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Legal Bulletin of the Kuban State University

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No 2 (2024)
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THEORETICAL-HISTORICAL LEGAL SCIENCES

7-16 141
Abstract

The purpose of the work was to identify and formulate the main provisions, the initial views of supporters of the School of Critical Legal Studies, which have developed in the United States since the 1970s of the twentieth century, through an analysis of the views of one of the activists of the movement of critical legal studies, the Brazilian statesman and jurist Roberto Mangabeira Unger. 

The objectives of the work include studying the conditions for the emergence and origins of critical legal research, analyzing the methodological basis, studying the works and statements of R. Unger, formulating the postulates of the school of critical legal research and the foundations of R. Unger’s political and legal theory. To achieve the set goal and solve problems, the author uses such general scientific and specific scientific methods as analysis, synthesis, historical, system-structural, comparative methods. In addition, the author's interpretation of R. Unger's views is presented based on the translation of his Englishlanguage works.

Results: objective and subjective factors in the formation of the School of Critical Legal Studies have been identified, the connection between the ideas of the school’s supporters and the moderate direction of American sociological jurisprudence and the realistic school of law has been identified, the main postulates of the supporters of critical legal studies have been formulated based on the provisions of the political and legal views of R. Unger. 

Conclusions: The school of critical legal studies arose on the basis of an understanding of law primarily as a social institution designed to ensure a balance of individual, social and state interests. Like legal realists, representatives of the school tried to demythologize legal phenomena by analyzing the legal life of society. In addition, Unger, appealing to O. Holmes’s views on law as a product of experience, saw the further development of human society through the introduction of new technologies and experiments based on social solidarity and cooperation, when the state and law act as guardians of society and do not limit it progressive development.

17-23 109
Abstract

The purpose of this article is to analyze the concepts of interpretation and construction of legal norms in modern India, as well as the rules for their implementation. 

To achieve this goal, the author sets himself the objectives of defining and correlating the concepts of interpretation and interpretation of law, as well as characterizing the general rules for their implementation.

To solve these objectives, the author uses comparative legal and logical methods, as well as systemic and structural analysis.

As a result of the research, it is shown that in Indian legal science and law enforcement, the difference between the concepts of «interpretation» and «construction» does exist, and this is connected differentiation mainly with the broad powers of the judiciary to issue judicial precedents.

Conclusion. The concepts of «interpretation» and «construction» of law in India should not be identified with the concepts of clarification and clarification. Interpretation involves theoretical activity aimed at determining the meaning of a rule of law, and interpretation is associated with the process of implementing the law through its adaptation to existing social relations.

PUBLIC LAW (STATE LAW) SCIENCES

24-34 130
Abstract

The purpose of the study is to analyze the state of modern constitutional culture in the era of changing political and ideological guidelines, the transition from a liberal-universal model of constitutional development to a nationally oriented one.

The objectives of the study are the following: to determine the main characteristics of the state of constitutional culture in the era of excessive enthusiasm for universal liberal values at the end of the last century; analyze the main trends in the processes of constitutional and legal reform in the light of the ideas of protecting constitutional identity, ensuring constitutional sovereignty and protecting traditional values; consider the impact of the constitutional reform of 2020 on the qualitative change in the constitutional culture of Russians, its significance for determining the future paths of constitutional and legal development of Russia, and identify the positive and most controversial aspects of the reform. The work used general scientific, special scientific and special research methods. Based on the results of the study, the author concludes that today a steady trend has formed towards reforming the constitutional and legal space – the ideas of liberal universalization are opposed to the ideas of constitutional identity and the protection of traditional values. At one time, the new Russian Constitution was designed to take into account all the shortcomings of decades of socialist construction and act not as a document of a political-declaratory nature, but as a basis for the creation of a state and society of a fundamentally new type. According to the author, excessive passion for borrowed values of a universal nature has had the most negative impact on the state of the constitutional culture of Russians. However, even today it is obvious that a well-developed theoretical structure that would relatively accurately and legally definitely outline the main directions of further constitutional development, in line with the development of the idea of protecting traditional values, does not exist today, which is especially noticeable in the example of documents of a programmatic and political nature . The constitutional reform of 2020, according to the author, reflected new trends and approaches to the idea of ensuring constitutional identity and symbolized significant changes in constitutional culture, including at the level of ordinary consciousness of ordinary Russians who were directly involved in the process of constitutional reform. However, the author concludes that the constitutional reform is incomplete, which generally characterizes the state of domestic constitutional culture.

35-41 191
Abstract

The purpose of this study is to determine the political and legal ideology that developed in the Russian Empire in the second half of the 19th – early 20th centuries in the field of people's preservation and its provision by means of police law. 

As a result of the study, it was revealed that in the process of evolution of the formation of police law in Russia and the transformation of this branch into the law of public administration, within the framework of the subject of legal regulation, the right of improvement was singled out, where an important place was occupied by the law of population and the right to preserve the population, which took its political and legal origin from the ideas of M.V. Lomonosov and was initially formed into the concept of demographic populationism, which was transformed by the end of the 19th century. at the beginning of the 20th century into the ideology of demographic mercantilism. 

Conclusion: as a result of the existing approaches to the construction of the system of the subject and the system of police law in the second half of the 19th – early 20th centuries, it is determined that within the framework of the police (dogmatic) doctrine of this branch, the problems of people's preservation lost their significance, while representatives of the liberal (political and economic) trend defended the approach to expanding the formation of the administrative and legal foundations of the people's preservation police.

42-49 149
Abstract

This article is devoted to the study of the possibilities of artificial intelligence in the field of ensuring and protecting human rights and freedoms. The main threats and risks of digitalization arising in the process of protecting human rights and freedoms are considered. In particular, the rights to Internet access, privacy rights, rights to personal data protection, etc. The available possibilities of using artificial intelligence in the field of human rights protection are analyzed and possible ways of their development are determined. Within the framework of this article, it is proposed to consider digital rights as a new generation of human rights that needs theoretical and legal construction and constitutional legal consolidation. Accordingly, the authors of this article aim to analyze the legal structure of «digital rights» in the public legal dimension in the context of the influence of artificial intelligence and digital technologies on them. The methodological basis consists of formal legal, systemic and comparative legal methods. The axiological approach used by the authors is of great importance for the analysis of the current state of the legal status of a person and the prospects for its improvement in the conditions of digital reality. The analysis of a significant array of international legal documents and Russian normative legal acts allows the authors to substantiate the emergence of a new category of human and civil rights – digital, in need of constitutional and legal consolidation. 

PRIVATE LAW (CIVIL LAW) SCIENCES

50-61 164
Abstract

The purpose of this article is to study the theoretical and legal aspects of compensation for moral damage as a mechanism for the prevention of offenses in the Internet environment. To achieve this goal, tasks such as the analysis of the content of the concept of «moral harm», the study of criteria for the systematization of personal non-property rights are set. The article uses modern methods of scientific cognition such as general scientific and private scientific research methods, which together made it possible to characterize compensation for moral damage as a mechanism for preventing offenses in the Internet environment.

The results of the study include the formulation of scientific and practical proposals to improve the legal regulation of compensation for moral damage in the Internet environment in Russia, taking into account the established legal practice in foreign countries. The legal essence of moral damage as an evaluative concept and legal category is revealed in the fact that when determining the amount of the latter, judicial discretion is taken into account to the extent that it is allowed by Russian law, the model of civil procedure, the existing judicial system and established practice in courts. The article also touches upon the theoretical dilemma regarding the identification of a person in the digital space through the coverage of issues of the correctness of the use of personal data in the Internet environment. As a result, it is proposed to legislatively define the concept of «personal data» as «any information related to an identified individual or an individual who can be identified.» The analysis of the problem of tracking and recording the facts of offenses in the Internet environment, the problem of determining the amount and payment of compensation for moral damage caused in the Internet space is consistently given.

The study is accompanied by conclusions arising from the analysis of the legislative regulation of compensation for moral damage caused on the Internet. As a result, the authors come to the conclusion that compensation for moral damage has certain features of manifestation on the Internet. Cases in this category have certain difficulties (the uncertainty of the defendant, the large volume of the information dissemination site, the defendant's ability to delete information, high costs for ensuring pre-trial fixation of evidence), which contributes to an increase in the marginal environment of the Internet environment. A proposal has been formulated on the need to catalog the amounts for causing moral suffering and provide the perpetrator with a wide margin of discretion, taking into account new approaches to determining the amount of compensation for moral harm on the Internet.

62-68 130
Abstract

The objectives of this study are to identify the role of civil legislation in the implementation of the policy of the welfare state at the present stage of state development and to identify the main features of the social orientation of civil law regulation.

To achieve the goals of the study, the author analyzes the basic concepts necessary to determine the essence of the social orientation of law, namely "social" and "socialization", examines the doctrinal opinions of both domestic and foreign scientists on the importance of civil regulation in achieving social objectives, conducts a comparative legal analysis of domestic and foreign legislation in order to determine the level of legal regulation of the socialization of law.

Based on the results of the study, the author identifies and argues for the main features of the social orientation of civil law regulation. It is determined how private law norms should be coordinated with the policy of the welfare state, regulated at the constitutional level.

69-76 98
Abstract

The purpose of the work is to analyze the novelties of legislation in the field of extraordinary appeal of erroneous recovery in bankruptcy.

The objectives of the study include reviewing changes in bankruptcy legislation, determining the range of subjects entitled to extraordinary appeal, studying the specifics of restoring the appeal period and evaluating the effectiveness of this institution as a tool for protecting creditors' rights.

Currently, there is an increasing importance of mechanisms for protecting the rights of participants in bankruptcy proceedings, due to the complexity and versatility of bankruptcy cases. Federal Law No. 107-FZ of 29.05.2024 introduced significant changes to the bankruptcy legislation, which legislated the institution of extraordinary appeal.

The principal conclusion of the article is that an extraordinary appeal against an erroneous recovery in bankruptcy is an effective tool for protecting creditors' rights and ensuring the stability of civil turnover. The author proves that this mechanism makes it possible to exclude fictitious debts from the register of creditors' claims and prevent the devaluation of their mandatory claims.

77-84 118
Abstract

In the current labor legislation practically there are no rules governing relations with industrial groups of employees. However, the association of workers into groups, due to the common social and labor interests, widespread during the Soviet period, has not lost its relevance even today, on the contrary, in modern conditions there is a tendency to strengthen collective beginnings in the process of production activities

The purpose of the study: determining the place of a group of workers in the system of modern subjects of labour law. 

Tasks: to study groups of workers as subjects of labor law in Russia and abroad, to study forms that accept groups of workers in traditional and atypical labor relations, to determine the status of modern industrial groups, proposals to improve labour legislation with regard to the legal regulation of labour relations with groups of workers. 

In the process of work such research methods as the method of scientific analysis, as well as formallogical, system-structural, technical-legal methods and comparative methods were used. 

Results: analysis of selected atypical forms of employment (various forms of joint work and temporary management)as well as the analysis of new approaches to the management of independent work leads to the conclusion that the issue of regulation of the legal status of groups of production associations of employees is being updated. The author notes the similarity of the structure and organization of such entities with the group forms of production activities known to Soviet legislation.

Conclusions. It is concluded that it is necessary to legally define groups of workers as subjects of labor legislation, to determine the place of such subjects in the system of subjects of labor relations, as well as to regulate both intra-group and external relations of the group, including the employer.

85-92 105
Abstract

The purpose of the work is to study the issue of the concept of restrictions on ownership of land real estate and the place of this doctrinal category in the system of civil concepts. The main attention was paid to the consideration of the relationship between the categories of restrictions, encumbrances and the limits of the right of private and public ownership of land real estate.

The objectives of the work include the formulation of the definition and identification of the legal nature of restrictions on ownership of land real estate. It is substantiated that restrictions on the ownership of land real estate are a set of prohibitions established in federal laws and additional obligations of citizens and legal entities, narrowing the scope of their rights to use and/or dispose of land plots to ensure public goals and interests. The evidence of the differences between restrictions and related legal concepts, including encumbrances and limits of ownership of immovable land, is presented. It is proved that the establishment of restrictions does not entail the exclusion of any authority of the owner, but his ability to use or dispose of land real estate is decreasing (narrowing). This may manifest itself in a ban on the sale of land to foreigners or a ban on improving the site by means of land reclamation, etc.

CRIMINAL LAW SCIENCES

93-97 184
Abstract

The purpose of this article is to give recommendations aimed at establishing psychological contact during interrogation conducted using video-conferencing by including the investigator/interrogator located at the location of the witness as a subject of tactical influence.

This goal is achieved through solving a number of problems, which include analyzing the changes made to the Criminal Procedure Code of the Russian Federation, adding an additional participant when carrying out the type of interrogation under consideration, predicting his role in solving the current problem in the form of establishing psychological contact.

Based on the data obtained, specific tactical recommendations are formulated for the use of tactical techniques for establishing psychological contact.

98-103 122
Abstract

The purpose of the work is to conduct a historical and legal analysis of the prevention of involvement in the criminal subculture of minors. Based on this goal, the objectives of the study include the identification of theoretical and practical problems in identifying the periods of formation of the criminal subculture of minors, as well as the establishment of measures to prevent the involvement of minors in the criminal subculture. 

The article uses a set of general scientific and private scientific methods. Among them, the author uses analysis, systemic, historical, formal legal and content analysis. In addition, the methodological basis of the research is the dialectical method of cognition.

In conclusion, the periods of formation of the criminal subculture of minors are highlighted. It is noted that in the historical aspect, there were no comprehensive measures to prevent the involvement of minors in the criminal subculture, they were associated with measures to prevent and prevent juvenile delinquency in general.

104-109 113
Abstract

The article analyzes one of the conditions for carrying out an inquiry in an abbreviated form – the suspect’s recognition of his guilt. It is concluded that this condition is mandatory. Despite its ambiguous assessments in the legal literature and unfavorable forecasts regarding possible methods of obtaining it, it is justified that an admission of guilt plays a special role in resolving the issue of conducting an inquiry in an abbreviated form.

The purpose of the study is to develop theoretical principles and solve applied problems regarding the suspect’s recognition of his guilt as one of the conditions for conducting an inquiry in an abbreviated form. 

The setting of this goal determined the solution of the following tasks: to determine the nature of the suspect’s recognition of his guilt when conducting an inquiry in an abbreviated form; establish the role of the suspect admitting his guilt when conducting an inquiry in an abbreviated form; based on the studied opinions in the science of criminal proceedings, formulate the author’s vision for the suspect’s recognition of his guilt as a condition for carrying out an inquiry in an abbreviated form; identify and critically comprehend the problematic aspects of law enforcement practice when a suspect admits his guilt when conducting an inquiry in an abbreviated form.

The conclusions formulated in the article are focused on the further development of proposals of a theoretical and applied nature regarding the admission of guilt as one of the conditions for carrying out an inquiry in an abbreviated form.

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