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No 7 (2021)
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A WORD TO THE READERS

KUTAFIN UNIVERSITY CHRONICLE

EXPERT OPINION

18-33 394
Abstract

This research paper deals with the issues related to Lex genetica on the current legal map of the world at the general theoretical level of scientific knowledge.

Special focus is on the aspects of qualitative assessment of Lex genetica issues (I), as well as the compositional components thereof (II).

The author comes to the conclusion that: Five basic levels of Lex genetica as a socio-normative system should be considered:

— bioethical;

— associated with the prevalent method of law formation for a certain legal system and (or) legal community;

— judicial;

— international;

— the level of “legal Esperanto”.

The overall design of Lex genetica should be coordinated with national models and standards. For Russia — that, in many respects, is just beginning to embark on the path of building a national policy in the sphere of Lex genetica — a legal structure which can be metaphorically called a “sun” (with regulation based on documents serving as guidelines) might become such a model. In France, for example, such documents serving as guidelines include the Bioethics Law.

VECTOR OF LEGAL SCIENCE. Conceptual foundations of comparative law

34-42 302
Abstract

Part II of the article deals with the approaches of modern legal sustems to the subject-matter (disciplinary) classification of science, as well as with the additional classification criteria such as mode of financing of scientific research and its importance for State and society which are employed in several legal systems.

Basing on practical examples, author demonstrates that, despite the equivalence of the main classification criteria, the modern law lack uniform approaches to subject-matter (disciplinary) classification of science. This state of play characterizes both inter-state context (different scientific disciplines in different legal systems) and intra-state context (different approaches in different legal sources of the same country).

Author concludes in favour of consideration of a legal recognition as a specific category of scientific research those conducted by means of megascience-facilities. The above-mentioned category can be further divided into subcategories corresponding to various types of megascience-facilities such as light-sources and neutron sources.

43-51 653
Abstract

The article is devoted to classifications of modern legal systems. The relevance of this topic is associated with changes in the legal map of the world. There are also new needs in legal science and legal practice. The author examines various types of modern legal systems. He describes the characteristic features of the typology of legal reality, which acts as a kind of loose classification. A mixed type of legal systems occupies a special place among other types. The importance of typology in legal science and legal education is emphasized. The author describes parameters of classifications of legal systems. He also analyzes individual classifications, describes view of different scholars. During the study, prospects for development of classifications of legal systems were identified. A relationship between comparative jurisprudence and other humanities needs to be considered. The author uses national and foreign legal experience.

VECTOR OF LEGAL SCIENCE. Problems of integration and internationalization of law and legal systems in the field of bioethics and genomic research

52-60 343
Abstract

The article examines the experience of legal regulation of biobanks in the Nordic countries in the context of the interaction of law and bioethics. The article analyzes the moral possibilities and legal boundaries of access to personal data by the state, society and the research community, provided that the inviolability of private life is strictly observed. On the basis of legislation of individual Nordic countries, as well as the regulatory framework of the European Union, the successes and difficulties in achieving the stated goal are discussed. The issues of opening, functioning and closing of biobanks, as well as the institutional, value and socio-cultural contexts of relevant practices are considered separately.

61-69 351
Abstract

This article is devoted to the study of main directions in which the relations in the field of the human genome already exist (and have partial legal support) and require their own legal regulation. These directions stand in the form of several paradigms of legal regulation of the relations arising from the use of genomic technologies; these are consumer (social), medical and forensic (forensic) paradigms. In addition, the presented article sets the task to assess the current Russian legislation for its compliance with modern achievements in the field of the human genome and the prospects for its improvement based on the best foreign and international experience.

70-78 349
Abstract

The article is devoted to the analysis of the experience of regulation and the search for ways to overcome some of the problems that exist in the field of application of genomic technologies. Based on the discovery of differences in the specifics of the choice of mechanisms at the international, regional and national levels in the regulation of relations developing in the field of genomic research, the implementation of their results, approaches are proposed aimed at neutralizing possible negative consequences and resolving existing problems. Special attention is paid to the search for approaches aimed at resolving the problems existing in this area in the Russian Federation. The materials of the article can be useful in both theoretical and practical jurisprudence, and may be of interest for other areas of the human genome research (bioinformatics, medicine etc.).

79-86 368
Abstract

The article is devoted to the issue of the measure of freedom of the subject-addressee of genetic education. The goal of this article is to clarify and analyze the features of content of genetic education; to compare the notion of genetic education with legal and medical education and find similarities and differences between them; to reflect on ways and methods of legal and social regulation of genetic education.

The study considers two theoretical models of understanding of the measure of freedom related to the use of information on genetic data. The first model deals with genetic information that must be provided. The second model pertains to optional information.

The notion of “genomic education” is analyzed in the context of characteristics of genetic education and is compared with medical and legal education. It is highlighted that genetic education is inherently innovative, interdisciplinary, narrow-focused, limited in its content, and proactive.

In conclusion, it is emphasized that there is a need to conduct a further research on content, control and communication in the implementation of narrow-focused genetic education.

87-92 405
Abstract

The subject of this article is the competence of the European Union (EU) in the public health field within the territory of the Member States of this organization. The purpose of this article is to analyze how the EU's competence is distributed in relation to the competence of the member states using the primary treaty of the organization as a source. The article examines the powers of the EU organization within both the main and additional competence and analyzes how the EU interacts with the member states in the framework of health protection in accordance with the legal provisions of the primary source. The main and additional competence of the EU is considered separately, and there is also an analysis of the features and possible prospects of the legal regulation of health protection within the relevant branch of the law of the European Union.

VECTOR OF LEGAL SCIENCE. Problems of integration and internationalization of law and legal systems in the field of digital technologies

93-98 1630
Abstract

The proposal of European Union Regulation establishing harmonized rules for artificial intelligence (Artificial Intelligence Act) is under consideration. The structure and features of the draft of this regulatory legal act of the integration organization are analyzed. Thus, the act will contain harmonized rules for the commissioning, operation and use of AI systems; bans on certain artificial intelligence methods; special requirements for high-risk AI systems and the obligations of the operators of such systems, harmonized transparency rules for AI systems intended for interaction with individuals, emotion recognition systems and biometric categorization systems, AI systems used to create images, audio or video content, or managing them; market surveillance and supervision rules. The article discusses other provisions of the Act, the features of the proposed institutions (In particular, the European Council on Artificial Intelligence should be created) and norms, including extraterritoriality, risk-based approach, object, scope, definitions, punishment for violations of provisions. The possibility of voluntarily complying with codes of conduct for some AI systems is highlighted. Conclusions are drawn about the advisability of (non) application of these institutions or rules in the Russian Federation.

99-107 336
Abstract

The need to create a new technological base through joint efforts is well understood both in the EU member states and in the Union itself, but the situation has not changed at all for a long time. Over time, Member States have come to realize that instead of increasing funding that does not address inefficiencies in this area, it is necessary to reduce duplication of efforts to develop loosely coupled capacities, platforms and systems. Since 2016, at the level of the European Union, a sufficiently integrated system has been formed, which makes it possible to coordinate the actions of the member states on funding scientific research for defense needs, as well as, by identifying the highest priority research areas for all EU member states, to co-finance such research from the EU budget. The most striking examples of such measures are the European Defense Fund and the financing from it of projects of the member states, implemented in the framework of PESCO. Such measures are predominantly intergovernmental in nature, but contribute to the formation of a single European market for scientific research by stimulating cross-border research projects.

VECTOR OF LEGAL SCIENCE. The problem of integration and internationalization in the field of constitutional and municipal law

108-118 729
Abstract

The article is the first to structure the concept of “model of federalism”. According to the author, it includes such essential elements as the initial factors that influenced the formation of the state, the stages of its development and the essential components of the model, namely, historical-typological and genesis ones features of federalism and the vector of development. Based on the use of historical and state literature, constitutional and legal materials, and the results of a recently published international political science project, the author examines the models of federalism of neighboring countries-Switzerland and Germany, formed in the middle of the XIX century, proposes its graphic description. These states vary in territorial extent and state dynamics, but are still similar at the initial stages of the formation of a federal model, namely the transition to a federal form from a confederal one. Also, the Swiss and German models were radically different from the point of view of their essence and their genesis, but they had a uniform centripetal vector, which in modern globalization conditions is characterized by a strengthening of the management center and a decrease in the autonomy of the subjects.

119-126 485
Abstract

The article deals with the features of participative budgeting as a relatively new experiment in the sphere of participative democracy. It's pointed out that this democratic form was initiated in 1989 in а Brazilian city Porto Alegre and then it was spread not only over Latin America but also over other continents. Special attention is paid to the countries of Europe where participative budgeting was implemented most actively. Positive features of participative budgeting as well as its possible disadvantages are analyzed.

The author argues that participative budgeting being one of the forms of participative democracy remains at the same time closely tied to the institutions of representative democracy. The initiator of its implementation remains most often municipal executive power as a whole or its individual representatives and first of all heads of local administration.

VECTOR OF LEGAL SCIENCE. Integration law in the field of private law

127-135 305
Abstract

The innovation infrastructure as an object of legal regulation has not been sufficiently studied. The article summarizes the practice of improving legislation in the field of innovation in the countries of the Commonwealth of Independent States (CIS), which are leaders in innovative development — the Republic of Kazakhstan, the Republic of Belarus and the Republic of Armenia, which were determined on the basis of the human development index and the global innovation index. The regulatory framework of these CIS countries is considered from the position of state regulation of innovation and technological policy, the creation of technoparks, business incubators, venture organizations, technology transfer centers. The study revealed that the national innovation systems of the CIS countries have significant features. In the conclusions, it is noted that the legislative framework for the protection of the results of innovation activity is insufficiently systematized, fragmentary, and heterogeneously formed. On this aspect, broader interstate cooperation within the CIS is needed.

SCIENTIFIC RESEARCH

136-144 272
Abstract

The article considers the concept and the basis of the legal status of a professor of a Russian university. Comparisons with a similar position in France and Germany are given. According to the results of a comparative analysis of legal acts of Russia, Belarus, Armenia, Kazakhstan, Kyrgyzstan, significant differences in scientometric indicators for applicants for the degree of Doctor of Law were revealed. The differences in the criteria for awarding the academic title of professor in the member states of the Eurasian Economic Union are shown. The opinion is expressed about the negative impact of this differentiation on labor mobility and academic mobility. It is concluded that the achievement of scientific indicators is necessary throughout the active creative life of the professor. The tendency of “internationalization” of publication activity is revealed, since the requirements for the availability of publications indexed in international databases are present in legal acts regulating various aspects of the professor's activity. It is recommended to take this factor into account when building the scientific trajectory of a modern professor.

145-152 548
Abstract

Under criminal law, euthanasia can have two distinct qualifications: that of homicide in the event that the act of directly killing another person is characterized, or that of assisting a third party in the suicide. These two qualifications are applicable on the condition that the agent — the author of the act of causing death — is not the one who went through it. In fact, selfeuthanasia is nothing more than suicide.

In addition to euthanasia imposed to a third party (such as in the case of Malevre, nurse from Mantes-la-Jolie, tried in 2003), the euthanasia requested and subscribed constitutes a complex legal question. Answering this question first involves specifying the position of contemporary criminal law in the face of suicide.

In the event that suicide is only decriminalized, in fact, the author of the act — regardless of the outcome of his actions, who is himself the victim, cannot be prosecuted. Nor ultimately receive any condemnation.

However, this lack of prosecution and conviction is by no means an endorsement of the act — suicide — by the law.

Moreover, in the event that suicide is a right, it would then be necessary to agree that any candidate for this act can request assistance in the accomplishment of his death. Given these two opposing approaches, imposed on us the question of whether there is a right to die.

Although the euthanasia imposed is unequivocally under ordinary criminal law, the euthanasia requested and granted is not based on any rights. To date, there is no right to approve a death request, but on the other hand, it does allow it to be respected and to some extent promotes its approach with dignity. This work will focus on two central points which are the possibility that euthanasia is a homicide under common law (I) and the attitude of French law concerning the right to death (II).

TRIBUNE FOR YOUNG SCIENTIST

153-159 491
Abstract

The research on human embryos evolves rapidly, raising a number of ethical and legal issues and directly affecting human rights. Approaches to the legal regulation of human embryo research differ significantly from country to country. Some of them employ prohibitive practices (e.g. Switzerland and Italy), and the others have a regime that allows using embryos for scientific purposes with restrictions of different extent (e.g. the UK and Japan). There is no the international consensus on the issue of human embryo research. The objective of the article is to find out whether there are positions of the international bodies that may become or have already become the general guidance for different countries, allowing therefore to regulate effectively the use of human embryos for scientific purposes.

The conclusion is drawn that there are positions of international bodies that may serve as the guidance within the regulation of the area concerned. States may enjoy a wide margin of appreciation within the framework of human embryo research regulation, considering the need to update their regulations regularly to harmonize them with the development of human rights and scientific progress and also to ensure a certain level of the embryo protection.

160-167 407
Abstract

The article offers analysis of the approaches in Russian and European legal doctrine to the definition of “biometric data”, as well as the evolution of the legal definition formation of biometric data in the legislative acts of the EU. The article analyzes the role of biometric data in the personal data system, their characteristics, and the determination of a list of key features that allow an individual's data to be classified as biometric data. Special attention is paid to the list of characteristics that fall under the category of biometric data in accordance with existing scientific approaches on personal data, as well as the provisions of the General Data Protection Regulation. The article highlights the main problems of interpretation of the category of biometric data in legal sources, and also suggests the author's legal definition of biometric data that meets, in the author's opinion, the main criteria that characterize specific data of an individual as biometric.

168-175 428
Abstract

The article substantiates the leading role of the right of private property in the economic system of a state with a market economy, and therefore points to the need to comply with increased guarantees of its protection. It also states that there are problems with the protection of property rights. Then the author substantiates the obligation for all Russian authorities of the legal positions of the Constitutional Court of the Russian Federation and the European Court of Human Rights. A comparative analysis of these positions and approaches to the protection of property rights leads the author to the conclusion that the goal of their harmonization has been partially achieved. In order to increase the effectiveness of the protection of rights, it is necessary to further implement the approaches of the European Court, which increase the guarantees of protection, into the Russian legal system, and it is also necessary to consider the issue of introducing point changes into Russian legislation taking into account these approaches.

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ISSN 2311-5998 (Print)
ISSN 2782-6163 (Online)