Договор и обязательства
Reference:
Lyapustina N.A., Rybka O.S.
Perspectives for the application of the provisions on indemnity established by FIDIC Silver Book in the field of construction contracts in Russia
// Legal Studies.
2024. № 6.
P. 1-14.
DOI: 10.25136/2409-7136.2024.6.70982 EDN: KVGVKK URL: https://en.nbpublish.com/library_read_article.php?id=70982
Abstract:
The object of the study is the institute of compensation for property losses, fixed in one of the standard contracts of the International Federation of Consulting Engineers (FIDIC) – the Silver Book. The FIDIC Silver Book is the most interesting for providing a universal contract base in Russia, as a task set by the Government of the Russian Federation in the Strategy for Exporting Services until 2025. It is in this proforma that the main conditions of the EPC are reflected: design work, purchase of materials, construction work. One of the tools common in the Anglo-Saxon legal system is indemnity, which has appeared relatively recently in domestic civil law. By allowing you to manage the risks of construction projects, this institution is attractive to investors and parties to a construction contract. The authors investigate the provisions on indemnity, fixed in the FIDIC Silver Book, to establish the possibility of their application in the field of construction contracts in the territory of the Russian Federation. The authors used such methods as: analysis, synthesis, comparative law, deduction, induction. The scientific novelty of the study is due to the fact that there are few works devoted to the applicability of the terms of FIDIC contracts in Russia, and there are practically no studies on the applicability of the conditions for compensation of losses fixed in them. However, in order to achieve the goals set by the Service Export Strategy until 2025, it is necessary to find out whether there are significant contradictions between the terms of FIDIC contracts and the norms of national legislation that prevent their application in Russia. The most interesting are the prospects for applying the provisions on compensation for property losses fixed in standard contracts, which are quite attractive both for the parties to the contract and for investors. In this regard, a special contribution of the authors to the study of the topic is the establishment of the applicability in Russia of the provisions on compensation for property losses fixed in the FIDIC Silver Book. Within the framework of this scientific work, it was revealed that most of the analyzed provisions do not contradict the mandatory norms of Russian law.
Keywords:
risk management tool, strategy for developing exports, Civil Code of Russia, FIDIC, proformas, model contracts, construction contract, indemnity, Silver Book, anglo-saxon legal system
Human and state
Reference:
Rybka O.S., Lyapustina N.A.
Problems of legal regulation of MTPL insurance in the Russian Federation
// Legal Studies.
2024. № 6.
P. 15-29.
DOI: 10.25136/2409-7136.2024.6.70997 EDN: KUSOPD URL: https://en.nbpublish.com/library_read_article.php?id=70997
Abstract:
The subject of this study is the legal norms governing CTP in the Russian Federation, as well as the interpretation of these norms and judicial practice of their application. In the course of the work, the authors revealed the nature of insurance relations within the framework of auto insurance, and also identified many problems that currently exist in the field of CTP, namely: controversial regulation within the framework of penalties for insurance organizations and substitution of legislative power by the Supreme Court of the Russian Federation; problems of ignoring by courts and financial commissioners abuse of applicants, including failure to provide properly certified documents; problems related to the introduction of such a form of compensation as restorative repairs; problems related to penalties in excess of the limit, as well as the topic of fraud in the insurance sector. Within the framework of this scientific research, the authors used such methods of scientific cognition as: universal dialectical, logical, formal legal and hermeneutic. A special contribution of the authors of the research topic is the designation of problems of legal regulation and law enforcement in the field of CTP, which previously had not been paid attention to in the scientific community, while the authors relied on both judicial practice and personal professional experience, as well as scientific literature. In the course of the work, the authors concluded that the legal regulation in the field of CTP is imperfect, as well as that some problems can be corrected by making amendments to the current legislation. But at the same time, the authors emphasized that in the pursuit of perfection in one of the issues, including in the framework of preventing fraudulent actions, it is not necessary to ignore the rights and freedoms of citizens who may be affected.
Keywords:
insurance fraud, separation of powers, penalties, collection in excess of the limit, failure to provide documents, restorative repairs, abuse of right, problems of law enforcement, judicial practice, MTPL insurance
Договор и обязательства
Reference:
Titorenko S.K.
Legal regulation of the trade secret regime in corporate conflicts
// Legal Studies.
2024. № 6.
P. 30-43.
DOI: 10.25136/2409-7136.2024.6.70723 EDN: JZKBEV URL: https://en.nbpublish.com/library_read_article.php?id=70723
Abstract:
The author examines the features of the legal regulation of the trade secret regime in corporate conflicts between participants of business entities (limited liability companies, joint-stock companies). A study of the legal regulation of the Russian Federation, in terms of the legal regulation of the trade secret regime, has been conducted, and the judicial practice of applying the trade secret regime has been analyzed. Scientific works in the field of legal regulation of the trade secret regime in the Russian Federation, the countries of the Commonwealth of Independent States and the United States of America are also analyzed. As a result of the research, the author highlights a gap in the legal regulation of the trade secret regime in corporate conflicts. The problem is that despite the existence of a system of legal regulation of the trade secret regime, the share of trade secret leaks continues to grow. Previously, no research has been conducted in the field of legal regulation of the trade secret regime in the presence of corporate conflicts. Public relations arising in connection with the application of the commercial secret regime are regulated by the Law on Commercial Secrets, certain issues are explained in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01/18/2011 No. 144 "On some issues of the practice of arbitration courts considering disputes on the provision of information to participants in business companies", while the share of leaks of commercial secrets is constantly growing. In this regard, it is necessary to identify ways to improve legal regulation in the field of legal regulation of the trade secret regime in corporate conflicts. To investigate the legal regulation of the Russian Federation, judicial practice, scientific work and identify problems of legal regulation of the trade secret regime in corporate conflicts between participants of business entities (limited liability companies, joint-stock companies).
Keywords:
corporate culture, trade secret regime, confidentiality agreement, joint stock company, share of participation, business company, corporate conflict, confidential information, state secret, Commercial secret
Practical law manual
Reference:
Shurlyakov G.S.
Capitalized payments in the amount of subsidiary liability of persons controlling the debtor for the legal entity's obligations
// Legal Studies.
2024. № 6.
P. 44-55.
DOI: 10.25136/2409-7136.2024.6.70509 EDN: LRDKJZ URL: https://en.nbpublish.com/library_read_article.php?id=70509
Abstract:
The article is devoted to the study of theoretical and practical problems of including capitalized payments in compensation for harm to a citizen in the amount of subsidiary liability of persons controlling the debtor in the event of the insolvency of a legal entity; the relevance of the research is due to the complexity of the subject, which is the legal provisions of bankruptcy law on the procedure, methods of calculation and conditions for including capitalized payments as part of the amount of subsidiary liability of the persons controlling the debtor; research methodology – a dialectical method of cognition within the framework of a materialistic approach in combination with private scientific methods of studying social and legal phenomena: analysis and synthesis, observation and comparison; based on the study, the conditions for including capitalized payments in the amount of subsidiary liability of the persons controlling the debtor were determined and characterized; the novelty of the study lies in the substantive analysis of the issues of accounting for capitalized payments when establishing the amount of subsidiary liability in the absence of corresponding rules in bankruptcy law; the author came to the following conclusions: due to the fact that capitalized payments in a bankruptcy case of a legal entity have a special legal nature, due to their calculation for the future “until the citizen survives” and not earlier than the date of introduction of the bankruptcy procedure, the possibility their inclusion as part of the amount of subsidiary liability depends on the basis on which the person is brought to subsidiary liability: for the impossibility of fully repaying the claims of creditors or for failure to submit (late submission) of the debtor’s application, which, due to an insufficiently clear definition, require interpretation by the legislator and the Supreme Court Russian Federation.
Keywords:
compensation for damages, register of creditors' claims, controlling debtor, time payments, subsidiary civil liability, capitalised payments, bankruptcy of a legal entity, liquidation of a legal entity, personal injury, amount of liability
Practical law manual
Reference:
Chernyshenko I.G., Barkova A.V.
Civil law qualification of personal data
// Legal Studies.
2024. № 6.
P. 56-69.
DOI: 10.25136/2409-7136.2024.6.70419 EDN: GWQCQQ URL: https://en.nbpublish.com/library_read_article.php?id=70419
Abstract:
The author of the article considers the civil law nature of personal data, focusing on their qualification in the context of the object of civil legal relations. The boundary of distinction between private and public law in the context of processing and protection of personal data is also drawn. The purpose of this study is to determine the place of personal data in civil law, including civil legislation, as well as to determine to what type of object of civil legal relations should be attributed such legal phenomenon as personal data. The novelty of this article lies in the author's proposed concept of a comprehensive legal regulation of processing and protection of personal data. In addition, the author brings for discussion the issue of the possibility of introducing a new object of civil legal relations, which expands the existing legal tools for the settlement of issues related to personal data. While writing the article such methods were used as: theoretical-predictive, formal-legal, system-structural and method of legal modeling. In the conclusion the author of the article states the necessity of fixing personal data in civil legal relations. The introduction of such an object as personal data into civil law is an important step in modern society, due to the accurate and effective regulation of their circulation and protection. The inclusion of this aspect creates a basis for judicial application and resolution of disputes related to the use of personal data in civil relations. In addition, it contributes to the protection of the rights of data subjects and ensures transparency and predictability of their legal regime. Thus, the need to qualify personal data in civil law not only corresponds to modern trends in the development of society, but also contributes to its sustainable functioning in the digital economy.
Keywords:
regulatory mechanism, legal defence, public law, private law, civil turnover, intangible good, legal regime, personal data, civil relations, cross-sectoral nature
Human and state
Reference:
Vasileva Y.V., SHalegin S.P.
Protection of personal data in the process of using targeted advertising
// Legal Studies.
2024. № 6.
P. 70-80.
DOI: 10.25136/2409-7136.2024.6.70968 EDN: BDKPXN URL: https://en.nbpublish.com/library_read_article.php?id=70968
Abstract:
The subject of the research is normative and other legal acts, materials of law enforcement practice, provisions of the domestic legal theory concerning information security in social systems, especially the protection of personal information aimed at preserving the integrity of confidential data. The object of the study is public relations regulated by regulatory acts that secured the protection of personal data of Internet users. The purpose of the research is to study, generalize, theoretical and practical understanding of the legal regulation of the protection and processing of personal data through the prism of targeted advertising distributed through social networks, to develop on this basis a set of theoretical conclusions, legislative proposals and practical recommendations that provide a modern understanding of legislation in this area. The authors identify the specifics of targeted advertising, point out possible violations of legislation in the field of personal data when it is posted on social networks. The methodological basis for achieving the set research goal was both general scientific and special methods: complex, systematic, comparative legal, informational, statistical, concrete sociological, formal logical analysis. The scientific novelty of the study is the proposal to amend the current legislation on personal data and advertising to regulate the process of obtaining user consent for targeted advertising, ensuring transparency and protecting privacy; prohibiting site administrators from blocking access to information based on the user's refusal of targeted advertising; ensuring an open dialogue between the advertiser and the user on to explain the nature and purpose of the use of the collected data for advertising purposes. The main conclusions of the study are aimed at improving the provisions of legislation on the protection of personal data, taking into account the rapid spread of targeted advertising on the Internet information and telecommunications network.
Keywords:
user, advertiser, data leakage, personal data, administrative responsibility, targeted advertising, social network, The Internet, digital development, information security
Law and order
Reference:
Bondar' A.Y.
Forensic identification and its role in the investigation of poaching-related crimes
// Legal Studies.
2024. № 6.
P. 81-95.
DOI: 10.25136/2409-7136.2024.6.68909 EDN: ARNKEQ URL: https://en.nbpublish.com/library_read_article.php?id=68909
Abstract:
The subject of this study is the features of forensic identification in the investigation of crimes related to poaching. The purpose of the work is to consider and resolve certain problematic aspects of establishing the subject who left traces when committing poaching actions, i.e. the author considers the issues of establishing the identity of the alleged subject of criminal actions to the subject who left a trace when committing a criminal act. The relevance of the chosen topic has both theoretical and practical aspects of significance, which is confirmed by the existence of poaching throughout various historical epochs, while the issue of its forensic identification remains debatable. The author used universal dialectical, logical, descriptive, statistical, historical, comparative-legal, formal-legal research methods in this article. The scientific novelty of the research is determined by the author's proposal of innovative ideas for more effective identification of the facts of poaching. These include: the use of unmanned aerial vehicles, the use of artificial intelligence and the installation of GPS systems on hunting weapons. The proposed ideas can contribute to the resolution of the problematic issues highlighted in this article. The author notes the need to optimize the methods of forensic identification in the investigation of criminal cases of this category of crimes. Unfortunately, poaching harms biological diversity, and the purpose of its activities is to make a profit, which can lead to the destruction of populations of rare and endangered species, disruption of ecosystems and destruction of natural areas. It should be noted that the detection rate of poaching for 2022 remains low, which is another argument to the author's positions.
Keywords:
optimization of forensic activities, GPS systems, artificial intelligence, UAV, inspection of the scene, forensic examination, criminal liability, objects of research, forensic identification, poaching
Law and order
Reference:
Udintsev G.V.
Evolution of Russian legislation in the field of countering crimes committed by managers against the interests of corporations
// Legal Studies.
2024. № 6.
P. 96-110.
DOI: 10.25136/2409-7136.2024.6.70927 EDN: AUMLFD URL: https://en.nbpublish.com/library_read_article.php?id=70927
Abstract:
The subject of the study is the process of evolution of domestic criminal legislation in terms of criminalization of acts committed by employees of corporations using their official position, special attention is paid to the heads of commercial corporate organizations. The article examines the abuse of official position in the context of the development of society in the territory of modern Russia in the pre-revolutionary era, during the period of Soviet power and after perestroika. It describes the development of corporate and non-profit structures in the context of the development of bourgeois relations and the transition from private service to nationalization in the Soviet era, the impact of this fact on the increase in the number of official crimes. The author analyzes the impact of legal changes on the understanding of official crime, including the principles of criminal responsibility, the qualification of acts and differences in the criminal legal assessment of abuses by public officials and non-state employees. The research method is a consistent historical and legal analysis of the substantive and procedural criminal legislation of the Russian Empire, the RSFSR and the Russian Federation in the part under consideration. The historical analysis of the evolution of the institute of executive responsibility for crimes against the interests of service in corporations conducted in this article allows us to draw the following conclusion: understanding over several centuries the issues of criminal law regulation of corporate executives' responsibility has led to an awareness of the different legal nature of public service and service in corporate structures, entailing inadmissibility a unified approach to the criminal law assessment of abuses by public officials and non-governmental employees. Despite the apparent similarity, due to these differences, a different approach is required to the criminal legal assessment and measures to counteract these, undoubtedly, inherently different acts. Thus, the appearance in the criminal legislation of Russia of a system of crimes against the interests of service in corporations is unambiguously historically and economically conditioned.
Keywords:
process of criminalization, criminal law, evolution, historical and legal analysis, use of official position, the interests of the service, service, manager, commercial organizations, corporation
Jurisprudence
Reference:
Iaremchuk V.P.
On the classification of forensic ballistic technologies
// Legal Studies.
2024. № 6.
P. 111-123.
DOI: 10.25136/2409-7136.2024.6.69048 EDN: AVPBEM URL: https://en.nbpublish.com/library_read_article.php?id=69048
Abstract:
The subject of this study is the identification of the grounds for the classification of forensic ballistic technologies based on the classifications of forensic technologies. The purpose of the study is to form comprehensive scientific and theoretical ideas on the classification of forensic ballistic technologies. Within the framework of the study, the approaches to the classification of forensic technologies previously proposed by forensic scientists were considered. It was found that the considered approaches have their drawbacks, the significance of which is due to the discrepancy between the technologies allocated; to the constantly developing fields of science and technology, which does not allow the use of the classifications proposed in modern conditions. It was also found that earlier in the research on criminalistics and forensic examination, the classification of forensic ballistic technologies was not carried out, despite the fact that their practical use is relevant, and theoretical support is a necessary element of the scientific concept of the use of forensic ballistic technologies in the organization and production of forensic ballistic examinations. Among the methods used in this study, the following should be mentioned: analogy, deduction, induction, classification, retrospective analysis and synthesis. The main results of the study are the author's classification of forensic ballistic technologies. The division of forensic ballistic technologies is based on the division of forensic technologies in general, but taking into account the peculiarities of forensic ballistic expertise. The highlighted grounds allow updating the classification of forensic technologies proposed by forensic scientists and creating a classification of forensic ballistic technologies that did not exist before.
Keywords:
classification of forensic ballistic technologies, forensic ballistic technology, forensic ballistics, forensic ballistics examination, classification of forensic technologies, grounds for classification, forensic technology, forensic examination, technology, technologization