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No 1 (2025)
Theoretical and historical legal studies
Uncertainty of the Legal Categoral Apparatus in the Field of Legal Regulation of Digital Legal Relations
Abstract
The rapid development of digitalization and legal relations emerging in the digital space contributes to the replenishment of the terminological apparatus used there. Its study by legal science is aimed at eliminating violations of the rules of legal technology in the implementation of legal regulation of digital legal relations.
The subject of this study is the problems introduced into the theory of law and lawmaking by the uncertainty and instability of the conceptual apparatus used in the digital space. The study was conducted based on methods of logical and legal analysis. With their help, theoretical and practical problems of using the conceptual apparatus in designating (describing) and regulating digital legal relations were identified.
The author reveals the definition of the basic concepts used in the digital space, argues the unjustified use of some of them in legal documents and legal acts, as well as the need to comply with the rules of legal technology that exclude the use of slang and jargon (which abound in the digital space) when implementing legal regulation.
Based on the results of the study, the following conclusions were drawn: the uncertainty of the conceptual apparatus is inherent in science as a whole, and this is a given, which is determined by the constant development and accumulation of new knowledge. In legal science, the uncertainty of the conceptual apparatus, more than anywhere else, is a factor that complicates and slows down the development of modern legal theory, and as a consequence, subsequent law enforcement. The sphere of legal regulation of digital legal relations is no exception. This circumstance is determined, first of all, by the specific organization of the digital space itself, the presence of a technical component and associated terms, as well as the rooting of concepts formed through the adaptation of foreign words, network slang and jargon. Underestimation of the risks and threats that the digital space can bring also plays a certain role. All this points to the need to create a state concept of legal regulation of digital legal relations. Basic (fundamental) concepts and terms that are subject to legal use in the digital space also need legislative support.
5-16
Development of the Theory of Security Measures in Russia and Abroad: Historical and Legal Analysis
Abstract
In domestic and foreign legal science, there is still no unity in ideas about the subject and properties of such means of state legal regulation as security measures. The process of formation of the theory of security measures in law and their reflection in legislation is in an active phase of development. Since the formation of a generally accepted legal concept of security measures, understandable to the legislator and law enforcement agencies, has not yet been completed, it is of scientific and practical importance to solve the problem of differentiating security measures from the concepts of “protective measures”, “punitive measures”, “preventive measures” and a number of other related categories that have already been established in legislation and developed in detail in science.
First of all, comparative and historical-legal methods of analyzing the source base, legislation and administrative practice abroad and in Russia during the XIX–XX centuries are used as a methodological basis for understanding the scientific task. Based on a comparative analysis of the most significant historical, philosophical and theoretical legal doctrines, the article attempts to present a holistic picture of the evolution of the legal theory of security measures and identify the main stages of the development of legislative regulation of security measures.
Despite the fact that certain de facto security measures appeared together with law and existed inextricably with it throughout the history of civilization, only a sufficiently developed level of legal doctrine in the XIX and especially in the XX century made it possible to allocate security measures to a special group of means of legal influence, actualized the need for research on the philosophical and legal essence, permissibility the limits of the use of legal means of ensuring security and other instrumental and applied aspects of the theory of security measures in law.
17-27
Public law (state law) studies
Writ of Certiorari as a Means of Ensuring Centralization of Diffuse Constitutional Review
Abstract
The article examines the current state of the US Supreme Court in the context of global trends in constitutional review models. It focuses on the significant changes in the Court’s powers, particularly the gradual convergence and blurring of distinctions between the American and European models of constitutional review. Notably, there is a shift towards eliminating mandatory appellate jurisdiction, with an increased use of the writ of certiorari, which allows the Court to selectively choose which cases involving federal law it will hear. After reviewing a substantial body of sources on US court legislation and contemporary American legal doctrine, the author concludes that, since the late 20th century, the US Supreme Court has been minimizing its role as a general jurisdiction court and evolving into a specialized constitutional court with centralized jurisdiction.
28-35
Tax Disputes Considered by Arbitration Courts
Abstract
The article discusses the features of tax disputes considered by arbitration courts. The authors noted the main causes of tax disputes. It has been established that a significant proportion of tax disputes in the practice of arbitration courts falls on disputes relating to the receipt of unjustified tax benefits by taxpayers. It is indicated that the reform of tax legislation will give rise to new categories of tax disputes, change their quality and complexity.
36-46
Private law (civil law) studies
Subject of Protection in Cases of Special Proceedings: Subjective Right or Legal Interest?
Abstract
The discussion about what distinguishes special proceedings in civil and arbitration proceedings from claims has been conducted in Russian procedural science for more than a dozen years. The scientific community has proposed a number of criteria to explain the specific nature of a special production and to distinguish it from the production of a claim. One of these criteria is the subject of protection, but even in this matter, process scientists have failed to achieve unity. Some researchers are of the opinion that the subject of protection in cases of this type of production is a legitimate, legally protected legal interest, while others believe that the subject of protection in this case may also be a subjective right.
To clarify this difficult issue, it is necessary to start from what constitutes subjective law and legal interest as legal permissions, what are the main types of legal interests, what is the difference in the legal regulation of legal interests and subjective rights, how such a difference affects the legal facts that are the grounds for the emergence, modification or termination of legal relations, the content of which are, respectively, legal interests and subjective rights.
The study was carried out using the formal logical method, the method of system analysis, comparative legal and special legal methods.
The conducted research has shown that in the order of the so-called disputed cases of special proceedings, both subjective rights and final legal interests can be the subject of protection (this is the name given to legal interests that are not capable of turning into a subjective right). At the same time, unlike subjective rights, the protection of which in a special procedure involves the elimination of the disputability of only the actual characteristics of a legal fact, the final legal interest is protected by eliminating the disputability of the actual or legal characteristics of a legal fact, which is the basis for the emergence of a legal relationship.
In so-called undisputed cases of special proceedings, intermediate legal interests are the subject of protection. As a result of the resolution of the case, the intermediate legal interest becomes a subjective right and is subsequently implemented as a subjective right. The indisputable order of special proceedings is determined by the fact that the court creates a legal composition that replaces the missing and non-recoverable legal fact, which is the basis for the emergence of subjective law.
47-55
Exclusion of a Personal Insurance Contract from the System of Public Contracts
Abstract
The article examines the concept and content of a public contract based on the positions of the legislator, the Supreme Court of the Russian Federation, and the Constitutional Court of the Russian Federation. The amendments introduced to exclude personal insurance contracts from the system of public contracts are criticized.
The goals and objectives of the study are to identify legally defined approaches of the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation, doctrinal positions regarding the classification (non-classification) of a personal insurance contract as a public contract.
The study was carried out using a comparative legal method, which made it possible to study the position of the legislator, law enforcer, and the scientific community. In addition, the work used formal-logical and systematic methods.
The result of the study is a brief comparative legal analysis of the legal nature of personal insurance contracts. The author, giving appropriate arguments, adheres to the position that it is premature to exclude a personal insurance contract from the system of public contracts.
56-61
Criminal law studies
Some Problems in Criminal Proceedings with Jury Participation: a Law Enforcer’s View
Abstract
The main challenges in criminal proceedings are conflicts between individual norms of the Criminal Procedure Law, which effectively result in the substitution of constitutional provisions with separate federal law acts that violate fundamental citizens’ rights guaranteed by the Constitution of the Russian Federation, particularly the right to equal access to justice for the protection of one’s rights and freedoms.
Research objectives – to study and analyze legal issues arising during court proceedings with jury participation when examining specific criminal cases where federal law norms contradicting constitutional provisions are applied or are to be applied, particularly in cases of legal conflicts regarding the equality of defendants’ rights to a lawful court, as well as in cases of conflicts between intrabranch and interbranch legal norms. In this regard, considering the ambiguity of understanding the concepts of the Jury Trial Institution in scientific and legal circles, the study addresses such basic concepts as “jury trial” and the distinction between the right to a jury trial and jurisdiction. Considering the binding nature of the Constitutional Court of the Russian Federation’s decisions for courts of general jurisdiction, an analysis of its positions regarding citizens’ complaints and court inquiries about the constitutionality of specific federal legislation acts has been conducted.
The study of these issues aims to find legal ways for the court to make final decisions that comply with constitutional provisions. The relevance of this research is also determined by the expansion of jury trial activities to district-level courts.
The conclusions presented in the study are not meant to be critical but are aimed at improving legislation regulating court proceedings with jury participation, considering proposals on specific legal issues.
62-72
Reasons for Compulsory Hospitalisation of a Criminally Prosecuted Person for the Purpose of Inpatient Forensic Psychiatric Examination
Abstract
The article is devoted to the problem of conducting an inpatient examination of the mental state of the accused in the presence of doubts about his sanity. The main purpose of the study is to substantiate the thesis that forced hospitalization is one of the measures of criminal procedural coercion used in the framework of the investigative action.
Using dialectical, inductive-deductive and comparative legal methods of scientific research, the author solves a set of tasks: analyzes the dynamics of the development of criminal procedural legislation, as well as legislation in the field of public health protection, which regulates the conduct of forensic psychiatric examination in inpatient conditions; summarizes the existing judicial practice of forced hospitalization; identifies the specifics of the grounds for conducting an inpatient forensic psychiatric examination.
An analysis of the development of modern criminal procedure legislation has made it possible to state a phased expansion of the list of grounds for placing a person in a medical organization providing psychiatric care in an inpatient setting for expert research, which predetermines the need to search for an optimal mechanism for protecting his rights and freedoms, as well as optimizing the criminal procedural form of forced hospitalization. The author examines the problem of conducting an inpatient forensic psychiatric examination in the context of a significant restriction of the rights and freedoms of a hospitalized person, offers a classification of its grounds in accordance with medical and legal criteria, clarifies the purpose of expert research.
As a result of the study, it is concluded that the appointment of an inpatient forensic psychiatric examination, which involves forced hospitalization of a person, is due to a set of factors, which are proposed to be structured as follows: legal, the presence of which indicates the impossibility (inexpediency) of conducting an outpatient forensic examination, as well as medical, characterizing the personality of the accused (suspect) and the state of his mental health.
73-81
Judicial Protection of Individual Rights in Criminal Proceedings: Concept and Characteristics
Abstract
The purpose of the study is to analyze existing points of view in various branches of legal knowledge, highlight the characteristics of judicial protection in criminal cases and formulate its definition.
Research methods: the general philosophical dialectical method of scientific knowledge, the general scientific method of knowledge, expressed in analysis and synthesis, induction and deduction, as well as special scientific methods of knowledge.
The author comes to the conclusion that the main features of judicial protection of individual rights in criminal proceedings are the judicial body, object, subject, procedure, universality, independence, situationality, individualization, instantiation, as well as judicial powers and judicial jurisdiction. Based on these features, the author offers the definition of judicial protection in criminal cases – a criminal procedure for the situational exercise of jurisdictional powers by an independent court (judge) in a certain instance, aimed at protecting and restoring all the rights of each individual violated as a result of an individualized material or procedural conflict.
82-94
Criminal Procedural and Criminalistic Aspects of the Examination of Evidence in a Jury Trial
Abstract
The provisions of the Criminal Procedure Law regulating the procedure for the presentation of evidence by the parties to the jury in a criminal case, the differences in the procedure for the examination of evidence by a professional judge and jury members are considered. On the basis of considering the points of view of other authors on this problem, analyzing the provisions of the theory of evidence, studying the existing judicial and investigative practice, the authors come to the conclusion that there is a deviation in this issue.
It is suggested that participants empowered to make important judicial decisions, such as verdicts and sentences, addressing the basic issues of the provenance of the crime, the involvement of the accused and his guilt, i. e. professional judges and jurors, should be given equal opportunities to perceive the information (evidence) presented by the parties during the course of the judicial investigation.
However, that is far from the case. Jury members receive information only by hearing, often without the ability to perceive visually or in other ways as professional judges. Some researchers of this issue propose to compensate for this inequality by talking about the introduction of elements of visibility into judicial proceedings, that is, derived materials obtained by some processing of the documents in the case in order to more fully perceive the main, key points. The authors evaluate the proposals put forward and introduce the limit of admissibility in court proceedings of such actions.
95-103
International law studies
Subsidiarity Principle in Functioning of Integrational Courts: EFTA Court and Unified Patent Court
Abstract
The article analyzes approaches to determining the principle of subsidiarity in the activities of international courts and its content in the context of interaction between the integration court and national courts of the member States of the respective organization.
The article raises the question of the possibility of applying this principle to characterize the legal status of the Court of Justice of the European Free Trade Association and the Unified Patent Court, in particular, from the point of their subsidiary nature to the Court of Justice of the European Union. In the context of this principle, certain features of the status of the European Free Trade Association Court and the Unified Patent Court in terms of their competence, the mechanisms of interaction with the national courts. The subsidiary nature of the designated integration courts vis-à-vis the Court of Justice of the European Union, as reflected in the delimitation of powers between the said bodies and their position regarding the institutional structure of the European Union, is substantiated.
The example of the European Free Trade Association Court and the Unified Patent Court illustrates how, for a single organization, several integration courts may operate concurrently, with varying powers arising from the objectives of their institution, while ensuring the unity of law enforcement.
104-112