A WORD TO THE READERS
KUTAFIN UNIVERSITY CHRONICLE
EXPERT OPINION
In the present article the author notes that the achievements of modern science in the field of biomedicine, in addition to ethical and moral issues, also raise the problem of determining the limits of state intervention in the regulation of the use of genomic and assisted reproductive technologies. This problem, to a certain extent, continues the discussion regarding the effect of public-law principles in the sphere of civil legislation.
In this connection, the question arises about the right of the state to interfere in the decision-making process of parents regarding the birth of children through the use of appropriate technologies, to establish age and other restrictions on persons who resort to these technologies, to determine the specifics of parental legal relations for such persons, etc., that is, to a large extent intrude on the private sphere of the citizen, the sphere that constitutes the privacy of his life.
The presented analysis of legislation and judicial practice shows that all states are currently in search of a fair balance between private and public interests in an area that has traditionally been governed exclusively by the private will of the person, in the sphere of the exercise of his or her reproductive right. That is why it is so difficult for society to perceive various interventions of public authorities, that is why it is so important that society does not perceive them as unfair.
As a result, the author concludes that as a priority the interests of the weak party in the relationship arising from the use of genomic and assisted reproductive technologies should be considered and protected — the interests of the child born with such technologies, while not allowing violation of the rights to life and health of others involved in such relationships, unreasonable invasion of their privacy.
VECTOR OF LEGAL SCIENCE. Civil liability
The relevance of the research topic is due to the large-scale administrative reform in the Russian Federation, one of the trends of which was the delegation of public authority to legal entities. In such conditions, it is of particular importance to study the issues of civil liability of public authorities, the restorative nature of which can be used to increase the guarantees of the rights and legitimate interests of citizens and legal entities acting as a “subordinate” party in power relations.
The paper criticizes the tendency to abandon the subsidiary liability of public legal entities for the obligations of created legal entities. The existence of such responsibility, according to the authors, is due to the preservation of organizational and functional ties between the subjects under consideration. The necessity of expanding the scope of Article 1069 of the Civil Code by extending it to persons exercising public authority in the order of delegation is argued; proposals are made for the use of the institute of liability insurance.
The planned introduction of thepossession and possession protection institutions at the legislative level, along with the existing institutions of proprietorship, limited property rights, and bona fide prescription possession, predetermined the need for a detailed analysis of the proposed provisions of the Draft Federal Law No. 47538-6/5 “On the Amendments to Section Two of Part One of the Civil Code of the Russian Federation” (further in the text — the Draft) and their relationship with the existing norms of civil law. The performed analysis and comparison of the norms of the Civil Code of the Russian Federation further in the text — the Civil Code) on the property rights (vindication, negatory, claim for recognition of rights) protection, bona fide prescription possession protection (claim of a bona fide prescription owner under clause 2 of Article 234 of the Civil Code) with the provisions planned for introduction into the Civil Code and possession protection (possession claim) revealed common features and differences in the constructions of the considered claims, contradictions between the provisions of the Draft and the Civil Code, gaps in the provisions of the Draft. Based on the analysis, the author proposes the following conclusions: the construction of the possessioner’s claim provides the possibility for circumventing the vindication rules by the titular owner; there is no need to consolidate the claim for the protection of the bona fide prescription possession along with the possessory action.
The article is dedicated to the visibility of the issue of classification of a claim as the way of abuse, in particular, another result of court protection in case of changing the cause of action when the complaints have the equal nature. The author agrees that the choice of classification of a claim must be the prerogative of the injured, but based on specific examples from different spheres (corporate law, insolvency law, contract law, tort law, unjust enrichment) demonstrates the possibility of taking advantage because of such choice. It is proved that different result of court protection can’t be achieved by manipulation of classification of a claim, that allows current regulatory environment. It is emphasized that the final step to prevent such abusive behavior (when the choice of classifications gives the opportunity to prolong procedural deadlines, lowering of evidentiary standards, simplification for producing a desired) must be court, with the authority to change the classification that is offered by the party of a dispute.
VECTOR OF LEGAL SCIENCE. Development of civil legislation
The changes in the civil legislation of Russia on the issues of assemblies and their decisions are systematized and analyzed. The legal nature and interrelation with other phenomena, categories are revealed: replacement of the term “voting” on the concept of “session” (from the standpoint of activity, legal facts, corporate governance, the rights of participants in corporations); the legalization three orders of magnitude of decision-making meetings (from the standpoint of legal logic and hierarchy of sources of law); the legalization of remote presence at the meeting (from the standpoint of digitalization); clarification of the rules on the protocols.
Gaps and other problems in the updated norms related to the subject composition, the ratio of rights and obligations, information security, the system and hierarchy of normative sources of law are identified. Some ways of their solution are proposed.
The article deals the new provisions of the Civil Code of the Russian Federation on non-profit organizations. Federal Law of 01.07.2021 № 287-FZ provides for new legal status of unitary non-profit organizations: public benefit trust and personal trust. A public benefit trust is a unitary nonprofit organization that does not have membership, established by citizens or legal entities on the basis of voluntary property contributions and pursuing charitable, cultural, or other socially useful goals. Such a new organizational and legal form of a legal entity as a personal trust, which is created for the purpose of managing property during the lifetime of the founder (citizen). In the author’s opinion, a personal trust has a number of advantages in managing the founder’s business and will serve to make the Russian jurisdiction more attractive to domestic investors.
The article puts forward and substantiates the thesis according to which bankruptcy law, having as its subject the relations on the fulfillment of obligations by an insolvent debtor on the basis of the principle of pari passu, inevitably concerns the following relations: the relations of creditors and the debtor; the relations of creditors among themselves; the relations of creditors in relation to the bankruptcy estate; the relations of creditors, the debtor and the manager. Each of the groups of relations is given a corresponding characteristic, including the definition of the legal nature. It is reported that such relationships should not mix and coexist without absorbing or replacing each other. It is indicated that the relations of creditors and the debtor have a obligatory nature, the relations of creditors among themselves are the relations of quasi-copladgees of the bankruptcy estate among themselves and have a quasi-corporate nature, although they reserve obligatory nature. In turn, the relationship of creditors to the mass is compared with a quasipledge, and the relationship of the debtor, creditors and the manager can be qualified as a relationship from trust agreement.
The article examines the special legal nature of a joint will of spouses and an inheritance contract with the participation of both spouses on the side of the testator, which can be both the basis for the inheritance of the spouses’ common property (inheritance-legal effect), and the basis for the emergence of property rights from the surviving spouse without inheritance (property legal effect). The systematic interpretation of the norms of civil law on a joint will (inheritance) contract leads the author to the conclusion that only the joint property of the spouses can be included in the inheritance mass under a joint will (inheritance contract with the participation of both spouses on the side of the testator).
VECTOR OF LEGAL SCIENCE. Digitalization in the field of civil law
The article is devoted to the study of the legal aspects of digital reputation, which is a necessary attribute of virtual interaction and a significant indicator of digital trust in the sharing economy. The authors analyze the essence and significance of reputation in the context of the development of new technologies; study the methods of modern online services for the formation and fixation of the reputation of users. The article expresses the opinion on the expediency of recognizing digital reputation as an independent value and a possible object of property relations. Attention is also drawn to the role of digital reputation in creating a personal brand as a means of individualizing a participant in legal relationships. As a result, directions for the development of legislation are determined, including the unification of rating systems, as well as other mechanisms used by digital services to form and assess the reputation of their users; the creation of a legal regime adequate to the essence of digital reputation; the creation of effective means for the preservation, transmission and use of information constituting a reputation, etc.
From the analysis of the state of property relations mediated by digital information systems, it follows that they are highly likely associated with manipulation of public consciousness carried out by the owners of these systems in order to extract profit, which, at least, leads to a decrease in the level of trust in society, underlying any human interactions, and, as a consequence, increases conflict. It is proved that the probability of manipulation of public consciousness in “digitized” property relations entails doubts that their participants are actually guided by their real interest. It is proposed to comprehend one’s (personalized) interest and one’s (autonomous) will as subjective rights of the most general type, to determine the limits of their implementation and protection measures, including preventive ones, within the relevant provisions of civil, antimonopoly, information legislation, as well as legislation on the protection of personal data.
The article is devoted to the issues of legal protection of personal data when providing to commercial banks both by the subjects of personal data themselves and by third parties; the problem of legal protection of personal data of underage who is not client of the bank, within the framework of the functioning of digital educational platforms for teaching in schools; the role of the state in ensuring the legal protection of personal data of citizens; protection of personal data of citizens used by commercial organizations not in accordance with the purposes of providing data; problems with the dissemination of personal data without the consent of the subject of personal data; the possibility or impossibility of using personal data obtained through digital educational platforms by banks for analytics for the purpose of further possible provision of banking services, advertising, etc., including when transferred for processing to foreign consulting firms whose services the bank uses; problems of improving legislation on banks and banking activities in relation to the Civil Code of the Russian Federation and in relation to legislation on personal data.
VECTOR OF LEGAL SCIENCE. Civil law regulation of public relations in cyberphysical and cyberbiological systems
The status of the cyber-physical system under the Russian civil law before and after implantation into the human body is the main objective of this article. The question of the CPS similarity to the human organ is considered, as well as the complex legal nature of CPS after implantation. There is no unified classification of implants in the legislation, therefore, it is problematic to determine the requirements applicable to CPS. The features of the CPS make it possible to recognize it as a medical device of both temporary and permanent nature. The status of the CPS as a medical device limits the range of subjects who are allowed to handle such a device. Until the moment of implantation, the CPS is a thing in the civil law sense, but after implantation into the human body, this status is transformed into the status of an organ, which excludes the CPS from the objects of civil law. It is proposed to establish the mixed nature of the CPS for the application of civil law rules and after implantation.The issues of liability and of the legal destiny after the death of CPS recipient are researched.
The article is devoted to the consideration of legal mechanisms aimed at protecting the life and health of persons participating in gene therapy clinical trials. It is noted that gene therapy carries the risk of adverse consequences for the life and health of the patient due to the inability of a person to exercise full control over the process and results of its application. The rights of participants in clinical trials of gene therapy are protected through the mechanism of compulsory insurance of their life and health. Particular attention is paid to the fact that proving the causal link between participation in a clinical trial and causing harm to life and health, which is necessary to receive insurance benefits, presents significant difficulties for persons applying for insurance benefits and who are the weak side of the emerging relationship. In this regard, it is proposed to consolidate a rebuttable presumption, according to which harm caused to the life or health of a participant in clinical trials, during such or within one year from the date of their completion, would be recognized as being in a causal link with participation in the clinical trial. A separate place is given to the justification that the organizer of gene therapy clinical trials is obliged to compensate for the injuryto the participant, regardless of fault.
The article is devoted to consideration of approaches to defining the essence of legal protection of biomedical technologies and determining the conditions and procedure for granting them legal protection. Attention is drawn to the fact that the regime of patent protection for technical solutions is not applicable to the protection of biomedical technologies. The article provides a rationale for the need to provide a special regime of legal protection for biomedical technologies, identifies the conditions under which biotechnological solutions can be provided with legal protection. Particular attention in the article is paid to issues related to taking into account the interests of persons who are involved in conducting experiments, guarantees are allocated to protect their interests, as well as other categories of persons whose interests should be taken into account when determining the procedure for granting legal protection and determining the limits of legal protection of biomedical technologies. The author made an attempt to highlight the conditions of protection of biotechnological solutions and to determine the composition of the application, taking into account the selected conditions of protection of these decisions.
The article deals with aprocedure of clinical trial of medical product for human use and describes regulatory aspects of а clinical trial in case of emergency, including the COVID-19 pandemic, analyses the grounds and conditions of studding properties of medical product, passed the state registration, for off-label use, without post-marketing clinical trial (low-interventional study). An assessment is made of the streamlined procedure of the registration of medical products, referring for the prophylactic and treatment of the diseases incase of emergency, andit is concluded about necessity ofextension this proceduretomedical products, which can be used for the treatment of other types of diseases.
VECTOR OF LEGAL SCIENCE. Civil law contract
The article raises the question of attributing the language of the agreement to the form of the transaction. The current legislation does not contain special requirements regarding the mandatory Russian language for the execution of agreements between residents of the Russian Federation. A cumulative analysis of legislation and law enforcement practice allows us to conclude that it is possible to recognize agreements between residents of the Russian Federation in a foreign language as valid, unless the Russian language of the transaction was an additional requirement to its form established by a regulatory act or agreement. Depending on the presence or absence of the obligation to conclude an agreement in Russian, there are various consequences of non-compliance with this condition: the nullity or the dispute of the transaction. Despite the fact that there is no obligation clearly established by law to conclude an agreement between residents of the Russian Federation in Russian, there remains law enforcement uncertainty in the interpretation of this issue, which means a high degree of risk of adverse consequences.
This article identifies the problems of calculating the initial and final terms of non-contractual and unaccounted electricity consumption, considers the possibility and necessity of taking into account force majeure circumstances that led to unaccounted electricity consumption, and the legal nature of the requirements arising from non-contractual and unaccounted electricity consumption.
Nowadays, the economic model of collaborative consumption or sharing economy is actively growing. The issues of legislative regulation of sharing services, the use of which is now actively disseminated in Russia, are becoming increasingly important. The author pays attention to the significant increase in sharing services, including carsharing, at the present time. The legal nature of carsharing agreement, through analysis of legislation, of doctrine and of carsharing services agreements, is analysed in the article. The author of the article supports the concept that the carsharing agreement is a special kind of lease agreement for vehicles without crew.
The subject of this article is a convertible loan agreement. The article offers an analysis of the legal nature of the convertible loan agreement, its subject, subject composition, content. The consequences of concluding a convertible loan agreement for a borrower business company are investigated. Alternative mechanisms of financing the activities of a business company are considered. The assessment of the applied value of the convertible loan agreement is given. It is noted that the convertible loan agreement should be considered as an independent civil law agreement, which includes elements of a number of civil law transactions, which, in cases established by law, is an optional element of a corporate legal relationship, aimed at its dynamics (occurrence or change), providing for the right of the lender, instead of returning all or part of the loan amount and paying all or part of the interest for using the loan upon the onset of the term and (or) other circumstances provided for by this agreement, to demand from the business company — the borrower’s participation in its authorized capital.
The article examines the problems of the emergence and development in Russia of one of the mechanisms of financial management — cash pooling. The legal nature of cash pooling as one of the types of intragroup loan agreements between companies is revealed. Three categories of participants in cash pooling have been identified. This article examines the legal status of only one category of cash pooling participants — legal entities united in a group under the control of a single treasury center. The analysis of the terms “single treasury center”, “central treasury” and other similar terms, which means a single center through which financial flows of organizations pass, is carried out.The question of what legal entities can be combined into a group under the control of a single treasury center is being resolved. The possibilities of participation in these relations of legal entities of various organizational and legal forms are considered. The article examines the peculiarities of participation in intra-group loan relations of a state company, state corporations and public-law companies united in a group with other legal entities under the management of a single treasury center.
SCIENTIFIC RESEARCH
The article is devoted to the influence of the concept of sustainable development on international environmental law. This concept, in many ways, sets guidelines for the adoption of its norms and thereby defines the contours of legal environmental regimes. Based on the analysis of international UN documents, starting with the Stockholm Declaration of 1972, then the RIO 92 Declaration, the Johannesburg Declaration of 2002, the Millennium Declaration and the Sustainable Development Goals, the evolution of the concept of sustainable development, the shift in emphasis in its content and the desire for integration between the three dimensions of sustainable development — economic, social and environmental interests — for all states is presented. The article identifies several aspects that determine the importance of the concept of sustainable development for international environmental law: 1) the content of sustainable development in the context of State obligations; 2) the mutual influence of advisory acts and norms of international environmental law on the specification and implementation of the concept of sustainable development; 3) the interaction of various branches of international law in the context of sustainable development.
TRIBUNE FOR YOUNG SCIENTIST
The analysis of the current state of legislation indicates that there are several problems, the solution of which can significantly increase the effectiveness of legal regulation. Achieving a high level of quality of legislation is possible by creating a certain model of systematization of legal norms, as well as the formation of a structured system of legislative acts. Systematization of legislation as a type of law-making should become a starting point in solving the problem of inefficiency of legal regulation, since it is the primary link of the mechanism of legal regulation. It wasconsidered that there was a need to provide a unified concept of reforming administrativeand tort law, which should be based on scientific and practical conclusions based
on the dynamics of changes in legislation. The author defends the position of full codification of administrative liability in compliance with the principles of completeness and consistency in a single normative legal act. In order to achieve certainty of the legal regulation of administrative liability, taking into account the two-level system, it is proposed to establish a single form of codification of norms in the legislation of the constituent entities of the Russian Federation.
LAW IN HISTORICAL REFRACTION. Some Pages of the Past Periodicals
ИЗ ПЕРИОДИКИ ПРОШЛОГО. ПАМЯТНИКИ ПРАВА
POST SCRIPTUM
ISSN 2782-6163 (Online)