Pub Date : 2023-01-01DOI: 10.17072/1995-4190-2023-61-499-520
I. N. Chebotareva
Introduction: the article explores the national, historical, and international legal aspects of the concept and essence of equality of arms in criminal proceedings as a balance of procedural means and conditions providing each party with the opportunity to present and defend their position on the case before the court. Objectives: to study the concept of equality of the parties within the concept of adversarial criminal proceedings of the Russian theory of criminal procedure; to analyze the relationship of the adversarial principle and equality of the parties as well as the essence of procedural equality of arms in its doctrinal and legal meaning in Russia; to articulate the concept and essence of the international legal principle of equality of arms. Methods: general scientific dialectical method of cognition, systematic approach, general scientific methods (deduction and induction), specific scientific methods (logical and legal analysis and synthesis). Results: the study has shown that the concept ‘equality of arms’ used in the Russian theory of criminal procedure, criminal procedural legislation, and law enforcement practice does not fully reflect all aspects of a fair balance of procedural possibilities of the parties in criminal proceedings. There is an imbalance of legal means and conditions, with the defense being at a disadvantage compared to the prosecution. Conclusions: it is necessary to improve the legislation in order to ensure the balance of the parties’ legal possibilities through establishing elements of favorable treatment of the defense; to provide the defense with the real means necessary to protect their interests; to create conditions that would make it possible to really use these means, i.e., to create mechanisms balancing the parties not only at the level of the law but also in its implementation.
{"title":"PROCEDURAL EQUALITY OF THE PARTIES IN CRIMINAL PROCEEDINGS","authors":"I. N. Chebotareva","doi":"10.17072/1995-4190-2023-61-499-520","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-61-499-520","url":null,"abstract":"Introduction: the article explores the national, historical, and international legal aspects of the concept and essence of equality of arms in criminal proceedings as a balance of procedural means and conditions providing each party with the opportunity to present and defend their position on the case before the court. Objectives: to study the concept of equality of the parties within the concept of adversarial criminal proceedings of the Russian theory of criminal procedure; to analyze the relationship of the adversarial principle and equality of the parties as well as the essence of procedural equality of arms in its doctrinal and legal meaning in Russia; to articulate the concept and essence of the international legal principle of equality of arms. Methods: general scientific dialectical method of cognition, systematic approach, general scientific methods (deduction and induction), specific scientific methods (logical and legal analysis and synthesis). Results: the study has shown that the concept ‘equality of arms’ used in the Russian theory of criminal procedure, criminal procedural legislation, and law enforcement practice does not fully reflect all aspects of a fair balance of procedural possibilities of the parties in criminal proceedings. There is an imbalance of legal means and conditions, with the defense being at a disadvantage compared to the prosecution. Conclusions: it is necessary to improve the legislation in order to ensure the balance of the parties’ legal possibilities through establishing elements of favorable treatment of the defense; to provide the defense with the real means necessary to protect their interests; to create conditions that would make it possible to really use these means, i.e., to create mechanisms balancing the parties not only at the level of the law but also in its implementation.","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":"135158913","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: 10.17072/1995-4190-2023-59-24-46
V.V. Guryanova, L.D. Chulukin
Introduction: the category of ‘purpose in law’ is one of the fundamental and most significant categories in jurisprudence, it is studied in order to increase the effectiveness of legal regulation and strengthen the legal foundations of all spheres of the life of society and the state. In the modern era, the needs of informational society require that purposes should comply with the laws of the society’s functioning, be economically justified, achievable, and necessary for ensuring the security of individuals, society, and the state. Without a proper understanding of the problem of purpose in the theory of law, it seems barely possible to improve the life of society in its different spheres, to improve substantive and procedural legislation, to establish the proper order in the legal process, and to resolve the issue of the relationship between legality and expediency. Purpose: to clarify the place, role, essence of the purpose in law, to formulate some theoretical and methodological foundations of research on this subject. Methods: the basic principles, laws, and categories of idealistic and materialistic dialectics of cognition; general scientific methods (analysis, synthesis, historical method, system-and-structural approach); special scientific methods (formal-legal and comparative law methods). Results: we studied the purpose in law with the use of polyvariant analysis, which included philosophical, psychological, political (managerial), legal approaches. The purpose in law is an ideal legal state, based on socially significant values and guaranteed by the state, which the subjects of legal activity strive to achieve. In general legal regulation, there are distinguished dialectically interconnected purposes and purposes-means: a purpose-means of lawmaking activity (a legal rule, i.e. a model of lawful behavior of subjects); an intermediate purpose-means (lawful behavior of subjects); a purpose-ideal of a lawmaking body (the legal state of social relations), which further acts as a means to achieve the global purposes of the international community.
{"title":"THE AMALFI CODE (TABULA AMALFITANA): PUBLIC LAW PROVISIONS OF PRIVATE LAW ORIGIN","authors":"V.V. Guryanova, L.D. Chulukin","doi":"10.17072/1995-4190-2023-59-24-46","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-59-24-46","url":null,"abstract":"Introduction: the category of ‘purpose in law’ is one of the fundamental and most significant categories in jurisprudence, it is studied in order to increase the effectiveness of legal regulation and strengthen the legal foundations of all spheres of the life of society and the state. In the modern era, the needs of informational society require that purposes should comply with the laws of the society’s functioning, be economically justified, achievable, and necessary for ensuring the security of individuals, society, and the state. Without a proper understanding of the problem of purpose in the theory of law, it seems barely possible to improve the life of society in its different spheres, to improve substantive and procedural legislation, to establish the proper order in the legal process, and to resolve the issue of the relationship between legality and expediency. Purpose: to clarify the place, role, essence of the purpose in law, to formulate some theoretical and methodological foundations of research on this subject. Methods: the basic principles, laws, and categories of idealistic and materialistic dialectics of cognition; general scientific methods (analysis, synthesis, historical method, system-and-structural approach); special scientific methods (formal-legal and comparative law methods). Results: we studied the purpose in law with the use of polyvariant analysis, which included philosophical, psychological, political (managerial), legal approaches. The purpose in law is an ideal legal state, based on socially significant values and guaranteed by the state, which the subjects of legal activity strive to achieve. In general legal regulation, there are distinguished dialectically interconnected purposes and purposes-means: a purpose-means of lawmaking activity (a legal rule, i.e. a model of lawful behavior of subjects); an intermediate purpose-means (lawful behavior of subjects); a purpose-ideal of a lawmaking body (the legal state of social relations), which further acts as a means to achieve the global purposes of the international community.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"140 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":"135104881","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: 10.17072/1995-4190-2023-61-415-427
M. K. Ustahaliloğlu
Introduction: the concept of right, which is one of the fundamental concepts of legal science, cannot exist as an independent concept. It is sine qua non dependent on the concept of legal obligation that gives the former its existence and meaning. This is similar to the relationship between the concepts of stove and fire: even though fire can exist and have a meaning without a stove, neither the existence nor the meaning of a stove is possible without fire. Purpose: this article aims to thoroughly analyze the concept of right, instituted in order to provide benefits for legal personality-holding entities and protect them from potential harms that may come from other entities, which requires the protection of an interest (directly or indirectly related to at least one human being) by imposing a legal obligation (expressed either in a legal prescription to perform or in a prohibition against performing certain legal acts) on another being (directly or indirectly related to at least one human being). Conclusion: this study concludes that the concept of right does not exist in and of itself, but rather appears from the perspective of a legal personality-holding entity when a legal obligation has been established in its favor.
{"title":"THE RIGHT PERCEPTION OF THE CONCEPT OF RIGHT: A VIEW THROUGH THE PRISM OF OBLIGATIONS","authors":"M. K. Ustahaliloğlu","doi":"10.17072/1995-4190-2023-61-415-427","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-61-415-427","url":null,"abstract":"Introduction: the concept of right, which is one of the fundamental concepts of legal science, cannot exist as an independent concept. It is sine qua non dependent on the concept of legal obligation that gives the former its existence and meaning. This is similar to the relationship between the concepts of stove and fire: even though fire can exist and have a meaning without a stove, neither the existence nor the meaning of a stove is possible without fire. Purpose: this article aims to thoroughly analyze the concept of right, instituted in order to provide benefits for legal personality-holding entities and protect them from potential harms that may come from other entities, which requires the protection of an interest (directly or indirectly related to at least one human being) by imposing a legal obligation (expressed either in a legal prescription to perform or in a prohibition against performing certain legal acts) on another being (directly or indirectly related to at least one human being). Conclusion: this study concludes that the concept of right does not exist in and of itself, but rather appears from the perspective of a legal personality-holding entity when a legal obligation has been established in its favor.","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":"135158638","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: 10.17072/1995-4190-2023-61-451-466
V. G. Golubtsov, O. A. Kuznetsova
Introduction: an essential prerequisite for the implementation of legal norms is the parameters of the period of their legal force and of their coverage, which are governed by operational-and-coverage legal regulations. The article discusses the features of operational legal norms and coverage legal norms, being implemented in such a close relationship that they can be referred to as operational-and-coverage legal norms. The authors propose classification of such norms on the basis of various criteria, show their logical structures. Purpose: to describe various types of operational and coverage legal norms, model their structures, identify their functions. Methods: the research is based on the general scientific dialectical method of cognition; the authors applied the methods of formal and dialectical logic, functional approach, classification; special legal methods were also employed: the formal-dogmatic method was used to identify operational-and-coverage norms in the normative legal material, the method of legal modeling – to model their structures. Results: operational norms determine the calendar period of legal norms being in their legal force, establish either the date of their entry into force or the date of their loss of force. Coverage legal norms determine the effect of legal norms in space (i.e. with regard to the territory of their operation), with regard to the circle of persons, and in time; they are classified into coverageterritorial, subject-oriented, and coverage-temporal, respectively. Operational-and-coverage legal norms have the structures as follows: ‘Legal norm A, which came into force on date N, covers (is effective on) the territory X’; ‘Legal norm A, which came into force on date N, covers (is effective for) subject Y’; ‘Legal norm A, which came into force on date N, covers (is effective for) legal relations that arose after N (prospective operation) or before and after N (retroactive operation); ‘Legal norm A, which became invalid on date N, covers relations that arose before and continue after N (ultra-active operation)’.
{"title":"FEATURES AND TYPES OF OPERATIONAL-AN-COVERAGE LEGAL NORMS","authors":"V. G. Golubtsov, O. A. Kuznetsova","doi":"10.17072/1995-4190-2023-61-451-466","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-61-451-466","url":null,"abstract":"Introduction: an essential prerequisite for the implementation of legal norms is the parameters of the period of their legal force and of their coverage, which are governed by operational-and-coverage legal regulations. The article discusses the features of operational legal norms and coverage legal norms, being implemented in such a close relationship that they can be referred to as operational-and-coverage legal norms. The authors propose classification of such norms on the basis of various criteria, show their logical structures. Purpose: to describe various types of operational and coverage legal norms, model their structures, identify their functions. Methods: the research is based on the general scientific dialectical method of cognition; the authors applied the methods of formal and dialectical logic, functional approach, classification; special legal methods were also employed: the formal-dogmatic method was used to identify operational-and-coverage norms in the normative legal material, the method of legal modeling – to model their structures. Results: operational norms determine the calendar period of legal norms being in their legal force, establish either the date of their entry into force or the date of their loss of force. Coverage legal norms determine the effect of legal norms in space (i.e. with regard to the territory of their operation), with regard to the circle of persons, and in time; they are classified into coverageterritorial, subject-oriented, and coverage-temporal, respectively. Operational-and-coverage legal norms have the structures as follows: ‘Legal norm A, which came into force on date N, covers (is effective on) the territory X’; ‘Legal norm A, which came into force on date N, covers (is effective for) subject Y’; ‘Legal norm A, which came into force on date N, covers (is effective for) legal relations that arose after N (prospective operation) or before and after N (retroactive operation); ‘Legal norm A, which became invalid on date N, covers relations that arose before and continue after N (ultra-active operation)’.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"58 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":"135158901","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: 10.17072/1995-4190-2023-59-73-96
A.A. Merkulenko
Introduction: the fundamental issue of federal construction is the division of competence, which serves as an indicator of the degree of centralization. However, it is not sufficiently clear what issues should be assigned to each level of government (the center, regions, municipalities) and what issues are to be addressed jointly. Purpose: on the basis of constitutions of decentralized countries, to develop an average model of division of subjects of jurisdiction and powers between the levels of government, which could be used to assess the degree of centralization. Methods: comparison, description, interpretation; formal and dialectical logic; legal-dogmatic method and interpretation of legal norms; quantitative comparative legal method. Results: the stated model has been derived. The issues of organization of regional power are subject to joint jurisdiction, while those related to the organization of federal power are within federal competence. Foreign policy and defense are almost entirely federal matters. Law and order are ensured jointly with the decisive role of the center. Structural parameters of the economy are regulated by the federation, but individual sectors may be within federal, regional, or joint competence. Social issues are mainly resolved cooperatively. Education, culture, language, and religion often become the subject of regional jurisdiction. However, knowledge-intensive spheres such as science and higher education are predominantly federal. In the tax field, the more mobile the source of income, the more likely it is to be taxed at the federal level. More sustainable sources of income are taxed by regions. Conclusions: the objectives of the study have been achieved. Many subjects of jurisdiction cannot be assigned to a certain level of government as constitutions provide diametrically opposite answers to these questions. Very little attention is paid in the constitutions to the regulation of municipal competence, which is why in the article it is often considered in combination with regional competence.
{"title":"DIVISION OF SUBJECTS OF JURISDICTION AND POWERS BETWEEN THE CENTER, REGIONS AND MUNICIPALITIES IN CONSTITUTIONS OF FEDERAL AND DECENTRALIZED COUNTRIES","authors":"A.A. Merkulenko","doi":"10.17072/1995-4190-2023-59-73-96","DOIUrl":"https://doi.org/10.17072/1995-4190-2023-59-73-96","url":null,"abstract":"Introduction: the fundamental issue of federal construction is the division of competence, which serves as an indicator of the degree of centralization. However, it is not sufficiently clear what issues should be assigned to each level of government (the center, regions, municipalities) and what issues are to be addressed jointly. Purpose: on the basis of constitutions of decentralized countries, to develop an average model of division of subjects of jurisdiction and powers between the levels of government, which could be used to assess the degree of centralization. Methods: comparison, description, interpretation; formal and dialectical logic; legal-dogmatic method and interpretation of legal norms; quantitative comparative legal method. Results: the stated model has been derived. The issues of organization of regional power are subject to joint jurisdiction, while those related to the organization of federal power are within federal competence. Foreign policy and defense are almost entirely federal matters. Law and order are ensured jointly with the decisive role of the center. Structural parameters of the economy are regulated by the federation, but individual sectors may be within federal, regional, or joint competence. Social issues are mainly resolved cooperatively. Education, culture, language, and religion often become the subject of regional jurisdiction. However, knowledge-intensive spheres such as science and higher education are predominantly federal. In the tax field, the more mobile the source of income, the more likely it is to be taxed at the federal level. More sustainable sources of income are taxed by regions. Conclusions: the objectives of the study have been achieved. Many subjects of jurisdiction cannot be assigned to a certain level of government as constitutions provide diametrically opposite answers to these questions. Very little attention is paid in the constitutions to the regulation of municipal competence, which is why in the article it is often considered in combination with regional competence.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"158 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":"135105435","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 : 2022-01-01DOI: 10.17072/1995-4190-2022-56-239-267
A. A. Krytsula
Introduction: the article is devoted to the analysis of legal regulation of smart contracts, the concept, content, and scope of their application. The author analyzes in detail foreign expe- rience of using smart contracts and suggests possible options for expanding the application area. The article also has a separate section that looks at smart contracts as compared with traditional institutions of civil law. Smart contracts are expected to find application in almost all areas of life in the future. As is often the case with new technologies, the use of smart con- tracts raises a number of civil law issues. Blockchain technology makes it possible not only to create new means of payment but also to autonomously manage almost any process. It can be used for individual contracts and even for the creation of autonomous decentralized systems. Purpose: to provide an insight into the institution of smart contracts and define their role in civ- il law. Methods: empirical methods of comparison, description, interpretation; theoretical me- thods of formal and dialectical logic; special scientific methods such as the legal-dogmatic me- thod, the methods of interpretation of legal norms and comparative legal research. Results: smart contracts are computer programs that perform legally significant actions according to predetermined algorithms set out in the form of a so-called program code. In practice, they are especially important in connection with the development of blockchain technology or (more generally) distributed ledger technology. Conclusions: the term ‘smart contract’ was defined by Nick Szabo in the 1990s as a sequence of commands represented in digital form, including transaction protocols that execute these agreements. Thus, smart contracts formulate rules and sanctions for agreements and execute them automatically. These are not necessarily contracts in the legal sense, but they are capable of controlling, tracking, and documenting legally signif- icant actions. Smart contracts can also be implemented using traditional, for example, mechan- ical technologies (e.g. in a vending machine). However, blockchain and distributed ledger tech- nologies make it possible to implement incomparably more complex rules and enforcement me- chanisms and offer a decentralized environment with an integrated settlement system. From a legal point of view, smart contracts perform two functions. On the one hand, they serve as a functional equivalent of a contract since their technological code can identify the services to be exchanged as well as the conditions under which they must be provided. Being the normative order of the digital, this code formulates the program of obligations of the parties. It resembles the legal order of a contract, without necessarily coinciding with it. On the other hand, smart contracts serve as a tool for the execution of contracts – by controlling, monitoring, and docu- menting the exchange of services. They can also facilitate the e
{"title":"LEGAL REGIME OF SMART CONTRACTS: A CODE OR A CONTRACT","authors":"A. A. Krytsula","doi":"10.17072/1995-4190-2022-56-239-267","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-56-239-267","url":null,"abstract":"Introduction: the article is devoted to the analysis of legal regulation of smart contracts, the concept, content, and scope of their application. The author analyzes in detail foreign expe- rience of using smart contracts and suggests possible options for expanding the application area. The article also has a separate section that looks at smart contracts as compared with traditional institutions of civil law. Smart contracts are expected to find application in almost all areas of life in the future. As is often the case with new technologies, the use of smart con- tracts raises a number of civil law issues. Blockchain technology makes it possible not only to create new means of payment but also to autonomously manage almost any process. It can be used for individual contracts and even for the creation of autonomous decentralized systems. Purpose: to provide an insight into the institution of smart contracts and define their role in civ- il law. Methods: empirical methods of comparison, description, interpretation; theoretical me- thods of formal and dialectical logic; special scientific methods such as the legal-dogmatic me- thod, the methods of interpretation of legal norms and comparative legal research. Results: smart contracts are computer programs that perform legally significant actions according to predetermined algorithms set out in the form of a so-called program code. In practice, they are especially important in connection with the development of blockchain technology or (more generally) distributed ledger technology. Conclusions: the term ‘smart contract’ was defined by Nick Szabo in the 1990s as a sequence of commands represented in digital form, including transaction protocols that execute these agreements. Thus, smart contracts formulate rules and sanctions for agreements and execute them automatically. These are not necessarily contracts in the legal sense, but they are capable of controlling, tracking, and documenting legally signif- icant actions. Smart contracts can also be implemented using traditional, for example, mechan- ical technologies (e.g. in a vending machine). However, blockchain and distributed ledger tech- nologies make it possible to implement incomparably more complex rules and enforcement me- chanisms and offer a decentralized environment with an integrated settlement system. From a legal point of view, smart contracts perform two functions. On the one hand, they serve as a functional equivalent of a contract since their technological code can identify the services to be exchanged as well as the conditions under which they must be provided. Being the normative order of the digital, this code formulates the program of obligations of the parties. It resembles the legal order of a contract, without necessarily coinciding with it. On the other hand, smart contracts serve as a tool for the execution of contracts – by controlling, monitoring, and docu- menting the exchange of services. They can also facilitate the e","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"64 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84399590","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 : 2022-01-01DOI: 10.17072/1995-4190-2022-58-628-657
V. Bogdan, M. Urda
Introduction: the article discusses the challenging problem of the interbranch conflict between the legal institution of surrogacy and a criminally punishable act – human trafficking. The normative minimalism of regulatory legislation, the lack of understanding of the essence of surrogacy as a legal institution, insufficient understanding of the legal essence of the contract for child bearing and birth, are the factors that necessitate defining the boundaries of what is permissible through drawing a distinction between the application of surrogacy technology and the crime mentioned. Resolution of this issue is of particular importance for ensuring legal certainty that would exclude both abusive practices in legal relations involving surrogate motherhood and unlawful prosecution against the participants in these relations. Purpose: to create a conceptual framework for the interbranch relationship between the institution of surrogacy and the criminal law prohibition of human trafficking. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods: legal-dogmatic and the method of interpretation of legal norms. Results: the research into interbranch interaction of the institutions in question showed that the root cause of contradictions in the practice of applying the norms under study is the lack of a uniform systemic approach, both at the international and domestic level, to determining the legal boundaries of surrogacy technology and to the protection of relations generated by this technology by the norms on human trafficking. Conclusions: we have formulated doctrinal definitions of the institution of surrogate motherhood and the contract for child bearing and birth, which is interpreted as an interbranch contract; identified the legal nature of the surrogate mother’s consent to record the potential (genetic) parents in relation to the child born by her; described the specific nature of contractual structures included in the subject area of surrogate motherhood, with the identification of defects that transfer private-law relations regulated by them into the field of criminal law; formulated recommendations on the application of Article 127.1 of the Criminal Code of the Russian Federation. At present, there are no means in international law to resolve the conflict between legal surrogacy and human trafficking; the transnational nature of the phenomena under study dictates the need for the development of such means.
{"title":"SURROGACY & HUMAN TRAFFICKING: INTERBRANCH CONFLICT","authors":"V. Bogdan, M. Urda","doi":"10.17072/1995-4190-2022-58-628-657","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-58-628-657","url":null,"abstract":"Introduction: the article discusses the challenging problem of the interbranch conflict between the legal institution of surrogacy and a criminally punishable act – human trafficking. The normative minimalism of regulatory legislation, the lack of understanding of the essence of surrogacy as a legal institution, insufficient understanding of the legal essence of the contract for child bearing and birth, are the factors that necessitate defining the boundaries of what is permissible through drawing a distinction between the application of surrogacy technology and the crime mentioned. Resolution of this issue is of particular importance for ensuring legal certainty that would exclude both abusive practices in legal relations involving surrogate motherhood and unlawful prosecution against the participants in these relations. Purpose: to create a conceptual framework for the interbranch relationship between the institution of surrogacy and the criminal law prohibition of human trafficking. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods: legal-dogmatic and the method of interpretation of legal norms. Results: the research into interbranch interaction of the institutions in question showed that the root cause of contradictions in the practice of applying the norms under study is the lack of a uniform systemic approach, both at the international and domestic level, to determining the legal boundaries of surrogacy technology and to the protection of relations generated by this technology by the norms on human trafficking. Conclusions: we have formulated doctrinal definitions of the institution of surrogate motherhood and the contract for child bearing and birth, which is interpreted as an interbranch contract; identified the legal nature of the surrogate mother’s consent to record the potential (genetic) parents in relation to the child born by her; described the specific nature of contractual structures included in the subject area of surrogate motherhood, with the identification of defects that transfer private-law relations regulated by them into the field of criminal law; formulated recommendations on the application of Article 127.1 of the Criminal Code of the Russian Federation. At present, there are no means in international law to resolve the conflict between legal surrogacy and human trafficking; the transnational nature of the phenomena under study dictates the need for the development of such means.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"36 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75990054","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 : 2022-01-01DOI: 10.17072/1995-4190-2022-58-605-620
K. Ponomareva
Introduction: the article is the result of research on the implementation of measures aimed at improving the tax regime of profit taxation in the digital economy. The central issue in the discussion around taxation of the digital economy is the distribution between states of tax rights in relation to digital business models. The author discusses the problem of establishing a link with a certain tax jurisdiction and the problem of profit distribution after this link has been established. The study provides a focus on a comprehensive analysis of the legal framework aimed at ensuring tax security of the state in the context of digital transformation. Purpose: on the basis of comparative legal research, to reveal the features of digital business models that necessitate the application of special taxation rules to them as well as to identify possible areas for improving Russian tax legislation in this field. Methods: analysis and synthesis, the principle of unity of theory and practice; the principles of objectivity and comprehensiveness of research; the principle of interdisciplinarity of research; formal legal, comparative legal, historical, statistical methods. Results: the features of digital business models that necessitate the application of special taxation rules thereto have been identified; suggestions on how to improve Russian tax legislation have been formulated. Conclusions: based on a comparative analysis of transnational groups of digital companies and their activities in various states, the study identifies the features of digital business models that make it necessary to apply special taxation rules to them. The following are suggested as possible areas for improving the tax legislation of Russia: revision of approaches to taxation of a permanent establishment and enshrinement of the rules on taxation of a digital permanent establishment in Article 309 of the Tax Code of the Russian Federation; regulation of the relationship between the concepts of services and royalties with regard to the activities of digital companies; regulation of platform employment from the perspective of taxation.
{"title":"LEGAL ISSUES OF TAXATION OF DIGITAL BUSINESS MODELS","authors":"K. Ponomareva","doi":"10.17072/1995-4190-2022-58-605-620","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-58-605-620","url":null,"abstract":"Introduction: the article is the result of research on the implementation of measures aimed at improving the tax regime of profit taxation in the digital economy. The central issue in the discussion around taxation of the digital economy is the distribution between states of tax rights in relation to digital business models. The author discusses the problem of establishing a link with a certain tax jurisdiction and the problem of profit distribution after this link has been established. The study provides a focus on a comprehensive analysis of the legal framework aimed at ensuring tax security of the state in the context of digital transformation. Purpose: on the basis of comparative legal research, to reveal the features of digital business models that necessitate the application of special taxation rules to them as well as to identify possible areas for improving Russian tax legislation in this field. Methods: analysis and synthesis, the principle of unity of theory and practice; the principles of objectivity and comprehensiveness of research; the principle of interdisciplinarity of research; formal legal, comparative legal, historical, statistical methods. Results: the features of digital business models that necessitate the application of special taxation rules thereto have been identified; suggestions on how to improve Russian tax legislation have been formulated. Conclusions: based on a comparative analysis of transnational groups of digital companies and their activities in various states, the study identifies the features of digital business models that make it necessary to apply special taxation rules to them. The following are suggested as possible areas for improving the tax legislation of Russia: revision of approaches to taxation of a permanent establishment and enshrinement of the rules on taxation of a digital permanent establishment in Article 309 of the Tax Code of the Russian Federation; regulation of the relationship between the concepts of services and royalties with regard to the activities of digital companies; regulation of platform employment from the perspective of taxation.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82851711","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 : 2022-01-01DOI: 10.17072/1995-4190-2022-57-454-475
I. A. Pibaev
Introduction: religious ministers are a special category of persons, often having a special status regulated not only by internal norms of religious organizations (e.g. those provided in sacred texts) but also by legal rules of the state. Purpose: to analyze the provisions of the constitutions of the UN member states and a number of basic laws of the constituent entities of federal states, to identify the features of the constitutional regulation of the status of religious ministers, the reasons for etatization and ‘constitutional silence’. Methods: the research mainly relies on the comparative legal method, used when analyzing the constitutions and laws of 193 countries (cross-study); the systematization method was employed to develop the author's classification of the identified norms into groups. Results: the analysis showed a terminological diversity in the texts of the constitutions; when studying the issue in question, it is advisable to use the term ‘religious minister’ as it allows covering this category of persons to the greatest extent possible. The author has identified six groups of norms reflecting the status of religious ministers: the norms governing participation in the management of state affairs; norms blurring the boundaries between secular and religious regulation; norms establishing privileges for clerics; norms ensuring the autonomy of religious associations; norms that regulate the exercise of freedom of religion through spiritual mentors; norms limiting the civil legal capacity of religious ministers and determining the legal force of religious rites and sacraments. The paper explains why some ‘standard norms’ have been established, including those forbidding religious ministers from participation in the management of state affairs. Conclusion: the author reveals the reasons behind the ‘constitutional silence’ and etatization of the norms on religious ministers in the constitutions, and also offers the ways to differentiate the status of clerics in the structure of constitutions.
{"title":"КОНСТИТУЦИОННО-ПРАВОВОЕ РЕГУЛИРОВАНИЕ СТАТУСА РЕЛИГИОЗНЫХ СЛУЖИТЕЛЕЙ","authors":"I. A. Pibaev","doi":"10.17072/1995-4190-2022-57-454-475","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-57-454-475","url":null,"abstract":"Introduction: religious ministers are a special category of persons, often having a special status regulated not only by internal norms of religious organizations (e.g. those provided in sacred texts) but also by legal rules of the state. Purpose: to analyze the provisions of the constitutions of the UN member states and a number of basic laws of the constituent entities of federal states, to identify the features of the constitutional regulation of the status of religious ministers, the reasons for etatization and ‘constitutional silence’. Methods: the research mainly relies on the comparative legal method, used when analyzing the constitutions and laws of 193 countries (cross-study); the systematization method was employed to develop the author's classification of the identified norms into groups. Results: the analysis showed a terminological diversity in the texts of the constitutions; when studying the issue in question, it is advisable to use the term ‘religious minister’ as it allows covering this category of persons to the greatest extent possible. The author has identified six groups of norms reflecting the status of religious ministers: the norms governing participation in the management of state affairs; norms blurring the boundaries between secular and religious regulation; norms establishing privileges for clerics; norms ensuring the autonomy of religious associations; norms that regulate the exercise of freedom of religion through spiritual mentors; norms limiting the civil legal capacity of religious ministers and determining the legal force of religious rites and sacraments. The paper explains why some ‘standard norms’ have been established, including those forbidding religious ministers from participation in the management of state affairs. Conclusion: the author reveals the reasons behind the ‘constitutional silence’ and etatization of the norms on religious ministers in the constitutions, and also offers the ways to differentiate the status of clerics in the structure of constitutions.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"228 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85917074","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 : 2022-01-01DOI: 10.17072/1995-4190-2022-58-709-736
W. Maslov
Introduction: the fact of the continued existence of the death penalty jointly with an actual ban on its use underline the negative trend of sexual assault crimes in the respect of minors and indicate the expediency of finding an answer to the question of the optimal building of a domestic criminal legal impact system. Purpose: determination of the existence prospects in the Russian criminal law of such measures of impact as chemical castration and the death penalty. Methods: the research methodology is based on dialectical materialism. Both general scientific (systemic-and-structural and Aristotelian, inductive and deductive methods, as well as analysis and synthesis) and special (legalistic, rather-legal) methods were used. Results: it is indicated that the forced use of chemical castration to persons with disorders of sexual preference could be justified, provided that problems related to the short duration of the drug’s exposure and secondary effects of its use are resolved. In the current conditions, it is permissible to apply this measure on a dispositive basis (as a basis for parole). There have been highlighted three key arguments against the death penalty: the absence of effectiveness (USA, Indonesia, Nigeria, India, Pakistan); the injustice (disproportionality) of this punishment (USA, Malaysia, India); the discriminatory nature of the death penalty (for political reasons, the criterion of race and belonging to sexual minorities (USA); according to the criterion of class/caste (Nigeria); by economic and social status and gender (India). It is concluded that these circumstances, coupled with such negative factors as judicial errors, the cost and duration of appeal procedures, the Death Row Phenomenon and the widespread Colorado Method, indicate unequivocal doctrinal support for the rejection of the death penalty as an instrument of national criminal policy. Conclusions: the refusal of the Russian Federation to use the death penalty is within the framework of a foreign trend to exclude this measure of punishment from the arsenal of law enforcement agencies due to the huge number of problems with its application and empirically unconfirmed effectiveness.
{"title":"ON THE FOREIGN PRACTICE OF APPLYING THE DEATH PENALTY AND CHEMICAL CASTRATION AS MEASURES OF CRIMINAL LEGAL IMPACT","authors":"W. Maslov","doi":"10.17072/1995-4190-2022-58-709-736","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-58-709-736","url":null,"abstract":"Introduction: the fact of the continued existence of the death penalty jointly with an actual ban on its use underline the negative trend of sexual assault crimes in the respect of minors and indicate the expediency of finding an answer to the question of the optimal building of a domestic criminal legal impact system. Purpose: determination of the existence prospects in the Russian criminal law of such measures of impact as chemical castration and the death penalty. Methods: the research methodology is based on dialectical materialism. Both general scientific (systemic-and-structural and Aristotelian, inductive and deductive methods, as well as analysis and synthesis) and special (legalistic, rather-legal) methods were used. Results: it is indicated that the forced use of chemical castration to persons with disorders of sexual preference could be justified, provided that problems related to the short duration of the drug’s exposure and secondary effects of its use are resolved. In the current conditions, it is permissible to apply this measure on a dispositive basis (as a basis for parole). There have been highlighted three key arguments against the death penalty: the absence of effectiveness (USA, Indonesia, Nigeria, India, Pakistan); the injustice (disproportionality) of this punishment (USA, Malaysia, India); the discriminatory nature of the death penalty (for political reasons, the criterion of race and belonging to sexual minorities (USA); according to the criterion of class/caste (Nigeria); by economic and social status and gender (India). It is concluded that these circumstances, coupled with such negative factors as judicial errors, the cost and duration of appeal procedures, the Death Row Phenomenon and the widespread Colorado Method, indicate unequivocal doctrinal support for the rejection of the death penalty as an instrument of national criminal policy. Conclusions: the refusal of the Russian Federation to use the death penalty is within the framework of a foreign trend to exclude this measure of punishment from the arsenal of law enforcement agencies due to the huge number of problems with its application and empirically unconfirmed effectiveness.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"155 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73292648","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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