Pub Date : 2022-01-01DOI: 10.17072/1995-4190-2021-55-127-147
T. Novikova
Introduction: the lex validatis doctrine, based on the preferability of maintaining the validity of a contract, has been well-established in the jurisprudence of common law countries; instead of being justified by the concept of hypothetical will, it is now functioning in the field of the objective test of the closest connection. Thus, it is essential to fill the gap existing in the domestic science of private international law concerning the understanding of the ways of effective use of this doctrine in the mechanism of conflict-of-laws regulation in the Russian Federation. Purpose and objectives: the study aims to shape the understanding of the prospects and suggest ways of using the lex validatis doctrine within the framework of the principle of the closest connection in private international law of the Russian Federation. Methods: the methods used include a historical-legal method, which allows tracing the formation and prospects for the development of the lex validatis doctrine; a comparative legal method, which allows comparing developments in the field under study in common law countries and the Russian Federation; a systematic approach, which makes it possible to propose a coordinated system of ways of implementing the lex validatis doctrine in private international law of the Russian Federation. Results: we suggest using the lex validatis doctrine as one of the most important substantive legal factors for maintaining the substantive validity of a contract under the closest connection principle, which can perform various functions: as a general reserve connecting factor (Item 2 of Article 1186 of the Civil Code of the Russian Federation), as a special connecting factor (Item 10 of Article 1211 and Item 1 of Article 1213 of the Civil Code), and as a corrective clause (Item 9 of Article 1211 of the Civil Code). Conclusion: despite the fact that the lex validatis doctrine is not directly enshrined in regulations, it can be implemented in private international law of the Russian Federation. It can be applied as a substantive legal factor complementing the evaluation of territorial ties when determining the law that is most closely related to the relationship (first of all, within the meaning of Item 2 of Article 1186 and Item 9 of Article 1211 of the Civil Code of the Russian Federation).
{"title":"THE PROSPECTS FOR THE LEX VALIDATIS DOCTRINE APPLICATION UNDER THE PRINCIPLE OF THE CLOSEST CONNECTION IN PRIVATE INTERNATIONAL LAW OF THE RUSSIAN FEDERATIONA","authors":"T. Novikova","doi":"10.17072/1995-4190-2021-55-127-147","DOIUrl":"https://doi.org/10.17072/1995-4190-2021-55-127-147","url":null,"abstract":"Introduction: the lex validatis doctrine, based on the preferability of maintaining the validity of a contract, has been well-established in the jurisprudence of common law countries; instead of being justified by the concept of hypothetical will, it is now functioning in the field of the objective test of the closest connection. Thus, it is essential to fill the gap existing in the domestic science of private international law concerning the understanding of the ways of effective use of this doctrine in the mechanism of conflict-of-laws regulation in the Russian Federation. Purpose and objectives: the study aims to shape the understanding of the prospects and suggest ways of using the lex validatis doctrine within the framework of the principle of the closest connection in private international law of the Russian Federation. Methods: the methods used include a historical-legal method, which allows tracing the formation and prospects for the development of the lex validatis doctrine; a comparative legal method, which allows comparing developments in the field under study in common law countries and the Russian Federation; a systematic approach, which makes it possible to propose a coordinated system of ways of implementing the lex validatis doctrine in private international law of the Russian Federation. Results: we suggest using the lex validatis doctrine as one of the most important substantive legal factors for maintaining the substantive validity of a contract under the closest connection principle, which can perform various functions: as a general reserve connecting factor (Item 2 of Article 1186 of the Civil Code of the Russian Federation), as a special connecting factor (Item 10 of Article 1211 and Item 1 of Article 1213 of the Civil Code), and as a corrective clause (Item 9 of Article 1211 of the Civil Code). Conclusion: despite the fact that the lex validatis doctrine is not directly enshrined in regulations, it can be implemented in private international law of the Russian Federation. It can be applied as a substantive legal factor complementing the evaluation of territorial ties when determining the law that is most closely related to the relationship (first of all, within the meaning of Item 2 of Article 1186 and Item 9 of Article 1211 of the Civil Code of the Russian Federation).","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"59 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84895940","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: 10.17072/1995-4190-2022-58-579-604
V. M. Bolshakova, I. Kholikov
Introduction: there are numerous legal studies, both general theoretical and applied, discussing the principles of law, the normatively established principles of the activities of the state bodies, the principles of legal proceedings. Meanwhile, the principles of the organization of the judicial system remain on the fringes of legal and historical-legal scientific research. Thus, the issues of identifying and understanding the essence and characteristics of the principles underlying the judicial system appear to be of particular importance for science and practice. Purpose: to formulate theoretical premises and substantiate generalized ideas about the fundamental principles of the organization of the Russian judicial system. Methods: theoretical methods (formalization and hypothetical-deductive method); general logical methods (analysis and synthesis, comparison and analogy, deduction and induction, systematization and classification, abstraction and generalization); empirical methods (collection of historiographic data, analysis of empirical data); dialectical, comparative legal, historiographical, and axiological approaches. Conclusions: through the study of the historical and legal foundations and the analysis of the basic concepts, the article reveals the essential characteristics of the cornerstone principles of the judiciary – the unity of the judicial system, the independence of the courts, the irremovability and independence of judges. The content and structure of these principles as well as the external and internal organizational legal functions they perform are identified and discussed.
{"title":"THE FUNDAMENTAL PRINCIPLES OF THE ORGANIZATION OF THE JUDICIAL SYSTEM: A THEORETICAL STUDY","authors":"V. M. Bolshakova, I. Kholikov","doi":"10.17072/1995-4190-2022-58-579-604","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-58-579-604","url":null,"abstract":"Introduction: there are numerous legal studies, both general theoretical and applied, discussing the principles of law, the normatively established principles of the activities of the state bodies, the principles of legal proceedings. Meanwhile, the principles of the organization of the judicial system remain on the fringes of legal and historical-legal scientific research. Thus, the issues of identifying and understanding the essence and characteristics of the principles underlying the judicial system appear to be of particular importance for science and practice. Purpose: to formulate theoretical premises and substantiate generalized ideas about the fundamental principles of the organization of the Russian judicial system. Methods: theoretical methods (formalization and hypothetical-deductive method); general logical methods (analysis and synthesis, comparison and analogy, deduction and induction, systematization and classification, abstraction and generalization); empirical methods (collection of historiographic data, analysis of empirical data); dialectical, comparative legal, historiographical, and axiological approaches. Conclusions: through the study of the historical and legal foundations and the analysis of the basic concepts, the article reveals the essential characteristics of the cornerstone principles of the judiciary – the unity of the judicial system, the independence of the courts, the irremovability and independence of judges. The content and structure of these principles as well as the external and internal organizational legal functions they perform are identified and discussed.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"227 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76560485","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: 10.17072/1995-4190-2022-57-527-551
S. Shuraleva
Introduction: the article is devoted to research on the right to privacy in labor relations. Purpose: to analyze the current regulation of the right to privacy in Russian labor law, to explore the approaches that have developed in the practice of the European Court of Human Rights (hereinafter – ECtHR) and in the doctrine, to propose directions for improving labor legislation in terms of the right to privacy. Methods: general, general scientific methods; special scientific methods (system-structural, formal-legal, comparative-legal).Results: the right to privacy (to respect for private and family life, home, and correspondence) is generally recognized and is contained both in international acts and in regional (interregional, subregional) conventions and declarations. In the absence of definitions of private life and privacy in international documents and Russian legislation, of particular importance is how these concepts are interpreted by national and international courts. In contrast to the definitions of private life and privacy given by the Constitutional Court of the Russian Federation, the ECtHR considers professional activity to be part of private life since it allows people to build communication with the outside world. Analysis of the ECtHR decisions on the complaints of employees about the violation of Article 8 of the European Convention on Human Rights reveals the most typical violations of the right to respect for private and family life in the workplace in the practice of the ECtHR, and also indicates the increasing urgency of this issue. Despite Russia's withdrawal from the Council of Europe, it is advisable to take into account the legal positions of the ECtHR, along with its legal doctrine, when preparing proposals for amending and supplementing labor legislation. Noting the insufficiency of the current labor law regulation with regard to privacy, the paper explores the theoretical aspects of personal non-property labor rights and the right to privacy in labor relations, outlines the possible directions for improving labor legislation. Conclusions: the author notes development of the employee’s right to privacy, supplemented with the right to disconnect; it is expedient to include the right to privacy in the list of basic rights of employees in the Labor Code of the Russian Federation, while establishing the corresponding obligation of the employer. Since the right to privacy is realized not only in labor relations but also in some other, directly related, legal relations, it is proposed, taking into account the terminology of the Labor Code of the Russian Federation, to supplement the list of basic principles provided in Article 2 of the Labor Code with the principle of ensuring privacy in labor and other directly associated relations.
{"title":"THE RIGHT TO PRIVACY IN LABOR RELATIONS: THEORETICAL PROBLEMS OF LEGAL REGULATION","authors":"S. Shuraleva","doi":"10.17072/1995-4190-2022-57-527-551","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-57-527-551","url":null,"abstract":"Introduction: the article is devoted to research on the right to privacy in labor relations. Purpose: to analyze the current regulation of the right to privacy in Russian labor law, to explore the approaches that have developed in the practice of the European Court of Human Rights (hereinafter – ECtHR) and in the doctrine, to propose directions for improving labor legislation in terms of the right to privacy. Methods: general, general scientific methods; special scientific methods (system-structural, formal-legal, comparative-legal).Results: the right to privacy (to respect for private and family life, home, and correspondence) is generally recognized and is contained both in international acts and in regional (interregional, subregional) conventions and declarations. In the absence of definitions of private life and privacy in international documents and Russian legislation, of particular importance is how these concepts are interpreted by national and international courts. In contrast to the definitions of private life and privacy given by the Constitutional Court of the Russian Federation, the ECtHR considers professional activity to be part of private life since it allows people to build communication with the outside world. Analysis of the ECtHR decisions on the complaints of employees about the violation of Article 8 of the European Convention on Human Rights reveals the most typical violations of the right to respect for private and family life in the workplace in the practice of the ECtHR, and also indicates the increasing urgency of this issue. Despite Russia's withdrawal from the Council of Europe, it is advisable to take into account the legal positions of the ECtHR, along with its legal doctrine, when preparing proposals for amending and supplementing labor legislation. Noting the insufficiency of the current labor law regulation with regard to privacy, the paper explores the theoretical aspects of personal non-property labor rights and the right to privacy in labor relations, outlines the possible directions for improving labor legislation. Conclusions: the author notes development of the employee’s right to privacy, supplemented with the right to disconnect; it is expedient to include the right to privacy in the list of basic rights of employees in the Labor Code of the Russian Federation, while establishing the corresponding obligation of the employer. Since the right to privacy is realized not only in labor relations but also in some other, directly related, legal relations, it is proposed, taking into account the terminology of the Labor Code of the Russian Federation, to supplement the list of basic principles provided in Article 2 of the Labor Code with the principle of ensuring privacy in labor and other directly associated relations.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"65 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80202936","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: 10.17072/1995-4190-2022-55-22-47
E. V. Vinogradova
Introduction: the adoption of amendments to the Constitution of the Russian Federation in 2020 necessitates the study of constitutionally significant values that shape the Russian identity. Among these values are the historically formed state unity, the history of the country, the uniqueness of its cultural heritage. In the light of guarantees of continuity in the development of the Russian state, it appears relevant to provide analysis of one of the fundamental human rights – the right to life, through the prism of historical, philosophical, legal concepts of the Russian judicial system and judicial process. The refusal to use the death penalty, which has opened new pages for the justice system of modern Russia, makes it essential to provide scholarly reflection on the necessity, possibility, and admissibility of forming a new constitutional and legal space in the Russian Federation that ensures the observance of human and civil rights and freedoms. Purpose: to identify the specific features of legal regulation of the use of the death penalty in modern Russia; to establish in what way the refusal to impose death sentences was conditioned not only by the obligations of the Russian Federation under international law but also by domestic legitimation based on established traditions following from constitutional identity. Methods: dialectical, culturological, general historical, sociological, dogmatic methodological approaches were applied in the study of the conditionality of the refusal to use the death penalty by the Russian constitutional identity; in the analysis of legal doctrines, legislative projects, and normative legal acts, the following methods were employed: general scientific methods (system-structural and formal-logical, inductive and deductive), special legal methods (historical-legal, comparative-legal, and formal-legal) as well as the method of interpretation. Results: the paper shows the influence of constitutional provisions on the decision to ban the imposition of death sentences; presents investigation into the norms of Russian criminal law, which imposes a ban on acts for which the sanction of the relevant criminal law norm establishes punishment in the form of the death penalty; traces the evolution of the institution of jury trial in Russia, to which, in accordance with constitutional regulations, a person to whom this type of punishment may be applied has the right. Conclusions: the assessment of the legal aspect of Russia's refusal to use the death penalty based on the analysis of normative acts allows the author to confirm the thesis that Russia's decision to abolish the death penalty, taken under the influence of modern international trends in the law of European countries, over time has become part of the Russian legal system, which strengthened the Russian constitutional identity. This has been due to the justice system being created in modern Russia, based not only on the principles of European models of the judicial
{"title":"RUSSIAN CONSTITUTIONAL IDENTITY. THE DEATH PENALTY, AGAINST AND... AGAINST","authors":"E. V. Vinogradova","doi":"10.17072/1995-4190-2022-55-22-47","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-55-22-47","url":null,"abstract":"Introduction: the adoption of amendments to the Constitution of the Russian Federation in 2020 necessitates the study of constitutionally significant values that shape the Russian identity. Among these values are the historically formed state unity, the history of the country, the uniqueness of its cultural heritage. In the light of guarantees of continuity in the development of the Russian state, it appears relevant to provide analysis of one of the fundamental human rights – the right to life, through the prism of historical, philosophical, legal concepts of the Russian judicial system and judicial process. The refusal to use the death penalty, which has opened new pages for the justice system of modern Russia, makes it essential to provide scholarly reflection on the necessity, possibility, and admissibility of forming a new constitutional and legal space in the Russian Federation that ensures the observance of human and civil rights and freedoms. Purpose: to identify the specific features of legal regulation of the use of the death penalty in modern Russia; to establish in what way the refusal to impose death sentences was conditioned not only by the obligations of the Russian Federation under international law but also by domestic legitimation based on established traditions following from constitutional identity. Methods: dialectical, culturological, general historical, sociological, dogmatic methodological approaches were applied in the study of the conditionality of the refusal to use the death penalty by the Russian constitutional identity; in the analysis of legal doctrines, legislative projects, and normative legal acts, the following methods were employed: general scientific methods (system-structural and formal-logical, inductive and deductive), special legal methods (historical-legal, comparative-legal, and formal-legal) as well as the method of interpretation. Results: the paper shows the influence of constitutional provisions on the decision to ban the imposition of death sentences; presents investigation into the norms of Russian criminal law, which imposes a ban on acts for which the sanction of the relevant criminal law norm establishes punishment in the form of the death penalty; traces the evolution of the institution of jury trial in Russia, to which, in accordance with constitutional regulations, a person to whom this type of punishment may be applied has the right. Conclusions: the assessment of the legal aspect of Russia's refusal to use the death penalty based on the analysis of normative acts allows the author to confirm the thesis that Russia's decision to abolish the death penalty, taken under the influence of modern international trends in the law of European countries, over time has become part of the Russian legal system, which strengthened the Russian constitutional identity. This has been due to the justice system being created in modern Russia, based not only on the principles of European models of the judicial ","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"3 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80830423","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: 10.17072/1995-4190-2022-57-504-526
A. Zakharkina
Introduction: providing digital civil circulation with new digital resources, which include digital financial assets (DFA), is the key task facing the state that strives to build an effective digital economy. This should be done through the creation of an appropriate regulatory platform while taking into account the current civil legislation that has proved effective and considering the architecture of the Russian economy and information infrastructure. The harmonization of traditional civil legislation and the newly created digital law is the primary goal of digitalization of the regulatory platform. This goal is determined solely by the civil law nature of digital financial assets, although the term, it would seem, has nothing to do with civil law. Purpose: to develop the foundations of the civil law theory of digital financial assets, which is a task of particular importance for the development of Russian civil science. Methods: dialectical ideological basis; special legal methods of cognition, with the dogmatic method employed as the major one; historical and legal method, which allowed tracing the genesis of the modern legislative concept of DFA; methods and techniques of interpretation, which were used to analyze individual articles of the DFA Law; legal modeling, used when constructing relationships complicated by DFA. Results: the paper consistently examines the issues directly related to the development of the theory in question. These include: the evolution of the Russian and foreign civil law doctrine of DFA; the genesis of the modern legislative concept of DFA (review of the main historical stages of the rule-making); commentary on the main provisions of the DFA Law; analysis of judicial practice under the DFA Law. Conclusions: it is essential that digital novels comply with the National Program ‘Digital Economy of the Russian Federation’; there is no necessary connection between the norms of the DFA Law and the rules of civil legislation (such ‘autonomy’ of the DFA Law should be recognized as inappropriate); the legal regulation of DFA is characterized by complexity and opacity, which casts doubt on the effectiveness of the legal norms in terms of their applicability in the real sector of the digital economy; the analysis of the norms of the DFA Law revealed the collective nature of ‘DFA’ as a legal category, which contradicts the recognition by the Civil Code of the Russian Federation of digital rights as an independent object; the legal regime of DFA has a number of shortcomings (including their functional differentiation into right-certifying and right-forming; the presence of an intermediary with the status of a registry holder in the relevant relations; weak delineation between DFA and related legal phenomena, etc.); the elaboration of norms on DFA has been accompanied by numerous (in our opinion, justified) critical comments from the Presidential Council for Codification and Improvement of Civil Legislation concerning the draft
{"title":"FUNDAMENTALS OF THE CIVIL LAW THEORY OF DIGITAL FINANCIAL ASSETS","authors":"A. Zakharkina","doi":"10.17072/1995-4190-2022-57-504-526","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-57-504-526","url":null,"abstract":"Introduction: providing digital civil circulation with new digital resources, which include digital financial assets (DFA), is the key task facing the state that strives to build an effective digital economy. This should be done through the creation of an appropriate regulatory platform while taking into account the current civil legislation that has proved effective and considering the architecture of the Russian economy and information infrastructure. The harmonization of traditional civil legislation and the newly created digital law is the primary goal of digitalization of the regulatory platform. This goal is determined solely by the civil law nature of digital financial assets, although the term, it would seem, has nothing to do with civil law. Purpose: to develop the foundations of the civil law theory of digital financial assets, which is a task of particular importance for the development of Russian civil science. Methods: dialectical ideological basis; special legal methods of cognition, with the dogmatic method employed as the major one; historical and legal method, which allowed tracing the genesis of the modern legislative concept of DFA; methods and techniques of interpretation, which were used to analyze individual articles of the DFA Law; legal modeling, used when constructing relationships complicated by DFA. Results: the paper consistently examines the issues directly related to the development of the theory in question. These include: the evolution of the Russian and foreign civil law doctrine of DFA; the genesis of the modern legislative concept of DFA (review of the main historical stages of the rule-making); commentary on the main provisions of the DFA Law; analysis of judicial practice under the DFA Law. Conclusions: it is essential that digital novels comply with the National Program ‘Digital Economy of the Russian Federation’; there is no necessary connection between the norms of the DFA Law and the rules of civil legislation (such ‘autonomy’ of the DFA Law should be recognized as inappropriate); the legal regulation of DFA is characterized by complexity and opacity, which casts doubt on the effectiveness of the legal norms in terms of their applicability in the real sector of the digital economy; the analysis of the norms of the DFA Law revealed the collective nature of ‘DFA’ as a legal category, which contradicts the recognition by the Civil Code of the Russian Federation of digital rights as an independent object; the legal regime of DFA has a number of shortcomings (including their functional differentiation into right-certifying and right-forming; the presence of an intermediary with the status of a registry holder in the relevant relations; weak delineation between DFA and related legal phenomena, etc.); the elaboration of norms on DFA has been accompanied by numerous (in our opinion, justified) critical comments from the Presidential Council for Codification and Improvement of Civil Legislation concerning the draft","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"18 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78716804","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: 10.17072/1995-4190-2022-55-70-85
O. Tatar
Introduction: the article deals with the evolution and transformation of innominate contracts through the principle of freedom of contract. Purpose: to conduct an in-depth and comprehensive analysis of innominate contracts, which emerged due to the principle of freedom of contract. Objectives: synthesis of scientific works in the field of civil law contracts; shaping the understanding of the concept, essence, significance, and need for transformation of the contract; determining the impact of the principle of freedom of contract on the modification of the contract, making it possible for the contract to reflect the newly arising desires and needs of people; the development of conclusions and recommendations for improving legislation through filling gaps in the regulation of civil law contracts. Methods: comparative legal, systemic, statistical, general logical, historical. Conclusions: the presented material related to the evolution and transformation of the institution of contract can serve as a basis for further scientific research.
{"title":"EVOLUTION AND TRANSFORMATION OF INNOMINATE CONTRACTS THROUGH THE PRINCIPLE OF FREEDOM OF CONTRACT: A SYNTHESIS OF SCIENTIFIC WORKS","authors":"O. Tatar","doi":"10.17072/1995-4190-2022-55-70-85","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-55-70-85","url":null,"abstract":"Introduction: the article deals with the evolution and transformation of innominate contracts through the principle of freedom of contract. Purpose: to conduct an in-depth and comprehensive analysis of innominate contracts, which emerged due to the principle of freedom of contract. Objectives: synthesis of scientific works in the field of civil law contracts; shaping the understanding of the concept, essence, significance, and need for transformation of the contract; determining the impact of the principle of freedom of contract on the modification of the contract, making it possible for the contract to reflect the newly arising desires and needs of people; the development of conclusions and recommendations for improving legislation through filling gaps in the regulation of civil law contracts. Methods: comparative legal, systemic, statistical, general logical, historical. Conclusions: the presented material related to the evolution and transformation of the institution of contract can serve as a basis for further scientific research.","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":"79939933","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: 10.17072/1995-4190-2022-58-621-627
N. A. Razveykina, E. G. Shikhanova, A. Dmitriev
Introduction: rapid spread of the coronavirus infection caused restrictions that have affected all areas of social relations. Russian legal proceedings have also changed significantly. The new context revealed problems in ensuring the work of the courts and administration of justice. The purpose of the article is to analyze the problems of the justice system during the pandemic, in particular, the inability to exercise the right to protection, lack of access to justice, violation of procedural deadlines, technical unpreparedness of courts for the implementation and use of information technologies in justice. Methods: general scientific methods (analysis and synthesis, induction and deduction, comparison and classification, abstraction and axiomatic method); statistical methods; special legal methods such as content analysis of legal acts and interpretation of laws. Results: we have analyzed legislation and compared Russian experience with the level of digitalization of judicial systems in foreign countries. The study indicates a low level of digital transformation of Russian legal proceedings and poor quality of the changes that have taken place. The realization of the right to judicial protection appears to be the most urgent problem. Conclusions: the pandemic showed unreadiness of the Russian judicial system for the rapid implementation of information technologies. However, it seems likely that in the short term, due to the information technology development, it will become possible in some cases to abandon the practice of face-to-face hearings on a wide range of cases.
{"title":"DIGITALIZATION OF LEGAL PROCEEDINGS AS A WAY TO ENSURE ACCESS TO JUSTICE","authors":"N. A. Razveykina, E. G. Shikhanova, A. Dmitriev","doi":"10.17072/1995-4190-2022-58-621-627","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-58-621-627","url":null,"abstract":"Introduction: rapid spread of the coronavirus infection caused restrictions that have affected all areas of social relations. Russian legal proceedings have also changed significantly. The new context revealed problems in ensuring the work of the courts and administration of justice. The purpose of the article is to analyze the problems of the justice system during the pandemic, in particular, the inability to exercise the right to protection, lack of access to justice, violation of procedural deadlines, technical unpreparedness of courts for the implementation and use of information technologies in justice. Methods: general scientific methods (analysis and synthesis, induction and deduction, comparison and classification, abstraction and axiomatic method); statistical methods; special legal methods such as content analysis of legal acts and interpretation of laws. Results: we have analyzed legislation and compared Russian experience with the level of digitalization of judicial systems in foreign countries. The study indicates a low level of digital transformation of Russian legal proceedings and poor quality of the changes that have taken place. The realization of the right to judicial protection appears to be the most urgent problem. Conclusions: the pandemic showed unreadiness of the Russian judicial system for the rapid implementation of information technologies. However, it seems likely that in the short term, due to the information technology development, it will become possible in some cases to abandon the practice of face-to-face hearings on a wide range of cases.","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":"77547362","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: 10.17072/1995-4190-2022-57-476-503
D. M. Khudoley, K. Khudoley
Introduction: the article analyzes the systems of electronic voting in Russia and foreign countries. Purpose: to investigate the advantages and disadvantages of electronic voting systems used in Russia and across the world and to develop recommendations for improving Russian electoral law. Methods: general scientific methods; special scientific methods, including comparative legal and systemic ones. Results: the development of information and communication technologies in recent years facilitates their use in all spheres of public life, including in the implementation of democracy. The introduction of electronic voting into the Russian legal system pursues the following goals: to increase the voting turnout, including on the part of persons with reduced mobility or when voting outside the place of residence; to increase the transparency of election; to reduce the time it takes to count the votes and publish the election results; to reduce the costs of organizing and conducting elections; to make the forms of citizen participation in democratic processes corresponding to the level of the development of society. Conclusions: the state automated system ‘Vybory’(Eng. – ‘Election’) used in Russia operates in an autonomous mode, i.e. without the possibility of information transmission via the Internet, which increases its reliability and prevents unauthorized interference or change in the voting results initiated from the outside; nevertheless, there remains a loophole for falsification of voting results when the data is transmitted from polling stations to territorial election commissions (TECs), which is a problem that requires solution. Signatures in support of a candidate/lists of candidates in electronic form must be collected exclusively through the web portal of public services ‘Gosuslugi’. Remote electronic voting in elections in Russia should provide voters with the opportunity to repeatedly change their will until the end of the voting periodas this would prevent the possible use of ‘administrative resources’ and bribery of the voters.
{"title":"ELECTRONIC VOTING IN RUSSIA AND ABROAD","authors":"D. M. Khudoley, K. Khudoley","doi":"10.17072/1995-4190-2022-57-476-503","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-57-476-503","url":null,"abstract":"Introduction: the article analyzes the systems of electronic voting in Russia and foreign countries. Purpose: to investigate the advantages and disadvantages of electronic voting systems used in Russia and across the world and to develop recommendations for improving Russian electoral law. Methods: general scientific methods; special scientific methods, including comparative legal and systemic ones. Results: the development of information and communication technologies in recent years facilitates their use in all spheres of public life, including in the implementation of democracy. The introduction of electronic voting into the Russian legal system pursues the following goals: to increase the voting turnout, including on the part of persons with reduced mobility or when voting outside the place of residence; to increase the transparency of election; to reduce the time it takes to count the votes and publish the election results; to reduce the costs of organizing and conducting elections; to make the forms of citizen participation in democratic processes corresponding to the level of the development of society. Conclusions: the state automated system ‘Vybory’(Eng. – ‘Election’) used in Russia operates in an autonomous mode, i.e. without the possibility of information transmission via the Internet, which increases its reliability and prevents unauthorized interference or change in the voting results initiated from the outside; nevertheless, there remains a loophole for falsification of voting results when the data is transmitted from polling stations to territorial election commissions (TECs), which is a problem that requires solution. Signatures in support of a candidate/lists of candidates in electronic form must be collected exclusively through the web portal of public services ‘Gosuslugi’. Remote electronic voting in elections in Russia should provide voters with the opportunity to repeatedly change their will until the end of the voting periodas this would prevent the possible use of ‘administrative resources’ and bribery of the voters.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"7 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76050686","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: 10.17072/1995-4190-2022-55-6-21
L. A. Musayelyan
Introduction: the article deals with the constitutional formula officially denying the presence of state ideology in Russia. Purpose: to investigate the issue of the absence of state ideology in Russia de jure and de facto; to identify the typology of modern Russian society, state, and law, the reasons for the absence of their essential characteristics in the Constitution of the Russian Federation. Methodology: the research is based on the fundamental principles of scientific philosophy – the principle of objectivity, the principle of development (historicism), the principle of universal interconnection, the principle of determinism, the principle of inconsistency, as well as general scientific methods of analysis and synthesis, induction and deduction. Results: the Constitution of the Russian Federation was adopted in the context of a deep socio-economic and political crisis and a split of the Russian political elite into irreconcilable groups that offered different ways of getting the country out of the crisis and different historical prospects for Russia. The new liberal elite, having defeated its political opponents in political and armed conflict, organized drafting and adoption of the Constitution of the Russian Federation in a short time in order to give legitimacy to the reforms planned. The liberal elite avoided ideologically and politically loaded vocabulary in their public speeches not to scare off the population when adopting the Constitution and carrying out reforms which were to result in the radical change of the type of society, state, and law. The same approach was used when developing the Constitution. The basic law of the country was created and adopted after the Cold War, when Russia found itself on the periphery of the world history and turned into an object of global neoliberal capital policy. The above factors determined the character, the design, and the contents of the Constitution of the Russian Federation. Conclusions: the Constitution was adopted in specific socio-economic and political conditions. It helped to avoid a disastrous civil war and to carry out economic and social reforms corresponding to the interests of the new elite of Russia and their western curators. As a result of the reforms, Russia was introduced into the economic, political, and cultural space of the global neoliberal capitalism managed from Washington. The country has actually lost its sovereignty and subjectivity. Modern Russia, unlike the Russia of the 90s, has ceased to be exclusively an object of global neoliberal capital. As a great power, Russia is bound to have its own state ideology that would express its national interests, fundamental needs, meaningful values, and a geopolitical strategy that would determine its historical prospects.
{"title":"ON THE ABSENCE OF STATE IDEOLOGY IN RUSSIA","authors":"L. A. Musayelyan","doi":"10.17072/1995-4190-2022-55-6-21","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-55-6-21","url":null,"abstract":"Introduction: the article deals with the constitutional formula officially denying the presence of state ideology in Russia. Purpose: to investigate the issue of the absence of state ideology in Russia de jure and de facto; to identify the typology of modern Russian society, state, and law, the reasons for the absence of their essential characteristics in the Constitution of the Russian Federation. Methodology: the research is based on the fundamental principles of scientific philosophy – the principle of objectivity, the principle of development (historicism), the principle of universal interconnection, the principle of determinism, the principle of inconsistency, as well as general scientific methods of analysis and synthesis, induction and deduction. Results: the Constitution of the Russian Federation was adopted in the context of a deep socio-economic and political crisis and a split of the Russian political elite into irreconcilable groups that offered different ways of getting the country out of the crisis and different historical prospects for Russia. The new liberal elite, having defeated its political opponents in political and armed conflict, organized drafting and adoption of the Constitution of the Russian Federation in a short time in order to give legitimacy to the reforms planned. The liberal elite avoided ideologically and politically loaded vocabulary in their public speeches not to scare off the population when adopting the Constitution and carrying out reforms which were to result in the radical change of the type of society, state, and law. The same approach was used when developing the Constitution. The basic law of the country was created and adopted after the Cold War, when Russia found itself on the periphery of the world history and turned into an object of global neoliberal capital policy. The above factors determined the character, the design, and the contents of the Constitution of the Russian Federation. Conclusions: the Constitution was adopted in specific socio-economic and political conditions. It helped to avoid a disastrous civil war and to carry out economic and social reforms corresponding to the interests of the new elite of Russia and their western curators. As a result of the reforms, Russia was introduced into the economic, political, and cultural space of the global neoliberal capitalism managed from Washington. The country has actually lost its sovereignty and subjectivity. Modern Russia, unlike the Russia of the 90s, has ceased to be exclusively an object of global neoliberal capital. As a great power, Russia is bound to have its own state ideology that would express its national interests, fundamental needs, meaningful values, and a geopolitical strategy that would determine its historical prospects.","PeriodicalId":42087,"journal":{"name":"Vestnik Permskogo Universiteta-Juridicheskie Nauki","volume":"42 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81280444","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: 10.17072/1995-4190-2022-57-372-398
S. Kasatkin
Introduction: this article deals with Herbert Hart’s conception of judicial discretion, taken as an authoritative example of the theory of legal positivism in his debate with Ronald Dworkin. The article is of particular interest not only because it turns to the significant issues of legal proceedings as fundamentally conceptualized by the parties to the debate but also because it investigates the ‘later’ Hart’s doctrine of discretion, which is unexplored in Russian jurisprudence and presented in the foreign literature only in truncated form, leaving the author’s 1967–1980s works out of consideration. Purpose: reconstruction of the ‘later’ Hart’s arguments in favor of the positivist thesis of judicial discretion, evaluation of these arguments from the perspective of both development of the jurist’s views and the polemics between R. Dworkin and positivists. Results: the first section of the article presents H. Hart’s original 1961 doctrine as a starting point in the debate of R. Dworkin and positivists; the emphasis is placed on the opposition between the theses of legal indeterminacy and judicial discretion and the counter-theses of completeness of law and the single right answer. In the second section, H. Hart’s 1967–1994 contentions concerning judicial discretion related to R. Dworkin’s ideas are explicated. The third section provides over all reconstruction of the ‘later’ Hart’s doctrine, as well as its assessment in the perspective of the author’s 1961 and 1994 views and the polemic between R. Dworkin and positivists. Conclusions: in his 1967–1994 works, H. Hart follows in line with positivists’ argumentation in their debate with R. Dworkin, thus making a contribution to strengthening the potential of positivist theory. Despite his limited participation, the jurist monitors key points of the debate, trying to substantiate his basic conception of judicial discretion in the changed context. Its final updated version does not receive a full-fledged formulation from the ‘later’ Hart. However, it is clearly irreducible to the ideas of the ‘Postscript’ (1994), usually discussed in this capacity in Western literature: following a number of new arguments, consistent with his 1961 approach, Hart sets out important corrections / ways of development, associated with both departure from a purely linguistic model of legal indeterminacy and presumably problematic specificity of judicial discretion within the framework of moral identification of law, allowed by soft positivism.
{"title":"THESIS OF JUDICIAL DISCRETION IN THE DEBATE BETWEEN R. DWORKIN AND POSITIVISTS: ARGUMENTS OF THE ‘LATER’ H. HART","authors":"S. Kasatkin","doi":"10.17072/1995-4190-2022-57-372-398","DOIUrl":"https://doi.org/10.17072/1995-4190-2022-57-372-398","url":null,"abstract":"Introduction: this article deals with Herbert Hart’s conception of judicial discretion, taken as an authoritative example of the theory of legal positivism in his debate with Ronald Dworkin. The article is of particular interest not only because it turns to the significant issues of legal proceedings as fundamentally conceptualized by the parties to the debate but also because it investigates the ‘later’ Hart’s doctrine of discretion, which is unexplored in Russian jurisprudence and presented in the foreign literature only in truncated form, leaving the author’s 1967–1980s works out of consideration. Purpose: reconstruction of the ‘later’ Hart’s arguments in favor of the positivist thesis of judicial discretion, evaluation of these arguments from the perspective of both development of the jurist’s views and the polemics between R. Dworkin and positivists. Results: the first section of the article presents H. Hart’s original 1961 doctrine as a starting point in the debate of R. Dworkin and positivists; the emphasis is placed on the opposition between the theses of legal indeterminacy and judicial discretion and the counter-theses of completeness of law and the single right answer. In the second section, H. Hart’s 1967–1994 contentions concerning judicial discretion related to R. Dworkin’s ideas are explicated. The third section provides over all reconstruction of the ‘later’ Hart’s doctrine, as well as its assessment in the perspective of the author’s 1961 and 1994 views and the polemic between R. Dworkin and positivists. Conclusions: in his 1967–1994 works, H. Hart follows in line with positivists’ argumentation in their debate with R. Dworkin, thus making a contribution to strengthening the potential of positivist theory. Despite his limited participation, the jurist monitors key points of the debate, trying to substantiate his basic conception of judicial discretion in the changed context. Its final updated version does not receive a full-fledged formulation from the ‘later’ Hart. However, it is clearly irreducible to the ideas of the ‘Postscript’ (1994), usually discussed in this capacity in Western literature: following a number of new arguments, consistent with his 1961 approach, Hart sets out important corrections / ways of development, associated with both departure from a purely linguistic model of legal indeterminacy and presumably problematic specificity of judicial discretion within the framework of moral identification of law, allowed by soft positivism.","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":"75053107","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：