Ural Journal of Legal Research

Current Issue

Issue № 4, 30.11.2021


Статьи выпуска:

Legal Protection of Specially Protected Natural Territories in the Russian Federation and Europe: Comparative Legal Analysis

The article considers the importance of specially protected natural areas for the world community. The author analyzes the legal foundations of environmental protection activities, as well as the mechanisms for the protection of specially protected natural territories by the countries of the European Union and the Russian Federation, identifies some gaps and finds some ways to eliminate them. Particular attention is paid to one of the features of the environmental policy of the European Union - the interstate ecological network of specially protected natural areas Natura 2000, which at the moment is the most extensive system of protected natural areas in the world. One of the areas of work of the Ministry of Natural Resources and Ecology of the Russian Federation is considered - the national project «Ecology», the key objectives of which are effective management of production and consumption waste, reduction of atmospheric air pollution, improvement of drinking water quality for the population, preservation of biological diversity, including through the creation of new specially protected natural territories, ecological improvement of reservoirs and preservation of unique water systems. The author describes the problems of implementing this project in the regions and the ways proposed by public authorities to solve them. The author also compares not only the categories of specially protected natural territories of the Russian Federation with the classification of protected natural territories of the IUCN, but also the areas of all terrestrial and marine protected areas according to the criteria of the IUCN. The provisions of the national legislation on the issue of the creation of specially protected natural territories were investigated, and, as a result, discrepancies in the legal regulation of this issue were revealed.

Environmental Expertise. the Legal Regulation of Environmental Expertise

The relevance of this article lies in the importance of addressing issues related to environmental protection. According to experts, the ecological situation in the modern world is getting worse and worse every year: daily pollution of water and soil leads to the death of animals, plants, deterioration of the biological composition of water, an increase in carbon dioxide in the atmosphere, as well as the state of the environment leads to deterioration of human health. The current situation requires the use of effective legal instruments, one of which is environmental expertise. The purpose of writing this article is to determine the legal content of the state environmental expertise, as well as to identify some problems of legal regulation. The types of environmental expertise were considered, the concept of environmental expertise was given. Also in this article the problems of environmental legislation of the Russian Federation are considered. For a better understanding of the problems, a comparison of different editions of the Federal Law «On Environmental Expertise» is given. The objects of environmental expertise at the federal and regional levels were considered, thanks to this, it was concluded that the scope of application of the environmental control mechanism was narrowed and its role in ensuring environmental protection and environmental safety was significantly reduced. Due to the large number of regulations in which there are norms on environmental expertise, it was concluded that the legislation on environmental expertise is not systematized. Conducting an environmental assessment is very important, since it performs the functions of preventive control, serves as a tool to ensure compliance with environmental requirements, is a legal means of realizing the constitutional right of citizens to a favorable environment and contributes to taking into account public opinion when making environmentally significant decisions [1, p. 90].

On the Issue of the Participation of Diplomatic Missions of States in Russian Civil Proceedings

This article is devoted to the peculiarities of the regulation and enforcement of judicial immunity of diplomatic missions in Russian civil proceedings. The article considers the legislative support for the participation of diplomatic missions of foreign states in the Russian civil process. The necessity of distinguishing the diplomatic immunity of diplomatic workers and the immunity of diplomatic (consular) immunity is noted. The author analyzes the provisions of international and domestic law formulated in various sources of law: The Vienna Convention on Diplomatic Relations of April 18, 1961, the Constitution of the Russian Federation, the Civil Procedure Code of the Russian Federation, Federal Law No. 297-FZ of November 3, 2015 «On jurisdictional immunities of a Foreign state and property of a foreign state in the Russian Federation». The author presents various approaches to the consideration of issues affecting this problem. The author draws attention to the provisions of law enforcement and judicial practice. In particular, it has been revealed that judicial practice to date has not formulated a single concept regarding the norms of civil procedural legislation applied to diplomatic missions. Based on the studied sources, the author identifies the existing problems and suggests possible ways to solve them. The author believes that the solution of the problem can be solved by adopting an appropriate review of judicial practice in this category of cases, and in the future, explanations of the Plenum of the Supreme Court of the Russian Federation «On the participation of foreign persons in civil proceedings». The above trend of modernization will inevitably have a positive impact on the regulation of legal relations related to the implementation of the immunity of diplomatic missions in the Russian civil process. From the author’s point of view, the future clarifications formulated in the Resolution of the Plenum of the Supreme Court of the Russian Federation may have a positive impact on solving the above problems related to the participation of diplomatic missions in the Russian civil process.

Internet And Criminal Law: de lege lata and de lege ferenda

The Article describes general approach to the Internet as the element of crimes included into basic and aggravated variations of several criminal acts. The Author highlights weak points of equating social danger of crimes committed on the Internet with the ones committed using mass media and suggests point out the need of more subtle way of treating the cyberspace by means of criminal law. In particular, the legislator is invited to develop an individualized approach to each specific crime committed on the Internet, developing the boundaries of criminalization in relation to the provision or dissemination of illegal information in cyberspace, quantitative and qualitative criteria for victims of such unlawful attacks. These proposals are considered by the author in relation to practical examples of imputation of qualified elements of crimes provided for in art. 128.1, 242, 205.2 of the Criminal Code of the Russian Federation, for each of which the nature and degree of public danger varies. Thus, the article puts forward a logical thesis that the provision of pornographic information, committed via the Internet, to only one victim may indicate the insignificance of the encroachment. At the same time, the dissemination on the Internet of calls to carry out terrorist activities, when received by even one person, reasonably seems sufficient to qualify the relevant actions as criminal. Based on the described difference in the nature of the information disseminated, as well as based on some criminological and technical features of cyberspace, the legislator is invited to build a more elegant detailed policy regarding the Internet, getting rid of the confusion of the public danger of encroachments committed in it with the public danger of similar acts committed using the media.

Imitation of Free Autonomous Will: the Current State of Civil Law Regulation

This article is devoted to the problem of digitalization of the expression of will and its imitation by means of an electronic signature (hereinafter - EDS). With the development of digital technologies, a new form of expression of will appears – «digital expression of will». The author analyzes changes in legislation regarding the form of a transaction under Article 160 of the Civil Code of the Russian Federation (digital law). The negative consequences of the introduction of digital technologies in real estate transactions are considered, in particular, a specific illustrative case is given. Attempts to correct the situation with the help of Rosreestr information campaigns were noted. Subsequently, this problem was solved by law. The author analyzes the changes in legislation in the field of state registration of real estate and EDS. The author emphasizes the right choice of the legislator in relation to personal confirmation by a person of his will when making a real estate transaction using EDS due to the specifics of the object. In terms of changing the legislation on EDS, the problem of «weak» certification centers has been solved. It was noted that the adoption of a digital law and two laws on amendments to the sphere of registration of real estate and EDS should have been in reverse order, first it was necessary to provide ways of protection, and only then to introduce such regulation. The author analyzes the causes of negative consequences, in particular, noted the non-acceptance of criticism by the legislator contained in the expert opinion of the Council under the President of the Russian Federation on codification and improvement of civil legislation, even at the time of consideration of the draft law on the amendment of Article 160 of the Civil Code of the Russian Federation on the form of the transaction. The author concludes that segmentation of regulation is necessary, rational introduction of technologies into people’s lives. The expression of will should not lose its main meaning of autonomy.

Review of the Legal Positions of the ECHR on the Conditions of Russian Sentences on Transportation Conditions

The article points to the existence in the Russian Federation of an acute problem associated with the transfer of convicts. Despite the fact that de jure the activity of the Penal system of the Russian Federation is carried out on the principles of legality, humanism, respect for human rights; de facto - complaints from convicted persons about the transportation process in the Russian Federation are among the three most common complaints filed with the European Court of Human Rights (ECHR). In the spring of 2019, due to the mass appeals of convicts from the Russian Federation with complaints about the conditions of transfer, the ECHR had to issue the ‘’pilot judgment’’ based on the complaint of A.G.Tomov, Y.V.Punegova, N.B.Kostromina, E.N.Rakov, D.L.Vasiliev, N.K.Roshk and N.V.Barinov (The case of Tomov and Others v. Russia). The main conclusions in the above-mentioned judgment of the ECHR were as follows: the fact of violation of Art. 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms when transferring Russian convicts; appropriate compensations have been assigned to each applicant of the complaint; the systemic nature of the existing problem is noted and its causes are determined; the ways of solving these problems are proposed, with the establishment of the deadline for the execution of the Judgment of up to 18 months; suspend proceedings on all complaints against the Russian Federation, in which the main issue is the conditions of transport of prisoners, until a certain period. The conducted research allows us to note that the Russian Federation has to do laborious work related to reforming the Penal system, bringing the conditions of transportation of convicts, accused and suspects in line with international standards and national principles for the implementation of activities for the execution of sentences. At the same time, work is to be done both at the legislative and law enforcement levels. At the moment, we see that the state is already taking certain steps to reform the system.

«Success fee» in Russia and Foreign Countries: Specifics of Legal Regulation

The article analyzes the problems of including the «success fee» in the agreement on the provision of legal services and on its recovery, taking into account the current legislation and judicial practice. This paper talks about the concept, the history of the formation of Russian judicial practice on the «success fee», as well as foreign experience and the opinion of practicing lawyers regarding this issue. This article notes that in the legal field, the condition of additional remuneration of a lawyer for the provision of services in the event of a positive result for the client has become most widespread, and, unlike Russian legislation, is firmly entrenched in the legislation and judicial practice of certain foreign countries. Due to the fact that the development of legislation on the «fee for success» in foreign countries began much earlier than in Russia, the authors analyze foreign sources for the purpose of comparative legal research. The authors note that the “success fee” as a condition in the contract for the provision of legal services, today does not have an unambiguous assessment in the legislation and judicial practice of the Russian Federation. During this time, the positions of the country’s highest courts have changed more than once, and the lower courts have not yet come to a uniform approach in resolving disputes over the “success fee”. To understand the essence of the problem of the “success fee” and to understand the expediency of its application, the authors turn to the history of making the most significant decisions by Russian courts, which turned out to be crucial for the development of the “success fee”.

Liquidation of Сonstitutional (Statutory) Courts of Subjects: Problems and Prospects

In this study, the author uses a comparative method to distinguish between the trust institute and the fiduciary management agreement (Chapter 53 of the Civil Code of the Russian Federation). The purpose of the work is connected to the identification and confusion of the examined institutions, sometimes found in the doctrine. Moreover, the problem is complicated because of different doctrinal ideas about the essence of the trust, as well as its specific features. Considering the essential characteristics, as well as a number of criteria, related to the form of these legal structures, conclusions about the impossibility of mixing these institutions are made. Meanwhile, the issues of the subject matter, as well as responsibility to beneficiaries, studied by the author, are worthy of attention within the framework of the differentiation of trust property and trust management, from a practical point of view. Aspects related to the choice of the applicable law to the trust relationship play a special role in the issue of separating the trust institute from the fiduciary management agreement, and in particular their correct qualification. Based on international legal sources and an assessment of doctrinal positions, the author points out the need to apply the «law of the closest connection» to the regulation of the trust. Moreover, an integral component of the work is the consideration of the most notable court cases, which became a foundation for the formation of certain legal positions in the future, as well the analysis of current foreign legislation, in particular, the rules on the trust of the offshore jurisdictions is especially considered. In turn, with the help of this method, the specific features of trust relations are revealed, and this determines the slightly different legal regulation of the institution of trust property abroad.

The Constitutional Right to Access the Internet: An Ongoing Discussion

The events of the Arab Spring demonstrated the importance of Internet access for citizens and raised the question of the need for constitutional consolidation of the relevant right before the world community. This article provides an analysis of the legislative consolidation of the right to Internet access in various countries; it is indicated that international organizations recognize the fundamental nature of this kind of right. The authors also formulate the main advantages of the constitutional consolidation of such a constitutional right of this kind: a guarantee of the basic constitutional rights implementation, limiting the possibility of establishing state censorship, providing Internet access to citizens on an equal basis etc. The ideological and technical aspects of the constitutional consolidation of the right to Internet access are identified. In addition, the experience of Estonia is considered, in the Constitution of which such a right is not enforced, but which is one of the countries with the most developed regulation of the right to Internet access. The provisions of the Russian legislation regarding the regulation of legal relations in the field of providing information and telecommunication services are studied too. Based on all of the above, the authors come to the conclusion that at this stage many states are not yet ready to constitutionally consolidate the right to Internet access, and therefore they need to develop legislation in this area in order to systematically approach such a serious step as the formation of a new constitutional human rights.