Moscow University Law Bulletin. 2024. 5.

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 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 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 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 metaverse is a large-scale network of virtual worlds that operate in real time, merging physical and digital space through the convergence of Internet and web technologies. Since the metaverse is a new object from a legal point of view, legal science has not developed a specific method for studying its legal nature. . Understanding of a legal nature would make it possible to determine which legal rules should be applied to it. The methodology of legal nature research is necessary to create scientifically based and stable regulations, as well as to understand the essence of the object under study. After analysing the existing theoretical approaches to the study of legal nature, it was concluded that this category is controversial in legal scholarship: there is no unified understanding of what it is and what its definition means for previously non-existent objects. Emergence of new objects of law brings with it certain adjustments to the very concepts of what constitutes legal nature. The proposed process of legal nature research involves three steps: first, defining the essence of the object (in this case, the metaverse); secondly, the identification of potentially similar objects; thirdly, searching for similarities and differences of the objects being compared. Depending on the results obtained, we can come to a conclusion about the similarity or, on the contrary, the specificity of the legal nature of the object under study.

The national motto is one of the symbols of state sovereignty, along with the anthem, flag, coat of arms, etc. In this capacity, the motto performs ideological and political functions, demonstrating the national idea and determining state policy. But in addition to this, a national motto can also have important legal significance, serving as one of the criteria for respecting human rights and freedoms. The motto of modern France, “Liberty, equality, fraternity,” is an interesting example of normative prescriptions that give rise to legal consequences. The French national motto arose during the revolution of 1789. Throughout the 19th century it gradually took root in the public consciousness, eventually becoming the official symbol of the Republic in 1880. Since the emergence of the Constitutional Council in France (in 1959), the principles of the motto have been consistently interpreted through the practice of constitutional normative control. The principle of freedom is understood as the state’s non-interference in the private lives of citizens and at the same time as its duty to create conditions for the realization of their rights. The principle of equality is also revealed in two aspects: as the prohibition of discrimination and as the equality of all citizens before the law. The principle of fraternity received a constitutional interpretation in 2018. It means the highest solidarity and mutual assistance between people. Thus decisions of the Constitutional Council turned the solemn words of the national motto into legal norms. Today the motto is part of the French constitutional block; the laws of parliament must comply with the principles of freedom, equality and fraternity. 

The presented article uses historical, analytical, dialectical, comparative and dogmatic methods. Using the example of France, the author shows the legal nature of the national motto, its role and significance in the mechanism for the protection of human rights and freedoms. France’s experience in constitutionalizing state symbols can be taken into account in Russia, where there is no national motto nowadays.

This article provides a comprehensive analysis of the institution of habeas corpus in Argentine law, tracing its historical origins and examining its modern regulatory framework. The evolution of this legal mechanism is explored through the lens of constitutional reforms, including its incorporation into the Argentine Constitution and adaptation to contemporary legal realities. Special attention is given to judicial practice and various forms of habeas corpus: hábeas corpus reparador (traditional), hábeas corpus preventivo (preventive), hábeas corpus restringido (restricted), hábeas corpus de pronto despacho (expedited release), hábeas corpus correctivo (corrective), and hábeas corpus colectivo (collective). Their specific features, scope of application, and effectiveness in protecting physical freedoms, human rights, and dignity are analyzed. The study highlights the role of habeas corpus as a legal safeguard capable of promptly addressing unlawful detentions, deteriorating detention conditions, and enforced disappearances. Key rulings of the Argentine Supreme Court and international legal instruments influencing the interpretation of this constitutional guarantee are also examined. Special focus is placed on Argentine legislation in comparison with international practice, allowing an assessment of its relevance and effectiveness. The article concludes that strengthening and further developing habeas corpus is crucial for upholding the rule of law in a democratic state, along with the need to refine its implementation mechanisms in response to contemporary challenges.

Through the prism of comparison with the rules of civil procedure, topical issues of appointment of an examination by a notary in order to provide evidence are considered. The problem of the scope of application of procedural legislation to notarial actions to provide evidence is revealed. Since the introduction of this notarial act in the 1930s, its legal regulation has not changed substantially. As before, the current legislative model provides for the direct application of procedural rules on the provision of evidence by the court, but does not specify which procedural rules should apply when providing evidence by a notary. Special attention is paid to the problems of the conditions for the appointment of an examination, challenging the appointment of an examination as a perfect notarial act. Possible contradictions that arise between interested parties during the appointment of an examination by a notary have been identified. An extended interpretation of the provisions of art. 103 Fundamentals of the Legislation of the Russian Federation on the notary, leads in practice to a statement of challenges to the notary, conflicts between the applicant and interested parties on the candidacy of an expert (expert institution), the wording of questions to the expert, ambiguities with the legal force of the notary’s decision on the appointment of an examination. Clarifications to the current legislation on the notary are proposed, based on the separation of legal regulation of notarial and judicial support of evidence, as well as the appointment of an examination by a notary as an independent notarial action to certify indisputable facts.

The article analyzes changes in legislation on the establishment of public easements and evaluates the legal effects that arise in connection with this. It is noted that the possibility of “re-registration” of other existing rights for a public easement should be considered as the right of the interested subject and is implemented on the basis of a complex legal structure. Particular attention is paid to the possibility of further dissemination of the legal structure of public easements, the emergence of new types of them in conditions when the theory of the content and application of this structure is just emerging. It is concluded that the possibility of the existence of various public easements inevitably raises the need for additional (special) requirements to justify their establishment. It is concluded that it is advisable to double-check the normatively established “justifications” for public easements. A proposal has been made to formulate universal rules for justifying these easements, including the presence of a need recognized by the legislator to use the land (land plots) of another person, but not having a subjective right to do so at the time of filing the application and an objective opportunity to comply with the principle of the least burdensome use of the land plot. Currently, public hearings when establishing these easements are not held, but in order to strengthen public control and ensure the rights of citizens and organizations, it is advisable to introduce them. Providing subjects of natural monopolies with the opportunity to formalize a public easement in a simplified manner is appropriate to consider as a special benefit (preference), which gives grounds for special verification of the actual achievement of the expected social and economic effects.

Does reliance and its violation affect law? At first glance, the correlation between the concepts of “law” and “ reliance” is in the same category of questions as the correlation with the concepts of “morality” and “morals” — that is, it is more of a theoretical fabrication and affects the metaphysical essence of law, having a modest practical significance. Meanwhile, the category of reliance has a somewhat different position. Reliance, of course, also has a high meaning, as well as moral and morality, because being a universal value has an important significance for the regulation of relations. As a possible regulator of relations between people, reliance can supplant law or on the contrary strengthen it. However, in a more applied nature, reliance can have a much greater significance and seriously affect legal relations, changing them or serving as a reason for their emergence. On the one hand, a breach of reliance can be a reason for refracting the operation of the law, changing its operation contrary to basic perceptions. On the other hand, in other situations, breach of reliance serves as a basis for compensation of losses of the victim. This article aims to demonstrate how and in what cases a breach of reliance can be the cause of legal consequences in the Russian legal order.

Features of contracts for electric power supply, purchase and sale (supply) of it are discussed in the paper. A comparison of these contracts is made. The persons granted with the rights and responsibilities to enter into these contracts are identified. It is noted that the legislation on the electric power industry is inconsistent in distinguishing between contracts for electric power supply, on one side, and purchase and sale contracts, on the other. For instance, it is permitted to enter into electric power supply contracts, in particular, for guaranteeing suppliers which are acknowledged as energy sales organizations but not energy supply organizations. As a result, a person who does not have the necessary technical devices, i. e. a connected network to the consumer’s (customer’s) networks, engages electric grid organization to provide electric power transmission services to the consumer. Electric power transmission services are provided upon concluding sales and purchase agreements. They are provided on the basis of a contract for the provision of electric power transmission services. This contract is considered to be consistent with the concept of such contracts. The absence of a sign of a connected network under an energy supply contract is an optional exception to the general rules and it negates the specified division of contracts for the electric power supply. The article examines the legal issues of energy supply and purchase and sale contracts. It is noted that the legislative regulation of contracts for the supply of electric power requires improvement, incl. in order to eliminate contradictions in it.

This paper explores the development of disclosure of evidence and unused material in the Anglo-American criminal procedure by discussing the rights, duties and powers of its main actors — the prosecution, the defense and the court. Initially, the concepts of the dispute between the parties and trial by surprise entail the presumption of non-disclosure which stays in force until the XIXth century. Innovations of that time assign to the disclosure the function of providing the accused with the prosecution materials. The next step towards the refutation of the presumption is taken during the reforms of the 2nd half of the XXth century when the duties of the defendant are introduced by limiting the privilege against self-incrimination. The author concludes that English and American law-making bodies are expanding the scope of mandatory pretrial disclosure by both parties, expecting early access to case data to encourage the defendant to promptly plead guilty, the prosecutor to drop the charges and the court to dismiss the case. Together with guilty pleas, it marginalizes criminal trials. However, impediments to speeding up the process, such as the absence of an institutionalized category of criminal case files as well as the lack of criminal defense lawyers, still persist.

The implementation of criminal policy in the field of protection of traditional Russian spiritual and moral values requires improvement of the methodological bases of the axiological interpretation of objects of criminal-legal protection, including answers to the questions: why this or that object should be protected, what exactly is the protected interest or benefit, what is its valuable content for society. Such interpretation is called upon to reveal the true component of the protected legal benefits based on the cultural and civilizational features of the Russian society and the state. The meaning of the axiological interpretation of objects of criminal-legal protection is to identify, on the basis of traditional Russian spiritual and moral values, such content of human rights and freedoms (which in themselves are recognized as the highest constitutional value), which would contribute to the disclosure of human potential in society in the interests of harmonious and safe coexistence of all people, while avoiding the extremes set by universalism and relativism, individualism and statism, demonstrating a fair balance of the interests of an individual and the state, freedom and security, opportunities and responsibility. If any possibility of human behavior runs counter to traditional values, it cannot be perceived as a component of the content of rights and freedoms, and therefore cannot claim the status of a legally protected good.

The implementation of criminal policy in the field of protection of traditional Russian spiritual and moral values requires improvement of the methodological bases of the axiological interpretation of objects of criminal-legal protection, including answers to the questions: why this or that object should be protected, what exactly is the protected interest or benefit, what is its valuable content for society. Such interpretation is called upon to reveal the true component of the protected legal benefits based on the cultural and civilizational features of the Russian society and the state. The meaning of the axiological interpretation of objects of criminal-legal protection is to identify, on the basis of traditional Russian spiritual and moral values, such content of human rights and freedoms (which in themselves are recognized as the highest constitutional value), which would contribute to the disclosure of human potential in society in the interests of harmonious and safe coexistence of all people, while avoiding the extremes set by universalism and relativism, individualism and statism, demonstrating a fair balance of the interests of an individual and the state, freedom and security, opportunities and responsibility. If any possibility of human behavior runs counter to traditional values, it cannot be perceived as a component of the content of rights and freedoms, and therefore cannot claim the status of a legally protected good.

Currently, the provisions of the principle of justice in criminal law establish the requirement of proportionality of the punishment imposed to the crime committed and the personality of the perpetrator, as well as the prohibition of double responsibility for the same act. This legislative understanding of the principle of justice was formed in the course of a long historical development. Representatives of doctrine and subjects of law-making activity formulated various aspects of the criminal law principle of justice in order to determine the actual meaning of this principle and to establish its limits. In the article a complex analysis of views on the category of justice in criminal law is made, the history of development of the Russian criminal legislation in terms of regulation of various aspects of the principle of justice is investigated. The author comes to the conclusion that the classical doctrine connects the category of criminal justice with punishment and includes the requirements of proportionality of punishment to the crime and the personality of the perpetrator. At the same time, in different historical periods there were different views on the content of the principle of justice: the idea of proportionality received different content, and punishment was built on different grounds (either on the theory of retribution and punishment for the deed, or on the theory of expediency).