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Legal Science in China and Russia

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No 4 (2021)
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ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Наследственное и семейное право

9-14 1683
Abstract

The family legislation of China and Russia is analyzed. The main characteristics and specifi cs of the marriage contract are revealed. Further ways of development of legal regulation of the considered group of family relations are offered.

15-25 260
Abstract

Testamentary succession is one of the important contents of the inheritance legal system of China and Russia, which fully embodies the spirit of autonomy of private law. Due to the infl uence of different historical culture, traditional customs, economic and political systems and other factors in property inheritance, there exist some legislative differences between China and Russia on the provisions of testator inheritance from the system design concept to the content of the rules. With the detailed and specifi c provisions, the system of testamentary succession in the Russian Federation is deeply infl uenced by the German and Japanese legal systems, while the legislation of testamentary succession in China is relatively principled and brief, which is closely integrated with the reality of China. The analysis of the differences in the basic principles, forms and effectiveness as well as the system of bequest of the two civil codes in both countries in the system of testamentary succession not only contribute to the normative interpretation, application and perfection of the relevant systems of Civil Code in China, but also explores the institutional origin of testamentary succession legislation, so as to realize the balance of testamentary freedom, inheritance justice and social value; At the same time, it also plays a vital role in correctly handling the inheritance relationship between China and Russia, which is also of positive reference signifi cance to the judicial practice of foreign-related inheritance between the two countries.

26-34 561
Abstract

Recently, great changes have taken place in the inheritance agreement system in China and Russia. Article 1140.1 of CCRF has recognized inheritance agreement in 2019 instead of prohibiting it previously. In China, bequest support agreement is stipulated in legislation, and inheritance attendance agreement is recognized in judicature. Article 464 of the Contract Book of CCPRC of 2020 opens up the legal application of inheritance agreement.
China’s inheritance system has its unique characteristics, for example, there is no difference between estate and legacy, the distinction between testamentary succession and bequest is based on whether the subject has the status of legal successor rather than the disposition of estate or legacy, there is no difference between successio in universumius and successio in singulas res, the heritage debt is the legal burden of positive heritage, heritage debt shall not be disposed of in a will, the bequest shall not be exempted from the heritage debt, there are only legal successors but no heir other than legal successors and testamentary successors are only legal successors who inherit by will, there is no forced share but an absolute necessary share for any successor who has neither the ability to work nor the source of income, and neither inheritance agreement nor gift contract is formal. All of those determine that its inheritance agreement must have many characteristics different from those of Europe.
For example, there is a strict distinction between the bequest support agreement with non legal successor as supporter and the inheritance attendance agreement with legal successor as supporter; there is no inheritance renunciation agreement with valuable consideration positively, but the one with negative consideration that a renunciation of the inheritance right is in exchange for exemption of the specifi c performance of attendance; it is suffi cient that the donatio mortis causa has the effect of gift contract, and it is not necessary to act as the inheritance agreement.
China’s orientation of the inheritance agreement is mainly with consideration and centered on support for the old, while Russia’s orientation is mainly without consideration and centered on the disposition of inheritance right in the designated inheritance agreement. In particular, China and Russia have launched a challenge to the doctrine that the effect of inheritance agreement is prior to that of will.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Гражданское право

35-42 305
Abstract

The Civil Code of the People’s Republic of China (hereinafter referred to as the Civil Code) was formally implemented on January 1st, 202. The promulgation and implementation of the Civil Code has become a milestone in the process of the rule of law in China, refl ecting the degree and characteristics of the development of the rule of law in China. Among the many features of the Civil Code, the systematical innovation has become the most remarkable highlight, and the systematical research on the Civil Code has become the focus and hot topic in the academic research on Chinese law. In the research process of scholars, genealogy of law, legal system, the rule of law system and the national governance system are four common categories, each of which refl ects the unique characteristics of China’s civil code from different perspectives and refl ects the consciousness of methodology. The category of genealogy of law shows the cultural characteristics of the civil code. Firstly, from the perspective of the genealogy of law containing cultural factors, the Civil Code integrates the socialist core values with Chinese characteristics, which are showed, for example, in the Marriage and Family chapters and the Right of Personality chapters. Secondly, the category of legal system highlights the normative status of the Civil Code. Observed from the organic integrity of legal system, the Civil Code occupies the core and important position in the socialist legal normative system with Chinese characteristics. Thirdly, the category of the rule of law system explains the characteristics of the new era of the Civil Code. The rule of law system is derived from the innovation of China’s rule of law practice, and is one of the general goals of China’s comprehensive rule of law. In this sense, the formulation and implementation of the Civil Code is an important practice of improving the “complete system of legal norms”. Last but not the least, the category of national governance system outlines the governance characteristics of the Civil Code, and the Civil Code fully implements the governance logic of the overall layout of the country, the Five-sphere Integrated Plan, including the promotion in the areas of economy, politics, culture, society and ecology. The application of the four categories has realized four sorts of transformation of the mode of thinking, namely, from the world’s genealogy of law to the legal system of China, from the form system of the Civil Code to the value system of it, from the generality of civil law system to the particularity of Chinese civil code system and from the normative system of the Civil Code to the national governance system. The transformation of the researching logic refl ects the methodological consciousness in the systematic study of the Civil Code. First of all, the systematic study of the Civil Code has transmitted from ontology through epistemology to the methodological consciousness. Ontological research solves the basic problem of “what is” and clarifi es the basic systematic structure of the Civil Code. The study of epistemology solves the problem of “how to know”, which is embodied the search for the method and path of the cognition of the Civil Code. While, the Methodological research is a re-examination of methods and cognitive approaches, with more refl ective elements, and is a study on the existing systematic research on the Civil Code. Secondly, the four systematic transformations mentioned above refl ect the consciousness of Chinese researchers to take on their mission. Since the founding of new China over the past 70 years, the independent discourse system of the academic research of Chinese scholars and the rule of law has been generated. Seeking the indigenization of the construction of the rule of law in China, seeking the integrity of the knowledge system of law and the rule of law system in China, seeking the harmonious relationship between the characteristic theories and the general theories in the process of the production of Chinese legal knowledge, etc., belong to the question of the age. Therefore, the methodology consciousness in the study of the Civil Code shows the Chinese researchers’ consciousness to take on the burden of the coming era. Third, it should be noted that the methodological consciousness also reveals some problems in the current research on the Civil Code: (1) the researchers should avoid being merely the porters of certain concepts and categories when applying the basic categorical methods, and shall be fully understand each category in the specifi c areas and the latest achievements of related research, avoiding taking the words simply literally; (2) the related various systems and categories should be interpreted basing on the spirit of the age and the characteristics of the rule of law in China, and we should pay attention to the differences and organic links between them; (3) the four categories mostly often be applied by the researchers from the internal system of the civil code, lacking of the comprehensively combination of the internal and external perspectives.

43-51 349
Abstract

On May 28, 2020, at the third session of the National People’s Congress (NPC) of the 13th convocation, the “Civil Code of the People’s Republic of China” (hereinafter referred to as the Civil Code) was considered and adopted. The section “Marriage and family” is the fi fth part of the “Civil Code”, consisting of fi ve chapters, a total of 79 articles, including general provisions, marriage, family relations, divorce and adoption. The value positioning of the section on marriage and family in the Civil Code is refl ected in the general provisions. That is, “marriage and family are protected by law.” “Institutions of freedom of marriage, monogamy and equality between men and women should be introduced in order to protect the legitimate rights and interests of women, minors, the elderly and the disabled.” and “The best family traditions should be established in the family, family virtues should be promoted and the formation of family culture should be appreciated.”
The editing of the Section on “Marriage and Family” in the Civil Code demonstrates the legislative concept of protecting the rights and interests of marriage and family for common citizens, guiding the development of marriage and family, and regulating marriage and family relations. System innovation is refl ected in the following fi ve aspects:
First: The addition of an institute about peers. Article No. 1045 in the Civil Code states: The number of relatives includes spouses, blood relatives and relatives. Spouses, parents, children, brothers and sisters, grandparents, grandparents on the mother’s side, grandchildren and grandchildren are part of close relatives. Spouses, parents, children and other close relatives living together are considered family members.
Secondly: Improving the institution of marriage. That is, the removal and modifi cation of the conditions of the prohibition of marriage: The former provision is excluded — “To suffer from medically recognized diseases for which one should not marry”; To amend the institution of the legal force of marriage: the exclusion and reduction of the established circumstances of the invalidity of marriage and the increase of the established circumstances of the dissolution of marriage; The creation of the institution of marriage assistance: in the conditions of the invalidity or dissolution of marriage, a person who has no fault has the right to sue for damages.
Third: The addition of family relations. Family relations include marital relations, relations between parents and children, and relations between other close relatives. The improvement of the legislation of marital relations is refl ected in the following three aspects: the establishment of the right to daily representation of married couples in family affairs, the criteria for approving the joint debt of the spouses, the right to fi le a claim for the division of the joint property of the spouses in marriage. The improvement of the legislation on the relationship between parents and children is refl ected in two aspects: the defi nition of the institution of confi rmation and denial of parents, and the rules on determining the child’s surname. Fourth: Changing the institution of divorce. This institute continues the main concept of the divorce legislation of the People’s Republic of China — to ensure freedom of divorce and against frivolous divorce; To demonstrate the main goal of assistance in divorce on sexual equality — to protect the rights and interests of divorce and to ensure the interests of women.
The change in this regard includes three aspects: First, the change in the terms of the divorce. The change in the conditions for registering a divorce is refl ected in the defi nition of the sober period of divorce. A change in the conditions of the divorce process, this manifests itself as an addition to the circumstances of the divorce established by law. Secondly, the establishment of a rule on the upbringing of children by divorced parents. Thirdly, the improvement of the institution of assistance in divorce. In this context, we mean expanding the scope of the institute of compensation for contributions to housework, restoring the institute of fi nancial assistance in divorce, improving the application of the institute of compensation for damage in divorce.
Fifth: The addition of the Institute of Adoption. To supplement and improve the conditions of adoption include: expanding the age of the adopted person, clarifying the conditions of the adopted person, optimizing the restrictions on the adoption of children of the opposite sex by persons without spouses, performing the adoption procedure, in the case when establishing an adoption relationship, it is required that the civil affairs departments of the people’s governments at the county level and the highest state bodies conduct an assessment of adoption in accordance with the law.
The “Civil Code” came into force on January 1, 2021. In order to promote the implementation of the “Civil Code”, on December 29, 2020, the Supreme People’s Court published No. 1 explanation “On the application of the Section on Marriage and Family in the Civil Code of the People’s Republic of China”, this explanation is divided into six parts: general provisions, marriage, relations between spouses, relations between parents and children, divorce, appendix, a total of 91 articles, it clarifi ed the circumstances of the application and validity of the Section on “Marriage and Family” in the Civil Code. The entry into force of the Section on "Marriage and Family" in the Civil Code will create a new mentality of creating marriage and family, and provide normative acts and guiding behavior for equal, harmonious and civilized relations between marriage and family.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Государственное строительство и безопасность

52-58 292
Abstract

The research on Russia’s 1993 Constitution by the Chinese constitutional circles mainly
focuses on constitutional norms and constitutional systems, with rare historical attention. In order to
have a complete and profound understanding of the current Constitution of Russia, it is not enough to
focus solely on the constitutional system, but also to know “where the 1993 Constitution came from”. Russia’s current constitution, which was adopted and entered into force in 1993, was enacted at a special historical time. At that time, Russia’s economic situation was unstable, and a new political order was in the process of forming. During this period, the revision of the 1978 Constitution and the enactment of a new Constitution were carried out simultaneously. According to the amended 1978 Constitution, there are elected presidents and elected people’s congresses, and the government is accountable to both the people’s congresses and the president. This form of regime organization is different from the typical form of political organization in other countries of the world. To some extent, there are two power centers in Russia: the president and parliament.
The President and the Parliament were deeply divided on economic policy. As times goes on, the political disputes between the two become more and more intense, affecting not only the revision of the old constitution, but also the formulation of the new constitution. Both the president and parliament want a new constitution that strengthens their position and power. In April 1992, the Sixth People’s Congress adopted the basic provisions of the new draft constitution. However, the President proposed amendments to the Constitutional Council, which is responsible for formulating the draft constitution. In the draft constitution later published by the Constitutional Council, the Powers of the President were expanded. The Parliament was very dissatisfi ed with this. In determining the schedule of the Seventh People’s Congress, only the agenda of the old Constitution had been amended and the draft new Constitution had not been discussed.
In December 1992, the Seventh People’s Congress was held and the Parliament weakened the President’s powers by amending the old Constitution. The president believes that the people’s congress attacks the policies of the president and the government, and that the authoritarianism of legislative power is also dangerous. The president proposed holding a referendum in Russia to resolve the power struggle between the president and parliament. After the victory of the President in a general referendum held on 25 April 1993, the President’s side published the draft constitution of the Presidential version and convened a "constitutional assembly". At this point, the parliamentary side also submitted its own draft constitution. In July 1993, the Constitutional Assembly produced a compromise version of the draft constitution, however, did not settle the power struggle between the President and parliament. In September 1993, with the promulgation of Presidential Decree No. 1400, the confl ict between the two sides quickly intensifi ed and eventually turned into an armed confl ict. On 12 December 1993, a draft constitution was adopted by a referendum in Russia, which was formally adopted in 1993.
Despite the irreconcilable differences between the President and the Parliament during the 1993 constitution- making process, there are also some commonality in the draft constitutions of the two sides, namely, the recognition and adherence to the concepts of "rule of law" and "civil society". The process of formulating the 1993 Constitution is tortuous, but it may be understood if it is analyzed and examined in such a grand historical context as the transformation of Russian society

59-63 1670
Abstract

The article reveals the restrictive measures imposed by Western countries against our country and the retaliatory measures taken to ensure national security. It is recommended to study the experience of reforming and developing the agricultural sector of the People’s Republic of China. It is argued that if used correctly, the sanctions imposed will contribute to the development of the domestic domestic market, especially in the agro-industrial complex, which will spur other sectors of the economy. Keywords: protection, security, law, sanctions, economic measures.

64-70 288
Abstract

 The main socialist values are the soul of socialist legal construction. The introduction of basic socialist values into the construction of the rule of law is an inevitable requirement for maintaining a combination of State governance on a legal basis and State governance on the basis of moral norms, and this is an important way to strengthen the construction of basic socialist values. The promotion of the introduction of basic socialist values into legislation has become an important measure for the introduction of basic socialist values into the construction of law and order and an important way of implementing basic socialist values. From the point of view of the rule of law, upholding the basic socialist values in laws and regulations undoubtedly requires the transformation and elevation of basic values, such as politics and moral norms, to the level of legal norms, so that they can receive a source and normative characteristic of justice, execution and protection.
However, from the point of view of judicial practice and social reality in China, there are other types of norms that serve as the basis for court decisions and the normative basis for the behavior of the subject. Therefore, the “Insurance Law” as the basic law in the fi eld of traditional commercial law, the introduction of basic socialist values developed by a legal source based on the central position of the legislator, and should be based on the Constitution of the Civil Code of China. Here is about the fact that the constitution is the main right and dominant in the legal system of any country
The content “The state supports the basic socialist values” was added to article 24 “Amendment to the Constitution of the People’s Republic of China”, adopted on March 11, 2018. So that the basic socialist values are raised to the level and height of constitutional norms, and, thus, the defense of the basic socialist values has the highest legal force of the constitution. The Civil Code of the People’s Republic of China is guided by the “Constitution”, and in article 1 “the task of legislation” further proposes and requires “the promotion of socialist core values” and accepts the integration of the civil and commercial codes as a legislative tradition and legislative style.
This is what provides the normative basis of the legal source for the introduction of the Law on Insurance into the basic socialist values. Principles and institutions, as the main forms of manifestation of law in the source of law, have also become two fi elds in which the basic socialist values are integrated into the Law on Insurance. Field integration at the level of basic principles should be mainly based on the principle of good faith, but based on the characteristics of insurance activity and insurance management, the overall integrity of the core values should be raised to the highest level of maximum integrity in order to offer a higher degree of honesty to insurance entities.
Integration at the level of institutions requires not only the concretization of the principle of maximum integrity, but also the integration of basic values, such as freedom, equality, justice and the rule of law, into specifi c institutions in order to offer norms of behavior and justice for insurance entities and judicial authorities from the level of a legal source. In addition, from the position of judges in the center of justice, from the legal source, the introduction of basic socialist values has certain disadvantages, therefore, other types of norms besides legal sources should be introduced, such as appropriate judicial explanations about the Insurance Law, in this general fi eld, to help correct the shortcomings of the Insurance Law in the legal source, the full manifestation and implementation of the guiding and guiding role of the basic socialist values in the insurance legislation and insurance practice of China, the effective normalization and leadership of the healthy development of the insurance industry in China, as well as the demonstration and implementation of the contribution of insurance to the socialist economic order of China, and serves as a "stabilizer" of public order.

71-73 365
Abstract

 In order to promote the construction of the China-Mongolia-Russia economic corridor, it is necessary to consider the possibility of joining at the institutional level, it is necessary to create institutions that contribute to the common well-being of the peoples of China and Russia and the establishment of mutual trust between the peoples. Soft law is an effective way to improve the level of mutual trust as soon as possible and promote the construction of the China — Mongolia — Russia economic corridor.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Цифровое право

74-81 375
Abstract

Digital data is a new factor of production in the information age. In the context of the rapid
development of the latest technologies, such as big data, artifi cial intelligence, cloud computing and
blockchain, as well as the continuous development of the digital economy, digital data plays an important role in the development of enterprises. Data security issues affect the development of a country
and its security, are related to public interests, and are also closely related to the personal rights of its citizens. It is necessary to regulate data protection at the legal level.
July 2, 2020 the website of the National People’s Congress published the Data Security Law of the People’s Republic of China (draft), which systematically refl ects the current national point of view on data security and development, noting the improvement of data security to the level of state security. Like the Cybersecurity Law, it is a component of the general concept of national security, belongs to the highest level of law and has the highest legal force. This law is of great strategic importance for building a data protection system in the PRC.
As the main law in the fi eld of data security management ,the Data Security Law has made certain breakthroughs in the defi nition of the concept of data. The concept of data in the Data Security Law is not limited to network data, but includes information recorded in electronic form and in other ways; the necessary extraterritorial consequences are provided for in the draft Data Security Law, which is of great importance for the protection of national sovereignty and civil rights of the People’s Republic of China; the relationship between data security protection, data development and use is clarifi ed, and the status of data in the development of the digital economy is clarifi ed through legislation in order to fully demonstrate the economic value of data; the main body responsible for security, supervision and overall coordination has been created, the main responsibilities of various regions and departments have been increased, supervision responsibilities have been redistributed, which is more in line with the needs and current situation in data security supervision; a data classifi cation system has been established that promotes the relevant work of data security surveillance agencies; an appropriate mechanism has been created at the state level in the system of data security risk assessment, reporting, information exchange, monitoring and early warning; a data export control system and a mutual data protection system were created, as well as the construction of a cross-border data fl ow system of the PRC was standardized; data protection obligations in organizations and for individuals performing data operations and performing data protection duties were clarifi ed; adhere to the principles of security and development and provide measures to support and promote data security and development; institutional measures have been taken to ensure the security of government data.
The draft law on data security contains a comprehensive concept of information security. The upcoming Law on Data Security will contain recommendations and basic principles for ensuring data security and development. All industries will have to pay attention to an integrated management system and various supporting provisions to ensure data security and development. Gradually, a favorable environment will be created for the effective use of data and safe development, which will signifi cantly contribute to the rapid development of informatization and digitization.
The Data Security Law includes all types of information in the fi eld of protection. In the future, the Law on Data Security should pay attention to the Law on Cybersecurity, Law on State Security and Law on the Protection of Personal Information, which are under development, supplement and improve today’s relatively disparate legislation related to data security. The laws and regulations of the PRC on data security will be carefully developed on the basis of these three laws in order to fully implement the development, use of data and industrial development, thereby promoting new provisions in the creation of a legal data security system.

82-86 474
Abstract

The article discusses the issue of legal regulation of the digital currency of central banks. The experience of international organizations, as well as the fi rst steps in this direction from China, represented by the People’s Bank of China and the European Union, represented by the European Central Bank, are examined.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Прокурорский надзор, защита прав человека

87-92 411
Abstract

The article is devoted to topical issues of protection of human and civil rights and freedoms by an important state body — the prosecutor’s offi ce in two states — the Russian Federation and the People’s Republic of China. The author investigated the issue of the formation of prosecutorial supervision in the European space in the mechanism of statehood on the example of the Russian Federation and in the Asian space on the example of the People’s Republic of China.
At the same time, the approaches of the two states to the protection of human rights at the constitutional level, which are regulated by the Constitution of the PRC and the Constitution of the Russian Federation, have been studied. The achievements of the Russian prosecutor’s offi ce in protecting human and civil rights and freedoms, which are the responsibility of the state, including on issues of observance of the labor rights of citizens, the right of citizens to protect life and health, are consecrated.
The state program of action in the fi eld of human rights adopted by the State Council of the People’s Republic of China has also been studied in detail. Achievements in the social sphere are shown, which are provided not only by the state, but also by the prosecutor’s offi ce. The approaches of legal science in the two states are consecrated not only in the regulation of human and civil rights and freedoms, but also in their provision.
Based on the material studied, the author concluded that it is possible to use the positive experience of Russia and China, mutually in both states, in order to ensure the protection of human and civil rights and freedoms in each of them.

93-95 1275
Abstract

THE task of any state is to create a system of state bodies that will be able to function most effectively in order to streamline public relations and recognize a person, his rights and freedoms as the highest value. Such a task is only possible for a properly structured state system of law enforcement agencies. A comparative analysis of the organization of the activities of law enforcement agencies in Russia and China allows us to consider the issues of the identity of law enforcement agencies and the borrowing of international experience in the effective organization of law enforcement activities. Keywords : the Constitution of the Russian Federation, the legal system, law enforcement agencies, law enforcement activities, the People’s Republic of China, the Russian Federation.

96-100 1070
Abstract

As part of the global response of States to the COVID-19 pandemic, most governments are currently forced to take emergency measures to respond to the emerging national threat, introducing bans and restrictions, establishing additional responsibilities and measures to control citizens, which inevitably raises the question of the need to preserve the fundamental principles of the rule of law and the basic constitutional rights and freedoms of man and citizen in the context of the pandemic. The purpose of this article is to analyze the main problems of protecting human and civil rights in the context of a pandemic and to determine the basic principles and rules on which States are based when adopting legislation that restricts the rights and freedoms of citizens.

101-104 548
Abstract

This article analyzes the demographic problems in Russia and PRC. It is concluded that the assisted reproductive technologies (In vitro fertilization, surrogacy, etc.) are effective methods of treating infertility, and thus partially settling those demographic problems. Different views on human rights of reproduction are analyzed. It justifi es the need to protect reproductive health. The number of cases of the use of assisted reproductive technologies in Russia and China is increasing. Legislation governing legal relations in this area needs further development.

105-113 261
Abstract

Neither every dramatic change in ways of production and living, nor the renovation of cognition and culture in human history are not the result of science and technology revolution. Private law culture, important part of human organizational culture and legal culture, is based on humanity, freedom and equality, justice, order and harmony. Present Artifi cial intelligent revolution will not only change human way of living and developing, but also affect private law culture dramatically and destructively, which will affect human beings as a whole and may lead to devastating destroy to humans. Firstly, individuals become digital persons under two-tier space structure, under which self will not be an end, but a device and means to be used by humans. Humans and machines coexist, which promotes artifi cial machines to become subjects, to a great extent. The modern somatic technology may create somatic, emotional or intelligent supermen, furthermore, an inequality between supermen and normal humans will result in reifi cation and objectifi cation of the latter. Secondly, data hegemony may arise from the algorithms and data which are becoming resources, which will make natural persons lose privacy, personal lives, personal space and critical abilities, in the end, natural persons will become transparent ones, furthermore, freedom of the private law will be fading away. Thirdly, data decision-making replaces human decision-making, and algorithm equality replaces formal equality. However, the algorithm black box, the value deviation of built-in program code and deep learning of intelligent machines may lead to permanent prejudice and discrimination against subjects, giving rise to overused algorithm, completely challenge and deviate from fairness and justice that private law seeks for. Therefore, it is necessary to prevent the theories systems and rules the private law from losing cultural values so as to develop high technology, live up to the expectation of humans for a better life, and produce an orderly and harmonious society, which is an important goal of developing an intelligent society: First of all, humans are the main users of technology. The negative effect of technology application is based on perception and morality of human beings. The loss of private law cultural values, caused by the development and change of precaution technology, forces people to consider related perception and ethics, absorb various cultural values, maintain, uphold and advocate technological humanism, guide the development and practical application of artifi cial intelligence technology with ethical goodness, construct scientifi c humanism, and integrate science -technology and humanity. Secondly, the value of justice is relative and developing, which requires integrating the concept of data justice, code justice and algorithm justice into the value and basic principles, providing a new standard of justice for the freedom and equality of the private law, weakening and eliminating data hegemony and algorithm discrimination so that free value and equality of the private law will be recovered. Finally, Related concepts and principles must be included in systems and rules so that the private law subject system is reshaped, the private law subject status of intelligent robots is accepted completely or partly, and the subject-object confusion caused by human-computer symbiosis is removed. Moreover, the legal behavior system must be changed so that the civil subject’s online and offl ine behavior and man-machine collaborative behavior are integrated and standardized, and the potential risks of the harmonious private law order are eliminated. Furthermore, legal right systems are updated and restructured, so that legal attributes and uses of data and information are redefi ned or reorganized reasonably, and the protection of data, information and privacy are strengthened. Last but not the least, the basic imputation principle and causality of civil liability must be renewed so that the liability risks caused by human-machine coordination and the independent behavior of intelligent machines are distributed reasonably, and compensation systems are improved.

114-117 335
Abstract

The article deals with the problematic issues of interpretation of such conceptual concepts as human rights and democracy. According to the authors the Western interpretation of the humanitarian agenda has an independent competing alternative.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Судебная система

118-125 255
Abstract

. After the collapse of the USSR, Russia entered a new social transition period, and reform in the fi eld of state structures, including the legal system, began. The judicial power plays an important role in the process of legal reform, and is manifested at several levels of the state, society and the individual. Based on the gradual completion of the theoretical and institutional construction of the mechanism of action of the judicial power of the Russian Federation at the beginning of the transition period, the judicial power is gradually being put into practice, but as society develops, the mechanism of action of the judicial power dynamically develops in accordance with practical requirements, including changes in the system of judicial authorities, changes in the mechanism of judicial proceedings, improvement of the mechanism of control and ensuring the mechanism of judicial power, as well as separation of the power of execution of a sentence from the judicial power.
In particular, in the system of judicial authorities, due to excessive pressure on the consideration of cases, the institution of justices of the peace, established during the judicial reform of 1864, was restored in order to ease the burden of the federal court and at the same time achieve a quick resolution of disputes between residents; The complete consolidation of the constitutional judicial system led to the gradual establishment of constitutional (statutory) courts of the subjects of the Russian Federation, which would allow improving the foundations of the constitutional judicial system and the constitutional judiciary in Russia; To address the review of judicial practice in cases related to the resolution of disputes on the protection of intellectual rights, the Intellectual Property Rights Court was established, which expanded the requirements of the judiciary in specialized areas; In order to eliminate various differences between the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in the interpretation of many laws, the functions of the Supreme Arbitration Court of the Russian Federation were included in the Supreme Court of the Russian Federation.
As for the reform of the mechanisms of judicial proceedings, the institution of juries was restored during the judicial reform of 1864 in order to get rid of the institutional abuses associated with the institution of people’s assessors in the USSR; During the period of general social transition and judicial reform in Russia, the change in legal concepts and the requirement of judicial practice led to Russia reviewing and evaluating the institution of judicial precentors and; The principle underlying human rights in the Constitution has brought the role of the judiciary in the fi eld of ensuring and protecting civil rights to a signifi cant one, and the mechanism of administrative action has gradually changed with the adoption and application of the Code of Administrative Procedure of the Russian Federation. In the fi eld of improving the mechanism of control and ensuring the mechanism of judicial power, the judicial power, after judicial reform and institutional construction, achieved a situation of developing independence, a control mechanism was created by a subject consisting of the constitutional court of the Russian Federation, the parliament, the prosecutor’s offi ce, an autonomous body of judges, at the same time, the judicial department under the Supreme Court of the Russian Federation provided for the actions of the judiciary in the transitional period of the Russian Federation.
The execution of decisions is the fi nal point of the judicial power, so the issue of the execution of decisions becomes an integral part of the exercise of judicial power in judicial reform, as well as concentrated in civil areas, while a specifi c way of reform is the separation of the power of execution of a sentence from the judicial power. The above will be a manifestation of the institutional transformations of the mechanisms of action of the judiciary to adapt to social development in the transition period. In a special and long process of transition, the judicial power of Russia could achieve useful action, as well as the renewal and transformation of institutions that are formed in practical processes, contributed to the continuous development of the judicial power, while the mechanism of action of the judicial power is continuously being improved.

126-131 280
Abstract

The formation of the Russian procedural legal system is closely connected with its unique historical evolution. Russian Russian culture According to the Norman theory of the origin of the Russian nation, the Scandinavian culture is the most important source of early Russian culture. During the chaotic period of the tribe at the stage of primitive society, the Norman Varian was invited to Russia to reconcile the tribes of Russia and manage them, and this brought the Germanic custom to regulate the socio-economic and legal relations of various tribes. Since the formation of the ancient state of Russia, the ruling class has constantly strengthened the drafting of new laws and regulations, but customary law still dominates the legal system of the state. At the same time, ordinary norms in the system of customary law as a quasi-legal norm between morality and law have become an integral organic component of social customs and norms at all stages of Russian social development.
During the period of Ancient Russia, the common custom of the Slavic people and the Norman Customary Law had a profound impact on the social life of ancient Russia. From the beginning of the 9th to the 17th century, customary law existed as the main legal source for regulating social relations in the late period of the development of Russian primitive society and in the earlier time of feudal society. His coercive force was based on the conviction that was widespread in the social community during this period, that is, "existing customs denote a reasonable basis". With the formation of the East Slavic state, the rulers began to work on drafting new legal norms, but inheritance is still mainly based on customs based on the clan system. As a result, as a rule of conduct recognized and guaranteed by the state, traditional customs gradually acquired a legal nature, and after that, positive law was formed. "Russkaya Pravda" is the most representative legal collection in the early years of the Russian feudal society, "The Truth of Ross", which was compiled according to the customs of the Eastern Slavs, and is the very fi rst positive law of ancient Russia.
Before the appearance of formal law, customary law always played a role and coercive force as legislation, but the self-defense and insane methods of revenge obtained from it also caused social unrest. In order to stop personal self-defense and self-arbitrariness, as well as to strengthen ties between different regions, it is necessary to use the power of common law to unite the Principality into a whole. Although the new law does not exclude the original good customary norms, if there are no necessary penalties for violations, it will be destructive for the law. Therefore, it is necessary to give customary law a legal meaning and a compelling force, without changing the existing content of customary law.
I must say that the German customs and the traditional customs of the Slavic people are intertwined in the historical codifi cation of Russian procedural law, forming a unique historical path of development of the procedural legal system of ancient Russia. Although national customs were recognized by the state in the form of positive law with the help of " Russian Truth”, and became the norm of justice and social norm on the basis of the guarantee of national coercive force, but this did not change the essence of customary law, but the form of positive law was given to it. As the modernization of the Russian judicial system moves into modern times, generations of legislators and lawyers are focusing on the study of national legal traditions and history, trying to discover the natural laws governing the development of the Russian legal system, and are constantly trying to make progress in the modern and modern process of judicial reform. The harmony of legislation, the borrowing of laws and national customs to a certain extent ensured a reasonable adjustment of national laws and norms of customary law.

132-135 526
Abstract

The article discusses the development of jury trials in Russia and China, the results of the work of the state prosecution in Russian jury trials on the basis of data from form No. 1 of the statistical reporting of the Judicial Department at the Supreme Court of the Russian Federation over the past decade. The author provides statistical indicators confi rming the growing popularity of jury trials in Russia. The results of the return of criminal cases by the courts to the prosecutor in accordance with Art. 237 of the Code of Criminal Procedure of the Russian Federation, as indicators of the effectiveness of the prosecutor’s work in courtare discussed.
The article touches upon the problem of a stable increase in the number of acquitted persons in jury trials over the past 10 years. The ways of solving the current situation within the framework of the development of the system of jurors and the institution of public prosecution in the Russian Federation are proposed, which may be an experience for China.

136-145 357
Abstract

This article analyses, clarifi es the theoretical and practical issues of the advisory capacity of the International Court of Justice. Thereby, highlighting the role of the International Court of Justice in the development compliance and enforcement of international law from 1945 to now. Keywords: Jurisdiction, advisory opinion, International Court of Justice, international law.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Экологическое право

146-150 371
Abstract

. The article is devoted to the analysis of China’s great breakthrough in the fi eld of environmental protection. In recent years, the country has made enormous efforts to help reduce the anthropogenic impact on the environment: it has become an advanced manufacturer of consumables in the fi eld of "green" energy, has included the environment in the strategic development plan, adjusted the tax system, which has allowed us to achieve great results and consider these large-scale transformations a real miracle, worthy of attention in the aspect of learning from experience.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Уголовное право

151-154 332
Abstract

It is impossible to establish the circumstances to be proved in the investigation of crimes related to medical errors without the use of special knowledge in the fi eld of forensic medicine. For the designated category of criminal cases, the expert opinion plays a key role in understanding the signs of the objective side of the crime. Unfortunately, in theory and in practice, there is still no uniform understanding of a number of concepts that are important for the development of a legally correct position by the parties to the prosecution and defense. This leads to problems when making procedural decisions by the investigation and the court, provokes public outrage. The article emphasizes that the experts make procedural, epistemological and activity errors in the production of all types of examinations. In relation to forensic medical expertise in cases of crimes in the fi eld of artifi cial human reproduction, some common errors that arise at the stage of formulating questions submitted for the expert’s permission are indicated. This study was carried out with the fi nancial support of the RFBR within the framework of scientifi c project No. 18-29-14084.

155-158 312
Abstract

In comparison with other crimes, the political system has had and still has a great infl uence on the essence and legal registration of crimes against electoral rights. After the 20s of the XX century, the protection of electoral rights by criminal law in China can be divided into two periods: 1) in the conditions of the same political regime-until the end of the 80s and 2) in the conditions of different political regimes-from the end of the 80s to the present. In the fi rst period, the institution of protection of electoral rights by the criminal law of China was borrowed from Soviet Russia. In the second period after the adoption of the Criminal Code (1997), Article 256 has not yet undergone any changes. Currently, there is no incentive in China to change and improve the electoral and criminal laws.

159-162 277
Abstract

The phenomenon of malicious non-payment of wages is widespread in all countries of the world, maybe it is especially serious in China, it has attracted a lot of attention from the Party (CPC) and the Chinese government. Under conditions when the solution of this issue through civil and administrative methods is not very effective, the Chinese legislative bodies, under the leadership of offi cials, fi nally decided to use the intimidating power of criminal punishment to solve this problem, which has tormented the government for many years.
Article 41 “Amendments to the Criminal Code (8) of the People’s Republic of China” states: After article 276 of the Criminal Law, an article is added as one of the articles 276: Evasion of payment of wages to workers by transferring property, escape, etc. Or those who are able to pay, but do not pay wages to employees in the case when the amount is relatively large, and the relevant government departments order the payment of wages, but still cannot pay, are punished with imprisonment for up to 3 years or arrest, and additionally or as an independent punishment — a fi ne; Persons who have committed the same violations that have entailed serious consequences are punished with imprisonment for a term of 3 to 7 years and additionally with a fi ne. If the crime mentioned in the fi rst part of this article was committed by an organization, a fi ne is applied to the organization, and the directly responsible heads of the organization and other directly responsible persons are punished in accordance with the fi rst part of this article. The acts provided for in the fi rst and second parts of this article, which did not entail serious consequences, in which the employee’s salary for work is paid before the charge is brought and appropriate compensation is accepted in accordance with the law, then the punishment may be commuted or released. Article 276 of the Criminal Code provides for the crime of causing harm to production and economy, which belongs to this chapter crime against property (Chapter 5 of the special part of the Criminal Code). Therefore, the crime of malicious non-payment of wages is a crime against the property of citizens (employees).
Due to the fact that the Chinese Constitution does not provide that citizens have the right to receive remuneration, only the Labor Legislation states: that Workers have the right to equal employment and choice of profession, the right to receive wages for work ... In view of this, that from the point of view of legal relations, based on both the Labor Law and the Law on the Employment Contract, the effect of non-payment of wages only occurred between the employee and the employer. According to the employment contract, disputes arising when, after the employee has fulfi lled the contract, but the employer does not pay him wages in accordance with the contract.
The Criminal Code of the Russian Federation provides for crimes of non-payment of wages, pensions, scholarships, allowances and other necessary payments in chapter 19 “crimes against the constitutional rights and freedoms of man and citizen” of section VII “Crimes against the person”. Bringing together the above, the rights to pay for work, receive state pensions and social benefi ts, etc., protected by the Criminal Code of the Russian Federation, are constitutional rights. And also, they are specifi ed in Article 2 of the Constitution of the Russian Federation a person, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the state, specifi ed in the Criminal Code of the Russian Federation.
In China, when criminalizing the action of non-payment of wages, the most fundamental issue that needs to be resolved is to have a basis of justice, that is, to introduce "income from labor" into the Constitution of the People’s Republic of China, which provides for the basic rights of a citizen. At the same time, it is necessary to amend the chapter related to “crimes against the rights of the individual and the democratic rights of citizens in the Criminal Code,” and to amend the “crime against constitutional rights,” as well as the chapter includes “crimes of non-payment of wages, scholarships, pensions and benefi ts”, but should not be included in chapter 5 “crime against property”.
As a result, a comparison of the criminal code between the two countries China and Russia on the crime of malicious non-payment of wages shows that there are contradictions and problems in Chinese legislation, and the political signifi cance of the legislation far exceeds the legal signifi cance, which will directly affect its application in judicial practice.

163-169 355
Abstract

The article examines the stages of the formation of the discretion of the law enforcement offi cer, which fi nds expression in the adopted law enforcement act. It is concluded that the mechanism for the formation of law enforcement discretion functions in parallel with the mechanism of the application of law. At each stage of the law enforcement process, the authorized entity implements one or more discretions on issues that constitute the essence of this stage. Such discretionary elements often do not have external expression and do not have an independent meaning. They, with varying degrees of intensity, infl uence the adoption of the main decision in a legal case. The study of the structure of the mechanism for the formation of law enforcement discretion allows us to demonstrate the objective nature of the existence of this type of discretion and its independence from the presence of discretionary elements in the applicable rule.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Противодействие терроризму

170-179 279
Abstract

In the past 10 years, China’s legislation on terrorist crimes has undergone great changes, which not only responds to the inherent requirements stipulated in the international conventions, but also refl ects the policy governing terrorist crimes. The legislation of terrorist crime presents new dimensions, specifi cally for the preventive strengthening, the increase of severity, the increase of rigour. Under the background of risk society, the legislation of terrorism crime has positive social signifi cance, which is embodied in the combination of punishment after the event and prevention before the event, the unity of behavior harm and personal danger. In the future criminal legislation, it is necessary to enhance the foresight of legislation, promote the scientifi c nature of legislation, and strengthen the effective connection between criminal law and anti-terrorism security law, which should be the development direction of terrorism crime legislation

180-184 372
Abstract

. The article considers the complex characterization of biological terrorism as a special dangerous phenomenon, a threat to the national security of states, a crime of an international nature, a destructive mechanism that affects the change and reformatting of public relations. The complex characteristic integrates knowledge from many branches of science, includes the following elements: criminal law, criminology, criminology, and others, which are interrelated and determine measures to ensure the national security of states in the event of possible unauthorized use of biological agents. The study was supported by the Russian Foundation for Basic Research in the framework of the project “Ethical and Legal Principles of Genomic Research: Limits of interference in human rights”, RFBR project No. 18-29-14015/20.The study was supported by the Russian Foundation for Basic Research in the framework of the project “Ethical and Legal Principles of Genomic Research: Limits of interference in human rights”, RFBR project No. 18-29-14015/20.

ЮРИДИЧЕСКАЯ НАУКА БЕЗ ГРАНИЦ. Современные коммуникационные проблемы научного общения

185-189 1637
Abstract

The article dwells on specifi c nature of professional dialogue of Russian and Chinese lawyers with an emphasis on sociocultural differences arising in communication within the framework of intercultural legal space. The potential of the English language as a common code of communication for members of legal profession of the two states is analyzed. The author concludes that it is necessary to take into consideration sociocultural component in teaching lawyers intercultural professional communication.



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