Discussion forum
Reference:
Vronskaya M.V.
The Spread of COVID-19 as a Force Majeure Circumstance in the Context of Exemption from Civil Liability
// Law and Politics.
2022. ¹ 11.
P. 1-13.
DOI: 10.7256/2454-0706.2022.11.39084 EDN: HZQUJE URL: https://en.nbpublish.com/library_read_article.php?id=39084
Abstract:
The subject of the study in this paper is the transformation of the practice of applying legislation regulating the exemption from civil liability during the pandemic. The authors analyze in detail the content of such related categories: "force majeure" and "force majeure clause". The article highlights the features of exemption from civil liability due to insurmountable circumstances, their doctrinal clarification, the ratio of definitions. Separately, the materials of law enforcement practice of disputes related to non-fulfillment of obligations due to the introduction of restrictive measures related to the spread of COVID-19 are analyzed in the context of identifying the nature of such restrictive measures and the possibility of their attribution to force majeure circumstances exempting from civil liability. The novelty of the study is determined by a small number of scientific papers, a wide range of legal problems that have arisen as a result of numerous judicial practice of fulfilling obligations in the context of the implementation of restrictive measures and self-isolation regime in the context of countering the spread of COVID-19. Special attention is paid to the analysis of normative legal acts defining the specifics of the implementation of contractual obligations between counter-parties due to the introduction of restrictive measures during the pandemic. The main conclusions of the author are: the COVID-19 pandemic itself does not relate to a force majeure circumstance, but is qualified by Russian courts as a kind of force majeure, in connection with which the authors consider it necessary to propose a new version of Article 401 of the Civil Code of the Russian Federation.
Keywords:
default, arbitrage practice, civil legalrelations, Civil responsibility, isolation mode, restrictions, force majeure, proof of, civil law, political risks
Authority and management
Reference:
Embulaeva N., Shapovalov A., Sluchevskii V.G.
Transformation of Certain Principles Governing the Formation and Activity of Public Authorities
// Law and Politics.
2022. ¹ 11.
P. 14-22.
DOI: 10.7256/2454-0706.2022.11.39308 EDN: TIYVYM URL: https://en.nbpublish.com/library_read_article.php?id=39308
Abstract:
The focus of this study is public relations pertaining to the implementation of specific principles governing the establishment and operation of public authorities at various levels. The analysis centers on the principle of electing officials for legislative bodies at the state and local self-governance levels, as well as the heads of Russian Federation regions. The author explores the transformation of principles guiding the actions of public authorities by examining the interplay between public and private interests within the structures of power. Special attention is given to the principles of upholding citizen trust in state actions, the preservation of individuals, and the accountability of authorities to voters (including the institution of recalling elected officials). The study's key findings propose the incorporation of educational qualifications for officials in federal and regional government bodies into legislation. It is deemed appropriate to establish a requirement of higher education for individuals seeking positions such as state leaders, regional heads, and legislative deputies. Additionally, mechanisms for recalling all elected officials should be established in legislation, enabling the population to remove dishonest officials who fail to uphold the trust placed in them. Given demographic challenges, it is also advisable to enshrine the principle of safeguarding the well-being of individuals in the activities of public authorities.
Keywords:
deputy, responsibility, assignability, electability, principle, public authority, government agency, representative body, feedback, legitimacy
Theory
Reference:
Purge A.R., Murtazozoda D.S.
On the Need to Expand the Legal Regulation of Surrogacy Relations in Russia
// Law and Politics.
2022. ¹ 11.
P. 23-31.
DOI: 10.7256/2454-0706.2022.11.39395 EDN: ZPOWAL URL: https://en.nbpublish.com/library_read_article.php?id=39395
Abstract:
The subject of the study is the regulatory and legal provisions of the Institute of surrogacy in the Russian Federation. The object of this research is the concept and essence of surrogacy as a method of assisted reproductive technologies in accordance with the current legislation of the Russian Federation. The methodological basis is represented by a set of methods of scientific cognition of objective legal reality applied in the course of preparation and writing: comparative analysis (also known as the comparative legal method), as well as the formal legal method. In addition, the methods of scientific cognition of objective legal reality used by the author also include the logical method, system-structural analysis, and the method of legal modeling. The sharp drop in the birth rate in Russia in 2022 exacerbates the issue of the early legislative establishment of legal mechanisms that have not yet been used by the Russian state, but which are quite capable of assisting Russian citizens in the use of assisted reproductive technologies, overcoming infertility and, ultimately, in the exercise of their conventional and legal rights to create a family and procreation. The author conducted a sociological observation based on the materials of websites specializing in informing citizens about assisted reproductive technologies, identified the most typical problematic and conflict situations in the relationship of potential biological parents and potential surrogate mothers, made conclusions and suggestions to eliminate the identified problems from social practice. In particular, it is concluded that it is necessary to organize departments at maternity hospitals specializing in monitoring the condition of surrogate mothers and their implementation of medical recommendations, including compliance with the pregnancy preservation regime.
Keywords:
the conclusion of the attending physician, medical regime, personal obligations, surrogacy agreement, personal freedom, potential biological mothers, surrogacy, potential biological parents, assisted reproductive technologies, infertility
Legal and political thought
Reference:
Gorban V.S., Gruzdev V.S.
On the Diversity of "Pure" Doctrines of Law
// Law and Politics.
2022. ¹ 11.
P. 32-43.
DOI: 10.7256/2454-0706.2022.11.39415 EDN: ZZQHPY URL: https://en.nbpublish.com/library_read_article.php?id=39415
Abstract:
The subject of this study is one of the largest epistemological problems in the history of political and legal thought, as well as the modern theory of the state and the law. We are talking about the attempts of the authors of various historical periods, at least over the past two centuries, to construct a model of the study of the law as a "pure" phenomenon or call for the "purity" of the methods of its cognition. There is a strong opinion in modern legal literature that the "pure doctrine of law" is the creative result of the Austrian lawyer Hans Kelsen. His teaching is often a variant of logical positivism, in which an interpretive model of the law was created, in which one subject corresponds to a special and only method—legal—and all the others were declared superfluous. In fact, in the history of legal thought, attempts have been made more than once to write "pure" doctrines about law long before Kelsen. The scientific novelty of this research lies in the analysis and illumination of new facets of political and legal thought history that previously remained completely unexplored in both domestic and foreign political and legal thought. This article analyzes well-known and previously unknown scientists and thinkers who have developed original concepts of the "pure doctrine of law." In this regard, Kelsen's teaching is justifiably considered one of the many variants of this kind of thought, the uniqueness of which is connected only with the idea of interpretation as a philosophical paradigm, which allowed him to combine well-known legal concepts and techniques within the framework of the methodological doctrine of the law.
Keywords:
logical positivism, Stammler, pure law, legal epistemology, neo-Kantianism, normativism, Kelsen, history of legal thought, Picard, Mehmel
Human and state
Reference:
Demchenko M.S.
The Constitutionality of Legal Measures During the Spread of COVID-19
// Law and Politics.
2022. ¹ 11.
P. 44-58.
DOI: 10.7256/2454-0706.2022.11.39085 EDN: WJVIIW URL: https://en.nbpublish.com/library_read_article.php?id=39085
Abstract:
The emergence of a novel coronavirus infection posed a major challenge to the global community and necessitated urgent and extraordinary measures to minimize the consequences of the pandemic. In the history of modern Russia, this was the first time a national emergency had occurred. Under such circumstances, the State needed an emergency response that also involved a regulatory mechanism. Of course, the regime of legal regulation in emergency situations has significant differences from everyday legal regulation. The author examines in detail the issue of constitutional and legal regulation of emergencies of this kind and analyzes and correlates it with actual legal regulation. Peculiarities of public authorities' organizational activity in pandemic conditions are investigated. Particular attention is paid to human rights during the spread of COVID-19. The author concludes that rather than applying the existing and well-defined regulations outlined in the Federal Constitutional Law "About the State of Emergency" from May 30, 2001 (¹ 3-FKZ), which stipulates the implementation of a state of emergency throughout the country or in specific areas, the ruling authorities have opted for an alternative legal approach. This decision has resulted in a swift modification of the emergency legislation, with its own set of consequences. The main problem, in the author's opinion, lies in the misapplication of the provisions of the Constitution of the Russian Federation, since from the systematic and interrelated interpretation of Articles 55 and 56 of the Constitution of the Russian Federation follows that they regulate the same social relations. However, article 56, unlike article 55, has special grounds for the application, so the principle of lex specialis derogate legi generali should be applied to them—that is, preference should be given to a special norm. In addition, the author proposes the adoption of a single legal act that would unify the different types of emergency situations and provide systematic and orderly legal regulation.
Keywords:
pandemic, high alert, state of emergency, restriction of rights, emergency situation, COVID-19, Constitutionalism, human rights, crisis situation, emergency laws