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Theoretical and Applied Law

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No 2 (2023)
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ARTICLES

8-15 220
Abstract

With the development of technology, Internet platforms continue to accumulate technological advantages and become super network platforms with rapid growth in the number of users and huge transaction scale, thus triggering problems such as platform monopoly, infringement of users’ rights and interference with social governance. When the state and the government face the challenge of platform governance, the existence of a technological divide makes it difficult to achieve the desired effect of Internet platform governance through the traditional unilateral regulatory model. When the law grants power, appropriate measures should be taken at the same time to avoid the abuse of power. With fairness as the regulatory goal of Internet platforms, it is necessary to start the restraint of platform power from multiple perspectives of self-regulation, cooperative regulation and external regulation to promote the standardized operation of Internet platforms.

16-26 266
Abstract

The article is devoted to the inquiry of a specific conception of law, emerging from an attempt to comprehend sociolegal order through the lens of epistemology of critical rationalism. Taking as an example the works of Friedrich Hayek, one of the leading theorists who applied critical-rationalist epistemology to the study of society, we describe the key tenets of this epistemology, as well as its implications for social science. According to our hypothesis, the key tenets of critical-rationalist epistemology can produce not only a certain social philosophy, but also a certain view on the main questions of legal theory. The questions of the function of law, its structure and evolution, being studied by its theoretical reconstruction in the context of the critical-rationalist epistemology, indicate the significant relevance of the epistemology of critical rationalism as the basis of a coherent legal theory. The legal theory, which consider law as an endogenously evolving “compositive” (dispersed) social structure, preventing epistemically unjustified intervention of organized power actors into spontaneous social order. This perception of law, based on the epistemology of critical rationalism, opposes the currently dominant “Cartesian-rationalist” theory of law as an exogenously designed by political legislator logical normative structure, serving as a technical tool of epistemically unjustified intervention of organized power actors into spontaneous social order. And though this Cartesianrationalist legal theory is the opposite of the critical-rationalist concept of law, the very identification of these two types of legal theory is becoming possible only when we analyze law through the lens of the epistemology of critical rationalism.

27-38 323
Abstract

The article actualizes the problem of formation, development, the current state of the constitutionalist idea and the corresponding legal means of limiting public power. This is not about numerous constitutionalist political and legal doctrines, its definition or classification: the thesis characterization of the historical stages of the struggle of civil society against the despotism of the state, competing or affiliated institutions (economic, military and spiritual) allows us to reveal the patterns of dialectics of the essential idea for constitutionalism and appropriate legal means of limiting public authority.

The author used the historical-comparative, formal-logical, method of legal dogmatics and specification of legal cases (description of specific cases). The use of these methods made it possible to investigate the embodiment of the constitutionalist idea of limiting public power that corresponds to the legal culture of a particular era; the main legal means of limiting public power in the past and present; the potential for updating the constitutionalist idea and legal means of limiting public power. The idea and legal means of limiting public power are concretized on the materials of the most developed legal systems of the past and present, recognizing and implementing European-type democracy as the basis of the political and legal structure.

39-47 242
Abstract

The article is devoted to the responsibility of a service provider in Classical roman law. The author describes the main social and legal factores led to the changes in a service agreement in comparing with its structure in Preclassical period of roman law. Basing on fragments of classical juridical treatises he clarifies tthe responsibility for a breach of the main obligation tied with service providing as well as of the additional one going from caring for a customer’s thing. Exegesis to authentic sources combines with reviewing of traditional interpetations given by modern authors. The curring research showes the intrinsic interconnection between developing of formal legal relationships based on a contract of autonomic parties and rising of responsibility standards of a service provider. The appearing of an independent craftsman is caused by reglamention of the service agreement object. That object is regarded as physical efforts that will applied by a craftsman after certain period of time.

48-56 488
Abstract

This article considers the role of the jus commune doctrine in the process of formation of institutions of public law in the period 11th-17th century as a functionally organised construction of legal reality. The research is based on the communicative methodology of law and, on the grounds of the historical and legal facts, shows how the functions of the doctrine were manifested when jus commune influenced the medieval legal reality. It concludes that the jus commune doctrine, based on the axiomatic method, by interpreting the texts of Roman and canon law, filling legal gaps and eliminating contradictions in customary, canonical and positive law, made a significant contribution to the construction of the public law segment of legal reality — the institutions of public law.

57-66 1378
Abstract

The article provides a new approach to understanding natural human rights. The author reviews the existing concepts of natural law: ancient philosophers, religious figures of the Middle Ages and the New Age, philosophers of the Enlightenment, I. Kant, the views of modern lawyers, reflected in fundamental international documents and national constitutions. It is concluded that the existing concepts are based on assumptions, many of their provisions are outdated and often contradict each other, and the content of the natural human rights themselves is not disclosed. The author is critical of the opinion that natural law is morality or divine law. Instead, it is proposed to build a concept based on the biological characteristics of the human body. To substantiate the new approach, the author applies the method of R. Descartes — denial until the very denial becomes absurd. Thanks to this method, an objective basis was found — «a person exists while he lives», from which further reasoning is conducted. The article provides a logically justified and integral system of natural human rights, which the author calls “human natural freedoms”. These include natural freedoms: life, consumption, labor, worldview, knowledge and selfdefense. The author proves that they are inalienable, absolute, independent in use and permanent. The article also shows how the objectively existing system of natural human freedoms interacts with positive law. The author notes that the role of such a “bundle” is played by the principles of regulation, which include: universality, equality and fairness. In conclusion, a conclusion is made about the theoretical and practical significance of the presented concept.

67-76 319
Abstract

In the legal literature, the traditional idea is that Soviet legal scholars until the early 1930s rationally expected the withering away of law as socialism was being built. In this regard, this article aims to critically review the views on this problem that existed in the USSR and to check if such a theory (group of theories) really existed. To do this, the author checked the internal logic and detailing of the views of some leading Soviet legal philosophers (P. I. Stuchka, E. B. Pashukanis, M. A. Reisner, and I. P. Razumovsky). Their views on the problem of the withering away of the law were also compared with other elements of their scientific theories and with the provisions of classical Marxism.

It has been established that none of the considered works contains a full-fledged scientific theory of the withering away of law. P. I. Stuchka never supported this idea, and in his works, he wrote about the “withering away” of only certain liberal legal doctrines (freedom of contract, the autonomy of will, etc.). E. B. Pashukanis, known as the most influential Soviet legal nihilist, argued that the law would be completely replaced by technical norms, but did not provide any explanation for this statement. In many contemporary phenomena of politics and economics, he saw signs of the degradation of law but did not explain in any way how this would lead to the withering away of law itself. The replacement of law by technical norms was also predicted by M. A. Reisner, but his view was even more general — the law should have disappeared by itself when universal equality and justice would have been established in society. The philosopher I. P. Razumovsky also described the withering away of law only in general and, apparently, saw it as nothing more than an ideological stamp.

The inability to formulate a detailed theory of the withering away of law, we believe, demonstrates the stability of the Western tradition in the face of many years of determined attempts to deconstruct it.

77-86 273
Abstract

The purpose of the article is to conduct a comparative analysis of the processes for issuing, amending and supplementing awards by institutional international commercial arbitrations in the Russian Federation and Singapore, as well as reviewing the legal regulation of the setting aside the arbitral awards and current trends in judicial practice

in this area in these states. The mechanism of returning an arbitral award by state courts for consideration within the framework of arbitration is analyzed in the article.

This paper examines the provisions of the national legislation of the Russian Federation and Singapore governing the issues of international commercial arbitration, as well as the regulations of institutional arbitration organizations represented by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation and Singapore International Arbitration Center; analyzes the unified norms of international law, as well as the practice of state courts and international commercial arbitration centers of the Russian Federation and Singapore.

The process of an arbitral award issuing in the institutional international arbitrations of the Russian Federation and Singapore has a number of features that may indirectly affect the outcome of the dispute. The legislation of Singapore also contains additional (compared to generally accepted) grounds for the setting aside an arbitral award — fraudulent or corrupt motives; violation of the fundamental principle of natural justice, while specific approaches to the essence of these grounds were developed by judicial practice.

Of particular interest is the developed pro-arbitration active position of the state court of Singapore regarding the possibility of returning an arbitration dispute from the state court to arbitration, as well as the criteria for such return.

87-92 260
Abstract

The purpose of this article is to analyze abuses of procedural right in civil and arbitrazh proceedings of the Russian Federation in the context of judicial review. The problem posed by the author is studied from “general” to “specific”: from the study of the potential for abuse of the right to appeal to the isolation and isolation of separate blocks of bad faith procedural behavior, typical for persons involved in the case. The author was able to identify four blocks of procedural abuse at the appeal stage: attempts to review judicial acts not in the manner prescribed by applicable law; circumvention of the prohibition to submit new evidence; inconsistent procedural conduct, as well as unreasonably prolonging the process of review. In addition, this article raises the question of the applicability of certain negative consequences for abusers in appellate and subsequent court proceedings. The article draws a conclusion about correlation of special norms (part 2 of article 111, part 5 of article 159 of the Commercial Procedure Code of the Russian Federation, article 99 of the Civil Procedure Code of the Russian Federation) with a basic general consequence of mala fide procedural behaviour — refusal to satisfy claims of an abuser fully or partially.

93-105 301
Abstract

The article examines the history of the formation of legislative regulation of labor relations of “special subjects” of labor law of the Russian Federation — professional athletes and coaches (sports subjects), as well as the current state of legal regulation of these relations. The author comes to the conclusion that the regulatory and legal regulation of the labor activity of sports subjects in Russia has a short history, equal to about three decades: until the end of the 80s of the XX century, professional sports were not given due attention by the state, and the relations that existed in this area were not properly regulated, which hindered the development of professional sports and created threats to the violation of the rights and legitimate interests of athletes and coaches. After the collapse of the USSR, the regulatory regulation of labor relations of sports subjects went through several stages, each of which had an invaluable impact on the development of professional sports in the Russian Federation. As a result of “trial and error”, a fairly extensive regulatory framework was created, which made it possible to achieve stability and legality in regulating the work of professional athletes and coaches. However, a number of legal conflicts and gaps that need to be addressed still remain.

106-112 272
Abstract

The article is devoted to the problems of consideration of individual labor disputes of athletes and coaches in the jurisdictional bodies of sports federations and professional sports leagues. The current legislation provides for the possibility of creating bodies of pre-trial settlement of disputes in the field of physical culture and sports within the structure of all-Russian sports federations and professional leagues, which can consider individual labor disputes of athletes and coaches. At the same time, certain problems arise already at the stage of determining the jurisdiction of these bodies in terms of the possibility of considering individual labor disputes by them. Within the framework of this study, the problems related to the issues of the correlation of labor legislation and legislation on physical culture and sports, related to the procedure and conditions for the formation of jurisdictional bodies, the peculiarities of submitting a dispute for their consideration, and the observance of the principle of equality of the parties are identified. Proposals have been developed to improve the current legislation.

ESSAYS

113-116 216
Abstract

(ed. by I. V. Ershova, O. V. Sushkova, Moscow State Law University named after O. E. Kutafin (MSUA). M.: Prospekt, 2022)

At present, information and communication technologies are an integral part of our lives; without them it is now difficult to imagine the existence and development of the human world. As a consequence, it should be noted that the rapid informatization of society has led to a phenomenon known as the automation of work processes. Modern jurisprudence also could not avoid this fate, and therefore every day the digitalization of legal activity attracts more and more interest from both legal scholars and those who are far from the legal profession. Performing such routine tasks as drafting contracts, document management, issuing licenses, with the help of artificial intelligence, the algorithms of which exclude the possibility of professional error, is no longer a fantasy, but a reality towards which humanity is successfully moving. Thus, Legal tech systems have become one of the ways to modernize jurisprudence.

117-125 559
Abstract

The article reveals the main trends of the “Law and Cinema” scholarly movement, which has been actively explored in the foreign legal literature in recent decades. An attempt is made to review open academic and empirical sources to identify the relationship between law and cinema, key works and contemporary publications on this topic, as well as the available criticism of research in the field of law and cinema justification. A definition of the scope of the “Law and Cinema” research field in the context of the Russian research field, the subject matter and research methodology are suggested.

126-132 241
Abstract

In the article the problem of correlation of administrative and disciplinary responsibility of insolvency officers. Legal regulation of administrative and disciplinary responsibility of insolvency officers was analyzed and compared. The author argues the possibility of removing from the sphere of administrative responsibility of relations, which are the subject of disciplinary control of self-regulatory organizations of arbitration managers.



ISSN 3034-2813 (Online)