Preview

Theoretical and Applied Law

Advanced search
No 2 (2022)
View or download the full issue PDF (Russian)

ARTICLES

8-14 326
Abstract

This paper discusses conception of legal interpretativism proposed by a famous American jurist, Ronald Dworkin (1931–2013) in context of problems of “practical orientation” of legal theory. The first part of the paper states key attitudes of R. Dworkin’s interpretive approach as to understanding of law and legal practice, interpretative character of legal propositions, and necessary practical “involvement” of legal theorist. The second part assesses R. Dworkin’s interpretive theory, emphasizes importance of its “practical direction”, as well as its argumentative and hermeneutic potential. Simultaneously, the paper highlights a number of “dark spots” within the American jurist’s conception that require elucidation/justification. These are linked with an unjustified universalization of argumentative character of legal practice and of the idea of “the best moral light”, with lack of clarity in the idea of legal theorist’s “participation” in the practice being comprehended, as well as with radicalism and insufficiency of R. Dworkin’s arguments to neutralize legitimate plurality of legal doctrines.

15-21 464
Abstract

This article describes the B. Melkevik’s philosophical and legal views on issues related to the legal understanding of collective memory, historical responsibility and collective guilt. The authors fit the researcher’s reasoning into the broad context of the development of ideas about collective responsibility and link the “ethical memory” criticized by B. Melkevik with the “cancel culture” and the spread of “new ethics”, suggesting the possibility of placing blame for the actions of one person on the group with which he identifies. The authors consider the limits of applicability of the concept of “Leta” B. Melkevik, believing that the conventional establishment of a regime of oblivion for historical memory through democratic procedures undermines the expertise of professional historical knowledge that provides a reliable Past. They come to the conclusion that the “cancel culture” characteristic of the digital media environment blocks the Habermas model of communicative rationality used by Melkevik.

22-38 472
Abstract

The article discusses the formula, which is a means of fixing the claim in Roman private law of the pre -classical and classical periods. The nature and essence of the formula are quite little studied in the special legal literature. At the same time, most authors are limited to the general characteristic of the structure of the formulas, indicating that in the formulary process the documentary formula had the same meaning that in the legis actio were legitimate claims declared orally. According to the authors, the study of the formula should be based on the general laws of the evolution of Roman private law. The work proves that the emergence of the formula is an indicator of the transformation of associative-shaped legal thinking into a conceptual thinking, and the formula itself is an important tool for conceptual thinking used to construct subjective rights, as well as giving them formal certainty and legal force.

39-49 369
Abstract

The realization of freedom of labor by the employee through the termination of employment and the subsequent conclusion of an employment contract with a company that competes with the previous employer is detrimental to the interests of the later. The article contains an attempt to substantiate the necessity and possibility of introducing noncompetition agreements in the Russian labor legislation. In the light of the wide spread of such agreements abroad, the experience of various countries is represented, and the main aspects to be taken into consideration while concluding non-competition agreements are analyzed: 1) the reasonableness of conclusion of such agreements; 2) the form of conclusion; 3) the information about the actions to be performed/not performed by the employee; 4) the categories of employees with whom non-competition agreements may be concluded; 5) the term and the territory of the agreement; 6) compensation of the employee. Author reviewed the current positions of state authorities and the scientific community on the raised issue. In addition, the author provides arguments in favor of using this type of agreements, as well as possible options for adapting it to national legal conditions, taking into account the principle of freedom of labor.

50-58 895
Abstract

The article is devoted to the question of the possibility of using existing concepts of legal personality in the construction of the legal status of artificial intelligence (AI). The article examines the properties of AI in comparison with individuals and legal entities, and concludes that the full use of their legal personality as a legal basis for the electronic person’s legal personality is incorrect. Separately it’s considered the issue of the AI’s responsibility. The paper focuses on the prevention of mixing the concepts of the object and subject of law in relation to AI, identifies trends in the development of legal regulation of its legal personality, and concludes that in these modern conditions, the “electronic person” is closest in its content to the concept of “quasi-entity”.

59-64 162
Abstract

In this study, on the basis of a systematic analysis of the regulatory regulation of the features of the organization of public power in the federal territory, in cooperation with special legal regimes of certain types of economic activity, the foundations for the formation of economic advantages of labor organization in certain sectors of the economy are revealed. Accordingly, the very features of the organization of public power determine the regimes of economic activity that allow the rational organization of labor activity, which in itself becomes a distinctive feature of the federal territory, distinguishing it from other special economic regimes (territories of advanced development, special economic zones, etc.).

65-69 405
Abstract

The aim of this article is determination of main lines on rise efficacy of anti-cybercrime in Russia. This article describes the Russian law base and international law acts about anti-cybercrime, and also norms of project of Convention United Nations Countering the use of information and communications technologies for criminal purposes, which Russia sent to United Nations in 30 July of 2021.

There are the terms “cybercrime”, “cyberspace”, “cybersecurity” in according with international standards of International Organization for Standardization and International Telecommunication Union in this article. There is classification of cybercrimes in this article, which is in criminal law theory.

The author makes proposals of main lines of national politics in sphere of anti-cybercrime.

70-74 244
Abstract

The article is devoted to the features of protection the weak party in the situation when the parties to the banking agreement use the “smart contract” technology from the point of view of Russian and foreign doctrine. The author proposes particular changes and additions to the current regulation and the established judicial practice, while the general principles of legislation remain unchanged.

ESSAYS

75-77 187
Abstract

The article is dedicated to the memory of a major thinker in the field of moral, political and legal philosophy Joseph Raz, the author of a number of influential works on the problems of political authority, the unity and separation of morality and law, the system of political values, private autonomy and the rule of law.

78-83 4994
Abstract

In this article, the author explores the question of the qualification of Paragraph 1 of Article 782 of the Civil Code of the Russian Federation, which gives the right to unmotivated refuse to perform a contract for the provision of paid services. The paper considers various approaches to the issue of dispositivity or imperativeness of this norm. The positions of scientists on the legal nature of 782 of the Civil Code of the Russian Federation are considered. The author analyzes judicial practice for the possibility of blocking the right to unilateral refusal. Based on the presented analysis, conclusions are drawn about the dispositivity of 782 of the Civil Code of the Russian Federation regarding the inadmissibility of blocking the right to unilateral refusal itself, at the same time, the parties are allowed to establish a different procedure for the implementation of this right. A possible option for improving domestic legislation regulating the termination of a contract for the provision of paid services is also proposed.



ISSN 3034-2813 (Online)