https://pravovedenie.spbu.ru/issue/feed Pravovedenie 2020-07-03T19:06:17+03:00 Белов Сергей Александрович / Belov Sergey pravovedenie@spbu.ru Open Journal Systems <p>Founded in 1957, “Pravovedenie” (until 2018 know as “Proceedings of Higher Educational Institutions. Pravovedenie”) is one of the oldest and most authoritative academic&nbsp;peer-reviewed legal journals in Russia.</p> https://pravovedenie.spbu.ru/article/view/7633 From the guest editor 2020-07-03T19:06:13+03:00 Vladislav V. Arhipov v.arhipov@spbu.ru 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Владислав Владимирович Архипов https://pravovedenie.spbu.ru/article/view/7634 The effect of legal norms in the digital media space and the semantic limits of law 2020-07-03T19:06:13+03:00 Vladislav V. Arkhipov v.arhipov@spbu.ru <p>In the context of the digital transformation of society, the range of legal problems related to the limits of intervention of the real law into virtual space is becoming relevant. The article proposes to consider such legal conflicts as a reflection of the universal problem of the relationship between the law and the digital media space. The theoretical and legal interpretation of the problem, expressed in the concept of semantic limits of law, is based on the fact that the main problem in this case is the problem of interpreting the law, finding the boundaries between absurdity and common sense. The methodology of the reconstruction of semantic limits of law based on two criteria is proposed: “seriousness” (convertible “socio-currency value” of the subject of relations in the interpretation of T. Parsons, S. Abrutyn etc.) and “reality” (structural and functional adequacy of the subject to the core meaning of the legal norm in the terminology of H. Hart). In the conditions of media reality, this methodology allows us to separate absurd situations from situations where it is necessary to “weigh” values in the meaning of R. Alexy’s approach, as well as from situations that correspond to common sense. The concept can be used in structuring legal reasoning, evaluating law enforcement and legislative initiatives, as well as to serve the purpose of developing the discourse of general and sectoral theory of law, the general interdisciplinary discourse of the medial turn.</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Владислав Владимирович Архипов https://pravovedenie.spbu.ru/article/view/7641 Digital transformation: The legal dimension 2020-07-03T19:06:13+03:00 Nikolay A. Dmitrik dmitric@mail.ru <p>The legal dimension of digital transformation is being formed by approaches to the legal regulation of social relationships backed by the interests of its actors: states, businesses and users. The so-called information law as an amorphous institution without its own subject and method was not able to meet the challenges of digital transformation. Effective regulation should be carried out using the method of de facto possibility coinciding with the legal possibility, i.&nbsp;e. subjective right. The issues of personal data as the main “fuel” of the digital economy are discussed between the state and business. This leads to the exclusion of citizens from the discussion due to their lack of resources to defend their own interests. Such resources may be provided only by the introduction of instruments that guarantee responsibility to the data subject for violation of his or her rights. In the area of industrial and other non-personal data, the lack of regulation is more of a factor for the acceleration of market growth. However, there is growing inequality between parties (equipment suppliers and users) in access to data. The right to access one’s own data, as well as the mechanisms of data portability between platforms, should be the tools to protect the interests of users here. Although the interests of the state in the digital sphere are related to ensuring its own sovereignty, attempts to ground certain types of data on information systems located on the territory of the state (“data localization”) contradict the structure of information flows that have undergone a digital transformation. Under these conditions, regulation should take into account the formation of data sets and services online, at a certain point of assembly, which requires freedom of circulation of metadata on the basis of which the assembly is carried out. The perceived needs and interests help to develop the digital economy in the most equitable way, drawing new subjects into the state of agreed interests and, thus, effectively limiting each other’s interests. Governmental regulation being less efficient should be applied as a last resort, only if legal equality cannot be achieved by the efforts of various participants or interaction of market players.</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Николай Андреевич Дмитрик https://pravovedenie.spbu.ru/article/view/7642 State sovereignty in the conditions of digital transformation 2020-07-03T19:06:14+03:00 Alexey A. Efremov yefremov.law.vsu@gmail.com <p>The article attempts to reveal the key problems of implementing state sovereignty in the information space in the context of digital transformation. Based on a historical-legal and comparative-legal analysis, the periodization of the development of scientific concepts of the content of state information sovereignty in foreign scientific literature is substantiated, and two main approaches to the disclosure of the content of this category in Russian political and legal science&nbsp;— technocratic and jurisdictional&nbsp;— have been identified. It is demonstrated that state sovereignty in the information space represents the legal quality of the state as a special subject of information and legal relations, exercising their legal regulation both within its territory (domestic information space) and at the international level (global and regional information spaces). The implementation of state sovereignty in the information space through the information function of the state (as the activities of state bodies to regulate the information space) and the state information policy (as the content of this activity in a specific historical period). On the basis of the chronological analysis of the Russian information legislation, the main stages of expanding state regulation of the information space are highlighted, and its fragmentation is substantiated. The differences of digitalization are considered as the process of introducing digital technologies into traditional social relations, and digital transformation, as a qualitative change in their content. The influence of digital technologies for processing big data and artificial intelligence on the realization of state sovereignty in the conditions of digital transformation is characterized. It is substantiated that digitalization and digital transformation by themselves do not affect the essence of state sovereignty as a key feature (property) of the state, but they do form new spheres and methods of its implementation, provision and protection.</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Алексей Александрович Ефремов https://pravovedenie.spbu.ru/article/view/7643 Blockchain and the international law regime of activities in cyberspace 2020-07-03T19:06:14+03:00 Mikhail B. Zhuzhzhalov m.zhuzhzhalov@mail.ru <p>From the beginning, blockchain was recognized as significant enhancement of opportunities for interaction through the Internet. Together with smart-contracts, which are an inevitable furtherance of this technology, blockchain allows activities in the Internet to not depend on state support, particularly legal. Consequently, many well-known means for implementing this technology resulted in a surge of anxiety from states. The realization of relations entirely with the framework of cyberspace, often without some manifestation in the material world, with universal access of objects of these relations thanks to the Internet, raise a series of interesting difficult questions which arose earlier, but remained unresolved. This paper focuses on the development of international law norms with specific attention given to the articulation of issues and their affordable solutions. In this regard, in connection with the main topic, the author also discusses the interrelationship between international public and international private law, the concept of property with regard to discussions around the legal nature of “digital objects”, the principles of choice of the law applicable, and a number of other general doctrinal problems as they relate to the realities of the relations arising in “virtual reality”. The article presents a legal analysis of the issues emerging from the application of information technologies, such as the principles of technological neutrality, the autonomy of the Internet cyberspace, the problems of localization of Internet activity, and restrictions of such activities of sites’ owners as a restricting in relation to their domicile jurisdiction. The concept of targeting foreign Internet users and the approaches to “nationalization” of Internet activities is also elaborated upon. The author describes the structure of various legal relations arising from the use of the Internet and makes comments on the preferable legal policy in this area. Significant attention is given to the problems of ownership of mining capacities, and the consequences of their concentration in the hands of individual actors on the Internet.</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Михаил Борисович Жужжалов https://pravovedenie.spbu.ru/article/view/7646 Transformation of copyright limitations in the digital age 2020-07-03T19:06:15+03:00 Dmitrii V. Kozhemiakin dv-k@outlook.com <p>In the article, the author analyzes the current state of the Institute of free use and its transformation by changes in social relations and public demand for reforming the system of copyright limitations and exceptions. The author comes to the conclusion that the request to expand the scope of free use is due to the emergence of a number of practices that are perceived as “legitimate” in society, but violate the provisions of current legislation. Such practices include the use of orphan works and the creation and use of fan works. At the same time, the author identifies three factors as prerequisites for this public request, firstly, it is simplification of the information processing (technological prerequisite), secondly, technology leads to a social request to use copyright objects in a certain way (social prerequisite ), thirdly, the inability to make such use due to the current legal regulation (legal prerequisite). After analyzing the impact of this request, the author concludes that there is a tendency to deviate from the traditional form of a list of restrictions on a closed type and the establishment of open restrictions. This tendency is manifested, firstly, in attempts to reconcile the provisions of the three-step test and the doctrine of fair use, and, secondly, in Russian law in expanding the practice of prohibiting abuse of rights and broad interpretation by courts of existing narrow restrictions by the admissibility of citation of not only the text, but any legally published work. The author notes that the desire to expand the practice of applying an open system of restrictions of exclusive rights is due to its flexibility. Such a system allows courts to adopt legal regulations to fast-changing public relations. Meanwhile, the establishment of restrictions of the exclusive right under the open model carries the risk of legal uncertainty. To solve this problem, the author proposes to use open restrictions of exclusive rights, along with the establishment of special restrictions. This will increase legal certainty in established areas of free use and retain the possibility of adapting the institution of free use to new challenges.</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Дмитрий Владимирович Кожемякин https://pravovedenie.spbu.ru/article/view/7647 Issues of property valuation in the context of legal concepts of ownership in the transition to a digital economy 2020-07-03T19:06:15+03:00 Andrey V. Manuilov man@nwexpert.ru <p>The article discusses the impact of conceptual ideas about ownership in an economic turnover. The concept of ownership creates general conditions for its legal regulation. According to the author, the continental unitary ownership model focuses on securing and protecting property rights, while the concept of shared ownership(as a combination of partial interests) tends to ensure the dynamics of property turnover and the involvement of a larger number of subjects in investment processes. For certain economic conditions, the unitary and divided concepts of ownership create mechanisms that ensure the satisfaction of the demands of the economic turnover (market). Property valuation as an applied economic science serves the needs of the market as an institution independent of the subjects, providing feedback between the existing market prices and the fundamental (internal) market value of property rights. The author concludes that for appraisal science, which inherited the conceptual and methodological apparatus of the American theory of appraisal activity, the concept of ownership fully corresponds to the theory of the “bundle of rights”, i.&nbsp;e. concepts of shared ownership dominant in the Anglo-American legal family. This circumstance led to the de facto decorative character of the Russian assessment under the conditions of the Russian civil law, which quite firmly adheres to the continental doctrine of unitary ownership. Considering digital assets as a new class of economic values, authentic to their circulation environment (Internet), the author concludes that at the present time, when transitioning to a digital economy, a conceptual rethinking of property concepts is practically necessary for the further development of valuation science, according to a request formed by civil turnaround in terms of digital transformation.&nbsp;</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Андрей Вячеславович Мануилов https://pravovedenie.spbu.ru/article/view/7648 On the need to change the approach to the concept of “information” in legislation and judicial practice 2020-07-03T19:06:15+03:00 Anna S. Ozerova annaozerova55@mail.ru <p>The author of the article discusses the meaning of information as an object of legal relations. In connection with the decisive importance of the role of “information” in all spheres of the modern society, the protection of the considered social good is a priority task of the state. However, despite the importance of information, in Russian law there is no systematic and consistent legislative regulation of information relations. Legislative contradictions, the lack of a unified terminology and a scientific approach do not contribute to the effective legal protection of the considered good and the formation of a uniform judicial practice. The author’s understanding of the term “information” as an object of legal relations has been developed on the basis of a system analysis of legislation and law enforcement practices, and its main features have been considered. The author substantiates the conclusion that information is the object of civil legal relations. In connection with this, it is proposed to return to Article 128 of the Civil Code of the Russian Federation as an indication of information as an object of civil rights and the subject of unauthorized access to computer information is analyzed (Article 272 of the Criminal Code of the Russian Federation). The subject of the crime under Article 272 of the Criminal Code is information, access to which is directly limited by law, as well as information in relation to which the holder’s requirement of restrictions on its use (access) is clearly expressed and declared to an indefinite number of persons. The question of classifying the information of the second category as a protected criminal law must be determined by a judge in each specific case. It is concluded that the basis of the legal protection of information is a direct indication of the law or the establishment by the owner of publicly available information of a procedure for handling it. The general availability of computer information implies the possibility of its unhindered use (copying, distribution), and not obstruction, destruction or modification. Criteria are proposed for a court to rule on the provision of legal protection to information that is not directly classified as restricted by the law and methods of unauthorized access to computer information is analyzed. In order to eliminate legal uncertainty, a new understanding of the term “legally protected computer information” is recommended.&nbsp;</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Анна Сергеевна Озерова https://pravovedenie.spbu.ru/article/view/7649 Concepts of legal regulation of cross-border tax relations in the digital economy 2020-07-03T19:06:16+03:00 Karina A. Ponomareva karinaponomareva@gmail.com <p>The subject of the article is the analysis of alternative concepts of permanent establishment in the era of the digital economy in order to clarify the general and specific features of presented proposals. New trends, along with the potential for tax base erosion and profit shifting, have necessitated the renewal of the international tax system to address the challenges posed by the digital economy’s development. The article analyzes the approaches to the concept of permanent establishment in the digital economy on the examples of the proposals by the Organisation for Economic Co-operation and Development and the European Commission, as well as individual states. The variety of proposals presented is driven by discussions on whether the classical concept of permanent establishment remains the solution for determining the right to tax at source in the digital era. The differences between the proposals on the introduction of the concept of significant economic presence and the traditional concept of permanent establishment are considered. The features of the digitalization of the economy, which play a decisive role for international tax policy, are highlighted. The main characteristic of the digital economy, which is important for tax law, is the absence of the need for the physical presence of companies in a particular state. Meanwhile, it is noted that corporate tax systems are still based on the economic reality of the 1920s, when the current tax systems based on territorial and resident principles were created. As a result, there is a discrepancy between the places of profit creation and taxation. In this regard, the institution of digital permanent establishment is an effective legal tool for the taxation of digital transnational corporations. Based on the results of generalization of the proposals for reforming the concept of permanent establishment, the author defines the general criteria for determining permanent establishment. It is noted that the need to prepare responses to the challenges of the digital economy in the new environment is beyond dispute. The effectiveness of the new rules can be achieved only if the measures implemented in the legislation of as many States as possible are harmonized. Otherwise, it will be impossible to ensure uniform regulation of cross-border tax relations.</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Карина Александровна Пономарева https://pravovedenie.spbu.ru/article/view/7653 Torture and other forms of ill-treatment in criminal cases of the European Court of Human Rights 2020-07-03T19:06:16+03:00 Elena K. Antonovich e.ant@inbox.ru <p>In criminal proceedings, respect for the honor and dignity of the individual is considered as one of the fundamental principles of criminal proceedings, proclaimed as such in a separate article of the Criminal Procedural Code of the Russian Federation. At the same time, coercion is represented by the condition of attaining the objectives of criminal procedural activities. Based on the provisions of the Constitution of the Russian Federation, the legislation of the Russian Federation, the decisions of the Сonstitutional Court of the Russian Federation, the provisions of international legal acts, first of all, the Convention on the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, and the legal positions of the European Court of human rights, approaches to the distinction between the concept of “torture” and other forms of ill-treatment are analyzed. The Russian Federation has ratified a number of international treaties aimed at protecting against torture, some of which have been implemented in national legislation. However, the concept of “torture” and the difference between torture and other forms of ill-treatment are not disclosed in Russian legislation. This makes it difficult to assess the act correctly. Attention is drawn to the fact that the Convention for the Protection of Human Rights and Fundamental Freedoms of 4&nbsp;November, 1950&nbsp;strengthens the absolute and unconditional prohibition of torture. At the same time, the Convention for the Protection of Human Rights and Fundamental Freedoms of 4&nbsp;November 1950&nbsp;article 3&nbsp;merely distinguishes between “torture”, “inhuman treatment or punishment” and “degrading treatment or punishment”. In this regard, it is the analysis of the decisions of the European Court of Human Rights that allows us to get closer to their understanding. The analyzed approaches of the European Court of Human Rights do not contradict the concepts of “torture” and other cruel, inhuman or degrading treatment or punishment, which are used in the text of a number of international acts. The analysis allows us to further understand such concepts as “cruel treatment”, “torture”, “inhuman treatment or punishment”, “degrading treatment or punishment” used in legislation and international legal acts. However, the author does not set as his goal an analysis of the criminal law aspects of the problem under consideration.&nbsp;</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Елена Константиновна Антонович https://pravovedenie.spbu.ru/article/view/7654 Protection of legitimate expectations: Practice within European and Russian law 2020-07-03T19:06:17+03:00 Kirill A. Chernovol k.a.chernovol@gmail.com <p>The present article briefly examines the concept of legitimate expectations in light of the right of every person to the peaceful enjoyment of their possessions. It analyzes a practical example of the problem of how the named concept is insufficiently developed in Russian law. The article examines the origins and content of legitimate expectations in a foreign doctrine and reveals the contents and underlying principles of legitimate expectations using an example of case-law of the United Kingdom along with Federal Administrative Court and Constitutional Court of Germany as well as the case-law of the European Court of Human Rights under Article 1&nbsp;of Protocol no. 1&nbsp;of the Convention for the Protection of Human Rights and Fundamental Freedoms. A conclusion is made about the significance of legitimate expectations within the development of fundamental economic freedoms. The author of the article concludes on several perspectives for the development of the concept of legitimate expectations within the case-law of the European Court of Human Rights along with potential benefits of the development of the concept in Russian law concerning the protection of rights of those who conduct economic activities.</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Кирилл Александрович Черновол https://pravovedenie.spbu.ru/article/view/7666 Unity in diversity: Legal and political ideas of Dzhenevra I. Lukovskaya 2020-07-03T19:06:17+03:00 Svetlana V. Volkova s.v.volkova@spbu.ru Nataliya I. Malysheva n.malysheva@spbu.ru <p>The article covers the political and legal ideas of the Doctor of Law, Professor of St. Petersburg State University Dzhenevra Igorevna Lukovskaya. Her studies reflect a wide variety of topics: issues related to the history of legal and political doctrines, theoretical and methodological problems, theory and history of human rights, and types of legal consciousness. The authors apply in their research the methodological tools developed and presented by Lukovskaya in her monograph “Legal and political doctrines: historical and theoretical aspect” and in her doctoral thesis “Theoretical and methodological problems of the history of legal and political doctrines”. The portrait research method is used by the authors to outline her background. The interpretation method developed by Lukovskaya is actively used by the authors as well. The article touches upon Lukovskaya’s criticism, made at the beginning of her research career, of the positivist theories. Special attention is paid to the analysis of the problems of political and legal thought formation in Ancient Greece, examined by Lukovskaya. In her opinion, all the beginnings of the European understanding of law and state policy are rooted there. The article points out that in the classical theme, Lukovskaya brings to the fore the categories of freedom, justice and equality in law. From a current perspective, the studies of Lukovskaya on human rights are highly appreciated. More than relevant for today is her conclusion that human rights are subjective rights possessing first of all the quality of reality, not potentiality. For Lukovskaya human rights are universal and inalienable. An important conclusion follows from her position&nbsp;— the self-value of human rights is fixed in their definition as natural, inalienable rights. Human rights appear to be the fundamental principle of law, and the idea of law is positioned as the idea of human rights. As a result of the analysis of Lukovskaya’s views on modern problems of legal consciousness, the article highlights criteria, proposed by her, for evaluating legal theories: the desire of their representatives for an integrative (integral) conceptual, as well as methodological overcoming of pluralism of theoretical views on law. The article concludes that the main area of Lukovskaya’s scientific works is the search of a way to such a Right, where a Human prevails, his rights and freedoms.</p> 2019-02-01T00:00:00+03:00 Copyright (c) 2020 Светлана Васильевна Волкова , Наталия Ивановна Малышева