Preview

Theoretical and Applied Law

Advanced search
No 2 (2024)
View or download the full issue PDF (Russian)

ARTICLES

8-13 355
Abstract

The author of the article shows how they change of the late 20th and early 21st Centuries ideas about reality. Objectivism and naturalism are being replaced by constructivism and mentalism today. What is real in the social world is what is perceived as real and what is constructed by people. This paradigm is becoming dominant not only in sociology, but also in jurisprudence. So, in postclassical criminology, crime and criminality are considered not some objective reality, but the result of the activity of the legislator. However, radical constructivism, which does not take into account external circumstances or structural constraints, cannot be considered an adequate concept. The author formulates an approach that includes both the transcendent foundations of law and the constructivist activity of powerful subjects in the reproduction of law. At the same time, examples from criminology and the opinions of leading scientists from this discipline are given. The necessity of taking into account the historical and socio-cultural context is stated.

14-23 271
Abstract

In the article, based on formal-logical, comparative, and historical-genetic methods of cognition, the author presents their own view on the foundations of an interdisciplinary scientific field — digital legal history: its scientific status, subject, sources, goals, tasks, and methodology. Digital legal history is a part as the history of law and the digital humanities. While remaining within the disciplinary subject of legal history (history of state and law), digital legal history methodologically intersects with informatics, studying historical legal sources using digital technologies and tools. At the core of the methodology of digital legal history lies the source-oriented paradigm (phenomenological concept of cognitive history and source studies method) and specialized digital research methods, which are combined with traditional principles, approaches, and techniques of legal historical research. The article also discusses the problems of sources in historical-legal research, the circle of which expands in digital legal history and includes any carriers of historical-legal information (data). The need to develop new competencies for researchers in the field of digital legal history, and the formation of a corresponding scientific and educational environment and infrastructure are highlighted. The conclusion is drawn that digital legal history, as an interdisciplinary scientific field, is transitioning from the stage of its genesis to institutionalization.

24-36 343
Abstract

Humanism is a doctrinal metanarrative that defines ideas about human rights and freedoms. Natural law is relevant in the digital world, since each specific individual is quite rationally interested in ensuring that the humanistic paradigm prevails over abstract technologies. The theory of individual freedom and legal equality, when faced with computer information processing algorithms, gives rise to paradoxes and oxymorons. The obvious contradictions in the moralism of the virtual world and real justice are complemented by the paradoxical conclusions of lawyers about the legal personality of robots with artificial intelligence and the similarity of the laws for the real world and cyberspace. The methodology for refuting neoliberal utopias and totalitarian fantasies that shape the imaginary cyberspace or deny its existence can vary from classical dialectics to modern narrative analysis, but methods of participant observation demonstrate the existence of real and virtual rights and freedoms of man and citizen in a digital world. We believe that cyberspace was formed due to the implementation of natural freedom of creativity, on the basis of which, in the process of digitalization, real digital rights were recognized for individuals. While information society institutions are being formed with the help of artificial intelligence within the cyberspace, a complex of virtual digital rights should be recognized by the legislator. The realization of virtual digital rights is possible without human participation, but legal meaning of such rights requires from individuals or corporations some actions that lead to legally significant consequences beyond the virtual dimensions of the real world.

37-47 260
Abstract

In this article, a refined definition of the concept of “land management object” is proposed. The points of view of various scientists regarding the definition of the object of land management are analyzed. The basis for the study is the contradictory position of the legislator, which on the one hand speaks of the need to adopt a new law “On land management”, on the other hand borrows the term “object of land management” from the current law. Federal Law No. 78-FZ dated June 18, 2001 “On Land Management” has been repeatedly amended. Since the legal regulation of any institution cannot be effective without basic concepts, it is advisable to analyze the current definition of a land management object, rethink its content in relation to the demands of existing realities. The following methods were used in the study: historical, logical, analysis, generalization, study of literature and normative legal acts.

48-54 215
Abstract

The characteristics, structures and hierarchies of the value world are considered. The ways of cognition of value and its ontological status are identified. The nature and specificity of value judgments is given. The study examines the problem of theoretical and conceptual positions, principles and methods of law and their axiological significance; the issues of modern social economics and legal nature are analyzed; the axiological significance of the principles of civil law in modern conditions is determined. Theoretical and practical aspects of the axiology of the principles of modern law are established and disclosed; it was concluded that the axiological significance of the principles of law is constant and stable and does not depend on historical or socio-economic conditions; it has been confirmed that legal axiology as a research type of legal philosophy is capable of elevating value transformations in the system of legal reality to the level of self-reflection of law as a form of social consciousness.

55-61 308
Abstract

The article is devoted to the analysis of trends in the development of legal regulation of the obligation to pay taxes, caused by digital transformation. It has been proven that in the modern realities of digitalization of taxation in the field of legal regulation of the fulfillment of the obligation to pay taxes, three interrelated trends are being realized: firstly, a discrepancy has been established between the pace of development of tax legislation and the objectively existing system of information and digital technologies; secondly, there has been an increase in the volume of discretionary regulation of tax relations governing the process of fulfilling the obligation to pay tax; thirdly, there is an intensification of the use of tax-experimental regulation. Using the example of a tax on professional income, the digital ruble, benefits for organizations in the IT sector, an automated simplified taxation system, as well as a single tax payment, the features of the manifestation of trends in legal regulation and enforcement of provisions on the payment of taxes in the digital era are formulated.

62-72 334
Abstract

The article considers the problem of the role of the constituent entities of the Russian Federation in implementing the mechanism for division of jurisdictions and powers between the Russian Federation and its constituent entities. The author provides a general description of this differentiation mechanism and analyzes its evolution. Now, the division of powers takes place mainly through federal laws. However, the adoption of these laws is within the jurisdiction of the Russian Federation and is carried out through a special procedure — the legislative process. Therefore, the author evaluates the role of constituent entities in the division of jurisdictions and powers mechanism through their role in federal legislation. The author identifies the main problems and formulates a few promising proposals aimed at strengthening the role of the subjects of the Russian Federation and increasing the degree of consideration of their regional interests in the division of powers.

73-82 308
Abstract

The article deals with the phenomenon of abuse of law in international arbitration that seems to be an extremely relevant subject for study due to the development of transnational economic relations. At the same time, various types of abuse in arbitration make us think about developing a certain classification of all cases of abuse of law. The purpose of this article is to comprehensively consider the types of abuse of law in international arbitration and the prospects for countering such abuses, as well as to develop a theoretical basis for such countering based on world experience. In this study, the delay in the process, challenging the competence of arbitration, abuse of information disclosure and exchange of documents, the transfer of the assets of debtor to affiliates or third parties, a fraudulent application for bankruptcy of the debtor, as well as lies to arbitrators and fake evidence were considered. At the same time, the article notes the problem of the lack of mandatory ethical standards in international arbitration and the insufficient powers of arbitrators in the process. The authors conclude that it is necessary to continue work on ethical codes of conduct. In addition, it is concluded that it is necessary to apply liability measures and “procedural sanctions”. In this regard, we are ready for regulatory changes and the implementation of the “ethical review”, that is necessary for positive changes in arbitration.

83-90 299
Abstract

The article is devoted to the problems of implementing the right to judicial protection of the labor rights of athletes and coaches. It was right under international and Russian law and one of the most important elements of a person’s legal status. At the same time, the realization of the right to judicial protection in sport has its own characteristics, because athletes and coaches actually cannot choose the legal authority, that will consider the case. In this research judicial practice is analyzed, in which considered the issue of the possible application of sanctions to an athlete for appealing to a state court. The study concludes that, despite the presence in sport of its own special system of dispute resolution bodies, the application of sanctions for the use of one of the fundamental constitutional and labor rights does not find a reasonable justification.

90-102 256
Abstract

The purpose of the work was to analyze the modern process of law-making in Russia on the example of the federal executive authority, taking into account ethical aspects. To achieve this goal, general philosophical methods and the formal legal method were used. The paper presented current theoretical views on law-making, as well as described the procedure of law-making in the federal executive authority. Ethical contradictions and problems existing in this procedure were considered. The general trends in the development of the law-making process in Russia were also indicated and conclusions were drawn about the need to take into account ethical approaches when improving the law-making procedure.

103-111 260
Abstract

The article analyzes the history of the formation of the concept of coercive economic measures (economic sanctions) in the legal aspects. The work presents the author’s periodization of the development of the concept of economic restrictions, taking into account the nature of the economic measures applied by the initiating state in a specific period of history and the degree of their effectiveness. It is concluded that the First World War has become the key catalyst for the development of the concept of economic pressure on unfriendly powers, which was legally enshrined in Art. 16 of the Covenant of the League of Nations. Subsequently, the evolution of the system of collective security fundamentally changed the role of economic sanctions. The author considers the problematics of legality and effectiveness of economic sanctions in different historical periods, provides modern examples of sanctions and assess their efficiency. The author concluded that sanctions revealed their economic potential in each new period and eventually became the primary means to compliance with international law.

166
Abstract

the purpose of the work was to analyze the modern process of law-making in Russia on the example of the federal executive authority, taking into account ethical aspects. To achieve this goal, general philosophical methods and the formal legal method were used. The paper presented current theoretical views on law-making, as well as described the procedure of law-making in the federal executive authority. Ethical contradictions and problems existing in this procedure were considered. The general trends in the development of the law-making process in Russia were also indicated and conclusions were drawn about the need to take into account ethical approaches when improving the law-making procedure.



ISSN 3034-2813 (Online)