THEORY AND HISTORY OF LAW ENFORCEMENT
The subject. The article is devoted to the study of the relationship between property and the state-building in socialist States.
The purpose of the article is to confirm or disprove the hypothesis that the socialist practice of state-building, depending on the combination of interaction of the main ways of organizing property, has a different social nature of existence. Methodology. The work provides the author’s methodology for studying the structure of the state, depending on the combination of interaction of the main ways of organizing property. The main results of the research. There are some possible basic options for the existence of a socialist practice of state building. After the disappointing results of the Soviet experience, the quite logical question is: what will be the future of the socialist concept of state-building and does it even exist? Socialist practice of state-building, depending on the combination of the interaction of the main ways of organizing property, has a different social nature of existence. The Soviet model was based on the liquidation of the private way of organizing property and the monopoly dominance of the forms of the general (collective) way of organizing it. The Chinese model, in which the monopoly of the forms of the general (collective) way of organizing property, corresponds to the legislative assumption of a private way of organizing it. The European Social Democratic model, where the private way of organizing property as the main system-forming one, acts in combination with forms of general (collective) and mixed (corporate) ways of organizing it.
If we take into account that each method of organizing property is determined by the need to perform a specific social function, then in each model of socialist construction, depending on the particular combination of methods of organizing property, it is clear which of the social functions is dominant in the practice of construction. For example, if the main system-forming way of property organization is private, then this is a function of social development; if general (collective), then the function of social security, and finally, if mixed (corporate), then the function of social compromise (convergence). Such determination, in our opinion, is sustainable. Conclusions. Socialist practice of state-building has a different social nature of existence. This nature can be described provisionally as the Soviet, the Chinese and the European Social Democratic models.
The subject. Possible problems that may lead to further use of artificial intelligence, as well as ways to overcome them are studied.
The purpose of the article is to identify the principles of the legal status of artificial intelligence.
The methodology includes formal-logical method, systematic approach, formal-legal method, comparative method, analysis, synthesis.
The main results of the research. The basic approaches to the definition of the concept of artificial intelligence are examined, specific examples are given, the problems that can cause the further use of artificial intelligence are analyzed. Artificial intelligence as a complex computing system is characterized by: variability in decision-making, a certain degree of autonomy when working, as well as the ability to take into account the experience gained from previously made decisions and use it to correct them. The challenges that are facing both the legislators and scientists are identified, such as: determining the status of artificial intelligence, responsibility for its actions and, accordingly, finding the most acceptable way to transform legislation governing the use of artificial intelligence.
Conclusions. Artificial intelligence, due to both its novelty and certain functioning features, causes disagreement in the scientific community regarding the permissible limits of its application, its legal status, responsibility for the results of its activities, as well as on many other related issues. Today there is no unity of opinion even in relation to the definition of the term “artificial intelligence”, which is largely due to the previously mentioned features. Therefore, in a world of continuous scientific and technological progress, where artificial intelligence plays an increasing role, we should continue to study these technologies in order to: firstly, determine their role and place in the future of humanity; secondly, to define the permissible limits of the use of artificial intelligence in order not to harm individual people or groups of people; thirdly, based on an understanding of the nature and principles of artificial intelligence, transform legislation in such a way that it best meets the challenges, which legal scholars will have to face in the future.
The subject. Implementation of Soviet labor law in the context of totalitarianism. Particular attention is paid to the formation of a repressive model of regulation of private law relations. The study of this problem is extremely important from the point of view of the totalitarian past of our country, covering all spheres of public life and entailing large-scale tragic consequences.
The purpose of the article is to confirm or disprove hypothesis that a totalitarian political regime seriously impacts on the essential characteristics of private law branches.
The theoretical and methodological basis of the study includes the principles of objectivity and historicism, the formal logical interpretation of the Soviet legal acts concerning labor relations and the method of system analysis, which allows us to reveal the subject of research comprehensively.
The main results, scope of application. During the formation of the Soviet totalitarian regime, administrative methods of governance in the branches of private law (and in labor law, in particular) prevailed. The formation and development of Soviet labor law in the 1918-1930s. fully reflects the logic of the impact of a totalitarian state on the branches of private law. The widely used system of repressive measures in the sphere of labor was provided not only by laws, but also by the adoption of numerous by-laws, which deformed the system of private law relations based on decentralization and freedom of choice by legal entities. Labor relations were used by the Soviet state as a means of political management of significant masses of the population. Along with the codification of labor legislation (the adoption of the RSFSR Labor Law Codes of 1918 and 1922), normative acts aimed at state monopolization of labor regulation were adopted. A significant number of by-laws, which actually had the highest legal force, often had a purely coercive nature and was used by management as a means of achieving political goals. There was a de facto substitution of the right to work with a labor obligation. In a totalitarian regime in 1918-1930. in fact, a labor obligation is being affirmed, and the relationship between the employee and the employer has ceased to be private in nature, being under the control of executive authorities.
Conclusions. Totalitarian political regime seriously changed the essential characteristics of private law branches.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject. The research covers analysis of legal regulation that sets the increased tax rate instrument and the comparison of this instrument with other similar legal instruments.
The purpose of the article is to clarify the content of the increased tax rate as legal instrument of taxation, its place in the general tax system, as well as the assumptions and objectives of the application thereof. The authors dare to confirm or disprove hypothesis that increased tax rates can be considered as specific punitive measure applied to taxpayers.
The methodology of the research includes the analysis of Constitution and legislation of Republic of Lithuania, system analysis, logical-analytical method, formal-legal interpretation of Lithuanian laws.
The main results, scope of application. An increase in the tax rate means exceptional taxation conditions opposite to the application of tax reliefs. It should be noted that if the application of the tax reliefs is foreseen in practically all taxes applied in Lithuania, the increase of the tax rate is intended only in a few cases. Taxation system of Lithuania sets the possibility to apply increased tax rates for real estate, land, natural resources and environmental protection taxes if the respective conditions foreseen in legislation are met. This legal regulation forms the distinct legal instrument – the increased tax rate. The increased tax rates is the economic sanction that comes to effect for harmful or illegal behaviour. The consequences of these economic sanctions are very severe what makes this instrument being equal to legal responsibility. Furthermore, this research examines if the higher tax rate might be applied along with other forms of legal responsibilities, for example, fine under the tax law. When trying to answer the question whether it is correct to recognize the application of a higher tax rate as a legal liability measure, it is necessary to clarify the purposes of its application, the bases (assumptions) that differ in individual taxes. The legal presumption of the application of the calculation of real estate and land taxes at the increased rate is the compliance of the object of taxation with certain objective properties established by the legal acts, i.e. abandonment, non-use of the property or the use not for the intended purpose, which results in the inclusion of such property in special lists of objects subject to levy of increased tax rate. The increased tax rate on state-owned natural resources is applied when the extracted resources are undeclared, the declared quantity of extracted resources is lower than the quantity actually extracted or extraction of natural resources is performed without the permit. Therefore, the application of a higher tax rate on state natural resources or environmental pollution tax is a consequence of the improper performance of their obligations under the relevant tax laws, for the purpose of punishing for the breaches of tax laws. Meanwhile, none of the laws enshrining the imposition of an increased tax rate provides for any grounds for exempting the taxpayer from paying the increased tax rate.
Conclusions. The higher tax rate is to be considered a specific punitive measure applied to taxpayers. This is confirmed by the logical analysis of the texts of tax laws. The application of the higher tax rate in all cases is determined by violations of legal acts (taxes or other) which allow this phenomenon to be seen as a specific form (instrument) of legal coercion (liability).
The subject. The problems of business splitting, when several new business entities are created on the basis of an existing organization in order to maintain a preferential special tax regime, are considered in the article.
The aim of this paper is to find out criteria of unjustified tax benefit in the cases concerning business splitting.
The methodology. The author uses methods of theoretical analysis, particularly the theory of integrative legal consciousness, as well as legal methods, including formal legal method and analysis of recent judicial practice.
The main results, scope of application. The problems of assessing the circumstances of cases involving the application of a business splitting scheme by the taxpayer are inextricably linked to the assessment of the validity of the tax benefit. According to the author, splitting schemes should not be considered as tax evasion, but as an abuse of law. In addition, in order to substantiate the conclusion that a taxpayer has applied a business splitting scheme, the tax authority must have evidence that will indicate that the taxpayer has committed deliberate concerted actions together with persons under its control, aimed not so much at dividing the business as at obtaining an unjustified tax benefit as a result of using such a scheme. Judicial practice is quite ambiguous.
Conclusions. The author comes to the conclusion that еhe key concept subject to criticism is the blurred criteria for obtaining tax benefits for taxpayers and the definition of the edge when it passes into the category of unjustified tax benefit.
The subject. The legal institution of legal responsibility in electoral process in general as well as its basic subtypes: constitutional, criminal and administrative responsibility.
The purpose of the article is to identify the main kinds of legal responsibility in the electoral process.
Methodology. The author uses such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods.
The main results of the research. The author takes into account the opinions of academic lawyers and analyzes the legal institution of legal responsibility in electoral process in general. The author considers and examines the classification of constitutional, criminal and administrative responsibility in the electoral process, reveals and analyzes the essence of such fundamental concepts as legal responsibility, kinds of legal responsibility, electoral rights of citizens. The article describes the special and distinguishing characteristics of different kinds of legal responsibility. The author also gives reasons for the necessity of a special set of state coercive measures in order to make the electoral process transparent. As far as the Russian Federation law “On elections and referenda” does not contain any specific measures of legal responsibility and has references to other laws, the author sees it important to fill this gap for future codification of electoral legislation. Constitutional legal responsibility is peculiar in electoral process. It means that responsibility is realized in procedural form, which is enshrined not only in Federal laws, but in subordinate laws, such as instructions of the Central Election Commission of the Russian Federation.
Conclusions. Legal liability in the electoral process has the following characteristics: it is expressed in the obligation to undergo measures of state enforcement; its basis is the violation of material and procedural norms of the electoral law; it is associated with various kinds of unavoidable negative consequences; the guilty person will be subjected to restriction of personal and other property rights; the offender is charged with the obligation to restore the violated right or compensation for damage.
The subject. The article is devoted to analysis and classification of different constitutional and municipal legal rules that may cause and resolve the constitutional conflicts.
The purpose of the article is to confirm or disprove hypothesis that there is a set of constitutional and municipal legal rules with common conflict initiation nature as well as with common conflict resolution nature.
The methodology of the study includes general scientific methods (analysis, synthesis, description) and legal interpretation of Russian Constitution and laws.
The main results, scope of their application.
There is a whole set of legal norms in constitutional and municipal law, that focus on the conflict component due to the conflict nature of the constitutional act itself as the basic law of the country. They need to be studied and classified due to the different content and legal nature of these rules. The author attempts to research the constitutional and municipal legal norms that may cause and resolve the constitutional conflicts, offers their classification on certain grounds, analyzes scientific researches on this topic. Constitutional and municipal legal rules that may cause and resolve the constitutional conflicts can be classified for two types depending on their content: rules generating constitutional conflicts and rules that establish methods and principles for resolving constitutional conflicts.
Conclusion. The constitutional and legal rules that give rise to constitutional and legal conflicts include the norms of constitutional law that enshrine constitutional values that are in a state of real or imaginary competition.
The norms that establish ways to resolve a constitutional and legal conflict include: 1) collision rules of constitutional and municipal law – rules determining which legal regulation should be applied to the relevant conflict legal relationship. They have a reference character and are applied only together with substantive legal norms that resolve the issue; 2) constitutional and municipal regulations governing the methods and principles for the resolu-tion of constitutional conflicts.
The subject of the article is the typology of national security, and controversial issues of the selection.
The purpose of the article is to identify causes of a large number of security’s forms both in theory and in practice, also to analyze acts in this sphere. The methodology of the article includes analysis, synthesis, formal-legal and comparative-legal methods. The main results of the research. The author focuses on the problem of types of national security. The author investigates the national security and methodological, theoretical and legal aspects of the classification of national security’s forms. The reason for the diversity of types of national security should also be recognized as the lack of a clear classification of them. Author investigates the mechanism for detaching forms of national security in acts of the Russian Federation in the field of security and suggests that new forms of nation security (moral security and culture security) should appear in base document of strategic planning of the national security. Moral security includes cultural, ideological, informational, psychological, scientific, educational, and religious security. Cultural security in its most general form is the stable existence of culture, the protection of this sphere from internal and external threats, for example, such as the emasculation of spiritual and moral values and globalization. Conclusions. The identification of new types of national security is an objective process due to the very versatility of such a phenomenon as national security. At the same time, it should be recognized that the sphere of spirit and morality in the context of spiritual security does not belong to the legal science, but rather to the field of philosophy and religion. In this regard, their inclusion, even as an adjective, in the text of the strategic planning document raises doubts, so the use of the phrase "moral security" in legal acts in the near future, in our opinion, can hardly be expected.
THE LAW ENFORCEMENT BY LOCAL AUTHORITIES
The subject. The article is devoted to the analysis of decisions of the Constitutional Court of Russia concerning the economic basis of local government in Russia in order to demonstrate the special role of its legal positions in ensuring and protecting the economic foundations of local self-government in the Russian Federation. The subject of the article is legal acts and decisions of the Constitutional Court of Russia devoted to the economic foundations of local self-government in Russian Federation.
The aim of the article is to confirm or disprove the following hypothesis. As it seems from the practice of the Constitutional Court of Russia, the existing system of implementing the regulatory framework of the economic basis of municipalities in Russia is unsatisfactory, while the Constitutional Court of Russia, through the development of its legal positions, smoothes out the negative aspects and sets up legislative and executive authorities to create the necessary conditions for the development of local government and to ensure its economic and organizational independence.
The methodology. The authors apply general scientific methods of comparative, logical and statistical research, as well as analysis of Russian law enforcement and judicial practice in the field of local self-government.
The main results, scope of application. Despite the provisions of the European Charter of Local Government on the right of local governments to possess sufficient own financial resources, the reality shows a very deplorable picture of the formation of the regulatory framework of the economy of municipalities in Russia. The existence of very heterogeneous judicial practice, primarily arbitration, makes the situation worse. In this regard, a special role in protecting the economic foundations of local government is assigned to the Constitutional Court of Russia.
Conclusion. The issues of legal regulation of the economic basis of local government need increased attention of the state and urgently require a deliberate change, primarily in the form of developing a federal state policy, taking into account the practice already developed by the Constitutional Court of Russia. It is the highest federal body of constitutional justice that often acts as the last bastion of protecting the economic potential of local government.
The subject of the research is the establishment and application of official awards at the municipal level of government, including award legislation and the practice of its application.
The purpose of the article is to confirm or disprove the hypothesis of an existence of an award policy and system of awards for the municipal level of government in Russia.
The methodological basis of the research is the general scientific dialectical method of cognition (such as methods of analysis and synthesis, abstraction and concretization, induction, deduction and analogy), as well as the method of monitoring of legal acts, historical and legal method, system analysis. The main results of the research. A comprehensive analysis of existing regulations and description the general contours of the award policy for the municipal level of government were made. The following classification of awards applicable to municipal authorities can be distinguished. By type of award: honorary titles, medals, distinctions and incentives, as well as grants and prizes. Depending on the subject that establishes the award: state, municipal or public awards; moreover, you should distinguish between awards established by a public legal entity (award of the Russian Federation, of the constituent entity of the Russian Federation, a municipality) or a separate public authority. Depending on the subject receiving the award (the awarding subject): awards that are established both for the municipality as a whole, and for individual officials or other employees of local self-government bodies; a separate category consists of awards provided for the territorial bodies or their representatives. Currently, there is no single document outlining the system of awards of the Russian Federation.
Conclusions. Monitoring of normative legal acts of local self-government bodies has shown that it is quite rare to find documents that regulate the award policy of a municipality. There is practically no award policy for local government bodies or their officials, as well as awards for contributions to the development of local self-government.
THE LAW ENFORCEMENT BY THE BODIES OF PRELIMINARY INVESTIGATION AND INQUIRY
The subject of the article is the problem of typical assessments of criminal legal risk by offenders.
The purpose of the article is to confirm or refute the hypothesis that the attitude of various persons to the possibility of being punished for violating a criminal prohibition can be typologized, and the probability of being punished depends on the criminal's belonging to the corresponding type.
The methodology includes dialectical, comparative legal, sociological, statistical, psychological methods, expert assessments, generalizing indicators.
The main results, scope of application. The original criminal-legal aspect of predicting individual criminal behavior consists primarily in determining the probability of a potential criminal being brought to criminal responsibility for a possible offense and being punished. Foresight in this case is individual in the literal sense of the word – its subject is primarily a person who is inclined to commit a crime. The position of the researcher of criminal law forecasting of individual criminal behavior, who is obliged to put himself "in the place" of a socially dangerous person, to understand the nature and process of risk assessment, and to be brought to criminal responsibility, is also original. The attitude of different persons to the possibility of being brought to justice for violating a criminal law prohibition may vary widely, acquire a different character, and have specific features. In this regard, theoretically, we can distinguish the following groups of criminal risk: out of risk (“above the law”); habitual risk; "justified" risk; frivolous risk; emotional risk; situational risk; professional risk. The validity of this typology is confirmed by both empirical experience and materials of criminal-legal and psychological research. Conclusion. The magnitude of the criminal legal risk, of course, should be taken into account in the criminal law policy: both when assessing its purposefulness and effectiveness, and when solving the task of a comprehensive information and analytical support for it.
The subject of the research is the criminal community, its characteristics, and features within the framework of criminology.
The purpose of the research is to confirm or disprove hypothesis that a criminal community as a criminological phenomenon is nor equal to a criminal organization or an organized criminal group
Methodology. The author uses general theoretical methods (comparative analysis, generalization, deduction) and specific methods (formal legal interpretation of legal acts, questionnaires).
The main results, scope of application. A criminal organization and a criminal community are different criminological phenomena that differ from each other in significant ways. The differences are both in the degree of criminal organization, and the complexity of the structure of internal and external interaction. From the point of view of a systematic approach, a criminal community is not only a more complex system compared to a criminal organization. It is characterized by an improved structure of internal interaction, in which the hierarchical structure is either complicated, or replaced or supplemented by a network structure. The peculiarity is to complement the system approach with a synergistic one: in the criminal community, the pooling of criminal efforts is carried out more effectively, mainly in the sphere of external relations. The criminal community is a more open system compared to the criminal organization. Certain features can be identified in the contacts of criminal community members with the external environment. The most important feature is a symbiosis of criminal and legal practices that affects the life of entire regions or relatively large masses of the population. The criminal community is a purposeful system with its own specifics. And this specificity is seen in the fact that the criminal community pursues (secretly or openly, at the moment or in the foreseeable future) the achievement of political goals, namely: the possession of power, infiltration into power, undermining power, its capture and retention. It is power, not wealth, that is the real goal of the criminal community, and not just because it is easily converted into wealth. Power is valuable in itself, because it also gives a lot of other advantages.Conclusions. A criminal community cannot be reduced to a criminal organization, much less – to an organized criminal group, and this conclusion requires to be included into legislation.
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