Annotations № 1 (148) / 2023


Kokotov A. (Saint Petersburg) Law as a type of social capital

The article, based on an analysis of the legal and sociological literature, presents a view of law as a type of social capital. At the same time, law is considered a complex behavioural formation in the context of legal culture and the legal life of society. Social capital, being superstructural and extra-economic, includes cultural, symbolic capital, trust capital and human capital. All of them are represented in one way or another in law and legal activity and are capable of providing effective legal regulation of social relations. Law in modern society has become a developed industry aimed at both single-piece and mass production of legal values (legal consumer values). High art and reliable craftsmanship are in demand in this industry. The leading part of this industry is the production of means of legal production. Such means include fundamental ideas, values, constitutional principles and laws.

Key words: law, legal activity, social capital, capitalization, values, legal consumer values, legal culture, legal life

Kuchin M. (Moscow) Features and trends in the application of the ECHR case law in the legal system of Russia

The article discusses the features of the functioning of the ECHR case law in the Russian legal system. It analyses the process of formation of the domestic mechanism of case law implementation and the legal consequences related to the Russia’s withdrawal from the Council of Europe and denunciation of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Key words: ECHR case law, interaction of international and domestic law, Convention for the Protection of Human Rights and Fundamental Freedoms

Marochkin S. (Tyumen) International law in Russian courts: current realities

The article explores the significance and role of international law in the legal system of Russia, primarily in Russian judicial practice, after the important changes in internal and external life such as the constitutional amendments of 2020 and the termination of Russia’s membership in the Council of Europe in 2022. The author studies and summarises the extensive practice of Russian courts of all types and levels: the Constitutional Court, courts of general jurisdiction, and arbitration courts. He describes the types and forms of applying international law by the courts, the categories of international instruments used by them (treaties, recommendations, and decisions of international bodies), and the role of plaintiffs and defendants in the use of international law in court proceedings. The author highlights the necessity of establishment of a Eurasian human rights protection mechanism within an existing regional organization. The influence of contemporary political processes on judicial decisions related to international law is assessed. The current perception of the international law by the courts is characterized and some trends in assessing its significance for the country’s legal system are described.

Key words: international law, international treaties, decisions of international bodies, Russian legal system, court practice, European Convention on Human Rights, European Court of Human Rights, human rights mechanism in the Eurasian space

Nikitin S. (Moscow) Interpretative acts as a subject of court normative control

The article considers problems of legal regulation and enforcement of court control over the legitimacy (legality) of interpretative normative legal acts. Based on an analysis of the legal nature of acts of normative interpretation, the author critically estimates the current procedure for contestation of such acts. He points out that the order of examination of interpretative acts as provided by Art. 217.1 of the Russian Code of Administrative Procedure, does not set out any specificities of court disqualification of interpretative acts, adopted in violation of the formal legal requirements for normative legal acts, and almost excludes the court examination of the mentioned acts from the perspective of their compliance with these requirements. This, in the author’s opinion, directs the courts, which examine interpretative acts, to establish whether or not the explanations are normative and to formally compare the content of these explanations with the content of the act being interpreted. The author sets up some proposals for legislative regulation of the procedure of court examination of interpretative regulations including those with formal legal defects. In particular, the author substantiates the need to legitimise normative interpretations of legislation, which are adopted by public authorities, including those in the form of letters. That requires legislative amendments that would clearly establish the circle of subjects authorized to issue interpretative acts, the name and forms of such acts, as well as the procedure for their publication and state registration.

Key words: normative legal act, normative interpretation, interpretative act, contestation of normative legal acts

Yarkov V. (Yekaterinburg) Competence of Russian courts in cross-border insolvency cases

The article considers the issues of competence of the Russian and / or foreign courts in cross-border insolvency cases. It asserts that the Russian courts have an exclusive competence in these cases. It is pointed out that, in determining the competence in such cases, the doctrine of debtor’s centre of main interests should be taken into account. Attention is drawn to the broad understanding of the range of judicial acts that can be the object of recognition and enforcement in cross-border insolvency cases. The decisive role of judicial practice and soft law in the development of legal regulation and law enforcement of cross-border insolvency is noted.

Key words: cross-border insolvency, centre of main interests, competence, soft law


Malinova A. (Moscow) Public interests: history, theory and arguments against the use of this term in Russian legislation

The doctrinal definitions of public interests existing in modern jurisprudence are largely based on an uncritical interpretation of such formulations as «state, public and other public interests», which are still not often found in legislation and judicial practice. It is concluded that public interests are a generalizing concept, which combines state and public interests. If the subject of interest in jurisprudence is at the same time a subject of law, i. e. a person or a legal entity, then the subject of public interest, according to the legal doctrine of the mid-1990s, is an amorphous substance – a social community. Recently, the subjects of public interest have also been considered as «a significant number of persons» and «an indefinite range of persons». The article shows that such interpretations of the word combination with the adjective «public» contradict both logical classification grounds and its common dictionary meaning. The term «public interest» appeared in the Russian language in the times of Peter the Great. For almost three hundred years, domestic legislation and judicial vocabulary have done without this term, and, most likely, will benefit if this «vague» concept is no longer used in them.

Key words: interests, public interests, public, rights, subject of law, subject of interest, carrier of interest

Polyakov S., Gilev I. (Perm) The words and deeds of «digitalisation of law»

The amount of legal literature on law and digitalisation has been growing rapidly in recent years. There are two directions of legal research related to the use of information technologies in legal activities: «words direction» and «deeds direction». Representatives of the former do not contribute to the development of computer programs for lawmaking and law enforcement, the latter arise only within the «deeds direction». However, legal science does not have significant results in the development of information technologies for legal activities. Approbation and implementation in the judicial practice of rare computer programs, created under the guidance of legal scholars, are hindered by organisational and financial obstacles, which are based on false ideas about the relationship between law and information technologies. The present article is about such obstacles to the development and use of information technologies in legal activities.

Key words: information technologies, computer programs, legal activities


Kolesnichenko O. (Ryazan) The concept of biological harm in Italy – rethinking the category of «harm to health»?

The article is devoted to a critical examination of the concept of danno biologico (biological harm), which is applied in Italian law and judicial practice to relations of compensation for harm to health. The author investigates the legal nature of biological harm, methods for determining its size, and its place in the system of assessed economic and non-economic consequences of a violation of the psychophysiological integrity of a person. It is noted that the uniqueness of the danno biologico concept lies in an attempt to give the objective physical harm the meaning of an independent kind of compensated losses, based on a detailed dynamic-relational characteristic of such harm. A key drawback of the concept under study is the absence of consistent criteria for classifying of certain personal traits as an economic and non-economic consequence. An analysis of the danno biologico concept in relation to Russian reality allows the author to argue that the application of legal constructions of losses and moral damage does not create the necessary conditions for a comprehensive account of significant manifestations of health damage. It is substantiated that the category of «harm to health» should include such components as «harm of influence» and «harm of state» that have strictly objective and mixed objective-subjective properties. The content of each of these components is revealed.

Key words: danno biologico, harm to health, moral damage, scope of compensation, quality of life


Khorosheva A. (Barnaul) The private forensic presumption of mental disease or another diseased state of mentality of the victim and its significance in the judicial investigation of homicidal crimes

The article examines the role of private forensic presumptions in judicial research and emphasises their distinction from presumptive statements. Based on the generalization of the array of criminal cases related to causing death (homicidal crimes), the author provides a classification of private forensic presumptions typical of this group of acts. One of the psycho-physiological presumptions, i. e. the presumption of mental disease or another diseased state of mentality of the victim, is analysed.

Key words: judicial proceedings, judicial version, forensic presumption, methods of judicial investigation, homicidal crimes

Polyakov V. (Barnaul) A group form of committing crimes as one of the signs of high-tech crimes

The article outlines the task of modern criminology to develop a private method of countering rapidly developing high-tech crime. The author describes the signs of high-tech crime, the most important of which is a group form of committing crimes. The main factors complicating the investigation of group high-tech crimes are identified. These include: 1) increased secrecy and anonymization achieved due to the remote nature of criminal encroachments based on the use of hidden and protected communication channels; 2) specificity of the trace formation mechanism, resulting in the formation of electronic-digital traces, almost devoid of personalization features of criminals; 3) compulsory participation in committing high-tech crimes of specialists whose professional knowledge exceeds the relevant knowledge of the subjects of investigation; 4) high complexity of criminal cases on high-tech crimes caused by a large number of special materials and a significant number of episodes; 5) evolution of the structure of criminal groups from a traditional hierarchical structure to a network one, etc. Forensic recommendations for neutralizing the negative impact of these factors are proposed.

Key words: group crimes, investigation of crimes, high-tech crimes, methods of investigation, organized crime

Nazarov M. (Yekaterinburg) Changing the existing paradigm of using the results of operative-research activities in criminal proceedings

The article analyses the opinions of researchers established in the science of criminal justice regarding the use of the results of operative-research activities in the investigation of criminal cases and their consideration on the merits by the court. It examines the dynamics of social relations, legislation and theoretical provisions concerning the use of information, obtained during the research operations, at various historical stages. It is emphasized that the modern operative-research activity is a highly effective normatively regulated type of law enforcement practice, which qualitatively differs from the criminal investigation that existed before. The author’s concept of the use of the results of operative-research activities in criminal proceedings is presented.

Key words: use of the results of operative-research activities, preliminary investigation, evidence, body of inquiry, criminal investigation

Litvinova I. (Krasnodar) Problems of admissibility of electronic evidence obtained in the course of other procedural actions

The article discusses the problems of admission as evidence of computer information obtained in the course of other procedural actions, which arise due to imperfections of the current criminal procedure legislation. The author points out that the admission as evidence of computer information obtained by third parties outside criminal proceedings is complicated by several factors: 1) lack of clear definition and list of other procedural actions, which allows scientists to include in this list not only procedural actions, but also preventive measures; 2) lack of legally established possibility of participants in criminal proceedings to submit computer information for inclusion in a criminal case; 3) lack of clear admissibility standards for admitting computer information obtained in the course of other procedural actions as evidence. In order to address these problems, the author proposes to introduce amendments and additions to the criminal procedure legislation, which would allow to admit computer information obtained in the course of other procedural actions as evidence and to use it for establishing the circumstances to be proved.

Key words: computer information, electronic evidence, admissibility, other procedural actions


Mertvishchev A. (Yekaterinburg) The surety’s obligation in the case of concluding by the creditor an amicable agreement with the debtor

The conclusion of an amicable agreement in a case on the recovery of a debt from the main debtor entails the impossibility of recovery from the surety due to the accessory nature of their obligation. However, there are exceptions to this rule formulated in judicial practice and confirmed by certain norms of the Russian Civil Code on surety. These are the absence of expression of the creditor’s will, surety’s delay, and surety’s consent to be responsible under new terms.

Key words: surety, amicable agreement, accessory obligation


Shuraleva S. (Perm) Suspension of an employment contract: features and classification

The article discusses new types of suspension of an employment contract that appeared in the regulatory legal framework in 2022. The author analyses scientific views on the suspension of an employment contract and supports conclusions about the necessity to legalize the suspension of an employment contract in the Labour Code of the Russian Federation as an independent stage in the dynamics of an employment contract. According to the author, the suspension of an employment contract has a temporary and unstable character since it accompanies a change in the employment contract, or flows into the termination stage or tends to be renewed. The author analyses various classifications of the suspension of an employment contract and comes to the conclusion that the most significant of them is the classification according to the volitional criterion. The author proposes to match this classification with the legal classification of the grounds for termination of an employment contract: at the initiative of the employee, at the initiative of the employer, by agreement of the parties, and due to circumstances beyond the control of the parties. By comparing the suspension of an employment contract and the suspension of a legal employment relation, the author confirms the thesis, previously formulated in the science of labour law, about the different scope of suspending / operating rights and obligations of the employee and the employer. According to the author, it is inappropriate to establish the exhaustive list of these rights and obligations.

Key words: suspension of an employment contract, suspension of an employment relationship, suspension from work, partial mobilization


Dirksen T. (Moscow) Prospects for application of a synergistic approach to legal regulation of tax relations

The article asserts that the synergistic approach is likely to propose a solution to the problem of reconciliation of the competing interests which constitute the essence of tax relations. It is concluded that there is a necessity to combine management and self-organization means in the process of legal tax regulation in order to stimulate the appropriate internal reactions of the system. This allows to substantiate the responsive regulation, which predisposes the regulator’s reaction based on the behaviour of a regulated subject and the presence of the bounded discretion of tax relations participants. From the standpoint of synergistic approach it is feasible to maintain the hierarchy of preventive measures to counter tax evasion.

Key words: synergistic approach, tax relations, tax administration, tax agreement, tax mediation