A WORD TO THE READERS
IN MEMORY OF V. A. RYASENTSEV
KUTAFIN UNIVERSITY CHRONICLE
VECTOR OF LEGAL SCIENCE. Artificial Intelligence and Law
Following the methodology of civil research, the concept of artificial intelligence is analyzed and the conclusion about the fallacy of recognizing the legal personality of artificial intelligence is argued. Artificial intelligence as a result of complicated programming is a complex object of civil rights, which includes various structural elements — the results of intellectual activity. The mechanism of acquiring the right to use the results of intellectual activity included in a complex object by a person who organized the creation of artificial intelligence is considered. The essence of legislative exceptions from the general rules on agreement on the alienation of exclusive rights and license agreements in relation to artificial intelligence is analyzed. The conclusion is substantiated that in the absence of regulation of relations on the acquisition of the right to a complex object, it should be provided for: an agreement between the person who organized the creation of artificial intelligence and each of the right holders of the result of intellectual activity that is part of artificial intelligence, or a special condition provided for in the agreement on the alienation of the exclusive right to the result of intellectual activity in as part of an artificial intelligence or a license agreement with each right holder. The conclusion is reasoned that the person who organized the creation of artificial intelligence, in the presence of the considered legal grounds, acquires not only the rights to the relevant results of intellectual activity — structural elements of artificial intelligence, but also the right to the entire artificial intelligence as a whole.
Artificial intelligence technologies have found their wide application in the provision of medical services. They are used during: remote consultations and consultations; face-to-face medical interventions; processing large amounts of information about patients and their legal representatives. Relations related to the use of atrtificial intelligence technologies in the provision of medical services are not properly regulated in the current legislation. The doctrine and law enforcement practice have not developed common approaches to solving problems in the area under study. Based on the provisions of civil science, the features and conditions for the use of artificial intelligence technologies in digital medicine are revealed. The relationship between the concepts of telemedicine technologies and artificial intelligence technologies has been established; big data and artificial intelligence technologies. It is concluded that artificial intelligence technologies can be used in the provision of medical services only after receiving from the patient (his legal representative) the appropriate voluntary informed consent. The content of consent to the processing of biometric data and consent to the disclosure of medical confidentiality was analyzed.
The article is devoted to the study of possible changes in the legal personality of an individual with implanted cyber-physical system. When CPS is implanted, all elements of legal personality can be affected. The main impact of the CPS (especially those using strong artificial intelligence technologies) is on the legal capacity of an individual because the CPS can influence the will of an individual. The identification of the CPS as a persona of civil law seems to be premature. The consequences of CPS implantation should depend on the type of CPS, because in the case of non-autonomous CPS, the impact on legal personality is negligible. In the case of a CPS with a fully autonomous artificial intelligence, there is a risk of a conflict of interest between the AI and the person who has the CPS implanted. This situation requires legislative regulation, including the definition of the subject of responsibility and mechanisms for protecting third parties. One of such mechanisms seems to be the mandatory disclosure of information about implanted CPSs. The article also considers the possibility of recognizing an individual with CPS as a complex entity.
VECTOR OF LEGAL SCIENCE. Family law relations
In family legislation, unlike civil legislation, the subjects of legal relations are not directly named. In addition to the disparity of norms concerning subjects of family legal relations, the mobility of the composition of such persons, due to the evolution of society and law, is a problem. A comparative analysis of the norms of law and doctrinal positions is carried out, as a result of which various classifications of subjects of family legal relations are identified, the inclusion of organizations and public legal entities, the family as a quasi-legal entity, is justified.
As a result of the introduction of the institution of the foster family, new special subjects of family legal relations appeared — foster children and foster parents. In connection with the development of assisted reproductive technologies, the issue of qualification of potential parents, sperm donor and surrogate mother as subjects of family legal relations has been raised. There is a problem of legal qualification of the embryo. The problems associated with the legal personality of participants in family legal relations are revealed: the mixing of marital and family legal personality, the absence of separate norms on family legal capacity and legal capacity, etc. It is proved that the scope of family legal personality varies depending on age, a number of other legal facts, including other sectoral nature; it is associated with the goal-setting of the exercise of rights and performance of duties.
The article considers traditional family values as an object of legal protection and protection, examines the nature of family relations, and provides approaches to determining the essence of the traditional understanding of the family. On the basis of a systematic analysis of the current legislation, a characterization is given to family legal relations and their regulatory norms, the content and object of family interests are determined; the definition of the traditional values of the Russian family is formulated. In conclusion, it is concluded that the current unstable political and economic situation in the modern world is accompanied for Russia by the emergence of not only new challenges and threats, but also additional opportunities. In particular, it is proposed, when improving family legislation, to take into account traditional family values and be based on Russian historical experience, and not alien, foreign.
The study was carried out using the general scientific dialectical, formal-legal method of cognition, as well as the method of inductive and deductive logic.
The article provides a comparative study of two legal categories: marital legal personality and the legal status of a married person; the author’s definitions of each of these categories are given, a detailed description of the family legal status as part of the general marital legal status of an individual including a number of special statuses: family legal, civil legal, and also enshrined in the branches of public law. The definition of the concept of marriage is formulated taking into account the legal status of a married person, a proposal for its legislative consolidation, as well as a number of proposals for improving the norms of family and a number of other branches of law regulating the legal status of a married person.
The article examines the issue of participation of family members in civil legal relations. Cases are considered when the status of a family member is the basis for the emergence, change and termination of certain rights and obligations. The status of a family member gives such a person rights and establishes duties; provides for prohibitions and restrictions; benefits, etc. The problem of determining the status of a family member is also analyzed as a solution to legal relations in connection with the presence of such phenomena as family interest, which is a manifestation of the peculiarity. Due to the fact that in this case there is a clash of civil law and family law mechanisms for the exercise of rights, when the provision that citizens (individuals) acquire and perceive situations with their civil rights of their will and in the interests (paragraph 2 of Art. 1 of the Civil Code of the Russian Federation) adoption of the provisions of family law on the resolution of intra-family issues by mutual agreement.
It is concluded that the purpose of legislative changes should be to maintain a balance between the rights and interests of an individual and the rights and interests of the family and family member as a subject of rights
The article attempts to determine the legal status of the former spouse, that is, the person with whom the marital relationship has been terminated, in the context of various spheres of legal life — property legal relations, family, hereditary, corporate, competitive, etc. Based on the analysis of judicial practice and doctrinal positions in some of the designated areas, key imperfections have been identified that require their solution and normative registration of the legal status of the former spouse, since such uncertainty destabilizes the current turnover. In particular, we are talking about: the extent of the administrative power of the former spouses in relation to conscientious property; the specifics of determining the regime of property received after the dissolution of marriage; the possibilities of the former spouse regarding the acquisition of corporate rights; the consequences of fictitious termination of marital relations and the impact of this behavior on other areas, including in the context of insolvency proceedings (bankruptcy), etc.
Such normative detachment, taking into account the spectrum and complexity of the identified problems, leads to the spread of abuses and the violation of the balance of interests of the parties, if necessary, their protection.
VECTOR OF LEGAL SCIENCE. Theoretical aspects of civil law
The article analyzes the problem of understanding public and private interests at the present stage of development of public relations regulated in Russia by private law. Based on the conducted research, the author concludes that the opposition of public interest to private is unreasonable, since its carrier is a specific individual. Public and private interest in private law are a single whole in cases of high public importance, characteristic of relations related to the provision of actions at their discretion, especially in connection with the establishment of rights to things, the results of intellectual activity, the protection of personal non-property rights. At the same time, one should not underestimate the importance of private interest, the legal form of which is necessary to concretize its provision in a strictly defined sphere of public relations related to meeting the needs of one person by the actions of another, in particular, in contractual, as well as legal relations related to participation in civil law communities, including corporate ones. Such an approach to the correlation of private and public interests makes it possible to expand and clarify their understanding, highlighting civil law values and values of civil law communities, general and special civil law interests, as well as general and special interests of civil law communities, the interests of individual individuals.
The article reflects a discussion about the meaning of the division of law into private and public. The author agrees with the researchers, who believe that through any legal norm, regardless of its sectoral affiliation, both private and public interests are realized. In this case, we are even talking about the fact that in itself the ordering of social relations by any legal norm is essential for society and does not allow chaos in relations. The civil law regulation itself contains a mechanism that ensures a balance of both various private and public interests. Confirmation of this to a greater or lesser extent can be found in almost any norm of civil law. Public law, like private law, ensures the implementation of both public and private interests. Entering into various public legal relations in many cases is aimed at satisfying the interests of individuals and is based on their will. Public and private legal blocks are characterized by many features. Raising the question of public and private legal blocks, must understand that the regimes (methods) for regulating social relations by them are more than important, since the establishment of a regime that does not correspond to the essence of certain relations can lead to the impossibility of realizing certain kinds of interests. Thus, the realization of interests (especially private ones) through civil legal relations is mainly possible in the regime of free will. In public branches of law, at least one of the parties does not have the freedom to decide whether to enter into a legal relationship. In addition, as a general rule, unlike private legal relations, public legal relations imply a certain control, which is necessary to ensure both public and private interests.
VECTOR OF LEGAL SCIENCE. Legal status of legal entities and individuals
The article discusses some legal problems associated with the transfer of religious property, which is in state or municipal ownership, to religious organizations, and also suggests possible ways to solve them. Based on the analysis of the current legislation and materials of law enforcement practice, the shortcomings of legislative approaches to the definition of objects with a religious purpose that are subject to transfer to religious organizations are revealed. The authors note certain features of the essence and legal status of religious organizations, their internal structure and property regime. It is substantiated that these features should be taken into account when improving the normative regulation of relations related to the transfer of property of public legal entities to religious organizations. The peculiarities of their internal structure and ownership regime should also be taken into account. The opinion is expressed on the need to limit the range of religious organizations that can receive state and municipal property into ownership; on the expediency of adjusting the rules on the gratuitous use of religious property in connection with the special nature of the emerging relations. Particular attention is paid to the problematic aspects of the transfer of religious property belonging to the categories of cultural heritage objects and museum items to religious organizations.
The subject of the research of this article is a personal fund, which is an organizational and legal form of a non-profit organization of a unitary type. The article offers an analysis of the constitutive features of this organizational and legal form, identifies some problems associated with its participation in civil turnover. The mechanisms of personal fund management and its termination are investigated. Options for determining the beneficiary of a personal fund are considered. The assessment of the applied value of the personal fund in view of the factthat the mechanism of legal regulation of the inheritance fund was not effective enough for civil turnover, the legislator developed a more perfect mechanism of legal regulation of the personal fund. It is noted that the main advantage of a personal fund in comparison with a legacy fund is the possibility of its lifetime establishment, monitoring of activities and the possibility of changing the structure of its management during the lifetime of the founder of the personal fund.
The article deals with the peculiarities of the legal personality of persons recognized as incapacitated and with limited legal capacity due to a mental disorder. The volume of legal capacity of citizens recognized as having limited legal capacity due to a mental disorder is analyzed. It is noted that citizens who are limited in legal capacity under paragraph 2 of Article 30 of the Civil Code of the Russian Federation are not excluded from participating in property turnover, since they still have the opportunity to make transactions (independently or with the written consent of the trustee). It is pointed out that in the current civil legislation there is no mechanism for implementing the requirement established in paragraph 2 of Article 29 and paragraph 2 of Article 30 of the Civil Code of the Russian Federation to take into account the opinions and preferences of the incapacitated and the limited capable when making transactions and giving consent to transactions, respectively, by the guardian and the trustee. The author substantiates the opinion that based on the legal nature of personal non-property rights, the signs of which are inalienable.
VECTOR OF LEGAL SCIENCE. Legal regime of certain objects of civil rights
Analysis of common forms of violations of the information security of citizens shows that in modern conditions not only the advertising information itself is a commodity, but also the free time of citizens spent by them on viewing and listening to it consistently turns into a commodity. Behind these phenomena, which have not yet received a proper legal assessment, lie real threats that are emerging in various areas of public life. Based on the traditional views of russian public thought on the relationship between the law and human well-being, which have centuries-old historical roots, it is suggested that, based on considerations of economic justice and, since the free time of citizens, their mental and activity potentials and communication devices belonging to them have value, there is a need for a doctrinal discussion of the possibilities of creating compensatory mechanisms for compensation. time that citizens are forced to spend on viewing and listening to advertising texts, videos, clips, etc. imposed on them, but also the lost time in other cases of violation of the information security of citizens. Such a formulation of the question is not only appropriate, but also seems to help determine the potential for normative support for the realization of this kind of economic justice.
The article considers the main views set out in the scientific literature, as well as in judicial practice, regarding the interpretation of the creative component in the creation of objects of intellectual activity. The meaning of creative work in the creation of such objects is analyzed — from pre-revolutionary lawyers to the modern understanding. The author distinguishes between mechanically created objects and creative objects, identifies two criteria that are necessary to recognize the object created by creative way: objective and subjective. The understanding and correlation of such categories as “creativity”, “creative work”, “creative vision”, “single creative idea”, “creative conception” is analyzed. It is the use of such categories that allows the court to establish the protectability of objects of exclusive rights, to distinguish complex and composite objects, as well as objects of independent creation and repetition of someone else’s work. The author of the article comes to the conclusion that for the definition of creativity as one of the components of the legal qualification necessary for the protectability of the object the most comprehensive is the concept of “creative vision”.
The article deals with modern problems of qualification of personal data in civil circulation. In doctrinal sources, the prevailing point of view on this category is the view as an object of civil law, despite the fact that the concept of “personal data” was introduced by the federal law “On Personal Data”, which refers to public branches of legislation. Due to the absence of the category “personal data” in Article 128 of the Civil Code of the Russian Federation, the problem lies in determining the place of personal data among the legally enshrined objects of civil rights; in establishing the legal regime of personal data. Taking into account the views known to the civil doctrine, the author substantiates the possibility of classifying the category of “personal data” and, accordingly, establishing a legal regime to the category of “intangible benefits”, subject to the requirements for the consent of the subject of personal data to the processing of his personal data; for an array of data (Big User Data) ...
The article examines the state of legal regulation in the field of real estate in relation to such immovable things as premises. The changes made to the legal regime of premises by Federal Law No. 430-FZ dated 21.12.2021 are analyzed. The author examines the general definition of premises introduced in the Civil Code of the Russian Federation by this Law, identifies the inherent shortcomings of this definition. The article shows that a room as a real estate object has a derivative (secondary) character in relation to the building or structure of which it is a part.
Considering the legal regime of residential premises, the author analyzes its features, in particular its isolated nature. The article shows the features of certain types of residential premises. At the same time, the author notes the fallacy of including a residential building, which is a building, and not a room, in the composition of residential premises, and suggests a solution to this problem. The author also examines the contradictions in judicial practice on the issue of recognizing a part of a residential building as an independent real estate object. Special attention is paid by the author to the problem of apartments as non-residential premises adapted for living.
This article is devoted to the problem of ensuring the independence of the board of directors of joint-stock companies. The author points out that there are several approaches to recognizing the status of an independent director for a person. The article discusses the ideal model of relationships within the board of directors, in which the objective decisions in the interests of a legal entity is developed. The author focuses on the role of independent directors in the board of directors, including in terms of control the activities of the executive bodies of a legal entity, resolving conflicts of interest in the decision-making process. The article analyzes the problem of maintaining a balance of interests of various subjects in the decision-making process and the approaches developed in judicial practice that indicate that such a balance is not observed. The author considers issues related to the performance by directors of the duty to make independent judgments, determines the criteria for assessing the independence of judgments.
VECTOR OF LEGAL SCIENCE. Land, property and environmental legal relations
This article considers the institution of the actual seizure of land plots for state and municipal needs, which is not provided for by legislation, but recognized by judicial practice: its legal nature and methods of protection that legal entities can use in the event of the actual seizure of land plots from them.
The article contains an analysis of individual court decisions, which made it possible to identify existing gaps in the legal regulation of relations related to the actual seizure of land for state needs. In particular, the issues concerning the ways of protecting the owner of the actually seized land plot remain not fully settled. The current legislation has not developed effective legal mechanisms to protect the rights and legitimate interests of right holders, has not formulated a unified approach to determining the equivalence and fairness of compensation provided to the right holder when withdrawing land for state needs. The solution of these issues will ensure a balance of public and private interests.
One of the main factors of sustainable development is the preservation of the environment and natural resources, which is impossible without a well-functioning system for preventing environmental offenses and eliminating their consequences. In this system, a special place belongs to the institution of responsibility. The work is devoted to the analysis of the features of property liability for environmental offenses, the establishment of its relationship with civil liability. As features of the responsibility under consideration, its “overcompensation nature” is highlighted, as well as the possibility of bringing the offender to “double” responsibility in the form of payment of monetary compensation and compensation for harm in kind. These features are explained by the nature of the benefits encroached upon by an environmental offense, as well as the need to overcome the costs of law enforcement associated with the problems of determining the amount of harm caused to the environment.
The analysis allows us to conclude that property liability for environmental offenses, which has a number of specific features, nevertheless corresponds to the nature and features of civil liability, which allows us to apply to it the principles and mechanisms developed by civil law.
Civil law knows two ways of compensation for damage. At the same time, in jurisprudence and in the legal literature, natural compensation is often called the priority method of compensation for harm, caused to the environment. Nevertheless, there are doubts that the allocation of a priority method of compensation for harm, which will be presumed, is justified.
Choosing from two methods of compensation for harm, the court must establish the objective possibility of restoring the environment, the need for prompt action, their effectiveness for restoring the environment, and the existence of a restoration project developed and approved in compliance with the requirements of current legislation. The imposition of environmental restoration is ineffective and should not be allowed by the courts, including through the use of penalty. In case of failure of remedial measures or refusal of the delinquent to carry them out, the option of monetary compensation for harm is always available, including offsetting the costs of natural compensation for harm. At the same time, the simultaneous use of two methods of compensation for harm is unacceptable.
VECTOR OF LEGAL SCIENCE. Legal regulation of insurance activities
The article discusses the features of agricultural insurance with state support. It is noted that there are significant problematic aspects in the developing field. The increased difficult-to-calculate risk of losses of agricultural producers from adverse climatic conditions causes increased risks for the financial stability of insurance organizations engaged in agricultural insurance. The lack of state support in the implementation of insurance (reinsurance) of agricultural risks contributes to the inclusion of restrictive conditions by insurers in agricultural insurance agreements that minimize risks, overstatement of insurance tariffs, and refusals of insurance payment. The most effective is the existing system of agricultural insurance for large farms that have the ability to minimize and prevent losses, which makes it difficult to develop competitive principles in agricultural production, hinders the development of small and medium-sized agribusiness. This is also facilitated by legislative restrictions on preferential insurance of agricultural cooperation entities for which the law doesn’t provide for state support. The article substantiates the causal relationship between the imperfection of the system of state support for agricultural insurance and the problems of a civil nature in this area.
REVIEWS
TRIBUNE FOR YOUNG SCIENTIST
The article is devoted to a special kind of normative legal acts — regulations. Due to the fact that today in Russia there is a large variety of such sources of law as regulations, there is a need not only for their classification, but also for their full study as an independent source of Russian law. The article examines the essential characteristics of the regulations, based on the analysis of the features of the regulations, which are an integral part of the Russian legal system, the author’s definition of the regulations is given. The functions performed by the regulations in the mechanism of legal regulation are indicated.
The whole variety of regulations in force in Russia is divided into different groups, depending on the selected classification criteria. The classification allows us to consider the specific features of certain types of regulations, which, in turn, is extremely important for understanding the legal nature of regulations as sources of Russian law.
DIGEST OF THE FACULTY ACTIVITIES
LAW IN HISTORICAL REFRACTION. Legal Monuments
LAW IN HISTORICAL REFRACTION. Scientific Legacy
POST SCRIPTUM
ISSN 2782-6163 (Online)