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Legal Bulletin of the Kuban State University

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No 4 (2023)
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THEORETICAL-HISTORICAL LEGAL SCIENCES

7-15 178
Abstract

The purpose of the work is to identify the significance of the theoretical and philosophical principles of law for the practical activity of a professional lawyer. The author's task is to actualize philosophical and socio-humanitarian knowledge for the formation of professional competencies within the framework of the integrative doctrine of legal understanding, which forms the basis of the legal worldview of the concept of natural rights. To achieve these goals, the author uses private scientific methods: historical culturological, sociological, axiological, as well as a special method of legal hermeneutics, revealing the discourse of legal reality in general. Results: The analysis of cause-and-effect relationships of socio-legal reality requires an integrative effort of jurisprudence, philosophy, sociology, psychology and other socio-humanitarian disciplines. The theory of law, the sociology of law, the philosophy of law as scientific fields and academic disciplines underlie the knowledge of the essence of legal reality. The ontology of law, which studies the fundamental principles of the existence of law, and the legal axiology associated with the value content of law, as law and social life in general become more complex, cease to be the property of only a narrow circle of specialists discussing the problems of social philosophy related to the existence of law in the past and in modern society. Conclusions: In the conditions of an incessantly complicated political and legal reality, the practical solution of problems in the field of jurisprudence by a legislator and a law enforcement officer requires a lawyer to know the philosophical foundations of the legal existence of a person, society and the state. This gives scientific socio-humanitarian knowledge a new relevant sound. The philosophical discourse of law and the theoretical and ideological postulates of the socio-humanitarian sciences, which ensure the dialectical unity of legal goals and legal means to achieve them, should form the foundation not only of legal knowledge, but also the basis of the practical activity of a professional lawyer. 

16-20 136
Abstract

The relevance of this study is due to modern trends in preserving originality and continuity in the development of legal institutions and legal regulation in general. The development of urban planning legislation, on the one hand, follows the path of following modern, innovative needs and institutions of social development, however, on the other hand, it is necessary to take into account the traditions and fundamental principles established in legal regulation that make it possible to ensure the effectiveness of legal regulation and the formation of a sustainable legal culture based on healthy, free from deformations of the legal consciousness of the population.

Legal idealism and legal nihilism as forms of deformation of legal consciousness throughout the history of the development of urban planning legislation accompanied the formation of its legal institutions. The study of urban planning legislation of the era of Peter I clearly illustrates the connection between legislative idealism and the legal nihilism of the population. A modern legislator on the path of legislative reform also often uses extreme forms of legislative activity, with the legal institutionalization of such forms and phenomena that have not yet developed as public institutions. Thus, the study of historical experience and the results of legislative regulation of urban planning activities under the influence of legal idealism and in conditions of legal nihilism will make it possible to understand the socio-legal factors that determine the formation and establishment of individual legal institutions, as well as to assess the risks and prospects for the effectiveness of legal regulation of this industry as a whole.

21-28 179
Abstract

The article considers the issues of legal impact on the personality and social life in the conditions of political and legal transitivity. The authors propose an approach based on the development and use of specific, reasonable and quantifiable indicators to assess the effectiveness of legal influence in practical legal activities.

Classification of the obtained results of legal impact on a person for various reasons is one of the elements of a differentiated and effective approach. The article also discusses the issue of distinguishing between desirable and undesirable results of legal influence on a person using reasonable criteria.

The authors emphasize the importance of translating abstract legal norms into concrete behavior of an individual for effective legal action. Social legal consciousness, expressing the social and legal nature of social life, is a key element in this process.

The article also discusses the mechanisms of legal influence on a person, including regulations, the executive branch, the judiciary, mass communications, etc. The authors emphasize the need for a comprehensive approach to legal impact, which would take into account many factors, such as the socioeconomic context, political processes and cultural characteristics.

As a result, the article offers a comprehensive approach to the legal impact on the individual and social life, which includes the development of specific indicators, the classification of results and the distinction between desirable and undesirable results, and also takes into account the social and legal nature of social life and the mechanisms of legal influence.

PUBLIC LAW (STATE LAW) SCIENCES

29-37 199
Abstract

The purpose of this study is to study the legal nature of compulsory insurance, to identify the relationship between public law and civil aspects. The analysis makes it possible to reveal the institution of compulsory insurance, the legal regulation of which includes norms of a public-legal and private-legal nature. 

The author studies and analyzes in detail a number of normative legal acts containing articles directly aimed at consolidating the norms of public law in the field of compulsory insurance. In addition, the civil aspect of compulsory insurance is shown and argued, although not so significant. The purpose of establishing compulsory insurance is disclosed in detail, what relationships arise during compulsory insurance, what legal norms they are regulated by.

The novelty of the presented scientific research is determined by the fact that a feature of the legal nature of compulsory insurance, including public law and civil aspects, has been argued. It is in compulsory insurance that public-legal relations prevail, where the purpose of regulation is more of a public nature, since ensuring the social interests of the country's population is the primary task of public administration in general, including compulsory insurance. In order to eliminate the identified contradictions in the regulation of compulsory insurance, it is proposed to consolidate in the Law on the Organization of Insurance Business in the Russian Federation a separate chapter directly devoted to compulsory insurance, containing the basic terms and provisions.  It is necessary to exclude from Law No. 4015-1 the norms directly regulating contractual conditions in the field of compulsory insurance and place them in Chapter 48 of the Civil Code of the Russian Federation and in special laws on the regulation of certain types of compulsory insurance.

38-44 156
Abstract

The aim of the work is to analyze the problems of public law regulation of the activities of local governments in the field of public health protection.

Based on the goal set, the objectives of the study include an analysis of the problems associated with determining the public law status of both the organizational structures of municipalities exercising powers in the field of health care, and those few medical organizations that are still sometimes found in individual subjects of the Russian Federation.

The importance of discussing the issue of public law regulation of municipal medicine is due to the fact that the health protection legislation in relation to the former municipal medical organizations is applied taking into account the fact that since 2011 all of them have been subordinated to the subjects of the Russian Federation.

The principal conclusion of the article is that municipalities should be able to create and finance medical organizations if the budget of the municipality allows it. Accordingly, the task is to correct the legislation that determines the competence of municipalities in the field of health care.

45-53 172
Abstract

The purpose of this study is to substantiate the concept of a broad approach to the definition of the concept of "illegal migrant", which is a necessary condition for achieving the goals of the state migration policy of the Russian Federation, deter-mining the range of such subjects of migration and legal relations. 

As a result of the study, it was revealed that traditionally in the modern scientific paradigm an approach has been formed in accordance with which a foreign citizen or a stateless person acts as an illegal migrant, which is unreasonable, firstly, from the point of view of the concept of the state migration policy of Russia, and secondly, with the position of stereotypes formed in the Soviet period to counteract the illegal stay of foreign citizens and stateless persons in the country. This circum-stance testifies to the current lack of understanding of the ideas of the need for a systematic approach to solving the problems of migration in the Russian Federation. 

Conclusion: in the course of the study, the author formulated the author's vision not only of the concept of "illegal migrant", but also proposed a system of types of such subjects of migration and legal relations, requiring in the future the formation of their special administrative and legal status.

54-59 163
Abstract

The aim of the work is to highlight the issue of the structure and content of municipal legal relations. It cannot be said that this is an absolutely new direction of research, but the practice of applying the norms of municipal law forces us to give them a proper theoretical and practical assessment. An attempt is made on this example to highlight a more general problem of systemic interaction within the framework of public legal relations in general.

The objectives of the work include illustration and analysis of theoretical, research, as well as the practice of applying the norms of municipal law in the new paradigm of public authority.

Various types of rights and obligations inherent in the subjects of municipal legal relations make us think again about the subject of municipal law.

The idea is proved that the constitutional reform of 2020 created a new system of public authority, which in turn makes us get away from the idea of the exclusive, absolutely specific nature of municipal legal relations. It is assumed that there is every reason to consider them exclusively as a kind of grassroots level of public authority. At the same time, the question of whether there should be a mandatory subject endowed with public powers should be present in municipal legal relations.

60-71 118
Abstract

Currently, territories with a special public-legal status are being actively created in the Russian Federation. The trend towards their establishment and development has been gradually increasing its dynamics since the early 1990s. This is due to the variety of tasks facing the country. Over the past three decades, various types and forms of territories with special features or preferences have been tested at the legislative level, as a result of which some go into oblivion, while others receive their prevalence. At the same time, the species diversity of territories with a special status available in Russia still lags far behind in its development from foreign countries, among which there are those that have accepted and developed similar territories for more than a century. Thus, there is an objective need to conduct a scientific study of the types of territories with a special public-legal status in the Russian Federation and the criteria for their classification.

The purpose of the study is to determine the grounds for classifying territories with a special public–legal status, a synopsis of the foreign experience of their creation, and to establish the features of legal support for the functioning of the studied territories.

72-81 206
Abstract

The article examines the issue of harmonizing the rules of international legal doctrines in the field of identifying unreasonable tax benefits with the domestic national legislation of the Russian Federation. It is noted that the Russian law and order uses in the practice of tax legal relations, provisions and recommendations of almost all international doctrines: a step transaction doctrine, the predominance of substance over form (equity above the form), business purpose, cost reality, "one hand," "tearing down the corporate veil," actual place of activity. The main focus is on the first three, since everyone else is included in their content to one degree or another: the peculiarities of the implementation of each doctrine in the practice of Russian law enforcement are investigated. The need for constant interaction on international platforms of the Russian Federation with other states in the field of identifying unreasonable tax benefits is justified, since this problem is not only an internal national character of a separate state, but in the 21st century it has acquired transnational international meaning. This is due to the unprecedented opportunities in the history of mankind for freedom of movement of capital, people, goods and services, and therefore the emergence of international schemes for tax evasion or improvement of schemes for tax abuse. The article emphasizes the relevance of the affected problem, since its research contributes to the improvement of internal legal procedures for identifying malicious schemes for obtaining unreasonable tax benefits by the payer and makes it possible to gain national experience in the field of combating tax abuse.

As a result of the study, it is noted that the main forms of cooperation between the Russian and international law and order in the field of identifying unreasonable tax benefits are the harmonization of general anti-bias rules (GAAR), which include recommendations for combating tax evasion and doctrines that determine the criteria for identifying tax abuses in the actions of the payer in order to obtain unreasonable tax benefits. Being perceived by the Russian law and order, the provisions of international doctrines almost generally and invariably acquired the form of legal positions enshrined in judicial acts, federal laws and departmental regulations.

Conclusion. The criteria for determining an unreasonable tax benefit based on the essence and meaning of the doctrines – a transaction by steps, the predominance of substance over form and business purpose are as follows: 1) the transaction must have an economic essence independent and different from the purpose of tax cuts; 2) it is necessary to establish the true meaning of the operation by examining the entire chain of transactions of participants, since the assessment of such a transaction by itself, separately, does not allow to establish with certainty what goals it was aimed at; 3) when assessing the tax consequences of a transaction, the main fact that the court (or tax authority) considers is the actual relationship between payers (parties to the transaction), and not the external form that was deliberately given to such a transaction.

82-89 267
Abstract

The article investigates in historical and modern aspects the institution of referendum in domestic constitutional law, with the author's approach to the subject of referendum.

The purpose of the research is to study the evolution of formation and application of the form of popular democracy – referendum in the domestic constitutional law. Tasks of the research: to analyze the history of formation and development of the institute of referendum in Russia, to consider the world and domestic practice of using the institute of referendum for solving important state and socially significant issues in the management of the state, to make proposals for improving the federal legislation of the country in this area.

90-101 136
Abstract

Modern social relations in which artificial intelligence systems are involved have a legal basis that has begun to form. Currently, documents regulating relations in the field of development and application of artificial intelligence systems establish tasks for creating conditions for the development of the foundations of the legal regime of these social relations and identifying legal barriers that impede this process.

Provisional measures for the development of legal relations in the field of artificial intelligence systems raise questions for science about the future of the administration of justice in the situation of its automation. Including its full automation – replacing the judge with a system of strong (or universal) artificial intelligence, comparable to human intelligence. That is, capable of analyzing the factual circumstances of the case, giving them a legal assessment and making an appropriate (adequate) decision.

The authors, based on existing approaches of domestic and foreign scientists, taking into account the conceptual ideas (principles) developed by international intergovernmental organizations to ensure the safe development and use of artificial intelligence, analyze the possibility, necessity and limits of introducing artificial intelligence technologies into the system of administration of Russian justice, establish key factors obstacles to this process, depending on the depth of implementation, its main risks are predicted.

The purpose of the study is to identify the ability of the principles of justice to influence the restriction of the activities of artificial intelligence systems in the context of the social purpose of justice. Setting this goal determined the solution of the following tasks:

  • establish the influence of the social environment, and therefore the social conditionality of the introduction of artificial intelligence systems in the field of justice;
  • taking into account world experience, conduct an analysis of existing approaches in modern science to the implementation of artificial intelligence systems in the field of justice;
  • study international documents establishing the basic principles of admissibility, limits and safety of the use of artificial intelligence systems;
  • consider the activities of artificial intelligence systems for the ability of this activity to comply with the content of the principles of justice and possible threats in the event of legitimation of this activity.

When performing the work, general, general scientific, special scientific and special research methods were used.

The conducted research allowed us to come to the following main result: the introduction of artificial intelligence technologies into the judicial system of states, including the judicial system of Russia, indicates the ability of the procedural norms already in force in the state to exercise regulatory legal influence on the implementation (administration) of justice with the help of artificial technologies intelligence and simultaneously act as a legal barrier that prevents the administration of justice by an artificial intelligence system.

The conclusions formulated are aimed at further development of theoretical proposals.

PRIVATE LAW (CIVIL LAW) SCIENCES

102-110 146
Abstract

The process of reforming modern Russian procedural legislation is connected, among other things, with the ideas of unification of the norms of administrative, arbitration and civil proceedings. At the legislative level, the tangible result of these reforms, in the form of the adoption of a single procedural law, has not been achieved. Despite the absence of fundamental procedural differences in the procedure for consideration of civil and administrative cases by arbitration courts and courts of general jurisdiction, many norms of the current procedural codes regulating similar institutions are distinctive. At the same time, the provisions of these normative acts allow courts, in the absence of the necessary procedural norm, to apply a norm regulating similar relations (analogy of the law). Analysis of the explanations of the Supreme Court of the Russian Federation on issues of procedural law has shown that the possibility of applying the analogy of the law is indicated by the highest court quite often. 

The purpose of this article is to determine in which cases arbitration courts and courts of general jurisdiction apply the rules of procedural law by analogy; the provisions of which regulations are sources of analogy of the law; to find out whether the analogy of the law can be a way to unify procedural legislation in the absence of relevant provisions at the legislative level. 

The results of the study showed that the application of the analogy of the law by the courts is carried out, as a rule, based on a direct indication of such a possibility in acts of official interpretation. The use of the analogy of the procedural law in most cases is associated with the mutual use of the norms of legislation on administrative, arbitration and civil proceedings. The application of the law by analogy may be one of the tools for the unification of the current procedural legislation of the Russian Federation in the absence of a single procedural law.

CRIMINAL LAW SCIENCES

111-119 129
Abstract

The purpose of the work is to analyze theoretical and practical issues related to the differentiation of various forms of theft, namely theft and fraud, when they were committed in relation to such a specific subject as money from a bank account and electronic money.

The task of the work is to study the theoretical and practical aspects of the qualification of theft of funds held in a bank account and electronic money, including the analysis of the latest recommendations of the Supreme Court of the Russian Federation, set out in the updated versions of the resolutions of the Plenum of the Supreme Court of the Russian Federation "On judicial practice in cases of theft, robbery and robbery" and "On judicial practice in cases of about fraud, embezzlement and embezzlement."

The research methodology is characterized by the use of the dialectical method, as well as modern general scientific, private scientific and special methods: system-structural, normative-logical, comparative, etc.

As a result of the conducted research, the author comes to the conclusion that it is necessary to adjust the criminal law in order to more clearly distinguish theft and fraud when they were committed in relation to funds from a bank account and elec tronic money, and as a consequence – the correct qualification of the deed.

120-129 127
Abstract

The aim of the work is to substantiate the main methodological approaches to understanding the content, meaning and purpose of traditional Russian-spiritual morals, which allows adapting the officially approved axiological system to the needs of legal regulation and legal analysis.

Research methods: analytical and formal-logical, applied in line with the conceptual requirements of constitutional axiology, historical-cultural and cross-cultural studies.

The results of the study: the inadmissibility of recognizing the normative fixation of traditional values as a manifestation of the approval of official ideology is substantiated; the expediency of legal studies of traditional values exclusively within the framework of the concept of security and its provision is proved; the unacceptable nature of the opposition of Russian values to the values of Western civilization, and traditional values to the values of liberalism is argued; the conservative nature of the content of traditional Russian values is established; the possibility of expanding the nomenclature of traditional values with restrictions set by their functional purpose is confirmed.

Conclusions: only the correct definition of the methodological foundations for understanding and researching traditional values will allow them to be converted into a resource for development and security, while avoiding unacceptable violations of constitutional prohibitions on establishing an official ideology and supporting extremism.

130-138 105
Abstract

The problem of mortality from poisoning by surrogate alcohol has acquired huge proportions in recent years. The legislative initiative to establish criminal liability for the illegal trafficking of methyl alcohol (methanol), methanol-containing liquids under the guise of alcoholic beverages was supported by the Supreme Court of Russia and in May 2023 introduced Article 2342 of the Criminal Code of the Russian Federation.

The purpose of the study is to predict the prospects for the implementation of Article 2342 of the Criminal Code of the Russian Federation in practice.

The work uses general scientific and private scientific research methods. Based on the analysis of the implementation of related criminal law torts, the rules of competition with Article 2342 of the Criminal Code of the Russian Federation are determined. By means of the modeling method, it became possible to identify "bottlenecks" in the establishment of subjective and objective signs of the considered corpus delicti. The method of legal forecasting made it possible to formulate scientifically sound prospects for the implementation of the novel.

As a result, technical and legal errors of the novel were revealed, such as an excessive indication of "illegality" in relation to the use of methanol in food products; intentional sale of methanol as alcoholic beverages and causing serious harm to the health or death of the victim by negligence. The subjective and objective signs of this corpus delicti have been determined. It is suggested that art. 2342of the Criminal Code of the Russian Federation will be a kind of "frightening" criminal law mechanism without the possibility of its implementation in practice due to the lack of control and supervisory measures in the production of methanol and the design features of the subjective side – intent to sell alcoholic beverages containing methanol.



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ISSN 2078-5836 (Print)
ISSN 2782-5841 (Online)