Jurisprudence
Reference:
Kardava A.R.
On the possibility of compensation for moral damage in case of violation of property rights: traditional views and innovations of practice
// Law and Politics.
2024. ¹ 3.
P. 1-15.
DOI: 10.7256/2454-0706.2024.3.69698 EDN: BIBHWA URL: https://en.nbpublish.com/library_read_article.php?id=69698
Abstract:
The subject of the study is a set of approaches to the possibility of compensation for moral harm in case of violation of property rights and the approach presented in paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 15 November 2022, No. 33 "On the practice of application by courts of the norms on compensation for moral harm". The author analyses the new approach, addressing the issue of its impact on judicial practice to determine the applicability of this approach. As a methodology, the author uses comparativistics of the approaches and practice of the Supreme and Constitutional Courts of the Russian Federation until 15 November 2022 and the approach presented in paragraph 4 of the above Resolution. The main conclusions of the study are that the new approach is recognised as revolutionary compared to those previously applied. The author concludes that the new approach, despite the contradiction with the rules based on the literal interpretation of the law, is a successful combination of all the main components of the institution in question, necessary for its correct application from the point of view of the meaning and purpose of compensation for moral harm. The new approach establishes an open list of cases in which compensation is possible, but at the same time introduces a certain criterion of applicability, in order to prevent the "emasculation" of this institution as a means of defence, since the procedure for assessing the existence and degree of moral harm is subjective. And the author analyses the impact of the new approach on judicial practice, noting that this approach is not fully understood and therefore accepted by the courts, as it does not coincide with the literal interpretation of paragraph 4 of the mentioned Ruling.
Keywords:
non-material harm, property damage, moral suffering, physical suffering, intangible benefits, personal non-property rights, limits of moral harm, monetary compensation, compensation for moral damage, the concept of moral harm
Theory
Reference:
Osipov M.Y.
On the Issue of Classifying Legal Research
// Law and Politics.
2024. ¹ 3.
P. 16-29.
DOI: 10.7256/2454-0706.2024.3.70277.2 EDN: RXEMZZ URL: https://en.nbpublish.com/library_read_article.php?id=70277
Abstract:
This study aims to determine the features and criteria for classifying legal studies in terms of their completeness and sufficiency of coverage of all possible varieties of legal research. Issues related to the justification of the allocation of additional types of legal research are also considered: the division of all legal research into "positive" and "critical" criteria for the relationship between these types of research are identified. Also, this article discusses possible errors in conducting "positive" and "critical" legal research and gives their typology. The ways of preventing mistakes in conducting legal research are also determined. The research methods, the results of which are presented in this article, include general scientific methods: analysis, synthesis, induction, deduction, abstraction, generalization, and modeling. In addition to the criteria for classifying scientific, legal research in legal science, it is proposed to distinguish "positive legal research" and "critical legal research" into independent types of scientific, legal research. At the same time, legal reality always acts as the objective of "positive research" in jurisprudence, in the form of interrelated and interacting phenomena of social reality, while the subject of positive research is always any patterns describing and explaining legal phenomena or the legal side of certain social phenomena; any legal theories, concepts, and hypotheses support the object of "critical" research in jurisprudence. The subject of "critical legal research" is a critical analysis of a hypothesis, concept, or theory in legal science. If the purpose of "positive legal research" is to discover new patterns of formation, development, and functioning of legal phenomena or to identify defects and develop scientifically sound proposals for improving the legal regulation of a particular sphere of society, then the purpose of "critical" research in legal science is to determine the validity of a specific scientific theory, hypothesis or concept.
Keywords:
legal science, theory, concept, hypothesis, goal, subject, object, correlation criteria, critical research, positive research
State institutions and legal systems
Reference:
Usenkov I.A.
Stability of telemedicine legislation: current issues
// Law and Politics.
2024. ¹ 3.
P. 30-40.
DOI: 10.7256/2454-0706.2024.3.70044 EDN: XFDLWY URL: https://en.nbpublish.com/library_read_article.php?id=70044
Abstract:
The main features and problems of the development of legislative regulation of telemedicine in the Russian Federation are considered. The stages of such development are identified and analyzed: the existence of a concept, the existence of detailed regulation, the establishment of the possibility of deregulation within the framework of a legal experiment, the beginning of a legal experiment. The correlations between changes in the telemedicine services market and changes in legislation and regulated public relations are considered. The probable reasons that prompted the legislative bodies to establish detailed regulation of relations in the field of telemedicine have been identified, given that the provision of telemedicine services has never been prohibited (encouraging participants in civil turnover to use this legal institution, public interest in regulated public relations). The aim of the work was to formulate the problems of non-systemic changes in legislation on telemedicine, their determinants and further optimal development vectors. The research methodology is based on historical and teleological methods that allow us to consider the problems of legal regulation of telemedicine, based on the peculiarities of the formation of legislation in this area. The paper analyzes statistical data, regulations and materials of judicial practice; using the comparative legal method, general and various trends with the development of other legislative institutions are identified. It is concluded that regular changes in legislation on telemedicine, undermining its stability and predictability of legal regulation, have their reasons for the lack of conditionality of reforms with the current concept of development of legislation on telemedicine, as well as the redundancy of the adopted regulatory regulation. Taking into account the absence of civil law litigation on the provision of telemedicine services, it is proposed to expand deregulation in this area beyond the legal experiment: extending its provisions to the current legislation as a whole. This need is indirectly confirmed by statistical data on a significant increase in the provision of telemedicine services after their legislative consolidation, with its subsequent decrease and the introduction of a legal experiment on deregulation after that. The study is financially supported by the Russian Science Foundation, project No. 23-78-10175, https://rscf.ru/project/23-78-10175/.
Keywords:
remote medical care, dynamism, stability, deregulation, development of legislation, legal regulation, concept, telemedicine, medicine, legislation
XXI century International law
Reference:
Troyanov Y.O.
International legal approach to liability and prosecution for concluding and participating in anti-competitive agreements
// Law and Politics.
2024. ¹ 3.
P. 41-55.
DOI: 10.7256/2454-0706.2024.3.43630 EDN: XGYPVQ URL: https://en.nbpublish.com/library_read_article.php?id=43630
Abstract:
Economic development is one of the main goals of states, state entities and unions. An important place in the development of the economy is to maintain and ensure competition. The legal order and forms of maintaining competition in state entities are different. At the same time, they are all aware of the high public danger of anti-competitive agreements. In this connection, the legislation of most countries and unions (organizations) provides for the prohibition of anti-competitive agreements and serious measures of prosecution for their conclusion. The aim of the work is the author's analysis of the international legal approach to the regulation of liability and prosecution of persons (both legal and physical) for the conclusion and participation in anti-competitive agreements. In this work, the methods of logical and analytical analysis of the legislation of countries, international organizations and unions were used. According to the results of the study, it can be concluded that the importance (and hence the danger of cartels) of combating anti-competitive agreements is understood in most countries with leading economies. This danger is recognized both at the level of the state itself and at the level of state unions and organizations. The international community pays great attention to the issue of competition. The competition law of developed countries and international organizations in which they are composed is a developed system of effective regulation. In order to optimize the interaction of law enforcement agencies and agencies involved in the fight against cartels, it is necessary to create common information bases, regulate the exchange of documents and information. In our opinion, it seems necessary to develop and implement the institute of joint activities by foreign agencies.
Keywords:
law enforcement, antitrust, international law, foreign law, criminal liability, liability, competition, collusion, anticompetitive agreement, cartel
History of state and law
Reference:
Kukharuk V.V.
Substances dangerous to public health according to the Criminal Code of 1922 and 1926: comparative legal analysis and criminal law regulation
// Law and Politics.
2024. ¹ 3.
P. 56-68.
DOI: 10.7256/2454-0706.2024.3.40670 EDN: RVHXYS URL: https://en.nbpublish.com/library_read_article.php?id=40670
Abstract:
The subject of the study is the legislation on illegal actions with narcotic drugs and other substances with generally dangerous properties under the criminal codes of 1922 and 1926 in the context of normative continuity with the Code of Criminal and Correctional Punishments of 1845. A comparative legal analysis of the concepts of poisonous, potent and intoxicating substances as subjects of the relevant crimes of the first Soviet criminal codes and the relevant norms of the current criminal law is carried out. For the first time, archival official documents of the highest state bodies were used to substantiate the high degree of public danger of illegal trafficking of potent and poisonous substances. According to the results of the study, legal science and medicine in the studied period had a developed arsenal of conceptual means of describing illegal trafficking and the consequences of the use of substances that pose a danger to public health. The first Soviet legislator took into account unlimited possibilities in the field of chemical synthesis and therefore considered the list of intoxicating substances to be open, referring to any substances whose qualitative features and actual use corresponded to the literal meaning of their names. The concept of potent substances was generic in relation to the concepts of narcotic drugs and other substances, the defining property of which was the intensity of their effects on the body. The continued use of pre-revolutionary conceptual constructions in modern criminal legislation serves as a normative obstacle to the development of the criminal law institute for the protection of public health based on the norms of international law.
Keywords:
morphine addiction, cocaine addiction, drug addiction, public health, narcotism, drugs, psychoactive, intoxicating, potent, toxic
Law and order
Reference:
Danilovskaia A.V.
Intersectoral differentiation of responsibility for the commission of acts infringing on fair competition
// Law and Politics.
2024. ¹ 3.
P. 69-78.
DOI: 10.7256/2454-0706.2024.3.70301 EDN: TBPHRD URL: https://en.nbpublish.com/library_read_article.php?id=70301
Abstract:
The subject of the study is the issues of intersectoral differentiation of responsibility for encroachments on fair competition (hereinafter also anti–competitive crimes). The article identifies socially dangerous acts that formed a group of anticompetitive crimes and administrative offenses in this area; identifies aspects of the correlation of civil liability with criminal and administrative liability; analyzes the correlation of criminal law norms with administrative in relation to the grounds of responsibility for encroachments on fair competition, sanctions for their commission, rules of exemption from liability. The purpose of the work is to assess the current state, identify problems of intersectoral differentiation of responsibility for encroachments on fair competition, as well as to identify ways to solve them in the light of the adoption of a number of official documents of a strategic nature defining violations of antimonopoly legislation as a threat to economic security and the need to counter them. The research methodology is based on general scientific and private scientific methods, in particular, methods of system analysis, logical, comparative, formal dogmatic methods, the method of legal forecasting and classification. The scientific novelty lies in the study of the correlation of the Criminal Code of the Russian Federation with the Code of Administrative Offenses in order to establish the correspondence of the description of the compositions of anticompetitive crimes to the compositions of administrative offenses encroaching on fair competition and related compositions; determining the importance of civil liability in intersectoral differentiation; in assessing the state of the sanctions mechanism used for crimes and administrative offenses against fair competition, as well as diversified rules of exemption from liability for their commission; in the conclusions of the study of the intersectoral differentiation of responsibility for encroachments on fair competition. The conclusions concern the criminal law policy in the field of fair competition protection, as well as other related areas of government activity, it is necessary to eliminate the identified contradictions in the intersectorial differentiation of responsibility for violation of antimonopoly legislation.
Keywords:
leniency program, anti-competition agreements, violations at auction, criminal liability, anti-competitive crimes, restriction of competition, cartel, unfair competition, intersectoral differentiation of responsibility, competition protection