THEORY AND HISTORY OF LAW ENFORCEMENT
The subject of the article is social competition as a natural mechanism for resolving social contradictions that arise and exist in society.
The aim of the article is to confirm or refute hypothesis that the resolution of social contra- dictions is a kind of legal regime for the realization of property as the fundamental purpose of the existence of the state
According to the author's methodology of normative structuralism, the assignment to each mode of property organization of a specific function (social development function, social compromise (convergence) function, social security function) generated the corresponding potential for the emergence and existence of social contradictions, where the state as an artificial (reasonable) sufficiency had to direct the energy of the said contradictions into the normative-legal channel and thus ensure the existence of social competition.
The main results. The restriction and leveling of social competition and the transition to domination as the basic legal regime (mode) of statehood destroys the natural mechanism for resolving social contradictions and transfers this mechanism to the plane of directive political and ideological expediency. As a result, the power of the structural organization of the state is transformed into a goal of its existence, and property only into a means of real- izing this goal. There is a disavowal of property as a fundamental goal of the existence of the state; the escalation of its imperialization begins, triggering the destruction of social competition as the basic legal regime (mode) of life. There is a danger of an existential rup- ture between the three most important social institutions of human civilization: property, competition, and the state.
Society, constituting the creation of the state as artificial (reasonable) sufficiency, through the functioning of the structural organization of power has fixed the fundamental purpose of existence - property in the form of an integral structural platform of the main ways of its organization (private (individualized), mixed (corporate), general (collective)), assigning to each of them the execution of the corresponding social function.
Conclusions. Society, realizing the existence of a social contradiction, purposefully forms appropriate ways (rules) to overcome them to ensure its progressive development. The es- sence of the legal regime as the existence of the resolution of this social contradiction can be defined by the concept of “competition”.
The subject of study. Throughout the historical period of the development of diplomatic law, an institution of immunities and privileges was formed, the content and scope of which were determined by the level of diplomatic relations between states and the development of public administration.
The rules of national law also have a significant impact on the procedure for exercising dip- lomatic immunities and privileges. Many states have adopted legal acts regulating the foun- dations of the diplomatic service. For example, in the United States, after joining the Vienna Convention on Diplomatic Relations of 1961, the Law on Diplomatic Relations of 1978 was adopted, based on the rules of this Convention.
The article examines the history and development of diplomatic immunities and privileges, the formation of the US diplomatic service and the content of current national laws in the US. The purpose of the study is the identification of problems in the practice of implementing diplomatic immunities and substantiate the hypothesis that it is necessary to develop the legislation on diplomatic immunities and the diplomatic service in the United States.
The methodology of the study. The methodology of the study includes general scientific methods (analysis, synthesis, description, systematization) and special scientific methods (formal legal and comparative legal methods). In addition to this, historical method was also applicable.
The main results. Based on the results of the study, were disclosed significant discrepancies between the national legal regulation of the US diplomatic service and the rules of interna- tional law, which leads to massive violations of diplomatic immunities and privileges by the US authorities.
Conclusions. Diplomatic immunity is a guarantor of the effective operation of foreign rela- tions bodies on the territory of the host state, however, in practice, there are often cases of their violation by the authorities of the host state and cases of abuse of diplomatic im- munities and privileges by their carriers. The granting of a special legal status, personal in- violability and other privileges and immunities is in no way equated to absolute impunity for employees of foreign relations bodies in case they commit illegal acts.
The subject. Many shortcomings in the current state of local government and self-government systems are that in the process of forming institutions of public power, there were not evolutionary qualitative changes, but, on the contrary, there were processes of quantitative complication of mechanisms and institutions for the exercise of public power, making the role of the people in administrative processes impossible or insignificant.
The theoretical and methodological basis of the research are the categories and principles of materialistic dialectics, systematic, formal-logical, formal-legal and comparative-legal methods.
The main results. The article discusses 4 types of self-government that existed in the Steppe General Government in the prerevolutionary period. Special attention is paid to organizational and legal issues, the structure and forms of activity of urban, peasant, Cossack and Kyrgyz (Kazakh) self-government, their interaction with local administrative and police bodies represented by the Governor-General, regional governors and county chiefs. Conclusions. The activity of local self-government bodies in the Steppe Region was based on the concept of self-government, which was based on the fact that local self-government had to act in the interests of state power. It carried out its activities on the basis of laws, the subjects of its jurisdiction and competence were also determined by the state. The activities and powers of the local state administration and local self-government were considered homogeneous and constituted a single power vertical.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject-matter of the research is economic analysis in public law. This method evaluates both costs and benefits of the regulatory measures. When assessing the alternatives, the judges in public litigation take into account their side effects. If an economically effective alternative is found, it should be ensured that it imposes a minimal burden on the rightholder or the costs to third parties.
The purpose of the research is to argue that the cost-benefits analysis should be limited primarily to the economic field. Otherwise, personal, political, and social rights can be conferred with the properties of goods (commodification).
The methodology of research is based on approaches of school “law and economics”. Economic analysis of law makes it possible to construct a scale of constitutional values, albeit not uncontroversial, but universal. This scale offers the important advantage of introducing proportionality for seemingly disparate individual freedoms and public interests. The introduction of material and financial scales, including compensation even for irreparable intangible goods, represents a better solution than the available alternatives.
The main results of the research and the scope of their application. The above-mentioned method consists of assessing the costs and benefits both for the right-holders and for achieving the common good. It is necessary to analyse the costs and benefits of the challenged legal provision to individuals. Then, the governmental costs incurred in using alternative means should be reviewed. The public authorities should not incur excessive organisational or financial costs from a legal alternative that is humane to the individual.
Due to the objective constraint on public resources, judges take into account future budgetary expenditures.
In constitutional adjudication and administrative litigation, cost-benefit analysis is most effective in the economic sphere. It is easier to ensure the measurability of judicial review, usually in monetary or other material terms. The preparatory works, including the financial and economic justification of draft laws or regulations, may serve as an informational source in reviewing the legislative provisions and administrative acts which entail material costs. The cost-benefit analysis is applicable to non-material sphere. Although such costs generated by regulators are often difficult to assess in public law. A cost-benefit analysis is possible even in the political sphere. At the same time the judges usually restrain itself from assessing the political expediency of legislative decisions and administrative actions. Conclusions. There is a danger of economic analysis being abused in public law. The disadvantages of using this methodology include the possible devaluation of values which are essential for democracy. The abstract common good and reducing public expenditure will prevail over individual freedoms.
The subject of research, relevance. Exchange of information is an important measure of administrative cooperation between and among tax authorities aimed at the fight with tax evasion. Tax evasion is a problem that has gone beyond national borders, thus individual states can’t cope with it alone. In the light of this problem tax authorities develop new forms of administrative cooperation such as automatic exchange of information. While developing new forms, states should remember about the balance of private and public interest. In the context of automatic exchange of information this problem looks like a problem of finding a balance between confidentiality and tax transparency.
The purpose. The article discusses the problem of finding a balance between confidentiality and tax transparency on the example of the United States. The choice of the United States may be explained by its national approach to such a balance that differs from the approach of other states that have implemented the Common Reporting Standard and Mandatory Disclosure Rules.
The aim of the article is to show what peculiarities in national and international regulation in the United States influence their unique approach and what is the effect of this approach on the global system of automatic exchange of information and the rights of the US taxpayers.
The methodological basis. The following scientific methods were used: comparative-legal, formal-juridical and historic-legal. The research was conducted in compliance with the principles of independence and verification of the results.
The main results, scope of application. The conclusion of this article is that the balance of private and public interest in the context of automatic exchange of information is reached by the United States through confidentiality provisions exclusively. They use their national state legislation on beneficial ownership and the lack of reciprocity in intergovernmental agreements implementing FATCA to attract foreign investors (non-resident aliens) wishing to avoid reporting under the Common Reporting Standard. Meanwhile, the United States acquire full information on the financial accounts of their citizens and resident aliens who are beneficial owners of such accounts held in foreign financial institutions. Such a state of affairs is dangerous for the effectiveness of the global system of automatic exchange of information. Moreover, it impairs the rights of Accidental Americans who permanently reside in foreign states and have no connection with the United States except for their citizenship but still have reporting obligations before the US Internal Revenue Service.
Conclusions. Automatic exchange of information should be developed in compliance with the principle of balance between tax transparency and confidentiality. States should follow one and the same approach to providing such a balance. At the same time the taxpayers’ rights, in particular the rights of Accidental Americans, should be protected and they can’t be outweighed by the need of administrative cooperation between or among tax authorities.
The subject of the study is the legal norms that fix the procedure for applying coercive measures for violation of financial legislation, as well as doctrinal approaches and concepts on the chosen subject.
The purpose of the article is: firstly, to rethink the leading role of the sectoral approach to the analysis and legal regulation of enforcement measures for violations of financial legislation, the development of which has led to the formation of alternative legal structures for regulating financial relations and parallel legal institutions of legal liability; secondly, in determining effective legal instruments aimed at streamlining the system of measures of state coercion applied to subjects of financial legal relations.
The article examines: alternative, bypassing the current legislation, legal regulation of relations in the field of application of coercive measures; parallel legal institutions of legal responsibility for violation of financial legislation, as well as issues of streamlining the system of property sanctions for financial offenses.
The use of general logical research methods, including analysis and synthesis, the formal legal and comparative legal methods, allowed the author to come to the following conclusions: (1) the emergence of alternative legal structures for regulating coercive measures for violation of financial legislation is caused by a mixture of state functions between federal executive authorities, the reason for which is a deviation from the concept of a three-tier system of public administration; (2) based on an industry approach, the well-established opinion of the legislator to determine the types of legal liability leads to the absence of conjugation of legislative acts in this area and, as a result, to the unreasonable application of legal liability measures, to double liability, as well as to problems in the field of determining the evidence base in cases of financial offenses; (3) as a basis for streamlining the system of coercive measures for violation of financial legislation, it is advisable to take an approach aimed at overcoming the gap between branches of law, the development of which is manifested in the expansion of the reception of universal legal structures in financial legislation and the application of the obligatory method of imposing property liability, which allows creating a different mechanism for imposing economic sanctions, corresponding to the riskbased approach to the implementation of control and supervisory activities. The application of the obligatory method of imposing property liability should be accompanied by a reduction in the number of fines for offenses in the financial sector, provided for by acts of financial legislation and the Russian Code of Administrative Offenses.
The subject. The article discusses regional currencies from the point of view of their definition in the system of monetary circulation, purpose, experience in the legal regulation of the circulation of regional currencies in certain territories of various states, the goals and objectives of regional monetary circulation are studied, and the impact of such circulation on the economy of a particular territory is determined. The article reveals the main differences between regional currencies and the national (official) currencies of the state, assesses the overall effectiveness of the development of regional money circulation. The paper analyzes the legal nature of regional currencies, using the example of individual currencies, namely, it raises the question of which legal nature dominates in regional currencies – private law or public law. Methodology. In the course of the study, various
general scientific and special scientific methods of cognition were used, the most important of which were methods - historical and legal, comparative historical, comparative legal, as well as the method of referring to other social sciences, such as economics.
Main results. In the course of the study, the legal nature of regional currencies was redistributed, using the example of the practice of issuing such currencies in various countries with different periods of historical development.
Conclusions. The study found that the introduction of regional currencies into circulation in different periods of time had a variety of purposes. In modern times, these are the goals of protecting the local economy and business from transnational companies and global crises, developing the local economy through greater circulation of funds within a particular territory (from infrastructure development to increasing domestic traffic), reducing capital outflows, developing tourism, and much more. It is also concluded that the legal nature of regional money is not precisely defined. So, on the one hand, the state has a monopoly on the issue of money, and on the other hand, the law protects the freedom to conclude an agreement, which may provide for, among other things, the issue of regional money as a condition for the implementation of the agreement, which is currently used by individual municipalities in various countries of the world.
The subject of the research is the study of mining, cryptocurrency, crypto assets in the legislation of the Kyrgyz Republic.
Relevance. The relevance of the article is due to the presence of gaps in the field of mining, cryptocurrency, crypto assets in the legislation of the Kyrgyz Republic.
The objectives of the article are to analyze the areas of mining, cryptocurrency, crypto assets and identify legal problems, as well as make proposals for improving the national legislation of the Kyrgyz Republic.
Methodology. The authors use scientific methods: general methods (analysis, synthesis, induction, deduction, comparison); special methods (legal, comparative legal).
Main results. Problems were identified, such as: lack of legal status of crypto assets, cryptocurrencies; lack of legal status of a cryptocurrency exchange operator; the system of risk management in the field of cryptocurrency is not indicated; lack of detailed study of the legal status of mining; subjects of mining, mining objects, classification of mining, standards for conducting financial transactions are not defined; lack of understanding of the nature of cryptocurrencies, crypto assets and virtual assets; lack of licensing and permitting activities in the field of mining, cryptocurrency, crypto assets; the absence of the category of mining, cryptocurrencies, crypto assets in the State Classifier of Economic Activities; lack of legal status of blockchain in the format of a regulatory legal act and etc.
Relevant proposals were given: to finalize and adopt a single regulatory legal act (in the form of a law) in the field of crypto assets, cryptocurrencies, since they are interconnected; establish the legal status of a cryptocurrency exchange operator and introduce licensing and permitting activities (obtaining a license from the National Bank of the Kyrgyz Republic); develop and adopt a regulatory legal act (in the form of a law) on mining, with a detailed designation of what mining is, its classification, mining object, mining subjects; understand the nature of cryptocurrencies, crypto assets, virtual assets and understand what they can be attributed to, in particular, to money, a product, a medium of exchange, a universal service or other activity; Enshrine in civil law the concepts of cryptocurrency, crypto assets, virtual assets, including the rights and obligations arising from them; add to the Law of the Kyrgyz Republic "On licensing and permitting activities of the system in the Kyrgyz Republic" paragraph 61 of Article 15 - the activity of mining, cryptocurrency, crypto assets; add a category to the State Classifier of Economic Activities - mining, cryptocurrencies, crypto assets; form a working group at the level of the Cabinet of Ministers of the Kyrgyz Republic to study blockchain technology with areas of application, both in the private sector and in the public sector, including smart contracts and etc.
Conclusion. Introduce legal regulators in the field of mining, cryptocurrency, crypto assets in the Kyrgyz Republic in order to avoid possible legal gaps that can lead to negative consequences in relation to the state, ranging from various shadow schemes in the economy that can slow down the digital transformation of the country.
The subject. Financial security of public procurement at the expense of budgetary funds requires the creation and functioning of an appropriate system of public financial control implemented not only by public authorities (legislative, executive, judicial) but also by society. It is shown that the objectivity of control is formed by the parallel financial control, both from the state and society. This interaction forms a public management system in the field of public procurement, guaranteeing the balance of public and private interests. The goal of the study: confirming the hypothesis that there is a particular type of financial control, the public financial control of public procurement. General scientific (analysis, synthesis, method of modelling) and private scientific (comparative-legal) methods are used to achieve the goal.
The main results. The authors' definition of public financial control of public procurement is a combination of state financial control, departmental financial control, internal financial control (internal financial audit) and public financial control, aimed at the compliance of customers with the rules of financial law and legislation on public procurement for effective and proper use of budgetary funds, as well as other resources aimed at protecting the public interest in the process.
Taking into account the large-scale use of digital technologies in the financial control of public procurement, we confirm the hypothesis about the transformation of methods of public financial control of procurement sphere from the traditional ones to monitoring, or digital financial control of public procurement, viewed as one of the main methods of curement. Given that digital technologies are quite actively used in public administration, the application of public procurement control is an effective method that allows checking the legality and properness of public finance expenditure. The novelty of the study lies in structuring financial control as a factor of effective management of public procurement in Russia. Conclusions. The authors emphasize the priority method: financial controlling of public procurement allows using the risk-based approach to minimize the role of the "human factor" in public procurement and reduce the costs of organizing controls and maintaining a large staff of financial control bodies.
The subject. A comprehensive study of Russian legislation in the field of biological safety indicates the need to update and systematize the legal framework for protecting the health of citizens and ensuring the sanitary and epidemiological well-being of the population as an important part of the mechanism of legal regulation of the national security of the Russian Federation.
The purpose of the article is to confirm or refute hypothesis that there is a possibility and necessity of systematization and codification of public health legislation.
The methodology. The authors analyze the practice of applying international law acts regulating the prevention of the spread of dangerous infectious diseases, the conclusions and recommendations of the WHO, the UN and other international organizations, as well as Russian public health legislation.
The main results, scope of application. The current problems of Russian public health legislation are investigated, problems, prospects and main directions for its improvement are considered. The issues of theory and practice of legal regulation of public administration in conditions of emergency situations of a biological nature, topical aspects of strategic planning in the field of ensuring the epidemiological safety of regions are studied. Based on the results of a study of the current state of public health legislation, the main directions for its improvement and prospects for further development are substantiated, the position of the authors on the systematization and possible codification of sectoral legislation is presented. Conclusions. Codification of public health legislation is necessary, taking into account the new goals and objectives of the strategy for ensuring biological safety, the experience of applying domestic and international health regulations in a pandemic. This type of systematization of legal norms seems to be the most appropriate for improving the efficiency of the system for ensuring the sanitary and epidemiological welfare of the population of the Russian Federation.
The subject of the research is public relations in the sphere of health protection rights, medical care and ensuring sanitary and epidemiological well-being proceedings (in the context of infection safety).
The purpose of the research is formulating recommendations for a conceptual solution of the contradictions that have arisen between the public relations that are developing during the period of COVID-19 counteraction and the current regulatory framework. Research methods: formal-legal, comparative-legal, general philosophical methods (synthesis, analysis, induction, deduction, etc.).
The aim. The article examines the contradictions between the current system of responding to the occurring emergency situations and the established acting procedure and legislative regulation of public relations associated with the COVID-19 spreading counteraction. A proposition has been formulated on the appropriateness of using a specific concept of infectious safety, which correlates but does not duplicate the existing emergency response system.
The main results. It is proposed to call this system a "system for preventing the spread of infectious diseases". Its elements (stages of preventing the spread of infectious diseases) are introduced. It is noted that this system is integrated into the already existing, but unspecified in a sufficient number of legal acts of biological safety statutory regulation. As elements (stages) of the prevention the spread of infectious diseases system it is proposed to consider the prevention of infectious diseases, the elimination of the infectious threat, the restoration of public relations to the state that was in effect at the time of activation the elimination of the infectious threat phase. The content of each stage is reviewed in detail considering new social relations circumstances that are not recognized in the existing emergency prevention system and are not directly affected by it. The abstracts of foreign authors were used, who also note similar problems in public relations of foreign countries (in particular, the United States) in connection with countering the COVID-19 pandemic.
Conclusions. Conceptual conjectures were formulated to resolve the accumulated contradictions between the public relations developing in connection with the COVID-19 pandemic and the existing statutory and administrative institutions in the Russian Federation for the prevention of emergency situations. It is significant to mention that the research is not a comprehensive review on the problem of preventing the spread of infectious diseases, but it provides an additional view on potential ways of solving it. The concept of the prevention the spread of infectious diseases is also opened towards improvement and refinement in future considering new incoming information and legislative innovations.
THE LAW ENFORCEMENT BY THE JUDGES
The subject. Artificial intelligence is considered as an interdisciplinary legal and psychological phenomenon. The special need to strengthen the psychological component in legal research of artificial intelligence and its introduction into the practice of law enforcement and justice, in particular, is substantiated.
The main goal of the study is to confirm or refute hypothesis that AI may be implemented in justice and to substantiate the legal limits of such implementation.
The methodology. Based on the comparison of the current legislation, the practice of its application, and other empirical data, internal and external legal and psychological factors of legal regulation and the use of artificial intelligence in jurisprudence and judicial proceed- ings are identified.
The main results, scope of application. The analysis of legal and doctrinal definitions of artificial intelligence in jurisprudence has shown that their defining and integral part is relationships that are the result of psychological practices and the subject of psychological science (internal factors). Legal studies of artificial intelligence are based on a psychological conceptual apparatus, all of them legally describe artificial intelligence, first of all, as a psychological phenomenon and build an analogy between the psychology of a living intelligent subject and an inanimate object, humanizing the latter. The federal legislator is also following the path of using the psychological conceptual apparatus. Such categories like human cognitive functions and intellectual activity are applied in Russian Federal Law "On conducting an experiment to establish special regulation in order to create the necessary conditions for the development and implementation of artificial intelligence technologies in the subject of the Russian Federation - the federal city of Moscow and amending Articles 6 and 10 of the Federal Law "On Personal Data". The legal and psychological analysis of the practice of using elements of artificial intelligence in corporate governance, justice, labor relations, social insurance, electoral procedures has been subjected.
The conclusion is substantiated that an indispensable condition for the introduction of arti- ficial intelligence and its elements into justice is trust on the part of the disputing parties and the court. Such trust is provided with a real possibility of verifying the actions and decisions made with artificial intelligence by psychologically acceptable and legally formalized methods (external factors). The use of artificial intelligence in law enforcement in general and justice in particular is possible in two directions: (1) solving problems related to the approximation of specialized artificial intelligence systems in legal proceedings to human capabilities and their integration to enhance intelligence; (2) creating artificial intelligence, which is the integration of already created elements of artificial intelligence into a single system capable of participating in justice, but does not have the properties of free will and does not acquire legal personality. Law enforcement using artificial intelligence should comply with the principles enshrined in the European Ethical Charter on the Use of Artificial Intelligence in Judicial Systems and their environment, the provisions of which should be implemented in domestic legislation, having previously been revised in accordance with the national legal tradition.
The subject of the study is the helplessness of the victim as a criminal legal category. The purpose of the research is to confirm the hypothesis about the negative impact of the evaluative nature of the sign "helpless state of the victim" on the unity of law practice. The historical and legal method allows us to consider doctrinal views and case law of applying norms containing the helpless state of the victim in different historic periods; using the comparative legal method, differences in the interpretation of the victim's helpless in different criminal laws are revealed; the formal legal method allows us to explore the technique of legislative recognition of the helpless state of the victim as constructive, qualifying signs and aggravating circumstances; logical methods contribute to the gener- alization of the results of the analysis of case law.
The main results. It is established that the existing definitions of the helpless state of the victim, as a rule, are based on the objective inability of the person to actively resist. Based on the various reasons that cause the helpless of the victim, the following types are distinguished: physical and mental. Two categories of persons are recognized as physically helpless: those who are unable to resist due to internal factors (state of health) and external (related persons). The list of diseases that form physical helplessness is open. However, the court, as a rule, refers to disability or difficulties in movement. It is important when imputing physical helplessness to establish the fact that the victim was in such a state before the start of the committing of the criminal intent. Otherwise, it forms the objective side of the crime. The court, when determining mental helplessness, mainly focuses on the expert opinion. A controversial issue in the doctrine of criminal law remains the attribution of unconsciousness to helpless state in crimes against life and health. The Court takes the position of not attributing. In this case, it seems illogical to recognize a bound person as helpless.In order to maintain the unity of practice, a critical analysis of the approaches existing in the theory of criminal law, the grounds for strengthening criminal responsibility for a crime against a helpless person, has been carried out. These include: method, protection of socially poorly protected groups, peculiar ferocity, provoking factor, cynicism. Taking into account the specifics of crimes against sexual freedom and sexual inviolability and against life and health, it seems more logical to formulate different grounds for them: as a way of committing a crime and as protection of socially poorly protected groups, respectively.
Conclusions. The hypothesis about the lack of unity in doctrine and law enforcement practice regarding the content of the "helpless state" sign of the victim was confirmed. It should be noted that the existing discussion is largely due to the ambiguous position of the Russian Supreme Court. In order to resolve the existing contradictions, it is proposed to determine the fundamental point: the basis for strengthening criminal responsibility.
THE LAW ENFORCEMENT IN PRIVATE LAW
The subject of this study is the legal-economic analysis of the non-fungible token phenomenon. Due to the a priori accessibility of many tokenized intellectual products, the ability to monetize them by copyright methods turns out to be hard to implement. The paper puts forward a hypothesis that token owners apply innovative monetization methods, which do not stand on the prohibition and restriction of access to the protected results of intellectual activity. Instead of deactivated copyright restrictions, token buyers receive some new, additional, non-trivial economic utility that researchers have not reflected yet. If this utility exists, we should identify, analyze and include it in the equation of relations regarding NFT. The second hypothesis of the study stems from the first one. It states that the results of creative activity in the post-economic society take the place of a new etalon of value, which replaces the materialistic standard of worth based on rarity. The consensual value contained in tokenized works brings additional motivators for token purchasers and compensates for the lost sources of income.
Our goal is to put and verify the scientific hypotheses of tokenized works' additional non-obvious value existence. We suppose that this innovative utility substitutes traditional copyright ban-based monetization abilities. The research's purpose is also to theoretically generalize its results and formulate a legal-economic concept that explains the motivation for the purchasers of non-fungible tokens and sets the regulations for the NFT market.
Methodology. The study of the non-fungible token phenomenon and the verification of formulated hypotheses conducts from the standpoint of the law, economics, an interdisci-plinary legal-economic – institutional point of view, as well as with the help of the monistic copyright doctrine of the People's Republic of China. The research methodology also includes an analysis of the relevant body of knowledge and various points of view of the scientists on the subject of research.
The study's main result is the novel elaborated concept of the non-fungible token owner's moral right. This concept fills the rising doctrine of utilitarian digital rights with legal-economic essence. We constructed the non-fungible token owner's moral right consisting of two powers: the right to designate one's name as the owner of a token for a specific creative product and to demand such an indication from others; and also, as a duty of NFT platforms to support the function of informing about the name or pseudonym of the token's owner.
Analysis of the appropriate accumulated knowledge, development, and verification of formulated hypotheses on tokenized works' consensual value and additional economic utility, allowed us to achieve the goals of this study. We resolve the issue of token purchasers' motivation and legal-economic grounds for their rational behavior by formulating and substantiating the concept of non-fungible tokens' owner moral right.
The subject. The paper considers the legal status of non-fungible tokens – a technology that allows to secure and confirm the possession of a certificate that refers to a specific digital object, based on a distributed ledger (blockchain).
The purpose of the article is to research the current state of the legal status of NFTs in the Russian Federation, as well as to determine the applicability of the current Russian legislation to NFTs.
The research methodology is based on the application of methods of systemic and structural analysis, formal logic, as well as methods of legal forecasting and interpretation of legal norms.
The results. There is a lack of comprehensive studies on this issue in legal science. The value of NFT is substantiated through the categories of "rivalrousness" and "scarcity". The process of creating NFT - "mint", that is, the tokenization of a digital object, is described. The legal status of NFT is investigated, as a result of which it is concluded that the token is not equivalent to a digital object, but rather acts as a custodian of information about this object.
Taking into account, firstly, the independent nature of the NFT, which is not only a digital copy of the original work, secondly, the vast scope of utilitarian application and, thirdly, its independent commercial value, it is indicated that in the perspective of the development of legislation and judicial practice, NFT should be regarded as an independent digital asset, the rights to which are subject to legal protection.
Conclusions. At present, Russian legislation does not contain a legal structure suitable for NFTs. The problems of using NFT are highlighted, including the "tokenization" of other people's works, interference in the operation of trading platforms using technical vulnerabilities, as well as fraud. Since NFT can confirm not only the right of ownership, but also represent any subjective right, it is assumed that this technology can be used to maintain decentralized blockchain registries of real estate, shares, members of the society, vote in elections, as well as to verify identity, while simultaneously ensuring the protection of personal data.
The subject. Differentiation in the science of labor law is examined as a feature of its sources; it is named among the principles of the branch and features of the method of legal regulation. The article analyzes the formation and development of the doctrine of differentiation (with an emphasis on its foundations) in the science of Soviet labor law, as well as modern problematic aspects of differentiation in labor law. Alongside the traditional division of the grounds for differentiation into objective and subjective, in the modern science of labor law it is proposed to conduct it on the basis of the structure of the employment relationship and the factor of working conditions. Subjective differentiation is proposed to be associated not only with the personal characteristics of citizens who are the subjects of employment legal relations, but also with the individual characteristics of the employer.
Purpose of the study. It is proposed to specify the criteria according to which the grounds for differentiation are divided into objective and subjective ones (whether the need for special regulation is dictated by the specifics of work or is related to the special qualities of an employee). In addition, proposals are made to improve labour law in order to ensure the effective protection of labour rights.
Methodology. The research was carried out with the application of the formally legal interpretation of legal acts as well as the comparative analysis of Russian and European legal literature. Method of rather-legal analysis are also the basis of the research.
The main results. Thus, the criterion at the foundation of classification of differentiation factors of labour law norms is fairly obvious: whether the need for special regulation is dictated by the specifics of work (that said it does not matter which person will perform it) or whether the specificity of legal regulation is related specifically to the special characteristics of the employee and will appear regardless of the nature of his work.
Consequently, employee's loss of special status entails termination of the specific rules of labour law, regardless of the will of the employer. At the same time, it is advisable to amend the Labor Code of the Russian Federation by establishing the obligation of the employee to inform the employer of such legally significant changes within a reasonable time. At the same time, the norms establishing benefits in respect of such employees should cease to be effective from the moment the employee loses his/her special status (e.g. due to removal of disability, termination of powers as a member of an election commission or member of an elected body of a trade union), while the rules imposing additional obligations and restrictions on the employee may be linked to the moment the employee notifies the employer.
Conclusions. The authors clarified the criteria for classification the grounds for differentiation in labour law and, as a result, proposed amendments to labour law.
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