Moscow University Law Bulletin. 2023. 5.

Based on various sources, the author of this article explores the process of the emergence of the institution of indeterminate sentences in Soviet legislation. Its American and European roots are revealed, reflected in the legislation of individual countries, discussions on the issue of indeterminate sentences at international conferences and congresses. Also considered is the scientific position of pre-revolutionary Russian scientists in relation to indeterminate sentences. Some of pre-revolutionary scientists were in the public service, first during the Provisional Government, and then in the early Soviet period. In this regard, the author explores the specifics of the personnel of the Central Punitive Department of the People’s Commissariat of Justice in the initial period of its activity. It has been established that a number of prominent pre-revolutionary criminologists could influence the content of Soviet legislation in terms of introducing elements of indeterminate sentences. In this regard, the first normative acts of the Soviet state of the criminal law and correctional labor industries (1918–1921) are analyzed. The author comes to the conclusion that during the period of the formation of the Soviet state in Russia, important prerequisites were formed for fixing the institution of indeterminate sentences in the legislation. The article may be of interest both for historians of law and for specialists in the field of criminal and penitentiary law.

The article aims at the assessment of legal regulation of pledge in the Boards of Social Welfare of the Russian Empire in the first half of the 19th century. The boards established by Catherine II worked as provincial banks accredited to meet the needs of the inhabitants of the governorates. The study focuses on the activity of the boards, which reflects the details of the economic development of the governorates, including those in the territories of Georgia and Azerbaijan integrated into the Empire in the first third of the 19th century. The author draws on extensive legal material and archival documents illustrating the reasons for the adoption of exemptions from general pledge regulations in relation to some of the boards. The specifics of the economic development of the territories, in a number of cases, empowered the legislator to expand the list of legalized pledge for certain governorates. The main subjects among the borrowers in the boards were nobles and merchants. Insufficient landownership of the nobility in a number of governorates led to the guarantee as one of the possible conditions for obtaining a loan in the boards. Due to the identified corrupt practices of the officials for obtaining loans in the boards, state workers were identified as special subjects of law, in respect of which special legal provisions were introduced in the boards.

This article is devoted to the problems of interpretation and understanding of the concept of insolvency (bankruptcy) in the sources of law that regulated the bankrupt institution at various state-legal stages of the history of Russia. In order to study the described problems, the author explores both the sources of law of different periods of history, and various works of honored lawyers and jurists. The author also touches upon the doctrinal approach to the problems of the concept of “bankruptcy”, in connection with which special attention is paid to the fundamental works of pre-revolutionary thinkers such as G. F. Shershenevich, I. A. Pokrovsky and N. E. Tornau. In the article, on the basis of comparative legal analysis, the genesis of the concept of bankruptcy is revealed. The understanding of the essence of bankruptcy is revealed depending on the period of development of Russian law. The patterns and features of succession between the “bankrupt” legislation of Russia of different periods are analyzed. The approaches of various legal scholars to the understanding of the term “bankruptcy” in legal documents of various epochs of the state-legal development of Russia are described. The article draws a conclusion about the significant influence of the problem of “concepts in a bankrupt institution” on the development of all theoretical and historical knowledge in the field of insolvency (bankruptcy). This conclusion is revealed by the example of the historical and continuity connection between the normative acts of the historical periods of the state-legal development of Russia, which are far from each other.

Using the example of individual decisions of the Constitutional Court of the Russian Federation, the peculiarities of the execution of Court decisions in the field of local self-government are shown. Special attention is paid to those who monitor law enforcement practices and supervise the implementation of decisions of the Constitutional Court of the Russian Federation, examples are given that information on the execution of individual decisions of the Constitutional Court of the Russian Federation appears in the annual Reports on the state of local self-government prepared by the Ministry of Justice of the Russian Federation. Despite the fact that cases related to local self-government are not in the priority of the Constitutional Court of the Russian Federation, it is during the consideration of this category of cases and the subsequent execution of decisions that new legal structures are formed, which have received some coverage in this article. Thus, Resolution No. 30-P of December 1, 2015, issued on the basis of an analysis of the legislation of a particular subject of the Russian Federation, was extrapolated to all subjects of the Russian Federation; a different arsenal of means was used to bring the legislation of the subjects of the Russian Federation in line with the positions formulated by the Court; the results of monitoring the execution of the Court decision were public. The operative part of the Court’s decisions began to formulate obligations addressed not only to the legislator, but also to local governments (to regulate relevant public relations), as well as to courts and supervisory authorities, what to pay attention to when considering a specific category of cases (Resolution No. 27-P of May 30, 2023). The Constitutional Court of the Russian Federation began to independently adjust the mechanism of execution of its own decisions.

The article examines the legal significance of environmental information in a digital society and examines its characteristics such as reliability. It is this quality of information about the state of the environment that is enshrined in the Constitution of the Russian Federation. It is noted that reliable information about the state of the environment is information that is at the same time genuine (objective, undistorted, accurate), and sufficient (not excessive, but not fragmentary and not selective), and relevant (timely), unbiasedly collected and analyzed by a competent subject. The definition of the term “information on the state of the environment (environmental information)” included in the Federal Law “On Environmental Protection” in 2021 is also analyzed. It is concluded that the legal definition of the term in question does not allow distinguishing environmental information from all other information. The right to environmental information is analyzed in relation to the modern system of information support for state environmental management. The necessity of establishing a regime of transparency of information on the state of the environment is substantiated. It is proposed to develop and implement an information mechanism in the field of environmental protection — a system of information measures of influence (interrelated legal means that mediate the processes of collection, accumulation, analysis, storage, provision and use of reliable environmental information) on people’s behavior in order to ensure environmental protection, rational use of natural resources, environmental safety of humans and other objects.

The article considers the basic theoretical provisions on the importance of the comparative legal method in scientific researches and in the practice of national criminal law-making. The article proves the admissibility and expediency of using the comparative legal method in the scientific substantiation of ways to improve the linguistic form of the Russian criminal law. It is specified that the possibilities of the comparative legal method in this area are limited, as each national law is written in the original national language, which has features of the lexical composition and grammatical structure, therefore, it is not the national systems of lexical and grammatical means themselves that are important for improving the linguistic form of the Russian criminal law, but rather positive experience with regard to general approaches to their use in the formulation of the content of criminal law prescriptions. Based on the analysis of the Criminal Code of the Kyrgyz Republic, a number of successful legislative decisions are identified in terms of giving precision and clarity to the language of criminal law, attention is focused on the pragmatic function of legislative definitions, revealing the meaning of terms used in criminal law and giving them strictly fixed normative content, which contributes to the formation of uniform law enforcement practice; and it is substantiated that the Kyrgyz experience in this area deserves the close attention of the Russian legislator.

The theory of legitimate interests was created within the sociological school of law. Interests have been interpreted as an individual’s aspiration to meeting its own needs. The theory has been directed on researching individuals’ legitimate interests. The question of corporate interests has been not properly researched, the problem of a subject of a legitimate interest has been not the point of discussion in a legal theory. There is no unanimous point of view on corporate interests within a science of civil law. Two opposite points of view co-exists in the doctrine: interests of corporations are real (realistic theories); only interests of sharers are real (fiction theory). It is possible to recognize the existence of corporation’s legitimate interests with specific legal nature, derived from entrepreneurial activity of a corporation. Legitimate interests are used by courts in the resolution of tax disputes, for example, by applying the principle of ‘bona fide’ tax administration. By analysis, other legitimate interests of a legal entity are legitimate expectations and the ‘tax reconstruction’. The research on the topic of legitimate interests of corporations are perspective for the tax law.

Despite big number of Russian and foreign publications on the issues of responsibility in international air law and international law, in general, these issues continue to be important and require further research, especially, in view of present-day complexity of relations governed by international air law. Based on the analysis of the Convention on International Civil Aviation of 1944, as well as dispute-settlement practice and documents of the International Civil Aviation Organization (ICAO) it is concluded that self-contained regime of State responsibility fully excluding rules of general international law on international responsibility will hardly develop in international air law in the foreseeable future. However, within the framework of international air law fully fledged lex specialis on international responsibility, allowing application of general rules on international responsibility to the extent not covered by such lex specialis, can develop. Lack of these lex specialis on international responsibility in international air law, will lead to unlimited application of general rules on international responsibility, including, in particular, rules on compensation for damages, and such application will result in claiming damages caused, for instance, by aviation accident, from a State in addition to rather big compensations received by aviation accident victims through private liability mechanisms actively used in aviation. Moreover, in view of lack of lex specialis on State responsibility in international air law regional and private mechanisms of State responsibility and compensation for damages will be more frequently used.

The function of law, or the legal function, is currently a category that is significant for the general theory of law, and for individual legal sciences. The category “function of law” refers in its importance to such important categories as legal relationship, legal norm, legal personality. They appear to have obvious specifics, but their study goes beyond a separate type of legal science, requires mandatory comparative research at the level of the general theory of law. At the same time, this, in turn, does not mean exactly following the provisions of general theoretical science, since the law of social security has its own scientific doctrine. Theoretical research in the field of social security should enrich not only branch science, but also general legal scientific disciplines. In addition, it is important that the study of any one key category cannot be carried out in isolation from others. It is impossible to study a legal relationship without taking into account the norms of law, it is impossible to study legal facts without conducting research on legal relations and legal norms. Therefore, the study of issues of legal personality should be studied together with the provisions on the norms of law, legal relations and other basic categories of law. In this sense, the study of the functions of law will also be impossible without referring to the main categories that determine the uniqueness of the branch of law. 

At this stage, one of the problems associated with the functions of law is the problem of the relationship between the concept of “function” and “essence”. Whether a function is a property that expresses the essence of a legal phenomenon, whether a legal phenomenon can have other properties than the essential one, whether a function should take into account these properties or should be limited to one, these questions are in demand both in the theory of law and in branch sciences. Despite the sufficient elaboration of theoretical questions about legal functions, the problems of the multifunctionality of legal phenomena and the correlation of the functions of law and the functions of the state are still relevant.

The problem of the legal nature of international jurisdiction agreements is directly related to the issue of their regulation in the national legislation, since, depending on the material or procedural qualifications of this institution, particular regulatory requirements for such agreements are to be established. This article analyzes various approaches to the definition of the legal nature and, consequently, the regulation of international jurisdiction agreements on the example of English, German and Russian legislation. The material qualification chosen in English law means a more flexible regulation of the agreements: the possibility to conclude an oral jurisdiction agreement as well as the possibility for one party to use remedies (anti-suit injunctions, damages) in case of violation of the jurisdiction agreement by the other party. The procedural qualification of jurisdiction agreements in German law presupposes the establishment of stricter formal requirements (requirements for the subjects of agreements, form (written or oral with written confirmation), time of the conclusion of the jurisdiction agreement). In Russian law, this issue has not been finally resolved and is debatable, so that the legislative regulation of agreements on jurisdiction is generally fragmentary and is replaced by the construction and interpretation of norms in judicial practice.

The paper considers the interpretation of the problem of sovereign power proposed by John Austin. According to the jurist, political power is a neutral force, similar to the objective forces of nature and abstracted from social relations. The abstract idea of power, being the “soul” of political communication, has a conditionally independent existence. Its effect on the actual relations is possible only insofar as it turns out to be “reified” and “personified”. The power remains in a “dormant” state in the institutions of the state and its head (sovereign), who is responsible for the reproduction of the political and legal plane, legal and social order. The article analyzes the essence of political power in the concept of J. Austin, a number of features that could characterize, in his opinion, any sovereign power, and especially emphasizes the most vulnerable place in his teaching — the feature of the “determinateness” of the sovereign. In conclusion, the author summarizes that, firstly, in the theory of J. Austin it is unclear who exactly acts as the “true” bearer of the properties of sovereignty, secondly, if it is impossible to determine the “party of sovereignty”, or it is extremely difficult to determine it, then the theory under consideration that is trying to operate empirical facts should be considered as inconsistent with reality.

Essence and structural organization of oath in legal aspect was studied. Oath as personal solemn confirmation by religious and non-religious act is considered, which was used as an element of jurisprudence in the past and is currently relevant. The structural organization of the oath is presented by analogy with the construction adopted in the normative legal theory. Modern using of oath highlights the relevance of topic. It is noted that structure of oath has practically not undergone significant changes from ancient until now. Oath breaking as basis of punishment is considered. Psychic and emotional side of oath is considered. As an illustration of the semantic content of oaths, excerpts from literary works of ancient Greek authors are given. Taking the oath according the topic imply legal aspect of activity by persons and authority. Publicity of the sworn-in ceremony is indicated. An original version of structuring of the oath is proposed. The sources of the research are original written documents, as well as translations with comments, fragments that have come down to us or intact petroglyphs located in archaeological parks or museums. The deductive, inductive, historical-linguistic, formal-legal methods along with description, analysis and synthesis, and non-stationary research were used.

The article is a biographical study devoted to the scientific and public activities of a famous Russian lawyer Alfons Ernestovich Vorms (1868–1939). The article based on the materials of family and state archives as well as on published sources. The author has a task to open thoroughly the most important and interesting sides of A. E. Vorms’ life and activities. The main moments of his life path are shown in the article: from a talented student to a professor, who has a great authority in the scientific world of Tsarist Russia and the Soviet Union. The author gives a characteristic to the most significant Vorms’ works and finds the features of his scientific views. A. E. Vorms is an author of many works on civil, peasant, trade and bills law. He also was doing a great teaching and enlightening work, and he was a successful lawyer. At Soviet period, he also worked as a consultant for some Soviet and foreign companies and state bodies. At the end of his life, Vorms was repressed, spent several years in correctional labor camps of Siberia and finally died at Butyrka prison hospital. He was rehabilitated posthumously. The long-term and productive Vorms’ activities are the notable contribution to the history of Russian jurisprudence.

The article examines the monograph by A. V. Kopylov “Legates, fideicommissas and donations in case of death in Roman classical law” (M., Gorodets, 2021). It is noted that a monograph on the stated topic is a natural stage of the author’s research work. The monograph first of all determines the place of these institutions in Roman civil law. At the same time, the connection between these institutions of inheritance law and the institutions of property law and, in general, their role in the circulation of things is shown. One of the main tasks that were solved through the use of legates and fideicommissas was the transfer of rights to things in order to protect the interests of family members (heirs under a will). The author points out the genetic connection between institutions. A. V. Kopylov examined the historically first forms of institutions (mainly legates and fideicommissae), as well as their features that developed by the classical era, and, as necessary, comparisons with the subsequent era take place. In the final section of the study, the author contains a brief historical outline of the development of the institutions discussed in the book. The review notes that the appendix to the main text contains an extensive list of author’s translations of fragments of the Corpus iuris civilis, the sixth book of the Justinian Code and Novellas, previously unknown to Russian readers. The main conclusions of the review can be reduced to the fact that the monograph by A. V. Kopylov is of great scientific importance and is of interest both to novelists, philologists, historians, and to a wide range of students and graduate students.