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Moscow Juridical Journal

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No 1 (2022)
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PRINCIPLES OF LAW: PROBLEMS OF THEORETICAL APPROACH AND IMPLEMENTATION PRACTICE

7-14 118
Abstract

Aim. To assess the role of traditional values in modern Russia and their formation since ancient times, starting with such a monument of law as Russkaya Pravda. Through the identification of the features of the state and legal transformations of Russia in the course of historical development, the constitutional reform of the Russian Federation in 2020 is considered.

Methodology. General scientific and special research methods are used, including comparative-law, systemic, formal logic, analysis and synthesis.

Results. Arguments are given to prove that the constitutional reform of 2020 has a civilizational meaning and has affected deep foundations of the modern state and society. The elimination of the spiritual and moral gap in the historical integrity of Russian civilization has started, as well as the restoration of social unity of the society, and strengthening of the fundamental systemic foundations of Russia.

Research implications. It is concluded that the spiritual and moral guidelines of the person and the people play the decisive role in any state-legal transformations.

15-28 197
Abstract

Aim. To identify the actual problems of the theory and methodology of the general principles of law and principles of constitutional law, to consider the theoretical and applied aspects of new understanding, the peculiarities of the nature and systematization of the principles of constitutional law.

Methodology. When writing the article, general scientific methods (system analysis, dialectical, formallogical) and special research methods (comparative-legal, historical-legal, formal-legal) were used.

Results. The theoretical, methodological, scientific and practical issues of the formation and development of the methodology of general principles of law and principles of constitutional law as fundamental legal regulators of the constitutional system of states and the general international public order in the 21st century are disclosed. The assessment and forecasts of the evolution and systematization of these principles are given in the context of solving urgent problems of new scientific schools of the generology of law, legal and constitutional futurology.

Research implications. The results of the research contribute to the theory of constitutional law, creating prerequisites for the development of the theory and classifications of the principles of constitutional law, the methodology of constitutional and legal taxonomy and further in-depth conceptual study of constitutional and legal categories.

29-38 163
Abstract

Aim. To describe the features of the system of principles of constitutional law. To single out the main forms of expression of complexly organized hierarchically correlated varieties of the principles of constitutional law.

Methodology. The study is built on the basis of deontic logic, which is the area of non-classical logics, within which normative statements and normative concepts are studied, as well as the logical connections of normative modalities based on the key points – their obligation and plurality. When writing the article, general scientific methods (system analysis, dialectical) and special research methods (comparative legal and formal legal) were also applied.

Results. The analysis of the features of the system of principles of the constitutional law of the Russian Federation is carried out; the main forms of expression of the principles of constitutional law are singled out, allowing them to be considered, along with the norms of constitutional law, as the primary systemic elements of constitutional law. The features of building a system of principles of constitutional law are revealed. It is substantiated that it is the system of principles of constitutional law, built on the basis of the construction of the structural-legal universe, the constitutional-legal concept and the constitutionallegal narrative, that allows, in the applied aspect, to maintain the stability of legal regulation and ensure legitimate expectations.

Research implications. The results of the study contribute to the theory of constitutional and legal taxonomy and provide a basis for further study of constitutional and legal categories.

THEORY AND HISTORY OF LAW AND STATE; HISTORY OF TEACHINGS ON LAW AND STATE

39-49 261
Abstract

Aim. To find out the problems of ensuring and protecting freedom of expression as a factor of law-making in the era of the new technological revolution and propose ways to overcome them.

Methodology. The methods of analysis and synthesis are used to represent the essence of the problems that have arisen in lawmaking in the conditions of changing technological patterns. The inductive method made it possible to study the positions of a number of schools of jurisprudence on the interpretation of threats to the freedom of expression of will to the subject of law-making. In the course of the study, the method of comparative jurisprudence was used, with the help of which it was possible to present a mechanism for ensuring and protecting freedom of expression as a category of the theory of lawmaking.

The general scientific dialectical method has become an effective tool for cognizing the natural phenomenon of the law-making process - freedom of expression.

Results. It is suggested that the era of digitalization will not destroy the idea of a person as a subject of law-making: he will not lose the status of the creator (creator) of the rule of law, and freedom of expression as a factor of law-making will be ensured and preserved.

Research implications. The ways of ensuring and protecting the freedom of expression of will as a factor of law-making of the subject of law-making in the era of digital transformations and mass use of artificial intelligence are determined.

CONSTITUTIONAL LAW; CONSTITUTIONAL LAWSUIT; MUNICIPAL LAW

50-55 185
Abstract

Aim. Designate the relationship of the constitutional principle of pluralism with other principles of constitutional law, in particular with the principle of solidarity and the principle of constitutional identity. Reveal the characteristic features of the complex content of the constitutional principle of pluralism and show its significance in the modern world.

Methodology. When writing the article, general scientific and special research methods were used.

Results. Principles of constitutional law as a value in the system of legal regulation of social relations presuppose the idea that the Constitution is not just a set of norms that regulate state power, but also that regulate society. The constitutional principle of pluralism guides the legal regulation of social relations. This orientation is not just a procedure, nor is it limited to the idea of negative freedom. The strengthening of the modern state took place under the guise of nationality and national identity. This national identity is no longer legitimated in tradition and in the creation of a homogeneous society. Social pluralism is a feature of our time. The State guarantees the Constitution and the Constitution recognizes pluralism. The principle of pluralism in the legal regulation of social relations requires the development of public policies that promote inclusion and harmonious coexistence between the different groups that make up society, that is, the promotion of solidarity between different people. The challenge is immense, as it is necessary to overcome prejudice, discrimination and violence that are rooted in society. Conservatives understand that this mission is impossible and it is better to preserve the existing social order. Progressives believe in the utopia of transformation. There is no universal formula. Each State and each society must seek the possible solution in the context of its social, political, economic and cultural formation.

Research implications. The results of the study contribute to the theory of constitutional law, creating prerequisites for the development of the theory of the principles of constitutional law.

56-63 952
Abstract

Aim. Based on the theory of legal reasoning by Robert Alexi, in which weighing serves as a tool for resolving conflicts between legal principles, to reveal the significance of the principle of proportionality in legal regulation.

Methodology. The study used general scientific methods: (analysis and synthesis) and private scientific (historical, formal legal and comparative legal).

Results. The application of the weighting method or proportionality principle in Mexican law is not unprecedented, although it is used indefinitely in Mexico. The reference to weighting and principles is brief and has lost its primary meaning in the course of evolutionary development. It has only been applied in electoral matters on two occasions by different Mexican courts. It is concluded that it is necessary to apply the principle of proportionality in electoral disputes, including in the event of deregistration of a local political party.

Research implications. The conclusions made in the course of the study are aimed at improving legislation and law enforcement practice.

64-72 152
Abstract

Aim. To analyze the right to the physical existence of a person, determine its content and highlight the principles aimed at the constitutional protection and protection of human existence in its physical aspects.

Methodology. The comparative legal method, historical, formal logical, legal dogmatic methods are used in the research, as well as methods of analysis and synthesis.

Results. The author proposes to introduce a new legal structure into the theory of constitutional law, formulating it as a «right to physical existence», which emphasizes the combination of collectivity and individuality in the content of a number of subjective human rights. The author substantiates the need to use the anthropological approach in the formation of the legal structure of the right to physical existence.

Research implications. The conclusions made in the course of the study are aimed at improving legislation and law enforcement practice in the field of ensuring and protecting non-property human rights, including the right to physical existence. The findings of the study can be used not only in law enforcement, but also in the process of teaching constitutional law.

73-81 125
Abstract

Aim. The study of actual issues related to the electoral rights of citizens and their implementation in modern society. Such issues are especially acute in countries that have recently come to democracy. One of such countries in the world can be Argentina, which began to make a smooth transition to democracy only after the military dictatorship of 1976–1983. Part of this smooth transition was the creation of a democratic electoral system with its own peculiarities and shortcomings conditioned on the peculiarities of the historical development of the country.

Methodology. The methodological basis of the research is a complex of general scientific and special legal methods, in particular, the system method, analysis, synthesis, generalization and forecasting. The formal legal method was also used for the purpose of analyzing normative legal acts, and the comparative one – to analyze foreign and Russian sources. The historical-legal method allowed the consideration of the origin, formation and development of the electoral law in chronological order, taking into account modern features of Argentina.

Results. In order to minimize the problems associated with abuse in making decisions in the field of electoral rights by the electoral justice bodies of Argentina, there can only be the creation of another electoral justice system – independent of the political authorities operating in the country and more effectively guaranteeing the resolution of electoral disputes in accordance with democratic principles.

Research implications. The main disadvantage of such a system is the dependence of electoral justice in Argentina on a political body – the National Congress, whose powers include the resolution of electoral disputes. So, in practice, there were cases when, by the decision of the National Congress, the candidate elected by the people was removed from exercising his powers. At the moment, only the judicial authorities can stop the abuses of the National Congress in terms of decision-making. However, the time that is spent on trials makes a judicial challenge meaningless.

CIVIL LAW; ENTREPRENEURIAL LAW; FAMILY LAW; INTERNATIONAL PRIVATE LAW

82-97 142
Abstract

Aim. Describe the effect and characteristics of contractual relations related to the risks of contingencies, analyze the features of the development of the institution of obligations during the pandemic 2020.

Methodology Changes in French civil law relating to the performance of contractual obligations and restrictive measures that led to non-compliance were analyzed. Problems of binding legal relations caused by unforeseen circumstances and arising in France in connection with the spread of coronavirus infection are disclosed. The work used the following methods: analysis and synthesis, legal comparativistics, comparative and logical-legal.

Results. The author concluded that the consequences caused by the 2020 pandemic can be recognized as the basis for exemption from the responsibility of the party to the treaty for its non-compliance; the importance of applying the principles of civil law in such situations was noted.

Research implications. The results of the study make a theoretical contribution to the development of the institution of contractual obligations.

98-106 207
Abstract

Aim. The legal analysis of the main trends in the involvement of unauthorized construction in civil circulation, proposal for the implementation of effective legal regulation aimed at legitimizing unauthorized construction on the basis of the reformed civil legislation of the Russian Federation.

Methodology. The methodological basis and procedures of this work are general scientific methods of cognition of legal phenomena, such as synthesis, the method of analogy, formal logic and others, as well as particular scientific methods of studying the legal nature of unauthorized construction and the problems of its legitimization in modern Russia.

Results. It is established that unauthorized construction is a social and legal phenomenon that occurs at the junction of private and public interests, which requires certainty and legitimation.

Research implications. The article defines the legal nature of unauthorized construction, conclusions and proposals aimed at legitimizing the object are formulated.

CRIMINAL LAW AND CRIMINOLOGY; CRIMINAL-EXECUTIVE LAW

107-118 195
Abstract

Aim. To consider the issue of applying amnesty at the pre-trial and judicial stages on the example of high-profile cases of creators and leaders of destructive cults who committed crimes under Article 239 of the Criminal Code of the Russian Federation and were released from criminal liability and punishment on the basis of the amnesty act.

Methodology. The methodological basis of the research is the dialectical method of cognition of social phenomena. Methods of analysis and synthesis, the method of induction and deduction, system, complex, comparative legal methods are used in the work.

Results. The application of amnesty at the pre-trial and judicial stages leads to the fact that the subject of a crime, released from criminal responsibility and escaped punishment, may feel unpunished. This is clearly demonstrated by the examples given in the article of criminal cases against leaders of sects who were released from criminal liability and punishment by virtue of an amnesty act, and now continue their activities. If the category of this crime is changed upward, the application of acts of amnesty to the leaders of organizations that infringe on the personality and rights of citizens will be much less likely, and this will protect the life and health of a wide range of people.

Research implications. Understanding the problematic issues of the application of amnesty acts is important in the framework of the State criminal policy. The results of the study contribute to the science and practice of criminal law, in particular, reveal new facets of understanding the features of “sectarian” crimes, which are always very difficult for the law enforcement officer. The study also helps to understand the problems that the application of amnesty entails at the pre-trial and trial stages.

119-126 137
Abstract

Aim. To analyze the current legislation and law enforcement practice on the crimes of inciting minors and the insane to commit suicide and to develop proposals for improvements in law.

Methodology. An assessment of the measures taken in the field of protection of minors is given, as well as of other socially vulnerable categories, besides, the latest legislative changes in ensuring such protection from suicidal phenomena are described. The analysis of some points related to the application of the provisions of criminal law in determining the guilt of a person in committing the crime under Art. 110.1 of the Criminal Code of the Russian Federation.

Results. It is concluded that it is necessary to include additional features in the assessment of actions committed by third parties that incite suicide, as well as to amend the current legislation to clarify certain categories of actions that fall into the category of dangerous for society.

Research implications. The paper formulates proposals for amendments to the current legislation, as well as suggests ways to improve law enforcement practice.

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ISSN 2949-5091 (Print)
ISSN 2949-513X (Online)