Russia and abroad. However, a full-fledged theoretical understanding of the nature of such data has not been achieved, a regulatory platform has not been formed in Russian law. The abovementioned creates risks of violation of both private and public interests. Purpose: to determine the structure of the legal regime of open data of universities. Methods: general scientific methods, including analysis, synthesis, concrete historical method, systematic approach, comparative legal and legal-dogmatic methods. Results: the study revealed that the criteria for classifying data as open should be divided into technical, hermeneutical, and legal. It was established that the data sets that are required to be published online in accordance with Article 29 of the Federal Law ‘On Education in the Russian Federation’ do not belong to the category of open data. The authors have developed a three-stage test to resolve the question of whether research data is open data. The key directions, goals, and risks of implementing the open data policy of universities are identified. According to the criterion ‘(un)identifiability of the list of users’, two types of openness are distinguished and described: endo-openness and exo-openness. The paper presents proposals on changes in the legislation regarding the establishment of the procedure for licensing of open data. Conclusions: open university data is an object of information and educational relations in the absence of a proper legal framework governing the generation, placement, use, updating, transmission, storage, and deletion of such data. The creation of a regulatory framework for the regulation of these relations is a new challenge facing the legislator and requiring a prompt response.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"100 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":"135158115","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-61-467-478
T. V. Deryugina
Introduction: the article deals with the problems of the legal nature of mixed contracts in comparison with the related constructions of non-defined (innominate), complicated, and complex contracts. The possibility of individual regulation excluding the effect of imperative prohibitions (subject to compliance with the principles of law) contradicts the essence of a mixed contract. Purpose: to formulate the features of the mixed contract that distinguish it from non-defined, complicated, and complex contracts. Methods: along with traditional theoretical and empirical methods, the author used the teleological approach, which makes it possible to consider the target orientation of a particular norm or contractual structure. Results: the study reveals contradictions in the legal regulation of mixed contracts; defines their constitutive features; determines the legal nature and legal regime; differentiates the mixed contract from the complicated contract, non-defined contract, and complex contract. Conclusions: the existing priority of individual regulation in the construction of the mixed contract is in logical contradiction with its features and with the prohibition against inclusion of elements of non-defined contracts in its content. It appears that this conflict can be overcome through establishing: a ban on changing the imperative norms that establish the rules of conduct in relation to defined contracts included in a mixed contract; a permission to exclude (not to change) the effect of imperative norms; a permission to use non-defined contracts in the construction of the mixed contract. A contract must be classified as mixed if there are two or more obligations included in it. Additional features are the object, the parties, and other characteristics that determine the contract type. The interest of the parties in a mixed contract should be focused on a single object. If there are different subjects focused on different objects, this is a complex agreement. If various elements of defined contracts are used in the construction, with the exception of the subject of the contract, the contract should be classified as complicated, not mixed. In a complicated contract, all additional (auxiliary) obligations ‘work’ to achieve the goal of the main one and are directly dependent on it. In a mixed contract, the structure is represented by two or more independent obligations that are equivalent. Complex contracts should be understood as such contracts that have a multiobject and multi-subject structure, whereas a mixed contract combines subjects and other contractual terms aimed at one object. In a complex contract, there should be no cross-regulation, each subject has its own object and is regulated by the rules that exist in the legislation for a certain type or kind of contract. This approach allows solving the problem of determining the priority of legal norms, which exists in the construction of the mixed contract.
{"title":"ON THE DICHOTOMY OF THE CONSTRUCTION OF A MIXED CONTRACT","authors":"T. V. Deryugina","doi":"10.17072/1995-4190-2023-61-467-478","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-61-467-478","url":null,"abstract":"Introduction: the article deals with the problems of the legal nature of mixed contracts in comparison with the related constructions of non-defined (innominate), complicated, and complex contracts. The possibility of individual regulation excluding the effect of imperative prohibitions (subject to compliance with the principles of law) contradicts the essence of a mixed contract. Purpose: to formulate the features of the mixed contract that distinguish it from non-defined, complicated, and complex contracts. Methods: along with traditional theoretical and empirical methods, the author used the teleological approach, which makes it possible to consider the target orientation of a particular norm or contractual structure. Results: the study reveals contradictions in the legal regulation of mixed contracts; defines their constitutive features; determines the legal nature and legal regime; differentiates the mixed contract from the complicated contract, non-defined contract, and complex contract. Conclusions: the existing priority of individual regulation in the construction of the mixed contract is in logical contradiction with its features and with the prohibition against inclusion of elements of non-defined contracts in its content. It appears that this conflict can be overcome through establishing: a ban on changing the imperative norms that establish the rules of conduct in relation to defined contracts included in a mixed contract; a permission to exclude (not to change) the effect of imperative norms; a permission to use non-defined contracts in the construction of the mixed contract. A contract must be classified as mixed if there are two or more obligations included in it. Additional features are the object, the parties, and other characteristics that determine the contract type. The interest of the parties in a mixed contract should be focused on a single object. If there are different subjects focused on different objects, this is a complex agreement. If various elements of defined contracts are used in the construction, with the exception of the subject of the contract, the contract should be classified as complicated, not mixed. In a complicated contract, all additional (auxiliary) obligations ‘work’ to achieve the goal of the main one and are directly dependent on it. In a mixed contract, the structure is represented by two or more independent obligations that are equivalent. Complex contracts should be understood as such contracts that have a multiobject and multi-subject structure, whereas a mixed contract combines subjects and other contractual terms aimed at one object. In a complex contract, there should be no cross-regulation, each subject has its own object and is regulated by the rules that exist in the legislation for a certain type or kind of contract. This approach allows solving the problem of determining the priority of legal norms, which exists in the construction of the mixed contract.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"85 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":"135158637","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-59-121-141
I.P. Kozhokar, E.P. Rusakova
Introduction: the dynamic development of the legal system, the increasing complexity of its elements and links between them draw attention to the application of theoretical constructions in discipline-specific research. First of all, this contributes to defining a clear methodological basis for the study of new legal institutions, this being the key to obtaining reasoned, consistent, and motivated conclusions and proposals. Currently, the most relevant and popular research areas include legal regulation of the use of artificial intelligence systems, robotic technologies, digitalization of legal proceedings, etc. There are many proposals and solutions suggested by legal scholars on these issues, but analysis shows significant discrepancies in the definition of basic concepts, in the understanding of the essence of legal relations as well as the prerequisites for their occurrence, the procedure and reasons for imposition of legal liability, etc. These contradictions are externalized in the current legislation. Purpose: to determine the importance of using legal engineering techniques for the regulation of relations involving the application of artificial intelligence systems. Methods: the key research tools are concepts and laws of interdisciplinary fields of knowledge: general systems theory, theory of information, cybernetics, theory of management; the systematic approach made it possible to characterize the existing forms of law implementation and also legal engineering techniques in the conceptual apparatus of the theory of law as well as to identify the specific features of law implementation techniques; formal legal method; comparative legal method. Results: we carried out comprehensive scientific research on the forms of law implementation; the study revealed specific features of the application of the means, techniques, and methods of legal engineering in all forms of law implementation. We also analyzed civil proceedings through the prism of digitalization, application of modern information and telecommunications technologies in legal activities and legal proceedings; the effect of the use of legal engineering techniques on the effectiveness of these processes was determined.
{"title":"LAW-IMPLEMENTING LEGAL ENGINEERING AND DIGITAL JUSTICE","authors":"I.P. Kozhokar, E.P. Rusakova","doi":"10.17072/1995-4190-2023-59-121-141","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-59-121-141","url":null,"abstract":"Introduction: the dynamic development of the legal system, the increasing complexity of its elements and links between them draw attention to the application of theoretical constructions in discipline-specific research. First of all, this contributes to defining a clear methodological basis for the study of new legal institutions, this being the key to obtaining reasoned, consistent, and motivated conclusions and proposals. Currently, the most relevant and popular research areas include legal regulation of the use of artificial intelligence systems, robotic technologies, digitalization of legal proceedings, etc. There are many proposals and solutions suggested by legal scholars on these issues, but analysis shows significant discrepancies in the definition of basic concepts, in the understanding of the essence of legal relations as well as the prerequisites for their occurrence, the procedure and reasons for imposition of legal liability, etc. These contradictions are externalized in the current legislation. Purpose: to determine the importance of using legal engineering techniques for the regulation of relations involving the application of artificial intelligence systems. Methods: the key research tools are concepts and laws of interdisciplinary fields of knowledge: general systems theory, theory of information, cybernetics, theory of management; the systematic approach made it possible to characterize the existing forms of law implementation and also legal engineering techniques in the conceptual apparatus of the theory of law as well as to identify the specific features of law implementation techniques; formal legal method; comparative legal method. Results: we carried out comprehensive scientific research on the forms of law implementation; the study revealed specific features of the application of the means, techniques, and methods of legal engineering in all forms of law implementation. We also analyzed civil proceedings through the prism of digitalization, application of modern information and telecommunications technologies in legal activities and legal proceedings; the effect of the use of legal engineering techniques on the effectiveness of these processes was determined.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"27 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":"135105741","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 : 2023-01-01DOI: 10.17072/1995-4190-2023-60-285-311
V. A. Laptev, S. Yu. Chucha
Introduction: the paper examines the corporate and labor law status of the head of an organization in the Russian Federation at the present stage. The criteria for distinguishing between the head, participating in social relations as an employee, and a body of a legal entity are determined, as well as the applicable norms of labor and corporate law. The article analyzes the provisions of Russian legislation and local acts that define the legal status and competence of the director; studies internal acts of a corporate organization that regulate the director’s status, the procedure for its implementation, and the scope of powers; looks at the features of organization management from two perspectives: organization of the director’s labor and intracompany (intra-production, corporate) management of the legal entity. The issues of the director’s legal responsibility in the exercise of his powers are discussed. Purpose: to establish the role of the applied norms and fundamental approaches of different branches of Russian law in defining the status and powers of the head of an organization. Methods: empirical methods of observation, comparison, and description; theoretical methods of analysis, synthesis, and classification; formal-logical method as a special scientific method. Results: we have studied the legal status of the head of an organization. The paper provides an overview of the interrelations of rules governing the issues of the status, powers and responsibilities of the head under different branches of law. The cases of application of local acts, an employment contract, other agreements that define the status of the head are delimited. Conclusions: the paper reveals the determining role of the norms of corporate legislation and the subsidiary role of labor legislation in terms of defining the status of the head, including the scope of his powers under corporate and labor law. The study can contribute to the improvement of legislation and law enforcement practice in terms of elimination of the competition between the relevant legal norms and inconsistencies in their interpretation.
{"title":"THE HEAD OF AN ORGANIZATION AND THE BODY OF A LEGAL ENTITY: THE UNITY OF ESSENCE AND CONTRADICTIONS","authors":"V. A. Laptev, S. Yu. Chucha","doi":"10.17072/1995-4190-2023-60-285-311","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-60-285-311","url":null,"abstract":"Introduction: the paper examines the corporate and labor law status of the head of an organization in the Russian Federation at the present stage. The criteria for distinguishing between the head, participating in social relations as an employee, and a body of a legal entity are determined, as well as the applicable norms of labor and corporate law. The article analyzes the provisions of Russian legislation and local acts that define the legal status and competence of the director; studies internal acts of a corporate organization that regulate the director’s status, the procedure for its implementation, and the scope of powers; looks at the features of organization management from two perspectives: organization of the director’s labor and intracompany (intra-production, corporate) management of the legal entity. The issues of the director’s legal responsibility in the exercise of his powers are discussed. Purpose: to establish the role of the applied norms and fundamental approaches of different branches of Russian law in defining the status and powers of the head of an organization. Methods: empirical methods of observation, comparison, and description; theoretical methods of analysis, synthesis, and classification; formal-logical method as a special scientific method. Results: we have studied the legal status of the head of an organization. The paper provides an overview of the interrelations of rules governing the issues of the status, powers and responsibilities of the head under different branches of law. The cases of application of local acts, an employment contract, other agreements that define the status of the head are delimited. Conclusions: the paper reveals the determining role of the norms of corporate legislation and the subsidiary role of labor legislation in terms of defining the status of the head, including the scope of his powers under corporate and labor law. The study can contribute to the improvement of legislation and law enforcement practice in terms of elimination of the competition between the relevant legal norms and inconsistencies in their interpretation.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"96 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":"135158112","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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