Moscow University Bulletin. Series 11. Law

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Kuznetsova’s category of «guilt» and qualification of crimes

Moscow University Bulletin. Series 11. Law. 2022. N 6. p.8-22

Yani P. S.

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293

In the article, based on the understanding of N.F.Kuznetsova’s category “guilty of a person” as “committing a crime by a person”, “criminality of an act committed by a person” is solved, among other things, the applied problem of choosing between competing norms of the Special Part of the Criminal Law, when the objective side of the act is fully described in different norms of the Special Part, the ratio of which as a general and it is impossible to install a special one. The use of a purely procedural presumption in dubio pro reo in the substantive aspect, that is, in resolving qualifying problems, is substantiated: since the recognition of a person committing a crime is not only proof of the actual circumstances of the act, but also its qualification, that is, “establishing compliance in the deed with the signs of a socially dangerous act on the grounds of the corpus delicti provided for in the norms of the General and Special Parts of the Criminal Code, with a conclusion on the application of one or another article of the Code”, the above constitutional provision (Article 49 of the Constitution) should be interpreted not only in the procedural, but also in the substantive aspect. With this in mind and proceeding from N.F.Kuznetsova’s category of guilt a) the conclusion about the fundamental possibility of using the rule “irremovable doubts about the guilt of the accused are interpreted in favor of the accused” as a tool for criminal legal qualification, and b) recognizing the presence of defects in legislative technique, due to which various criminal law norms infringing on one and the same direct object, similarly describe the corpus delicti to be imputed to the guilty person, it was proposed when deciding on which article to qualify the phrases expressed publicly or posted on leaflets posted in public places, aimed at convincing other persons of what is needed, in particular, kill representatives of a certain racial, social, etc. groups precisely because the latter belong to such a group, choose a norm with a milder sanction, which is Part 1 of Art. 282 of the Criminal Code of the Russian Federation, if the act was committed without signs qualifying the relevant act.

Keywords: N. F. Kuznetsova, guilt, personality of the scientist, qualifications, irremovable doubts about the guilt of the person are interpreted in favor of the accused, in dubio pro reo

"The teacher lives in her students..."

Moscow University Bulletin. Series 11. Law. 2022. N 6. p.3-7

Krylova N. E.

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287

The special issue of the Bulletin of Moscow University, ending in 2022, is dedicated to the anniversary date — the 95th anniversary of the birth of the head of the Department of Criminal Law and Criminology of the Faculty of Law of Moscow State University, laureate of the USSR State Prize, Honored Scientist of the RSFSR, Honored Worker of Higher Education, Honored Professor of Moscow State University, member of the International Association of Criminal Law Ninel Fedorovna Kuznetsova (1927-2010).

Keywords: Ninel Fedorovna Kuznetsova, Kuznetsova N.F., anniversary, from the editorial office

Law enforcement in the focus of digitalization, or the problem of conceptual integration of classical and non-classical models of law enforcement (Digitalization of law enforcement: search for new solutions / Ed. by D.A. Pashentsev)

Moscow University Bulletin. Series 11. Law. 2022. N 3. p.137-144

Gajiev Kh. I.

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238

The review reveals the content of an interdisciplinary monographic study “Digitalization of law enforcement: the search for new solutions” (M., 2022) which presents a conceptual view on law enforcement activities in the context of the development of digital technologies and technical innovations based on methodological approaches inherent to the social sciences and the principles of post-non-classical rationality. The authors substantiate the key role of the technological factor in the development of law enforcement, showing how modern technologies involved in law enforcement activity change not only the form of its expression, appearance, but, above all, its main content. According to the presented concept, the current state and dynamics of law enforcement, the patterns of its further evolution and the degree of effectiveness are determined by the technological order of Russian society. It is noted that the transitional stage of modern Russian society, due to the change of technological orders, ensured the hybrid coexistence of classical and nonclassical models of law enforcement, the “crossing” of the biological subject of law enforcement with technological elements, algorithms, program codes, technical innovations, expert systems, etc., defining at the present stage the formal quantitative and qualitative characteristics of law enforcement activities. Revealing from new methodological positions the fundamental patterns of digital transformations of law enforcement, the authors, on the basis of understanding of the laws of the technological environment of innovations in which law enforcement is increasingly carried out, make an attempt to expand the boundaries of existing ideas about the essence of law enforcement and the directions of its further evolutionary movement, indicating forecasts and possible risks.

Keywords: law enforcement, digital technologies, artificial intelligence, digitalization, legaltech, technological order

About the scientific school of professor V.Ya. Koldin (to the 100th anniversary of the birth of Scholar)

Moscow University Bulletin. Series 11. Law. 2022. N 3. p.125-136

Gulbinovich I.Yu.

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230

The study of the topic outlined in this article, taking into account such a volume, will contribute to the development of forensic knowledge about the scientific school of the famous forensic scientist, not only in the countries formed in the post-Soviet space, but also on a global scale. This study will also help to supplement the volume of forensic knowledge about the scientific school of the Department of Criminalistics, Faculty of Law, Moscow State University named after M.V. Lomonosov. The essay presents the results of a study by the scientific school of Professor V. Ya. Koldin, the author’s vision of modern problems of criminology, its significance for issues of general scientific and legal knowledge, law enforcement practice and education is presented. Professor V. Ya. Koldin understood criminology as an information-cognitive structure. With this approach in mind, he built his creative activity. Certain aspects of his work in scientific and pedagogical activities, including the training of lawyers and scientists from other countries, his huge contribution to the creation of scientific and didactic material on forensic science in the countries where he was sent as a Soviet specialist are shown. There are many followers in his scientific school, in their scientific works the system-activity and information approaches in forensic activity are implemented. The purpose of this study is the desire to more fully reveal the provisions that characterize his contribution to the development of scientific knowledge about the forensic science of information technology, as well as his practical experience in didactics.

Keywords: version analysis, information technologies of procedural proof, forensic analysis, criminalistics of information technologies, methodology of criminalistics, scientific school, subject of criminology, Professor V. Ya. Koldin, judicial identification, forensic examination

David Lvovich Zlatopolsky — leading Soviet federalist

Moscow University Bulletin. Series 11. Law. 2022. N 3. p.112-124

Korolkov, V.V.

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310

This article analyses the work of Professor David Lvovich Zlatopolsky, one of the major and authoritative Soviet researchers of federalism. The author’s main works on federalism and nation-state building are reviewed and briefly analysed, on the basis of which three stages are proposed in his work, each of which reflects the author’s understanding of the stages of state-building in the USSR. The special attention is given to late works of D.L. Zlatopolsky in which he analyzed the reasons of collapse of the Soviet federal system and problem aspects of new Russian federalism fixed in the Constitution of 1993. The article is timed to coincide with the centenary of the founding of the USSR and the twentieth anniversary of David Lvovich’s death. Its relevance is predetermined by the fact that fundamental geopolitical changes are taking place in the post-Soviet space, interethnic conflicts are arising and «freezing», the statehood of some nations is strengthening while the statehood of others is weakening. A critical comprehension of the Soviet experience, described in numerous works by David Levovich, with a multifaceted perception of the federal development of the USSR and RSFSR, will allow us to take into account and not repeat the Soviet mistakes in modern Russian federalist construction in the future.

Keywords: D.L. Zlatopolsky, national question, Soviet federalism, problems of Russian federalism

Legal qualification of anticompetitive agreements of business entities

Moscow University Bulletin. Series 11. Law. 2022. N 3. p.91-111

Bilenko, A.I.

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206

The following article deals with the issues of legal qualification of anticompetitive agreements of undertakings in the market of the medical services. Depending on the terms, such agreements may be qualified as avoidable transaction on the basis of clause 2 of Articles 168, 169 of the Civil Code of the Russian Federation. According to Article 180 of the Civil Code of the Russian Federation, an anticompetitive agreement, taking into account its content, may be invalidated in the part that this agreement is contrary to the law. The author comes to the conclusion that the agreement, the content of which violates the direct prohibitions established by the antitrust law, can be considered as “conditionally invalid”. Restriction of competition as a consequence of the implementation of this agreement, as well as the absence of circumstances in which the agreement can be recognized as permissible, is assumed. If it is proved that there are no circumstances that can serve as grounds for declaring the agreement invalid (insignificant deal; avoidable transaction or contentious transaction), the agreement is recognized as permissible. Some types of such agreements, means of protection the rights and legitimate interests of undertakings and other persons violated by an anticompetitive agreement are considered.

Keywords: antitrust agreement, cartel agreement, vertical agreement, undertaking, antisocial legal transaction, insignificant deal, avoidable transaction, contentious transaction

Strategic planning in the history of legal protection of the lake Baikal

Moscow University Bulletin. Series 11. Law. 2022. N 3. p.74-90

Yushchenko, M.S.

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198

We completed a historical and legal research of the target-program approach to environmental protection and nature management planning in relation to the Lake Baikal and the adjacent territory in the Russian Empire until 1917, in the Soviet period and until 2018. Since 1960 the planning activities in relation to the Lake Baikal and its basin were of the greatest importance; the history of adoption, as well as efficiency of the implementation of the relevant documents is discussed, and the related problems are analyzed. Also analyzed are specific features of how Baikal protection target programs have been implemented. In the course of the study, 5 stages of the development of program-target documents were identified (pre-revolutionary, which began in the 19th century; the period from 1920 to 1960; the period from 1960 until the end of the USSR; the period from 1990 to 2018; the modern period, since 2018). The article lists the special features inherent in each of the periods. The conclusion is made that many contemporary issues with the protection of the Lake Baikal are due to historical circumstances, including those formed during the Soviet period.

Keywords: legal protection of the Lake Baikal, strategic planning for the protection of the Lake Baikal, target-program approach, federal target program, national project Ecology

The place of discovery in the system of American and English criminal procedure: historical and legal analysis

Moscow University Bulletin. Series 11. Law. 2022. N 3. p.61-73

Filiashin, A.S.

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229

This paper discusses the legal nature of the disclosure of evidence in English and American criminal proceedings — an institution that attracts special attention
of researchers due to the lack of direct continental analogues and its importance as a
procedural safeguard. In order to establish the place of the criminal discovery in the
Anglo-American system of criminal procedure, its genesis in the course of the procedural transformations of the 17th-19th centuries is researched. Author concludes that its
appearance is a consequence of the elimination of “prosecutorial bias”, created by socalled “lawyerisation”. By researching jurisprudence of the courts, statutory regulation
and doctrine, author finds that the main function of criminal discovery is to supply the
court with facts of the case. Taking into account the absence of judicial activity of the jury
in the Anglo-American criminal process, it would be impossible to make a correct decision on the merits of the case without disclosing the materials of the parties to each other

Keywords: comparative law, Anglo-American criminal procedure, disclosure, discovery, truth, passive fact-finder, trial by jury

On the concepts of “legal work” and “legal means”

Moscow University Bulletin. Series 11. Law. 2022. N 3. p.42-60

Tsvetkov I .V.

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342

The article is focused on the analysis of the “legal work” and “legal means” concepts characterizing professional activities of lawyers. Universal definitions of these concepts are formulated. It is proposed to understand legal work as the activity for creation and use of legal means, where the legal means is understood as the product of the mentioned activity: (1) a material or digital object — a document, or (2) an act, both used as a means for further activities targeted at a certain legal result. We substantiate the conclusion that the legal result of using the legal means is an intermediate output in relation to the planned final result (economic, social, political, etc.). Therefore, effective legal work engages legal means in such a way that the legal result they help to achieve is optimal for achieving the planned final economic, social and other results. Defined are the persons being the subjects of legal work and performing certain activities as a part of legal work in commercial organizations. The main goals and directions of legal work in commercial organizations are defined. The types of legal means used in the legal work in commercial organizations are specified. It is concluded that effectiveness of law is determined by the effective use of the legal means by all subjects of legal work.

Keywords: legal work, legal means, commercial organization, legal service, contractual work, claim work, intra-corporate legal work

Competition between the jurisdiction of WTO disputes settlement bodies and regional trade agreements: lessons and prospects for the EAEU

Moscow University Bulletin. Series 11. Law. 2022. N 3. p.21-41

Kolos, D.G.

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229

The article is devoted to the analysis of the relationship between the law of the World Trade Organization and regional trade agreements, as well as the competition of their dispute resolution bodies. World practice has proposed several ways to eliminate competition between the jurisdictions of dispute resolution bodies of regional trade agreements and the WTO. One of them is the inclusion in the regional trade agreements of the forum exclusion clause — clauses on the exclusion of jurisdiction. Another approach is the introduction by regional trade agreements into their law of a norm that requires member states to resolve all disputes arising from founding treaties, within the framework of the mechanisms enshrined in them themselves. An example of such a rule is Article 344 of the Treaty on the Functioning of the European Union. Which approach can be followed by the law of the Eurasian Economic Union and the case law of its judicial body is a question that the author discusses in this article. As a result, the author admits the possibility of treaty making within Eurasian economic union which may resolve the question of the competition between the jurisdictions of the Court of Eurasian economic union and WTO Dispute Settlement Body.

Keywords: Eurasian Economic Union, WTO Dispute Settlement Body, WTO law, EAEU law, Court of the Eurasian Economic Union

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