Introduction: the article considers various legal models of private law restrictions on the ownership of land. In the context of the formation of a single civil law institute of neighbor law, it is necessary to form a model of private law restrictions on property rights corresponding to modern social and economic relations. In different legal systems, their own legislative models of neighbor law have been developed. With the introduction of new technologies, modern types of industrial production, development of opportunities for using space over private real estate for various purposes, there appear new concepts of neighbor law. In this regard, the study of a set of theoretical and legal issues concerning neighbor law is of considerable significance. Purpose: to develop an understanding of the legal models of private law restrictions on the right of ownership to real estate in European countries and the United States, based on the analysis of scientific sources, various legal doctrines, laws of individual countries, as well as judicial practice. The leading method to investigate this problem is the comparative legal one, which allows us to comprehensively consider the legal institutions of neighbor law in different countries and to identify the most general patterns of the development. Along with the comparative legal method, we also used the methods of objectivity, from the abstract to the concrete and from the concrete to the abstract, empirical methods of comparison, description, interpretation, theoretical methods of formal and dialectical logic. Results: the principles on which restriction on property rights in foreign legal systems is based are presented, the model of neighbor law proposed for implementation in the 19th century is shown, various theoretical models of neighbor law in domestic and foreign law are analyzed, the author’s model recommended for application to improve legislation on the ownership of real estate is presented. Conclusions: the paper justifies differences in the approaches of American and European law in the formation of restrictions on property rights, and also the absence of grounds for the dominance in the countries of the post-Soviet space of the American model of restrictions on the ownership of private property. The paper substantiates the criteria for the differentiation between public and private law regulation of neighborly relations, the dominance of the norms of civil law in neighbor law, the possibility of changing legal restrictions on property rights in the interests of a neighbor by an agreement establishing the real right of a servitude type, grounds for referring to the right of the necessary road in the German legal order. The materials of the article are of practical value in determining the legal policy for the development of legislation on restrictions on the right of ownership to land in the interests of neighbors in the context of the reform of Russian civil law.
The article is devoted to the analysis of the experience of recognition of hereditary trusts in countries of the continental system of law. The issue of property management and its transfer to the heirs has always been actual either in theory, or in practice. In modern society, characterized by the increasing complexity of economic relations, it is easy to imagine a situation in which institutions existing in one legal system do not coincide with those adopted in another legal system, and at the same time are used by its subjects. This situation takes place in relation to the Anglo-American trust, which is becoming increasingly popular in the continental system of law countries. Objective: To analyze the use of the trust as a mechanism of transfer of assets by inheritance, to consider the approaches of a number of countries belonging to the continental system of law to the recognition of hereditary trusts and their legal effects and also to explore the practice to establish trusts. Methods: scientific methods of analysis and synthesis, as well as special legal methods, including historical and comparative methods. Results: as an institute of common law system, trust can be used by subjects of continental system of law for different purposes, including the disposition of inheritance estate. Conclusions: prior to adoption of the Hague Convention on Trusts courts of continental law countries have tried to assimilate this institution with well-known legal structures, mainly, the contract. After the Hague Convention on Trusts came into force, a number of participants gradually expanded, and the courts of the member states of the Convention no longer needed to look for analogues of trusts in their domestic law. Due to the flexibility and advantages of the institution of trust, its following use either by the subjects of the countries belonging to the continental system of law, or in respect of property in these countries, has no doubt. Hopefully, the Russian legislator will not remain apart from the trends of trust recognition and will adjust the private international law of the Russian Federation by rules, which would regulate the status and legal effects of trust as the institution of common law system.
The article considers features of carrying out a procedure of restructuring a debt of a citizen who is not an individual entrepreneur in bankruptcy case. Purpose: to study the rehabilitation nature of the structuring procedure based on distinguishing its stages. Methods: analytical and system methods, comparative and legal, technical and legal methods are used. Results: legal consequences of introducing the procedure of restructuring a debtor’s debt allow him to stabilize his financial position and to save his property to meet creditors’ requirements. Actions of a financial manager, first of all, are aimed at providing creditors with a right to take part in the case of the debtor’s bankruptcy. In their turn, creditors are recommended to act with due care and discretion to keep an opportunity to participate in settling the debtor’s legal destiny. The law has additional provisions protecting rights of creditors of the first and second order, and also creditors’ rights referring to the current liabilities, the debt to which shall be repaid before the approval of the debt restructuring plan. Conclusions: having introduced the institute of citizens’ debts restructuring, the Russian legislation legally enables debtors to pay debts during a long term and to keep their property at the same time. Giving an opportunity to choose a bankruptcy procedure applied to debtorsconsumers depending on their liabilities, income and size of debts, the legislator purposes to protect the debtor from loss of property and from psychological stress, thereby strengthening social and economic infrastructure.
With the adoption of Part IV of the Civil Code of Russian Federation significantly changed the use of intellectual property as part of a complex object. The paper studies the complex object of intellectual property rights. In the absence of specific studies, complex object of intellectual property rights is reviewed for example theaters performances. Objective: To identify the preconditions consolidation in the Civil Code of the Russian Federation of a complex object, fully explore the complex object through the prism of theaters performances, and to identify the distinctive features of the basic characteristics of a complex object. Methods: The methodological basis for the study account for comparative-historical, analytical and systematic methods. Results: The article explains that a significant influence on the formation of the modern design of a complex object has admitted Soviet legislation the possibility of recognition of authorship for legal entities. Negatively assessed elected legislator domestic approach to form an exhaustive list of types of complex object in the absence of a definition and unambiguous signs of a complex object. The author proves the necessity of a consistent regulation of complex object as a whole and theaters presentation particularly in the Civil Code of the Russian Federation. Conclusions: The special treatment of a complex object introduced to the Civil Code of the Russian Federation to solve the issue of the relationship between the organizer and the rights of the original authors. The basic characteristic of a complex object should be considered as its internal structure: there are several results of intellectual activity that constitute a whole. Second in order of importance is the organizer of the activity, from which, on the one hand, the initiative is based on the creation of a complex object, on the other hand, liability and financial risks. The author states that for theaters as a kind of representation of a complex object is characterized by a single creative idea. A model that allows to enforce the balance of interests of the organizer and director-choreographer theaters performances.
The article is devoted to the peculiarities of the closed administrative-territorial formations (CATF) functioning through the prism of three blocks of legal relations connected with restriction of citizens’ constitutional rights and freedoms; with the peculiarities of the CATF socio-economic development; with the protection of state and public security. The main problems of the CATF regime implementation are revealed, the future development of legal maintenance of this regime functioning is specified.
Introduction: the paper analyzes the influence of changing legislation in the sphere of protection and use of intellectual property upon legal regulation and practice of its application in the field of intellectual activity. Legislation changes in the intellectual property sphere have contradictory influence upon the regulation of the relevant legal relationship. That is why analysis of the dynamics of intellectual activity development and its dependence on changing legal norms and constructions is of great importance. Purpose: to analyze the existing civil legislation in order to work out practical recommendations on how to improve the efficiency of protection of intellectual activity results. Methods: methods of analysis and synthesis, methods of micro- and macroeconomic analysis of legal facts and events, interdisciplinary approach are used in the paper. Results: it has been revealed that current Russian legislation in the sphere of intellectual property protection is rather contradictory. It incorporates collusions and does not provide economic activity with secure non-contradictory legal regulation. There are collusions between the existing national legislation norms in the sphere of intellectual property protection and general international norms and principles. An attempt to bring norms of Russian legislation into line with norms and principles of international law has not been successful. Conclusions: it is important to bring national Russian legislation in the sphere of intellectual property protection into line with conventional international norms and principles. The specific features of Russian practice of conducting scientific activity ought to be taken into account. It is strongly recommended to change civil legislation with regard to the patenting system in force and methods of intellectual property registration existing in Russian patent practice.
The category principles of international law is researched in the article, determined that the need to distinguish between two groups of the basic principles and special. Set along with the principle of autonomy of the will and of the principle members of a particular provision of such regimes is. It is proved one of the basics in the relations regulation in the network of WTO is the principle of the most-favoured-nation which ensures the equality of law regimes given to any third party countries as well as directed to prevention of discrimination for benefit of one or several states. Pointing out that this principle follows from the existing bilateral trade agreements between states, as well as subsequent decisions adopted at the WTO. However, the most favored is the "invention" of the World Trade Organization, and has a long history in this connection, consider the initial stage of the formation of the start in foreign relations, particularly with regard to our state. The article gives a historical and law analysis of the process of forming and introduction the principle of the most-favoured-nation to international law relations. During the reign of Peter I the relations connected with foreign trade should be regulated at the level of complex international treaties. Initially, the article that regulated exchanges in contracts of political issues, including peace treaties. As for the trade agreements signed by Russia with other countries in this period, then they are characterized by the widespread use of Russia most favorable conditions. The authors concluded from the analysis of the basis of international agreements, which originally applied to the most-favored right merchants to come, to transport goods, to buy and rent a home, hire assistants, sailors, and to many others, that is, applied to the relationships of a private law character, but did not extend fully to the duties and tariffs. The article shows an international practice of using the principle of the most-favoured-nation in international agreements. Development tendencies and a significance of the researched principle for foreign-trade relations, the difference and the correlation between the most-favoured-nation regime and national regime are researched and singled out in the article.
Introduction: advances in the field of genetic engineering and gene technologies make it possible not only to extract particular genes (fragments of genes) that encode certain properties of an organism (including human) but also to modify them. Such possibilities pose complex problems for mankind, including legal, moral and ethical ones. Among these problems is the potential for establishing a legal monopoly (in particular, using patent law mechanisms) on the results of such activities. The article discusses approaches existing in different legal systems to patenting a gene sequence, possibilities of recognizing a gene (its part) as an item covered by exclusive rights, primarily as an invention. There are identified criteria that ensure patentability of inventions where the subject matter is a gene sequence (gene, part of a gene) regarded as a substance: novelty, inventive level, industrial applicability. The paper also analyzes the possibilities and risks of protecting the rights to an identified gene sequence as a production secret (know-how). Purpose: to identify the most effective models for the legal protection of genetic research results, to determine approaches to the allowability of patenting a gene sequence as a substance, to define protectability criteria for such inventions provided that these criteria would mitigate the conflict between the rightholders’ and society’s interests. Methods: dialectical, formal logical, functional and other general scientific methods; special legal methods: comparative legal and formal legal, as well as the method of legal transformation of natural scientific concepts into legal categories. Results: there have been identified and characterized different approaches applied in various legal systems to patenting a gene (part of a gene) as a substance: fundamental allowability, existing restrictions. The features of the application of protectability criteria to inventions in this area have been studied. The existing risks and the mechanisms proposed for minimizing those in different legal systems have been identified. Based on a comparative analysis, the paper demonstrates the need for legal formalization of special requirements for the protectability of genetic inventions. Taking into account the possibilities of protecting a gene (its part) as know-how, the effectiveness and potential risks of using this protection model have also been analyzed. Conclusions: analysis of international legal documents and approaches of different legal systems demonstrates the need for a clearer distinction between the concepts ‘discovery’ and ‘invention’ in the field of genetic research. Currently, most legal systems, including the Russian one, recognize the fundamental possibility of patenting a gene (its part), but under certain conditions, applied to prevent monopolization of knowledge about nature as such. The selection of a protection model that does not involve disclosure of information on the obtained scientific results (know-how) is undesirable from the political and legal points of view. Granting exclusive rights to an invention related to a gene sequence identification entails risks to safety, health, and well-being of a person; therefore, stricter rules limiting such rights are necessary. At the same time, there should be offered incentives (proprietary first of all) supported by modern patent law that would promote research and new developments in the field of biotechnology.
Introduction: the article is devoted to the analysis of the genesis of the Soviet theory of law, in particular, of the sociological concept of law by P. Stuchka. In this regard, the relation of jurisprudence with other social sciences, such as philosophy, political science and sociology, acquires particular importance. Special attention is paid to the attempts of reconciliation of Marx’s concept of withering away of the state and the law in a communist society with the realities of the young Soviet state. Purpose: to form a concept of prerequisites and peculiarities of formation of Russian legal theory in the 1920–30s. Methods: theoretical methods of formal and dialectic logic have been applied. Results: the analysis shows that in their attempt to reconcile Marxist theory with the reality and inner logic of the law the Soviet jurists relied on the achievements of pre-revolutionary Russian legal theory, primarily a sociological theory of law. In addition, the relative epistemic pluralism of social sciences in the first decades of the Soviet regime allowed them to elaborate original concepts, for example, the concept of codification. Conclusions: the Soviet theory of law in its early stages faced the problems of determining the essence and the content of law, and of the relationship between the law, state and society of a new type. The problems were caused by the dominant ideology of Marxism-Leninism and epistemological obstacles in legal knowledge. The attempts to solve these problems undertaken by the Soviet jurists are of great interest to modern legal theorists who are in search for appropriate methods of legal research.
Introduction: the article studies some approaches of judicial practice to criminal and legal evaluation of provocative actions related to throwing in illicit items (e.g. drugs, firearms, ammunition, etc.) to a person in order to create fake evidence for prosecution. Purpose: to justify and specify, on the basis of scientific and regulatory sources, criminal and legal evaluation of provocative throwing in illicit items aimed at creating fake evidence for prosecution. Methods: the methodological framework of the study is based on a set of methods of scientific cognition, among which the dialectical method is the major one. The author uses both general scientific methods and specific ones, namely the formal, technical and comparative legal methods. Results: the approach tocriminal and legal evaluation of provocation of a crime involving throwing in drugs, firearms or ammunition to a person aimed at creating fake evidence for prosecution is studied. Conclusions: it is concluded that provocative actions, such as throwing in drugs and ammunition to a person in order to falsify their criminal conduct should be qualified as knowingly false denunciation with creating fake evidence for prosecution. It is proposed to make amendments to two resolutions of the Plenum of the Supreme Court of the Russian Federation that deal with recommendations on qualification of provocative actions aimed at creating fake evidence for prosecution.
In this article the author attracts our attention to the growth of corporative conflicts, which is one of the most widely spread tendencies in Russian fussiness environment in recent years. This negative situation takes place due to imperfection of preventive
system in this sphere. The main problems, essential reasons and measures for conflicts minimization are also belong analyzed in the article.
Introduction: normative leadership in the context of increasingly more obvious interconnection between innovation development and the quality of legislative framework - that is the challenge faced by Russian legal science today. The citation from the Presidential Address to the Federal Assembly of the Russian Federation (February 20, 2019) describes the situation precisely: ‘all our legislation should be tuned to the new technological reality’. In other words, the state cannot afford legislation that does not suit the ongoing processes any more. Purpose: the article aims to perform analysis and assessment of Russian legislative solutions in the context of national legal tradition and lawmaking experience of other countries. The authors analyze the Federal Law of August, 2, 2019 No. 259-FZ ‘On Attracting Investment with the Use of Investment Platforms and on Introducing Amendments to Certain Legislative Acts of the Russian Federation’, which provides legal regulation for relations known worldwide as ‘crowdfunding’. This term was used in the first draft version of the law, before it was eventually rejected. Methods: the study is based on the methods of comparison, analysis, synthesis, generalization, and the formal-logical method. Results: crowdfunding is a new phenomenon for all states without exception, which influenced doctrinal consideration of the relevant issues. As is typically the case with new research areas, first works were devoted to describing the phenomenon, identifying its features and differentiating it from adjacent concepts. Afterwards jurists turned to studying the most common models of crowdfunding. For some period, academic discussions focused on the US legislation, on doubts about legality of some business models of crowdfunding platforms, and on the application scope of Securities Act of 1933 (USA). With the development of legislation in other countries, there started to prevail comparative legal research and more sophisticated discussions on the agreement between legal regulation and the new digital reality. Conclusions: analysis of legal regulation in crowdfunding allows understanding the logic of the relations development in the new technological reality, the shift of law from strict forms to ‘techno’-constructions, as was the case with crowdfunding, when the form of realization (‘with the use of investment platforms’) became a trigger for legal separation of investment relations. The article continues the series of publications by its authors exploring the impact of technological breakthroughs on modern law [1; 2].
Introduction: the article is devoted to the analysis of the legal nature of alternative means of payment (for the purposes of taxation), in particular bitcoin, and to the study of tax consequences of their usage (theoretical and legal aspects). The academic interest of the authors is connected with law enforcement problems, which take their origin in unique technologies making it possible to use alternative means of payment. The paper analyzes the position of the Federal Tax Service of Russia on the issue, as well as foreign experience and current case law of the European Court of Justice. Purpose: to study the legal nature of alternative means of payment, bitcoin in particular, for the purposes of taxation; based on the analysis of foreign legal regulation experience, to reveal the most common problems in the field of taxation linked with the usage of virtual currencies and their tax assessment. Methods: the study is based on the methods of comparison, analysis, synthesis, generalization, and formal-logical method. Results: the article provides the analysis of the legal nature of alternative means of payment, in particular bitcoin, for the purposes of legal entities income tax and VAT; the substantiation for the conclusion that operations with bitcoin are subject to taxation; the analysis of tax consequences of particular situations; the formulation of the main principles of taxation.
article is devoted to the questions connected with the
prevention of insolvency (bankruptcy). The special attention is paid to interaction of private and public law, achievement of balance between them. Purpose: the legislation regulating questions of bankruptcy, it is impossible to carry unambiguously to a source of public or private law, in communication than, the question of ensuring balance of the right private and public gains special relevance at regulation of the measures directed on restoration of solvency of the debtor. Stimulation to appropriate performance of obligations is one of guarantees of the prevention of bankruptcy. These measures to contain in sources both public, and private law.
Results: application of only one measures of civil character not always is sufficient. In article the attention to need of application of the integrated approach including both a private-law initiative of subjects, and measures of public character is paid.
In article it is analyzed a current state of system of ensuring financial stability of managing subjects in the Russian Federation, the requirement of development of measures for its improvement, in search of a reasonable ratio of private and public law is noted at implementation of measures of the civil and public character directed on the prevention of bankruptcy.
Authors analyze also stages of development of the legislation in this sphere, giving thus an assessment to occurring changes. The concrete measures directed on restoration of solvency of the debtor, both on judicial, and at a pre-judicial stage are considered. Methods: analytical and system methods, comparative and legal, technical and legal are used. Conclusions: unfortunately, today it is impossible to tell about the worked mechanism providing opportunity to restore solvency of the subject. These measures carry, as a rule, separate and not always effective character. In this regard, improvement of the measures directed on the prevention of bankruptcy, has important theoretical and practical value, both for managing subjects, and for the state as a whole.
Introduction: efficient legal protection of intellectual outputs is essential for the dynamic development of modern society. The list of intellectual property objects is not intended to be exhaustive, separate outputs lose their relevance and become excluded from the list of protected objects, while new ones, on the contrary, are added to it. Purpose: this work aims to identify the tendencies regarding the extension of the range of intellectual property objects at the beginning of the 21st century, and to define the scientific and technological progress results that were granted protection under the influence of the Fourth Industrial Revolution and other factors. Methods: the method of formal logic, historical, comparative legal, systemic structural and formal dogmatic methods were used in course of the analysis. Results: international legal regulation does not provide clearly-defined guidelines to restrict the sphere of intellectual property. This factor undoubtedly contributes to expanding the list of its objects. At the beginning of the 21st century, law-based lists of copyrighted works did not include any new items. The institute of neighboring rights is most dynamically developing in the Law of the European Union. The Directive on Copyright in the Digital Single Market proposes recognizing two new neighboring rights. One of them is the right of the press publishers for online use of their publications by the news aggregators. The other neighboring right included into the draft Directive was the right to coverage of sporting events. However, in February, 2019, the provisions on this right were excluded from the Directive. In our opinion, biomedical cell products constitute new objects of civil circulation that require their own legal regulation as intellectual property constituents. Conclusions: intellectual property law cannot and should not undergo changes with the emergence of every new kind of objects. The contemporary challenge facing civil jurisprudence and the legislature is to formulate universal regulations that would make it possible to protect the rights of authors and developers of technological solutions even at the stage of experiments.
Introduction: The article deals with the features of forming the Federal and Russian civil legislation in the late 80s – in the early 90s of XX century. Special attention is paid to the radical changes in constitutional, and as a result in civil legislation, predetermining the destruction of economic foundations of the Soviet public system. Purpose: studying the peculiarities of changes in civil legislation during the given period for comprehending the range of issues in implementation of civil legal rules and institutions at the critical stage. Methods: the methodological base of the study is systematic and historical methods allowing to reveal legal matter quality of transitional period with the account of historical and political situation developed. The basis of these methods is the method of dialectical materialism giving the opportunity to show interdependent relationship between the economic basis of transitional period, changing economic functions of the state and the sphere of civil law. Results: the basic legal acts of the USSR and RSFSR of the late 80s – the early 90s of XX century in the field of civil legislation as well as some materials of court practice are studied by the author. Special attention is paid to typological features of transitional legal situation, in particular as an example of civil legislation by means of which some changes in legal regulation of ownership rules, contractual relationship are made. The author agrees with the opinion of the scientisits (V.P. Reutov, Yu.V. Vasil'eva) who believe that the subject of legal regulation does not always determine the structure of law branch. The radical changes in political and economic development of state often involve changes in the functions of state and as a result in the functions of law and branch legislation. The analysis of transitional processes confirms this statement. Conclusions: with system changes of political and socioeconomic structure in the USSR some failures in regulating the public relations were inevitable as well as disturbing stability of internal structural legal elements and as a result the absence of legal matter stability. These factors influenced objectively the system of civil legislation.