Articles

The subject of the study is the issue of correlation between illegality and abuse of right. Such aspects of illegal behaviour as violation of general principles of law and legal obligations are considered. Various doctrinal concepts and views on the abuse of right and its illegality, as well as approaches of judicial practice to this issue are analysed. 

As a result, it was established that the abuse of right is always illegal, in view of which the concept of so-called «legal abuse of right» cannot exist, because it is not a legal, but a philosophical category. From the legal point of view «legal abuse of right» is nothing more than the exercise of right, and therefore any reasoning about it is devoid of practical sense, while in the violation of the obligation not to use the right with the exclusive purpose of causing harm to others and lies the wrongfulness of the abuse of right. 

The article also considers the essence of wrongfulness as a violation of general legal principles and legal duties, from which the author concludes that any concepts claiming to substantiate the essence of wrongfulness with the help of any type of legal understanding are untenable. Otherwise, there will remain logical contradictions, as well as gaps in legal regulation that have not been filled.

The question stated in the title of the article is posed against the background of the opinion taking root in criminal jurisprudence about the redundancy of substantiation of the philosophy of criminal law in connection with the presence and mass recognition in humanitarian knowledge of two independent and self — sufficient philosophies — “philosophy of crime” and “philosophy of punishment”. Verification of this judgment revealed the absence of the considered “philosophies” of their own genesis and rational grounds. Their appearance followed after in the XVIII–XIX centuries. criminologists convinced themselves that crime and punishment constitute the basic concepts of criminal law and exhaust its content. Despite a different paradigm of worldview, philosophers, sociologists and historians have followed the path of “crime and punishment”. Within the framework of the newly emerged philosophies, some began to search for the best places to treat a person from criminal vices, while others described the mechanisms of deviant behavior. An excursion into history also helped to reveal the non-philosophical origin of the so-called criminal philosophies. Systemic philosophers who have been engaged in understanding being as a whole have no relation to the “philosophies” under study. The copyrights to them belong to industry lawyers and their followers, who are used to thinking about the world around them through a terminological series limited by the “crime — punishment” paradigm. The experimental hacking of the mentioned ideas made it possible to reveal that the philosophy of crime is a meaningless alogism, and the philosophy of punishment can only correspond to the teleology of the instrument. These “philosophies” give legal science no more than what is already available in a self-sufficient volume in branch disciplines. Philosophy, of course, participates in the discussion of such vital issues as crime and punishment. But the questions themselves cannot claim to form separate disciplines because of their fragmentation and extraction from a more integral education. Philosophy appears there and then, when there is a need to think in the format of the entire universe and search for a person in need of law in it.

The problem of climate change worries many, which leads to the search for ways to influence the policies and measures taken by States in this area. Over the past two decades, legal issues related to climate change have been put before international justice authorities, especially in the field of human rights protection. States are not ready to transfer such a sensitive issue to the jurisdiction of international bodies, while the latter are trying to resolve the issue of the degree of their participation in this political process and maintain a balance of interests. For the first time, the European Court of Human Rights resolved the “climate” dispute in favor of the applicant, at the same time significantly modernized its environmental practice and tried to create a legal basis not only for its own use. However, this energy of the Court leads to the formation of an independent legal regime in international human rights bodies with regard to climate change mitigation and adaptation to climate change, which comes into some contradiction with the principles of international cooperation between States carried out within the framework of the United Nations Framework Convention on Climate Change of 1992 and related documents.

The position on national laws as attribute of state sovereignty being resorted to in the course of arbitration, judicial other jurisdictional activities in new legal and political realities is outlined in this article. The results of foreign colleagues’ work must be controlled with sanctions as far as possible in form of non-recognition of overseas law enforcement acts. But the events and drama of life, the emerging legal understanding reveal new facets of fundamental legal concepts and institutions. This once again shows the living and developing content of international law, international private law, creating new opportunities to respond to emerging issues that require systemic resolution. Such a constant and rich phenomenon of unceasing economic life as international communication of subjects and persons of various jurisdictions is undergoing changes. Someone will say evolution, but one can also use the word “development” here, in view of the more active performance of sovereign functions by states, mainly involved in the well-known imposed international confrontation.

The review contains multiple characteristics of the recently published monograph by A. A. Linetz “Labor Law and Economics”. The issues covered in the book under review cover a wide range of labor legal issues in the context of building a digital economy: gig employment, work through digital labor platforms, transformation of labor relations, the role of the state and social partners in this process.

The conference review offers views on law that are widespread in our theoretical and legal science. It points out the outstanding role of the founder of German classical philosophy I. Kant in the formation of the philosophy of law. His idea of the categorical imperative is aimed at creating a model of a legal state, where a person is declared not only a means, but also an end. Kant is one of those who formed the metaphysical philosophy of law, i. e. a branch of knowledge that creates semantic models in the world of political and legal reality. The review discusses Kant’s influence on Russian and European philosophy of law, the significance of his ideas for modern times. In the second half of the 19th century, five or six neo-Kantian schools appeared (the largest are Baden and Marburg), where original concepts of the philosophy of law were created on the basis of Kant’s epistemology and ethics. In the 90s of the 19th century in Germany and in Russia, under the slogan “Back to Kant!” a school of revived natural law was formed, the purpose of which was to proclaim the eternal value of the individual and thus put an obstacle to class struggle and the coming revolution. Revolutionary Marxism was opposed by ethical socialism and the idea of a legal social state, which seems relevant in our historical era. The appeal to the ideas of Kant also meant a turn towards idealism and religion, which gave a new impetus to the development of the philosophy of law.

The article reveals the main problems and prospects of the activities of Scientific Advisory Councils in the Russian Federation. Scientific Advisory Councils have a special ability to organize real effective interaction between law enforcement and the scientific community through common systemic work that has real socially useful results. It seems that effectively and correctly organized activities of Scientific Advisory Councils are the place where the truth is born. The activities of Scientific Advisory Councils are also distinguished by the ability not only to identify problematic issues of law enforcement, but also to form uniformity in judicial practice. The main problem in the activities of Scientific Advisory Councils in the Russian Federation is the lack of a uniform procedure for organizing their activities, as well as the ineffectiveness of using the existing potential of Scientific Advisory Councils. The work analyzes the best practices of using the institution of Scientific Advisory Councils in the system of arbitration courts of the Russian Federation. The author notes that the highest bodies of legislative, executive or judicial power are not always able to independently detect legal conflicts and problems. The existing problems of law enforcement mostly arise for law enforcement officers at the local level. The effective activity of the Scientific Advisory Councils allows formulating a uniform approach to the application of legal norms in those situations for which the law enforcement officer has developed different practices. In addition, the article substantiates the need to develop and improve the institute of Scientific Advisory Councils in the Russian Federation.

The advent of the big data era not only brings convenience to our daily lives, but also creates problems and risks for the protection of personal data of citizens. In order to effectively prevent, terminate or eliminate problems arising in connection with the legal protection of personal information, strengthening the administrative and legal protection of personal information is a more realistic way. The main arguments for this are that, firstly, in order to realize economic interests, violations are often committed related to the illegal collection, processing and use of personal information of citizens by subjects of a market economy; secondly, administrative authorities are obliged to maintain, manage and supervise various civil rights of citizens, including the right to personal information, and their right to participate in public affairs; Finally, while performing administrative functions and serving the public interest, administrative authorities also collect a large amount of personal data of citizens, thereby increasing the possibility of large-scale leakage of personal information. The article analyzes a number of problems related to the administrative and legal protection of personal information in China, and on this basis, proposals such as improving the system of administrative measures to protect personal information, clarifying the responsibilities of relevant regulatory authorities, taking various supervisory measures and strengthening the structure of administrative proceedings in the public interest are put forward.

This article is devoted to the problem of the volitional content of intent in crimes with formal compositions. The author analyzes the configuration of types of intent in crimes with formal compositions from the point of view of the current criminal law and the theory of criminal law. It is concluded that a crime with a formal composition with indirect intent is impossible, since the volitional criterion of indirect intent (“conscious assumption”) It is characterized by substantial uncertainty, while the volitional criterion of direct intent (“desire”) is the only definition that exhaustively expresses the volitional content of intent. In the article, by analyzing the doctrine of criminal law of the XIX–XX centuries. The problem of a person’s desire to commit an action (inaction) regardless of the onset of socially dangerous consequences is considered as a volitional criterion of intent in a crime with a formal composition: the author concludes that intent in crimes with a formal composition can only be described using an intellectual criterion, since the desire to commit an action (inaction) regardless of the onset of socially dangerous consequences is an element of the sanity of the subject of the crime, but not of guilt. The author comes to the conclusion that bringing to criminal responsibility for the commission of crimes with formal compositions is an objective imputation, while in order to avoid objective imputation, it is possible to construct many compositions of crime traditionally attributed to formal ones as compositions of danger.

Judicial accounting is an academic discipline that has been taught at the Faculty of Law of Lomonosov Moscow State University for almost fifty years. It was taught at the faculty by Sergey S. Ostroumov and Hamlet A. Atanesyan. However, in the last decade, the teaching of this discipline at the faculty has begun to fade away. It is advisable not only to keep the teaching of Forensic Accounting in our country, but also to return it to a generally obligatory character for students of all specializations. The subject of judicial accounting is the system of applying accounting knowledge in criminal proceedings (in particular, the appointment of judicial accounting expertise, evaluation of expert opinion, examination of documents, invitation of a specialist, etc.) and in other branches of law (civil, administrative and arbitration processes, tax, civil, labor law). Therefore, law students need to learn the basics of accounting (transfer of economically significant information from primary accounting documents through accounting entries to registers, formation of accounting statements, etc.). Accordingly, students at the end of the course should know accounting entries reflecting the main business transactions of business entities. They should gain knowledge of the basics of accounting and economic analysis for use in various areas of legal activity, as well as acquire basic skills in working with an automated accounting program.