Vol 5, No 2 (2019)

In this article authors consider the possibility of developing the concept of «legal relationship» in the context of the recursive paradigm in the legal regulation, which was the result of an attempt to synthesize the general theory of law and the theory of formal systems. Synthesis of theories was carried out on the basis of the analysis of the sphere of legal regulation using the concept of «recursion». The result of this study was the category of «legal process» which is a consequence of the development of «relationship» concept in the modern general theory of law. It is suggested that use of the category of «legal process» will allow more fully and accurately describe the modern procedure of legal regulation. A number of concepts have been defined, the application of which within the framework of the «legal process» will contribute to the solution of tasks aimed at a qualitative increase in the volume and in the degree of accuracy of the legal regulation. The authors present for discussion the questions, the solution of which will contribute to the creation of theoretical basis for «immersion» of modern law in the virtual space.

The article, on the basis of the theory of doubling the structure of law, considers the problems of building a system of legislation in the field of personal data through the prism of its membership in the institutions of information legislation. The author makes an attempt to establish the correlation of normative legal acts within this institution and to determine their points of contact with the acts of sectoral legislation. The author concludes that the specified institution is rapidly growing and acquires the features of multi-structure due to the quantitative and qualitative dynamics of the subject of legal regulation. It is noted that the close connection of the named type of information with an individual predetermines the unity of fundamental approaches to the legal regulation of relations arising here. At the same time, the «ramification» of the personal data itself and their spheres of application is the basis for a significant internal differentiation of this institution, manifested in the presence of sub-institutions in its composition. As an example, the subinstitute of biometric personal data is analyzed, the structure of which as one of its elements includes a set of regulatory legal acts establishing the mode of genomic information.

The article deals with the problems of determining the subject composition of legal relations arising from genomic information. It is emphasized that the basic act in this area is the law on personal data, containing general provisions on the subject composition, its legal status and operations in which it is involved. The author concludes that in the absence of special regulation it will be necessary to operate with the general terminology and proceed from the status of participants in relations arising about genomic information enshrined in the law on personal data. The indirect use of genomic information is analyzed, in particular, within the framework of the information base functioning. The author raises the question of the need to give genomic information a special status within the framework of the law on personal data, which would allow to introduce a uniform terminology in relation to the subjects of relations arising from its use.

In the article, based on the analysis of regulatory legal acts of various levels and law enforcement practice, there are revealed defects in the law and violations of the rights of citizens during termination / restriction of wastewater disposal. It is noted that legal acts provide for both regulatory and restrictive conditions for the termination / restriction of the provision of services in this area, which are procedurally different in terms of sources of law. It is emphasized that the procedure for the implementation of regulatory condition, consisting in the preliminary notification of interested persons, is regulated differently in sources at various levels. The authors give and analyze concrete examples of the actual consequences of the installation of «plugs», and state that even in court decisions that are not in the interests of citizens, it is noted that the installation of «plugs» should not lead to damage to the defaulter’s personal property. The authors argue that in most cases there is no formal basis for stopping / limiting wastewater, since the law provides for a drainage contract, and not a contractual relationship. It is concluded that the installation of plugs in the drainage system of apartment buildings is a violation of sanitary legislation and creates the threat of the emergence and spread of infectious diseases and mass non-communicable diseases (poisoning) and formulated the basic possible requirements for the protection of violated rights.

We consider the composition of discriminatory crimes, primarily the composition of Article 136 of the Criminal Code of the Russian Federation. The shortcomings of this article, the reasons for its non-use are analyzed. The problem of differentiation of criminal and other types of responsibility for discriminatory offenses, as well as the problem of differentiation of discriminatory and lawful restriction of constitutional rights and freedoms of citizens is touched upon. The conclusion is made about the need to improve antidiscrimination legislation, the practice of its implementation, as well as the need for an anti-discrimination ideology and anti-discrimination education at the state level.

Тhe article examines the issues of legal support for the implementation of strategic planning documents for the socio-economic development of the Samara Region in the digital economy, defines the ratio of the National Program «Digital Economy» and its regional component, providing for federal and regional projects of the digital economy, as well as the ratio of initiative and government programs of the Samara Region. Conclusions about the imperfection of strategic planning documents as regulators in the studied area of relations are made. The national program «Digital Economy» provides for the elimination of «digital inequality» of different regions, but does not solve the question of «inequality of economic sectors»: 1) how will technologically backward sectors of the economy develop, including in the Samara Region, can economic entities the digitalization process, whether it will entail even greater backwardness and lack of competitiveness of entire industries, given that the programs are designed to support large organizations that create infrastructure values; 2) what will happen with the employment of the population in the «backward» sectors of the economy in municipalities that are still far from the digitalization process; 3) how much will the role of transnational corporations, which have sufficient resources to «absorb» the achievements of the digital economy, in the functioning of regional and municipal economies, be enhanced.

The subject of the study is a little-studied in the theory of tax law issue related to the evolution of the taxpayer's permits. The study analyzes the process of transformation of legitimate interest into the subjective right of the taxpayer. On the basis of a retrospective analysis of tax legislation systematized knowledge of the dialectic of this transformation. The article considers the actual basis of the transition of the taxpayer's legitimate interest to the prompt return of value added tax (VAT) to the subjective right to apply the application procedure for VAT refund. The author substantiates the idea that the main objective reason for the transformation is the complexity of social and economic relations. It is concluded that the consequence of formalization of legitimate interest in subjective law is the acquisition of a more stable legal status and the transition to a qualitatively new, more secure level of permission. As a feature of the newly transformed law, its normative saturation is noted both in the content and in the details of its implementation.

Procedural activity is non-uniform, is subdivided into adoption of proceeding decisions and implementation of criminal procedure actions. It is proved that proceeding decisions and actions of competent persons of criminal proceedings and also written documents certifying them can be called as criminal procedure acts. Criminal proceedings represent activities for the use of norms of the Criminal Procedure Code of the Russian Federation, are admissible to call the relevant procedural acts law-enforcement. A number of the intermediate and main decisions accepted in criminal proceedings are as well acts of application of the criminal law if fixing of substantive conditions for adoption of the relevant proceeding decisions in blanket norm of the Criminal Procedure Code of the Russian Federation with reference to a disposition or the sanction of criminal norm or through use of the general wording of the criminal law takes place and also if in the act a conclusion about the taken place specification of the criminal relation is made out.

The article shows the importance of using such moral categories as «justice» and «conscience» in the norms of the current criminal procedure law. It is shown that the category of «justice» is used by the legislator only as one of the requirements for the verdict of the court, and the category of «conscience» – as a criterion of internal conviction of the subject in the legality and validity of any decisions in the course of criminal proceedings. The authors' judgments are critically evaluated, considering that all decisions made in criminal proceedings and procedural actions made on their basis must meet not only the requirements of legality, validity and motivation, but also the requirement of justice. The reasons for limiting the scope of the requirement of justice in criminal
proceedings are revealed, in connection with which the illegality of the reproach against the legislator in respect of the lack of the requirement of justice in part 4 of Article 7 of the Code of Criminal Procedure is shown. The author demonstrates the validity of the position of the legislator who used the categories of «justice» and «conscience» in the norms where they are contained, and the impossibility of their other position.

Analysis of the practice in the studied criminal cases, as well as a survey of the main participants in the criminal proceedings showed that a significant number of violations of the current legislation, as well as mistakes made by lawyers in the implementation of protection of their principal, are committed due to both legal nihilism and due to insufficient knowledge of lawyers of such disciplines as criminal procedure and criminology. The article deals with the tactics of defense in criminal proceedings, as well as issues of attorney errors and abuse of the right by a lawyer in the implementation of protection. The article presents and analyzes the opinions of investigators and judges on what is the mistake of a lawyer and abuse of the right by a lawyer, obtained as a result of the survey. In addition, an attempt has been made to define the concepts of «defence tactics», «lawyer’s error» and «lawyer’s abuse».

This article deals with the specifi city of the non-use by the court of an act contrary to the law as a way of protection of civil rights. The main doctrinal positions on the nature of the right to protection and on methods of protection are set out. The article is particularly relevant because of the fact that so far no comprehensive studies have been carried out on the particularities of the non-application by the court of an act contrary to the law from the point of view of the institution of administrative justice and the protection of civil rights, on the one hand, and the principle of legality and independence of judges, on the other. This issue became particularly acute in view of the adoption by the Constitutional Court of the Russian Federation on December 6, 2017 of the Resolution № 37-P, the subject of which was the constitutionality of part 13 of the Article 12 of the Civil Code of the Russian Federation. On the example of judicial practice the author demonstrates the atypical nature of the considered method of protection as well as the procedural diffi culties arising in connection with the part 13 of Article 12 of the Civil Code of the Russian Federation. On the basis of theoretical and practical arguments, the author concludes that the non-use by the court of an act contrary to the law does not fi t into the traditional perspective of the protection of subjective rights and the institution of administrative justice.

The article analyzes the peculiarities of the subjective side of the cause of harm by medical workers in the implementation of medical interventions of various kinds in clinical situations. Emphasis is placed on the conditions of legality of extreme necessity and justified risk, specified in the criminal legislation of the Russian Federation, for the purpose of criminal legal assessment of practical activities of medical workers, in particular, the reality of the danger and the extreme of the chosen method of preventing more harm when absolutely necessary; the inability to achieve the goal without risky actions and the application of sufficient measures by the person to prevent harm to a reasonable risk. The difficulties encountered in the practice of a medical worker, calling into question the possibility of compliance with these conditions are analyzed. Particular attention is paid to the issue of taking into account professional experience and experience of a medical worker in the criminal law qualification of his actions. A new article «The conscientious performance of professional duties» has been proposed for introduction into Chapter 8 of the Criminal Code of the Russian Federation.

This review was presented to the defense of the thesis of T. V. Nadelyaeva, held on December 19, 2018 in the dissertation council D 212.282.03, created on the basis of Ural State Law University.