Annotations № 5 (146) / 2022

INTERNATIONAL LAW

Pimenova S. (Moscow) Provisional measures in the practice of the International tribunal for the law of the sea

The article analyses the regulatory framework and jurisprudence on provisional measures of the International Tribunal for the Law of the Sea (hereafter – Tribunal). The UN Convention on the Law of the Sea of 1982 not only provides for the powers of the Tribunal and arbitral tribunals to grant provisional measures but also is the first international treaty that has established the binding force of such measures. The author emphasises that today the consideration of the issue on the application of provisional measures has become one of the main activities of the Tribunal. Such measures can be aimed both at ensuring the rights of the parties to the dispute and at preventing serious damage to the marine environment, which distinguishes the Tribunal from other international courts. The Tribunal’s practice shows its desire to follow the legal positions of the International Court of Justice.

Key words: provisional measures, criteria for the application of provisional measures, International Tribunal for the Law of the Sea, UN Convention on the Law of the Sea, damage to the marine environment

CONSTITUTIONAL LAW AND PROCEDURE

Ignatenko V., Petrov A. (Irkutsk) Constitutional judicial assessment of gaps in legal regulation

Although the existence of gaps in law has objective reasons, it is, without a doubt, a defect in legal regulation creating obstacles to its adequate implementation. The Constitutional Court of the Russian Federation is not empowered to verify the constitutionality of gaps in legal regulation directly. However, in many situations, gaps create a threat of violation of the rights and freedoms of a person and a citizen, destroy the normal mode of functioning of public authority and entail other consequences that are constitutionally significant. Thus, consideration of issues related to gaps constitutes an integral part of the activities of the Constitutional Court, which develops various approaches to their resolution. The article emphasises that, at present, the attention of the Constitutional Court to the gaps in legal regulation is increasing. This is supported by a significant number of decisions of the Constitutional Court, which contain conclusions about the presence of constitutionally significant gaps in legal regulation. The general conclusion is that the Constitutional Court of the Russian Federation has a sufficient set of tools for a proper constitutional and judicial assessment of legal gaps, as well as for taking measures to minimise their negative consequences for legal regulation.

Key words: Constitutional Court of the Russian Federation, legal gaps, judicial constitutional normative control, jurisdiction of the Constitutional Court of the Russian Federation

CRIMINAL LAW AND PROCEDURE

Karlov I. (Vladimir) The main criminological indicators and trends of penitentiary crime

The article analyses criminological indicators of the most common types of crimes in places of deprivation of liberty, as well as the main trends in the commission of crimes in certain correctional institutions and penitentiary crime in general. Based on the evaluation of statistical data, the author obtains scientifically based data on the level, dynamics, structure, and coefficients of penitentiary crime in recent years, the criminogenic situation in certain types of correctional institutions and the most common types of crimes committed by convicts. Conclusions are drawn about the preservation of a rather complex criminogenic situation in penitentiary institutions, the emergence of risks of increasing criminal activity of convicts and the increased workloads for penal system employees.

Key words: penitentiary crime, convict, penal enforcement system, criminological characteristics

Breslav I. (Moscow) Difficulties of qualification of crimes committed in obstetric and gynecological practice under article 238 of the Russian Criminal code

There are some difficulties in qualifying the acts of medical workers under Art. 238 of the Criminal Code of the Russian Federation. Judicial practice over the past 11 years has been studied to clarify the objective side of crimes involving the provision of obstetrics and gynecology services that do not meet safety requirements. The most frequent defects in providing medical care to pregnant women, women in childbirth, puerperas and gynecological patients are analysed. The problem of differentiation of crimes provided for by Part 2 of Art. 109 and Para. «c» of Part 2 of Art. 238 of the Criminal Code of the Russian Federation is considered.

Key words: obstetrician-gynecologist, medical service, service that does not meet safety requirements, injury to health, death

CIVIL LAW AND PROCEDURE

Zykov S. (Novosibirsk) A «missed» tort of civil law

The Russian researchers do not mention the harm caused by four-legged animals (the basis of actio de pauperie) while considering civil (legitimate) torts of Roman law. Liability for such harm was established by the laws of the XII tables and existed in late Roman law along with liability for harm to property (damnum iniuria datum) under the law of Aquilia. It was distinguished from the latter by the absence of such an element as the guilt of the person held liable, as well as the indirect impact of the tortfeasor on the property of the victim. The legal grounds for actio de pauperie have changed over time, in particular they started to cover the infliction of harm by dogs and wild animals; but one thing remains unchanged: this action was conditioned by the «wildness» of the animal and not the actions of the owner, which served as the basis for delimiting this liability from liability for causing harm to property under the law of Aquilia. An analogue of the considered tort in modern Russian civil law is the infliction of harm by activities that create increased danger to others (Art. 1079 of the Civil Code of the Russian Federation).

Malbin D. (Moscow) Real estate as an object of reclamation under a vindication claim

A vindication claim is one of the classic ways to protect property rights. However, several issues regarding the vindication claim are still controversial. In particular, there is a discussion in science about the possibility of reclaiming real estate from someone else’s illegal possession with a vindication claim when a record of the owner’s right is kept in the register. Some authors believe that the vindication claim is applicable only to movable property since the ownership of real estate is carried out by means of an entry in the register (the concept of book ownership), and, therefore, possession can only be violated by changing the entry. However, the current Russian legislation does not know the concept of book ownership, and its extension to the institution of a vindication claim leads to a number of theoretical contradictions that cannot be successfully resolved. In particular, due to the application of the concept of book ownership, a vindication claim is transformed into a claim for recognition, and a negatory claim begins to play the role of a claim for reclaiming real estate from someone else’s illegal possession. In the institution of a vindication claim, possession should be understood not as a social relationship, within which the dominance of a person over the object of possession is recognized, but as a material act of possession when the possessor has a material connection with the thing, while the owner, being removed from his object of real estate, is deprived of such a connection. The vindication claim as an award claim is intended to eliminate such a violation.

Key words: vindication claim, real estate, possession, property, reclamation, thing, book ownership

Formakidov D. (Perm) Abuse of the right to use the residential premises made by a former family member of the tenant during the housing privatization

The issues of qualifying the actions / inaction of a former family member of the tenant of residential premises as an abuse of the right in the framework of the privatization procedure are examined. It is substantiated that the departure of a former family member of the tenant to other premises and non-payment of utilities cannot be considered as an abuse of the right. The necessity of distinguishing the legal and factual grounds for filing a claim to recognize the former family member of the tenant as having lost the right to use the premises and a claim to recognize the presence of signs of abuse of the right in his behaviour is argued. The author indicates the conditions under which the claim to recognize the former family member as having lost the right to use the residential premises will be an appropriate way to protect the right.

Key words: former family member of the tenant, housing privatization, abuse of the right

Dvurechinsky D. (Yekaterinburg) Selected issues of disputing an approved settlement agreement

The article considers the problem of appealing (disputing) a settlement agreement (transaction) approved by the court. There are two approaches to solving this problem: the appeal of the judicial act, which approved the settlement agreement, and the independent appeal (dispute) of the transaction that constitutes the content of the settlement agreement. The author analyses individual defects of the settlement agreement and various means of correcting them: instance appeal, review under new and newly discovered circumstances, filing an independent claim for invalidation of the settlement agreement (transaction). Advantages and disadvantages of each mechanism are highlighted. Taking into account the mixed legal nature of the settlement agreement, the author agrees to the opinion proposed in the scientific literature, according to which it is possible to dispute the settlement agreement separately from the judicial act that approved it by filing an independent claim for invalidation of the settlement agreement (transaction).

Key words: judicial act, settlement agreement, transaction, invalidity of the transaction

ADMINISTRATIVE LAW AND PROCEDURE

Morozova N. (Krasnoyarsk) Offences creating an abstract and a specific danger in the code of the russian federation on administrative offenses

The Code of the Russian Federation on Administrative Offenses establishes the offenses, the objective side of which includes the threat of harm. Law enforcement officials often use a formal approach to clarifying the reality of such a threat, and this leads to the unjustified imposition of severe punishments on offenders. According to the author, the key reason for this problem is the absence of the concept of «torts creating danger» in the doctrine of administrative and torts law. At the same time, in the science of criminal law, crimes creating danger are well studied, classified, and judicial practice has developed the rules for proving them. By using the achievements of the science of criminal and administrative law and by analysing the emerging judicial practice, the author concludes that the torts creating danger occupy an intermediate place between formal and material corpora delicti and should be divided into two types: 1) torts creating an abstract danger, that encroach on the life and health of people; at the same time, the offense is so obvious and so serious that the existence of a threat follows from the essence of the offense; 2) torts creating a specific danger, that encroach on all other objects; in such cases, the harm that is caused by the offense should be specified.

Key words: administrative offense, administrative responsibility, corpus delicti, torts creating danger

Chaliapin G. (Moscow) Reporting in aquaculture: legal grounds, forms of submission, sanctions for non-submission

The article presents the results of a study and assessment of the legal grounds, as well as law enforcement practice for submitting fish reporting by agricultural producers. It analyses cases of administrative prosecution for failure to submit such reports and concludes that the variety of its filing forms is an excessive administrative barrier for entrepreneurs. Based on the results of the study, the author proposes simplifying and unifying the system of statistical and sectoral fish-breeding reporting.

Key words: fish farm, reporting, reporting forms, aquaculture

LABOUR AND SOCIAL LAW

Shcherbakova O. (Yekaterinburg) Genetic information as a new basis of discrimination in labour relations

The author gives examples of discrimination against workers in labour relations based on the use of genetic information about them. Although, it is noted that many concerns about such discrimination are exaggerated. The author concludes that it is necessary to consolidate the prohibition of discrimination in labour relations on the basis of genetic information since the use of genetic information without the employees’ consent violates their property and personal non-property rights, including the right to protect their dignity during the employment period.

Key words: genetic information, genetic testing, screening, protection of the employee’s dignity during the employment period, labour protection, employee’s privacy, precision medicine

Fedorova M. (Yekaterinburg), Cherepantsevа Yu. (Orenburg) The role of digital technologies in the development of the regulation of social security of the radiation victims

The article discusses the problems of improving regulation of the social protection of citizens exposed to radiation and the role of digital and information technologies in this process. The peculiarities of legal regulation in this area are justified through the prism of the concept of social risk. Radiation exposure is a social risk factor; diseases, disability, death, and living in a territory contaminated with radionuclides caused by such exposure are the events of social risk materialization, the consequences of which are compensated by social security. Analysing the categories of radiation risk and social risk, the authors conclude that these risks are related but not identical. The radiation risk combines a social risk factor and an event of social risk. Without an adequate assessment of the degree of this risk and the dynamics of its development, it is impossible to form a system of protection against social risk. Such an assessment involves collecting, updating and analysing a large amount of information about the changes in the radiation environment in certain territories, as well as about the health status of the individuals exposed to radiation. The processing of such information requires the use of digital technologies. On the example of the social security of individuals affected by the Chernobyl disaster, the authors demonstrate the validity of targeting of individual measures of protection in connection with the clarification of the radiation risk criteria based on the use of digital technologies. The article concludes that the potential of digital technologies in developing the regulation of social security of the radiation victims is revealed not only at the law enforcement stage (as in other areas of social protection), but also in the legislative process, providing it with the scientific support at the modern level.

Key words: radiation, radiation risk, social risk, social protection, digital technologies, National Radiation and Epidemiological Register, Constitutional Court of the Russian Federation

ECONOMICS AND LAW

Kasatkina A., Ruderman I. (Moscow) Codes of corporate ethics of transnational companies: a comparative analysis

The article provides a comparative analysis of the codes of corporate ethics of several large domestic and foreign transnational companies: «Glencore», NK «Rosneft», «Societe Generale group» and «Sberbank». As part of the study, the following questions are raised: what is the legal force of codes of corporate ethics adopted in transnational companies; whether the provisions of the codes and their legal force differ depending on which company’s employees and clients (in different jurisdictions) they are applicable to; how the norms of codes of corporate ethics correlate with the norms of local legislation in all countries where these transnational companies have their presence; whether the composition of the norms of codes of corporate ethics differentiates depending on the jurisdiction; are there any basic principles and provisions in these codes that can be applied in all countries where the transnational company operates; what is the responsibility of employees and clients of transnational companies for violation of the provisions of codes of corporate ethics?

Key words: codes of corporate ethics, transnational corporations, jurisdiction, responsibility of employees

LEGAL ASPECTS OF ECOLOGY

Yakovleva T. (Yakutsk) The model of the «environment» concept in ecological law of Russia (the end)

The article analyses the conceptual and categorical apparatus of ecological law in order to identify signs, properties, and content of the concept of the environment and its components, establish their relationship and features of legal meaning. The research material is the legislative definitions of such concepts of Russian environmental law as «environment», «natural environment», «natural objects», «natural-anthropogenic objects», «anthropogenic objects», «forest», «land», «subsoil», «soil», «animal world», «water bodies», «atmospheric air», etc. The methodological basis of the study is the method of legal modelling. A brief overview of doctrinal approaches to understanding the environment in Russian science is presented, and directions for improving the conceptual apparatus of ecological law are described.

Key words: modelling, legal model, environment, natural environment, legislation, ecological law

PAGES OF HISTORY

Kostogryzova L. (Yekaterinburg) The law of obligations in Byzantium: institutions and main features (based on the materials of the legislation of the VII–XIV centuries)

The article characterizes the central institutions of Byzantine law of obligations in the VII–XIV centuries and traces their changes in comparison with Roman law allocated in the Corpus Juris Civilis. Based on the legislation and private law documents of that time, the author shows who could be the subject of transactions; what contracts were concluded most often; what requirements were established for the procedure of making a contract and the things that are the object of the transaction; how the activities of corporations – subjects of legal relations – were regulated; what restrictions existed for certain categories of the population. The author draws attention to the features of the conclusion of certain contracts at different times and notes the reasons for these features. Particular attention is paid to the ways of securing obligations and the procedure for protecting the interests of the parties in court. The author points out the following features of the law of obligations in Byzantium: regulation of the conclusion of the contract; equality of the parties to the contract; the significant role of the state in the private legal sphere and, at the same time, freedom of individual entrepreneurship, which entailed the expansion of the domestic market. The author concludes that the law of obligations was highly developed in the Eastern Roman Empire until its fall.

Key words: Byzantium, Byzantine law, law of obligations, Ecloga, Basilics, byzantine acts

Smirnov V. (Yekaterinburg) «The enemy in the board of defenders» (1937–1939) (the end)

May 26, 2022 marks the 100th anniversary of the Decree of the Central Executive Committee of the RSFSR on the establishment of boards of defenders. Initially, they united the «best legal forces», and since the mid-1930s they have moved to the backyard of the legal system after personnel purges and repressions. In the summer of 1937, the chairman of the Sverdlovsk Regional Board of Defenders N. F. Ostrovsky, his deputy V. P. Postnikov, chairman of the local trade union committee A. F. Toropova, members of the presidium of the Board V. A. Bryushkov, M. N. Vetlugin, A. N. Kuznetsov, chief accountant I. I. Zalevsky, defenders N. E. Ilyin and N. I. Korpachev were arrested. The last six fell under the order No. 00447 of the People’s Commissar of Internal Affairs of the USSR N. I. Yezhov from July 30, 1937 «On the operation to repress former kulaks, criminals and other anti-Soviet elements». The troika of the Sverdlovsk NKVD sentenced five of them to execution, and V. A. Bryushkov was sentenced to ten years in a camp. All were rehabilitated in the 1950s. Ostrovsky, Postnikov and Toropova, according to criminal case No. 3098, were held as members of a «subversive counter-revolutionary group associated with representatives of the right». The investigation materials were sent to a special meeting at the NKVD of the USSR, but they decided to take the case to court. It was considered on September 11–16, 1939 in Sverdlovsk on a visiting session of the Chelyabinsk Regional Court. All the defendants were acquitted after serving more than two years in prison. The pages of that case mirror the situation of the 1930s and the place of the defendants, assigned to it by the authorities, among other legal institutions. The current article is a follow-up of the article «Red Terror in the Urals (1923–1940)» published in the 1st issue of the journal for 2018.

Key words: enemies of the people, simplified investigation, acquittal, Sverdlovsk Regional Board of Defenders

LEGAL HERITAGE

N. M. Korkunov on the development of law in Russia introduction of Kodan S. (Yekaterinburg)