DOI: 10.25136/2409-7136.2024.4.70275

EDN: TXAZGC

Abstract: The article discusses the problems of defining cyberspace and information space as a possible place of commission of a crime or other optional sign of an objective party in relation to specific acts provided for by the norms of the Special Part of the Criminal Code of the Russian Federation. The properties and characteristics of cyberspace are determined, and a comparison is made with the intangible and information space. The problem of determining the connection of cyberspace to specific objects of the material world – computer media, servers, the impossibility of the existence of cyberspace in isolation from three-dimensional reality at this stage of scientific and technological development, which predetermines the criminal legal classification of crimes, is noted. The scientific novelty of the work lies in the fact that the article substantiates an innovative approach to determining the place of intangible space in the system of composition characteristics. The author notes that the current realities force us to take a fresh look at the perception of the content of such a sign of the objective side of the crime as the place where the latter was committed, since its traditional understanding from the position of an object of material reality – a specific section of the earth’s surface, which has its own geographical landmarks and coordinates – does not meet the modern needs of the theory and practice of applying criminal law. As a result of the research, the author concludes that the development of computer technologies, communications and the information and telecommunications network “Internet” contributed to the emergence of a new – information – space, which by its nature is intangible and actually does not exist in a three-dimensional dimension.

DOI: 10.25136/2409-7136.2024.4.70271

EDN: HDJCJB

Abstract: The need for an integrated approach to the study of optional by nature signs of the objective side and their role in crimes against life and health requires turning to the experience of foreign countries. In this connection, the work examines some features of the construction of optional signs of the objective side in the above-mentioned criminal offenses in the criminal legislation of Germany and France. The conducted comparative research made it possible to see ways of improvement and vectors of development of criminal law policy, the implementation of which is carried out precisely by the correction of the criminal law. Based on the results of the work, the author indicates that legislators in Germany and France, unlike in Russia, do not attach serious importance to optional signs of the objective side when constructing crimes against life and health. At the same time, certain features in the regulation of optional signs of the objective side in crimes against life and health, which are not characteristic of domestic law, are still refined. For example, in Germany, in relation to murder in a state of passion, not only the determinants of the occurrence of a state of strong emotional excitement, but also the pre-criminal behavior of the subject of the crime are taken into account. It is also noted that the German Criminal Code regulates liability for participation in a fight; it regulates liability for abortion that occurs outside the established period of pregnancy at which it is possible. In addition, it was revealed that the French Criminal Code criminalizes hiring to commit murder if the mercenary did not plan to commit a criminal act. In conclusion, the author of the work suggests ways to improve domestic legislation taking into account the studied foreign experience.

DOI: 10.25136/2409-7136.2024.4.70454

EDN: GEMIEG

Abstract: The subject of the study is the problems of criminalization of unfair competition and differentiation of criminal liability for its implementation. In particular, the following issues are analyzed: the current state of criminalization of acts provided for in art. 128.1, 146, 147, 180, 183, 185.3 and 185.6 of the Criminal Code of the Russian Federation, the signs of which correspond to a certain extent to the prohibitions of the Federal Law "On Protection of Competition"; legislative techniques in the design of their compositions; qualifying and especially qualifying signs, sanctions provided for the commission of crimes of the specified group; practices in the field of application of the listed articles of the Criminal Code of the Russian Federation, including in countering unfair competition. The purpose of the work is to identify the problems of criminalization of acts that have signs of unfair competition, violations of legislative technique, shortcomings in the differentiation of criminal liability for their commission, and identify ways to eliminate them. The research methodology is based on general scientific and private scientific methods of cognition, dialectical, logical, formal legal, comparative legal, hermeneutic research methods, as well as methods of legal modeling and legal forecasting are used. The scientific novelty lies in the analysis of the problems of constructing the elements of crimes provided for in art. 128.1, 146, 147, 180, 183, 185.3 and 185.6 of the Criminal Code of the Russian Federation as a whole and in connection with their content with violations of the prohibitions contained in Articles 14.1-14.8 of the Federal Law "On Protection of Competition", proposals on criteria for criminalization of acts, research qualifying (especially qualifying) signs and sanctions as means of differentiating criminal liability, as well as in proposals for their improvement. The conclusions are based on the absence in the Criminal Code of the Russian Federation of a clear mechanism for protection against unfair competition, ideas about changing legislation aimed at establishing specific grounds for criminal liability for unfair competition, unification of qualifying signs and the proposal as a sanction of penalties and their sizes uniform for the entire group of criminal forms of unfair competition, as well as the extension to crimes, provided for in Articles 180, 185.3 and 185.6 of the Criminal Code of the Russian Federation, the institution of confiscation.

DOI: 10.25136/2409-7136.2024.4.70326

EDN: TNOVVM

Abstract: The subject of the study is the failure to take measures to prevent and resolve conflicts of interest. Failure to take measures is considered as an element of the objective side of disciplinary misconduct in labor relations, the composition of which is defined in paragraph 7.1. part 1 of Article 81 of the Labor Code of the Russian Federation, along with such elements as "conflict of interest" and "loss of trust". The types of measures are studied, the collision of their anti-corruption and labor-law nature; the subject of taking measures; the possibility of choosing a measure by an employee and an employer; the legal consequences of non-acceptance; the head as a subject of responsibility in case of non-acceptance of measures; the obligation to notify about a conflict of interests; the content of the concepts of "prevention" and "settlement". The object of the study is labor relations in terms of disciplinary responsibility for corruption offenses and related official legal relations. The author uses the general scientific method of dialectical cognition, as well as a number of private scientific methods: technical-legal, systemic-structural, formal-logical (deduction, induction, definition and division of concepts) and others. The article discusses the following problematic issues: 1) the ratio of measures provided for by anti-corruption legislation with labor law institutions, in particular, transfer to another job and suspension from work; 2) the possibility of abuse of the right by the employer and violation of the rights of the employee when taking measures; 3) the situation of legal deadlock when it is impossible to take measures; 4) unjustified inconsistency of legal regulation of measures in labor and official legal relations. The article draws conclusions about the illegality of dismissal only for failure to inform about a conflict of interest; about the priority of the employee's right to choose a measure to avoid abuse of the right by the employer; about the unification of legal regulation of suspension from work for the period of investigation of corruption misconduct or dismissal of the head for failure to take measures in labor and official relations; about ways out of the "legal impasse" if it is impossible to resolve a conflict of interest, in particular, a separate basis for termination of an employment contract due to circumstances beyond the control of the parties, or permission to act in a conflict of interest with little benefit.

DOI: 10.25136/2409-7136.2024.4.70043

EDN: UGTMFA

Abstract: The article considers the legal framework and trends of judicial practice in claims for the recovery of previously privatized assets. The purpose is to identify risk factors for the deprivatization of enterprise property, as well as circumstances affecting the prospects of possible litigation. The authors used such research methods as logical, theoretical-prognostic, formal-legal, system-structural and legal modeling methods. The methodological apparatus consists of the following dialectical techniques and methods of scientific cognition: analysis, abstraction, induction, deduction, hypothesis, analogy, synthesis, typology, classification, systematization and generalization. The authors analyzed relevant legal cases within the context of legal regulation and doctrinal approaches to the interpretation of civil legislation. It is concluded that violation of the privatization procedure means the absence of the will of the public owner to property alienation. As a result, the public owner has the opportunity to claim property even from a bona fide purchaser. Shares in the authorized capital of companies, and individual objects (buildings, structures, movable property) are subject to deprivatization. The basis for the claim of property in favor of the state is most often the privatization of property classified as federal property, with the approval of only regional authorities as well as the privatization of property in respect of which prohibitions and restrictions are established. It is stated that the courts reject references to the expiration of the limitation period, at the same time, judicial practice regarding the application of objective limitation periods has only begun to form. Considering the specifics of the participation of public legal entities in civil turnover, the authors conclude that it is necessary to clarify the established practice of applying law by the Constitutional Court of the Russian Federation.

DOI: 10.25136/2409-7136.2024.4.70230

EDN: YJXJYO

Abstract: The subject of this study is the legal norms governing the conduct of remote medical consultation and the preparation of a medical report. The author examines the conditions for issuing a medical opinion during remote consultations in the formats "doctor-doctor" and "doctor-patient". The author also considers the issues of reflection in the medical report of the diagnosis based on the results of medical care in the form of remote consultation. Attention is focused on the discussion in the scientific community about the possibility of diagnosis using telemedicine technologies. The purpose is to study the problems of regulating the possibility of determining the diagnosis, the content of the medical report when organizing and conducting a remote consultation. The methodological basis includes a set of philosophical knowledge about the cognition of reality. These include general scientific research methods (analysis, synthesis, deduction, induction, abstraction, etc.), as well as private scientific methods. In the course of this study, special legal methods are also used, which is due to its specifics. The results of the work are expressed in the definition of conflicts and gaps in the legal regulation of diagnosis and its consolidation in the medical report. The scope of application of the results is law–making activities in the field of telemedicine. The novelty is expressed in the consideration of the above-mentioned problems, taking into account the legal norms of the current legislation. It is necessary to reconsider the prohibition on making a diagnosis within the framework of a remote doctor–patient consultation in the absence of a preliminary face-to-face visit to a medical organization for the same treatment. To do this, guarantees of the accuracy of such a diagnosis should be provided. This can be achieved by creating a standard of medical care using telemedicine technologies.

DOI: 10.25136/2409-7136.2024.4.40984

EDN: YOZXXG

Abstract: The subject of the study is the theoretical, legal and practical aspects of the analysis and consideration of evaluation features in the qualification of economic crimes. The author, focusing on the key provisions of the theory of criminal law devoted to the interpretation of evaluative features of the corpus delicti, formulates their definition itself, classifying species diversity in relation to the norms of Chapter 22 of the Criminal Code of the Russian Federation. Special attention is paid to the elements of blankness, descriptive and evaluative dispositions of articles providing for criminal liability in the economic sphere of management. The importance of certain conceptual normative legal documents of regulatory branches of law, namely: banking, tax, currency and others for the process of correct qualification of certain types of criminal encroachments is emphasized. Exploring normative acts and scientific works in the context of the stated problems, the author uses as the main method of system analysis, as well as universal dialectical, logical, formal-legal, hermeneutic methods in their entirety that allowed a thorough analysis of the technical and legal basis for the construction of certain types of evaluation features within the framework of Chapter 22 of the Criminal Code of the Russian Federation, subdividing them quantitative (size), qualitative (not measurable in value) and cumulative; substantiate the theoretical and practical conclusions presented in the work, taking into account the latest legislative developments and the practical needs of the law enforcement officer. The work contains the author's approaches to such problems as the concept of qualification of crimes, evaluative features of the corpus delicti, the ways of their clarification and species diversity in the field of qualification of crimes of an economic orientation within the framework of the interaction of the doctrine of criminal law and law enforcement activities are formulated. The proposed innovations of the "basic legal structures" form in their entirety the novelty of the work. In addition, the author proposes the adoption of a separate resolution of the Supreme Court of the Russian Federation containing the basic principles for the use of the category of "evaluation features" within the framework of Chapter 22 of the Criminal Code of the Russian Federation for their orderly interpretation and uniform application.

DOI: 10.25136/2409-7136.2024.4.70573

EDN: XIXRFS

Abstract: The purpose of this study is to analyze the legal problems that arise during implementation of preventive SMART monitoring in the financial and budgetary sphere, identify conflicts and develop recommendations on the correct application of legal norms during preventive smart control. We will not consider the general requirements for state information systems and procedures for collecting and processing information established by financial legislation, legislation of the Russian Federation on information, information technology and information protection, legislation on security, legislation of the Russian Federation on state and other legally protected secrets. The study will focus on aspects of regulating the procedures for collecting and processing information used directly during the preventive SMART control. The subject of the study is both the current legal norms and legislative initiatives on amendments to the Budget Code of the Russian Federation, as well as the information procedures themselves that exist during SMART monitoring. To conduct the research, a methodology was used, including an analytical review of the regulatory legal framework, draft regulatory legal acts and scientific literature on the subject of research, generalization and systematization of data, and the formation of proposals to resolve the identified problems. The main conclusions of the conducted research are: basic information relations within the framework of the implementation of preventive SMART control procedures in the financial and budgetary sphere are currently regulated by legislation and do not need further improvement; legislative work is required to improve the legal mechanism governing information processes using artificial intelligence, big data processing, and the introduction of intelligent agents; all innovations are proposed to be implemented only after a comprehensive assessment of their regulatory impact; additional regulatory consolidation is required by the mechanism of openness of all elements and procedures related to preventive SMART monitoring.

DOI: 10.25136/2409-7136.2024.4.70266

EDN: XJECAM

Abstract: The regulation of the application of an arbitration clause as a type of arbitration agreement is based on the dual nature of this legal category, which determines the specifics of the relationship between material and procedural legal relations when the latter arises within the parameters established by the arbitration clause. In such cases, a significant simplification of legal regulation is not excluded, when it is possible to recognize signs of accessory in such relationships. According to the results of the study, the author proves that the interrelationships of material and procedural legal relations arising from the application of the arbitration clause have accessory characteristics according to eight criteria usually highlighted in the literature. It is proposed not only to establish such an approach to defining the features of accessory in this particular case in the doctrine, but also to improve the current legislation and practice of its application. In the work, the practical consequences of the author's conclusions are shown by the example of simplifying the procedure for verifying the possibility of applying for enforcement of decisions on interim measures taken by a court of another jurisdiction (international arbitration court) under an agreement containing an appropriate arbitration clause, "recognized" by national jurisdiction, where enforcement of a decision on interim measures is assumed. The work is based on the application of a whole range of general and private scientific research methods and techniques, the main of which were the method of system analysis and the method of formal logic in the form of deduction and induction. Accessory relationships remain a little-studied legal phenomenon, both in the theory of law and in branches of legal science. The most in-depth and consistent studies of this issue are present in substantive law, where they relate mainly to the problems of establishing the presence or absence of an accessory relationship between contractual obligations and ways to ensure the fulfillment of obligations. In procedural law, accessory as an independent legal category is not studied, although certain institutions of procedural law, for example, interim measures in civil proceedings, clearly have separate signs of accessory in their regulation. It seems that the establishment of the properties of accessory in the relationship between substantive and procedural legal relations, when the parameters of the latter are determined by an arbitration clause, will have important theoretical and practical significance.