Vol  7 - No 4 (2022)

THEORY, HISTORY AND PRACTICE OF LEGAL REGULATION OF PUBLIC RELATIONS

Andrey L. Belousov

LEGAL ASPECTS OF FORMATION AND DEVELOPMENT OF SPECIAL INVESTMENT CONTRACTS IN THE RUSSIAN FEDERATION

Abstract. The relevance of this study is due to the fact that today investments in the industrial sector can provide the necessary impetus for the growth of the national economy. The task of the state at the present stage is to create conditions that stimulate the attraction of investments in its jurisdiction. The combination of such conditions is commonly referred to as the investment climate. One of the main instruments for stimulating investment activity, on which great hopes are placed, is the mechanism of a special investment contract. In this regard, the author focuses on the legal regime of a special investment contract. The purpose of the study is to identify the features of the regulation of special investment contracts, assess those changes in regulation that have already been made by the legislator and determine the prospects for further development of the legal field in this area of public relations. As part of the study, the initial model of regulation of special investment contracts is considered, and its key shortcomings are identified. An analysis of the modified model of legal regulation of special legal regimes was also carried out. The prospects for the further development of this legal regime are outlined.
Keywords: legal regime; entrepreneurial activity; investment climate; SPIC 1.0; SPIC 2.0; special investment contract; investments.

Anna V. Zvonova

EXPERIENCE IN CREATING A PROBATION SYSTEM FOR CONVICTS ON THE EXAMPLE OF FRANCE, KAZAKHSTAN AND THE KYRGYZ REPUBLIC

Abstract. The modern penitentiary policy of most states is aimed at the process of humanizing the execution of criminal punishment. In this regard, the institution of execution of punishments is rapidly developing. without isolation from society, creating and modernization of the probation service.
The main goal. The creation of a probation service will reduce the level of recidivism, solve the problem of overcrowding in penitentiary institutions, and also contribute to a more effective implementation of the rights and legitimate interests of those sentenced to criminal punishment.
The methodological basis of the scientific article is the method of materialistic dialectics, general scientific and private scientific methods, taking into account the principles, techniques and methods inherent in the domestic penitentiary science. In particular, the author used comparative-legal, logical-legal, sociological and others.
Conclusions. The author comes to the conclusion that the probation service and post-penitentiary support of persons who have violated the law can reduce the level of recidivism in the states. Such a conclusion became possible due to the analysis of the high dynamics of the ability of the probation service in African countries.
Keywords: execution of punishments, probation, convict, punishments without isolation from society, international standards.

Larisa V. Katkova, Oleg A. Mekka

SOCIOLOGICAL APPROACH TO THE STUDY OF THE LEGAL CULTURE OF THE POPULATION: VALUE ASPECT

Abstract. The relevance of the research topic is due to the need to take into account in the process of studying legal culture its various modifications and manifestations determined by the characteristics of real carriers of political and legal culture in the form of social groups and strata of society. Since the political and legal culture is understood as a normative value system, it is necessary to analyze the concepts typical for the expression of its basic values. As such, the authors consider the concepts of "freedom", "justice", "equality". But historically, different subjects put different meanings into these concepts. Explication of these concepts makes it possible to concretize the content of the phenomenon of legal culture in modern Russian society and its various modifications, taking into account social stratification.
The main goal of the article is to analyze the content of the categories "freedom" and "justice" in relation to various modifications of legal culture.
The problems under consideration. A common problem is the lack of knowledge about empirical indicators that are appropriate to use in research tools to fix different types of political and legal culture of the population. For this purpose, the article examines the connotations of the concepts of "freedom" and "justice".
The methods used.
Along with the general scientific systematic method of analyzing legal phenomena, private scientific methods (sociological and axiological), as well as the method of legal hermeneutics were used in the preparation of the article.
Conclusions. No interpretation of legal culture is indisputable without testing it on concrete empirical material. Whatever value the author or the theoretical and legal direction puts at the forefront as a system-forming element of legal culture, it is impossible to do without an empirical assessment of the prevalence of private modifications of culture.
Different interpretations of legal culture correlate with the technologies of legal culture formation and here the main options are objective (with a focus on knowledge of laws and law-abiding behavior) and subjective (focusing on activity in protecting one's own interests, the use of legal institutions both state and non-state).
Keywords: sociological approach to the analysis of legal culture, legal understanding, type of legal understanding, legal culture, type of legal culture, value bases of legal culture, legal value, freedom, justice, types of legal culture formation.

Maria I. Rosenko, Yaroslav A. Peregudov

GENETIC CERTIFICATION AS A TOOL FOR PROTECTING THE INSTITUTION OF THE FAMILY AND THE HEALTH OF FUTURE GENERATIONS: SOCIAL AND LEGAL ASPECTS

Abstract. The institution of the family is a complex system that includes a constitutional and legal framework, social guidelines, moral and ethical aspects, a policy of non-interference in the personal sphere and, at the same time, the creation of conditions for the protection of the rights and legitimate interests of citizens in all spheres of life. The purpose of this study is to highlight the social and steam aspects of the institution of the family the issues of obtaining, storing and using genetic information in order to create favorable conditions for the birth of healthy future generations are considered. The historical past emphasizes that it was the family that gave a person the necessary life basis: offspring, the possibility of joint farming, the transfer of life experience. The implementation of the basis of the state's social policy in the long term is a complex system that includes the constitutional and legal basis, social guidelines, moral and ethical side, the legal basis of the concept of personal life of citizens, the policy of non-interference in it and at the same time creating conditions for the basis of the protection of the rights and legitimate interests of citizens in all spheres of life. Unfortunately, the new way of life promotes temporary and irresponsible intimate relationships, as well as uncontrolled transfer of biological material through donation, which has given rise to the problem of involuntary incest. Therefore, in addition to fostering respect for traditional family values in society, the voluntary procedure of medical examination of future spouses must be transferred to the category of mandatory. The introduction of a biological passport with the data of DNA "coding" information (hereditary diseases) can solve the health problem of future generations, but at the same time poses a threat due to insufficient legal protection of genetic information. It is concluded that biometric data is a special type of personal data and a special procedure of legal regulation should be established for them.

Keywords: family institution, state policy, incest, health of the nation, irresponsibility, genetic passport, genetic information. 

Evgeniy M.Terekhov

ON THE QUESTION OF CLASSIFICATIONS INTERPRETATIONAL RULES

Abstract. Currently, the category of «official interpretation of the rule of law» is actively developing in legal science, its system is being studied, and key trends are being identified. One of the elements of the system of official interpretation of law is interpretative norms, the level of study of which seems to be very weak. It is noteworthy that the first mention of them was in the works of pre-revolutionary scientists, but today there has been no significant shift in their analysis. All this indicates that the study of interpretive norms is an urgent task of legal science. The main goal of the study is to try to systematize ideas about interpretive norms, as well as to develop specific classification criteria on the basis of this and to single out independent classification groups on their basis. The key problem in the present study is the lack of clear criteria by which interpretative norms could be subdivided on various grounds, which could enhance the importance of the official interpretation of law in the mechanism of legal regulation. The author not only indicates his vision of the problem, but also offers its solution by highlighting two independent classification groups that combine separate, according to the target feature, classifications of interpretative norms. Based on the results of the study, attention is drawn to the importance of taking into account in classifications such components as systematization of the hierarchy of interpretative norms; optimal tactical achievement of the set goals and objectives by the official interpretation of the rules of law; creation of conditions conducive to better assimilation of the results of the official interpretation of law, for which organizational-technical and special-legal groups of classifications of interpretative norms are distinguished.

 Keywords: legal activities, law-interpret activities, interpretation of law, clarification, explanation, interpretative act, interpretive practice.

Sultan T. Khapchaev

THE INSTITUTE OF SLAVERY IN THE CONTEXT OF MUSLIM LAW

Abstract. Relevance. Slavery is one of the main problems of Islamic law, which is associated with the prevalence of this phenomenon during the emergence and institutionalization of the religion of Islam, which declared freedom and human dignity the ideals of a new society. The modern era puts human rights (life, freedom, honor and dignity) in the first place, due to which the need for a clear distinction between the provisions of Sharia and inhumane practices of the past is actualized.
The main goal is to substantiate the thesis that Islamic law, although it appeared in the era of the widespread use of the institution of slavery, and the classical sources of Sharia do not directly prohibit it, nevertheless, it fundamentally contradicts the essence of Islamic law, which places great emphasis on the idea of equality, humanism. and fraternal attitude towards others.
Problems under consideration. The article reveals the deep humanistic principles that are embedded in Muslim law on the example of the institution of slavery, which was so widespread in the past.
Methodology. Along with general scientific methods, special legal methods (historical-legal, formal-legal, comparative-legal, sociological-legal) were also used during the research.
Conclusions. Flexibility is inherent in the very nature of Islamic law, as it has always advocated a strategy of gradual reforms rather than quick and radical changes, especially in such important areas of people's lives as the economy, politics and religion. Slavery is almost as obviously against the spirit of Shariah as idolatry, but the latter has a spiritual aspect and can be rationally challenged, while the former is rooted in the economic basis and, therefore, could not be abolished by law until socio-economic background is created. However, the whole logic of the Shariah regulations on this topic indicates a direct focus on the eradication of slavery and the prevention of its reappearance.
Keywords: slavery, Islamic law, equality, rights and obligations, Quran, sunnah.

LEGAL REGULATION OF ECONOMIC ACTIVITIES

Andrey L. Belousov, Sofia A. Vasilyeva

ISSUES OF REGULATION OF BANKRUPTCY: WAYS OF DEVELOPMENT OF LEGISLATION

Abstract. The relevance of this study is due to the fact that at present the norms of bankruptcy legislation are quite in demand in practice. At the same time, the legal field in this area, formed more than 20 years ago, requires rethinking and adaptation to modern conditions. In particular, rehabilitation procedures aimed at restoring the solvency of debtors and maintaining the existing business turned out to be practically non-working. In this regard, the author focuses on the issues of determining the directions for further development of legislation in the field of bankruptcy. The purpose of the study is to identify the key problems of the institution of bankruptcy at the present stage and to assess the changes in regulation proposed by the legislator as part of the bankruptcy reform project.
Keywords: legal regime; entrepreneurial activity; bankruptcy; insolvency; financial recovery; external management; competitive production.

 Maria G. Belyanina

RECOGNITION AND ENFORCEMENT OF INTERLOCUTORY JUDICIAL ACTS OF FOREIGN STATE COURTS (ON THE EXAMPLE OF CROSS-BORDER BANKRUPTCY CASES)

Abstact. The relevance of the problem under consideration is determined by the lack of unified approaches in the legal literature and judicial practice to the issue of recognition and enforcement of interim court decisions. This creates serious problems in the regulation of cross-border bankruptcy, where many judicial acts are intermediate only in form, but in essence entail important substantive legal consequences.

The main purpose of the study is to determine the trends in the development of Russian judicial practice and evaluate them from the point of view of their compliance with the modern model of cross-border bankruptcy, legality and rationality.
The paper considers international standards of cross-border bankruptcy and the practice of Russian courts related to the recognition and enforcement of decisions of foreign courts opening bankruptcy cases.
The author comes to the conclusion that the judicial practice on the issue of recognition of interim foreign judgments in bankruptcy cases is evolving. Single judicial innovations coming from the doctrine of universalism do not meet with much support. On the contrary, there are more and more decisions where their recognition and application is denied; the range of grounds for such a refusal is also expanding; the international competence of Russian courts is changing. Under the conditions of sanctions pressure and the economic crisis, it is unlikely that another way can now be found to protect the interests of Russian creditors. However, in the long term, the campaign, according to which the effect of foreign law on Russian territory is severely limited, and the effect of Russian law is assumed to be unlimited, is not a rational choice.
Keywords: interim judgments; cross-border insolvency; recognition and enforcement of court decisions; protection of creditors interests.

Oksana N. Vasilyeva,  Maria S. Yanina

ON THE ISSUE OF THE AVAILABILITY OF SOCIAL MORTGAGES FOR CITIZENS IN NEED OF BETTER HOUSING CONDITIONS

Abstract. The relevance of research. In recent decades, the term "social mortgage" has been firmly established in the socio-economic space of Russia. Despite the fact that this term is not reflected in federal legislation, the institution of social mortgage has been widely recognized by citizens and is successfully used in almost all regions of Russia. It is thanks to the programs of preferential mortgage lending, united by the general concept of "social mortgage", that a number of categories of low-income citizens have received the long-awaited opportunity to purchase their own housing, improve their living conditions, which becomes an objective factor in the formation of a social state. The above highlights the high relevance of the topic of this study.

The main purpose of the study is to analyze the legal content of the institute of social mortgage, to identify the features of the implementation of regional policy in this area.

The problems under consideration. There is an inconsistency of acts of federal and regional legislation on the provision of mortgages on preferential terms. No unified policy has been developed to solve the housing problems of the least solvent segments of the population. The subject composition of social mortgage recipients is unstable and constantly undergoes adjustments.

The methods used. The work was carried out using traditional methods of scientific cognition, including logical, formal-legal methods, the method of analysis and synthesis.

Conclusions. The availability of mortgage products for citizens who do not have high incomes remains relatively low. The prospects of more active involvement of large housing developers in the sphere of solving the housing needs of citizens, further socialization of the institution of mortgage lending are evaluated.

Keywords: social mortgage, subsidies, concessional lending, regional programs, prospects.

 Anton V. Abrosimov

GOOD FAITH PRINCIPLE IN RUSSIAN CIVIL LAW AND FOREIGN LEGAL SYSTEMS

Abstract. The relevance of this topic is due to the widespread use of the good faith principle in civil court cases in Russia.

The main purpose of this work is to identify the main functions inherent in the principle and legal category of good faith, as well as the patterns of recognition and application of good faith as a significant legal category in various jurisdictions, legal systems of different types.
The problems under consideration: the problem of the validity of the evaluative legal categories widespread use in the courts, establishing the role and functionality of the evaluative legal category of good faith in civil law.
Methods used: formal legal method, comparative legal method, analysis of legislation and legal doctrine, generalization.
Conclusions:
- good faith is an assessment category that is convenient for use by courts in those countries where law-making powers of the judiciary are absent;
- the good faith principle can be considered both as a special civil law principle and as a general rule;
- the legal category of good faith is more inherent in codified Romano-Germanic law, but recently it has also been applied in common law legal systems
Keywords: good faith principle, civil law, common law, Romano-Germanic law, evaluative legal category, Russian law, civil law principle, judicial precedent.

Artem N. Kapustin

RUSSIAN PERSONAL FUNDS AND ANGLO-AMERICAN TRUSTS: COMPARISON OF MANAGEMENT RELATIONS

Abstract. This article compares the relations on the management of transferred assets in personal funds and Anglo-American trusts from the standpoint of various criteria: control / supervision of management, responsibility for the founder's debts, the duration of the relationship, etc. The relevance of the article is due to the need to introduce trust-like entities into the Russian legal system, which is not elaborated in the doctrine. Purpose: to conduct a comparative legal study of Anglo-American trusts and Russian personal funds on the example of the legislation of the USA, Great Britain, New Zealand. Methods: synthesis, comparative-legal, formal-legal. Results: a number of conclusions have been made regarding the advantages and disadvantages of personal funds/Anglo-American trusts in relation to the asset management function. Conclusions: personal funds are the most reliable form for the implementation of the asset management function.

Keywords: personal fund, inheritance fund, non-profit organization, trust, testator, beneficiaries.

YANA A.  PEREPELKINA

ON THE ISSUE OF THE LEGAL NATURE OF THE INVESTMENT CONTRACT VIA THE INVESTMENT PLATFORM

Abstract. The article’s relevance is related to the need to develop crowdfunding as a method of financing projects or business in which funds are collected in small amounts from numerous people. The author’s purpose is to study a new private legal institution – an investment contract via an investment platform that formalizes crowdfunding relations regarding the transfer of property as an investment. The article compares the categories of investment and crowdfunding. Author establishes the scope of application and some legal features of the investment contract via the investment platform, examines main proposals concerning determination of its legal nature as named or unnamed contract. As the result of the study, it is proposed to consider the investment contract via the investment platform as an auxiliary contractual structure, the features of which are investment relations, special subjects, the distinctive procedure of the conclusion of the contract, the focus on the primary acquisition of investment objects.

Keywords: platform operator, investment platform, crowdfunding, investment contract, retail financing, alternative financing.

МARINA A. SKOGOREVA

ON CIVIL LIABILITY OF SPECIALISTS IN THE ORGANIZATION OF CONSTRUCTION

Abstract. The article considers one of the important components of the responsibility of members of self-regulatory organizations in the field of construction.

The relevance of this issue is due to the important role of specialists in the organization of construction in the production of works and insufficient attention to the issues of responsibility of these specialists.
The main goal of this work is to analyze the legislation regulating the legal status of specialists in the organization of construction and their responsibility as an integral part of the responsibility of self-regulatory organizations in the field of construction, design and surveys for the obligations of their members. The problems under consideration.
The article discusses the responsibilities of specialists in the organization of construction, the legal significance and consequences of the activities of such specialists.
The methods used. The study was carried out on the basis of a general scientific methodology. In addition, comparative legal, formal legal methods were used.
Conclusions. The responsibility of specialists in the organization of construction is insufficiently regulated by law.
Keywords: specialists in the organization of construction, specialists in the organization of architectural and construction design, specialists in the organization of engineering surveys, self-regulation, self-regulating organizations of builders, self-regulating organizations of designers, self-regulating organizations of surveyors.

 TRIBUNE OF YOUNG SCIENTISTS

Denis A. Gordienko

WAIVER OF FIRST REFUSAL RIGHT IN LIMITED LIABILITY COMPANY: THEORETICAL AND PRACTICAL FLAWS OF RUSSIAN APPROACH

Abstract.  The problem of scope of autonomy of will conferred on members of a closed corporation traditionally causes acute discussions in legal literature as well as among practicing lawyers. In Russia this problem is especially often reflected in an institution of a right of first refusal since the current corporate legislation leaves open the question of whether members can completely waive this right by amendment of the corporate charter.

The author seeks to find out, firstly, to what extent a right of first refusal can be deemed as a necessary element of a closed corporation, and secondly, whether Russian law allows complete waiver of this right in LLC. Thus, the article examines foreign experience of regulating similar legal institutions, determines functions and goals pursued by a right of first refusal, analyzes Russian legislation and judicial acts, and identifies historical background of current Russian corporate legislation.  

Comprehensive review of the problem leads to the conclusion that a right of first refusal is not an immanent feature of a closed corporation, due to the limited scope of its impact on the interests of the latter. At the same time, lawfulness of its waiver by a charter of a LLC in Russia seems uncertain – whereas literal interpretation of the law rather suggests illegality of such an action, Russian courts tend to believe it lawful.

Keywords: pre-emptive right, first refusal right, autonomy of will, closed corporation, corporate charter.

Galina S. Davaeva

INACTION OF THE ARBITRATION MANAGER TO REPLENISH THE BANKRUPTCY ESTATE AND THE RESULTING CONSEQUENCES

Abstract. Based on the analysis of judicial practice in bankruptcy cases, the article examines one of the most common grounds for bringing an arbitration manager to civil liability - causing losses to creditors due to the inaction of the bankruptcy trustee to fill the bankruptcy estate. The statistics of recent years on the number of cases of recovery and amounts recovered from managers for various reasons are given.

The purpose of the scientific work is to analyze the norms of the current legislation related to the status of the arbitration manager, his duties to take the necessary measures that will contribute to the maximum filling of the bankruptcy estate and liability arising in case of violation of established legal requirements, as well as established legal opinions used in the practice of arbitration courts.
The problems related to the failure of the arbitration manager to take measures to challenge transactions, as well as to recover receivables, are considered. The issue of possible development of the institution of bringing the arbitration manager to responsibility in the form of recovery of losses in case of adoption of new amendments to the Bankruptcy Law is analyzed.
The methods used. In the course of writing the scientific work, both general scientific and various special legal methods (statistical method, comparative legal, structural analysis) were used.
Conclusions. It is concluded that not in all cases it is necessary to challenge the debtor's transactions, take measures to return receivables and to attract controlling persons to subsidiary liability. It is proposed to specify the responsibilities of bankruptcy managers by making changes to the vague wording of the provisions of the Bankruptcy Law. Namely, the article provides proposals to supplement paragraph 5 of paragraph 2 of Article 129 of the Bankruptcy Law, which will reduce the scope of the powers of managers to act at their discretion when taking measures aimed at filling the bankruptcy estate, as well as reduce the number of unfounded claims against arbitration managers.
Keywords: bankruptcy, compensation of losses, arbitration manager, contesting transactions, accounts receivable, bankruptcy estate.