
The Yearbook “Legal Science in China and Russia” [Yuridicheskaya nauka v Kitae i Rossii] is a scientific legal journal that publishes academic papers of theoretical and scientific-informational nature, which determines its publication in illustrated form. The Journal was established by Kutafin Moscow State Law University (MSAL) in 2016 and is devoted to examination of current issues relevant for various branches of law and law enforcement in Russia and China. Articles are published in Russian, Chinese and English.
The Journal is registered by the Federal Service for Supervision in Communications, Information Technologies and Mass Media (Certificate PI No. FS77-66562 dated July 21, 2016) and the ISSN International Center ISSN ( ISSN 2587-9723).
Each article is assigned an individual international index (PO GOST R ISO 26324-2015— discrete object identifier?) DOI.
The journal is included in the EBSCO electronic library.
Current issue
КОНСТИТУЦИОННОЕ ПРАВО
Based on the analysis of the constitutional texts of the countries of the Commonwealth of Independent States, the elements of a promising constitutional and legal model of human rights are identified, which the author defines as additional filling of the content of constitutional rights and freedoms with powers, updating existing mechanisms for their implementation, guarantees and protection, taking into account constitutionally fixed near and far goals, tasks, values and priorities of the development of society and the state.
Emphasizing the commonality of the tasks of the Commonwealth countries enshrined in its Charter and the Concept of further development of the CIS in 2020, the unity of the common basic socialist concept of human rights for all Commonwealth countries, the author concludes, based on the analysis of the constitutional consolidation of the rights of a new generation caused by achievements in the field of scientific and technological progress and biomedicine, that there is a common trend in the consolidation of constitutional and legal models of human rights: attempts to balance between the value of a person, his rights and freedoms, and the concept of the public good.
Against the background of emerging trends towards different interpretations by scientists and practitioners of some professional fields of the category “public health”, there is a desire to understand the proposed formulations from the point of view of law. The author conducts a comparative analysis of domestic and foreign definitions (using the example of the state of the People’s Republic of China (hereinafter referred to as the PRC)). It is noted that the World Health Organization (hereinafter — WHO) has developed three concepts to understand the phenomenon under study. The term "public health" is not reflected in the constitutional legislation of the People’s Republic of China. However, given the variety of fields that Chinese scientists cover with this concept, it can be said that "public health" is presented as a legal institution that is part of the legislation on the protection of citizens’ health. In Russian legal science, the legal basis for the creation of a constitutional law institute was the amendments made to the Constitution in 2020. It is noted that in the development of public health in both countries, a special role is assigned to strategic planning documents, which naturally reflect the leading indicators of public health (determinants of health, risk factors and lifestyle, health status), assess the economic and social potential of states contributing to the achievement of the goal of building a healthy society.
The process of improving the mechanism of legal regulation of migration processes in the Russian Federation mainly meets the need to solve two main problems currently facing the state. The first problem in the area of forced internal migration is the need to solve issues of protecting the civilian population, which the Russian Federation faces after the start of the Special Military Operation. It is concluded that the most rational solution would be not within the framework of international humanitarian law and the application of the UN Geneva Conventions of 1949 and the Additional Protocols thereto, but within the framework of the long-established legislative mechanism of legal regulation of the protection of the civilian population in armed conflict zones in the Russian Federation, providing assistance to persons who fled from combat areas and their adaptation, temporarily or permanently, to a new place of residence, enshrined in the Law of the Russian Federation “On Forced Migrants”. The second main problem facing the Russian Federation in the sphere of legal regulation of migration processes in the context of countering external threats to our statehood is the need to pursue a tougher, and sometimes more severe, migration policy. The need to apply these measures in full became urgent after a number of terrorist attacks that took place, which were organized outside our state and carried out by foreign citizens and stateless persons entering our country.
ENVIRONMENTAL LAW
The article discusses the issues of fuel oil spill in the Kerch Strait. The legislative framework regulating the sphere of oil and petroleum product spills has been studied. The issues of pollution of the coastal zone of the Krasnodar Territory by a water-oil mixture are investigated.
It is noted that in the winter season, oil spills have their own characteristics, in which, under the influence of cold water, part of the fuel oil coagulates and sinks to the bottom, the undisturbed mass, under the influence of wind, is thrown by waves onto the coastal zone.
It is revealed that the material damage caused to the resort industry of the Krasnodar Territory cannot be assessed unilaterally, losses in such cases are formed from the loss of vacationers for many years to come. It has been revealed that in the warm season, a liquid water-oil emulsion is released from the marine environment, which is formed under the influence of elevated temperatures, therefore the coastal zone remains unsuitable for swimming and recreation for a long time, until the complete lifting of restrictive measures by sanitary services.
It is shown that the existing system for forecasting, localizing and eliminating oil and petroleum product spills has significant drawbacks, the main of which are the non-compliance of emergency services with regulatory requirements.
Taking into account the fact that the fragmentation of areas of responsibility by different federal executive authorities does not contribute to the development of the security sector at the proper level. It is recommended that issues related to the protection of territories and populations from oil spills be taken to a new level based on the principles of state interests and expediency, using mandatory liability insurance mechanisms or the complete transfer of security issues to state structures by creating an appropriate unified rescue service.
The main achievement of the Russian climate policy is the implementation of the most important innovative project of national importance, the Unified National Monitoring System for Climatically Active Substances. The article shows that the whole range of threats, risks and opportunities caused by the observed and expected climate changes is important for our country. It is necessary to assess the ongoing and expected climate changes, their impacts on different aspects of our lives, as well as adaptation to these changes. Currently, an essential stage in the formation of the Russian climate monitoring system is the formation of legal mechanisms for its functioning. In addition, there is an obvious need to significantly expand the use of climate monitoring system data for sustainable socio-economic development of the country.
PROSECUTOR'S SUPERVISION. JUDICIAL PRACTICE
The crime of impairing the prevention and control of infectious diseases is stipulated in Section 5 of the crime of impairing social management order in Chapter 6 of the criminal law of the people’s Republic of China (hereinafter referred to as the criminal law), which is article 330 of the criminal law. Under the backdrop of COVID-19, the application of the crime of obstructing the prevention and treatment of infectious diseases is facing new challenges because of the background of COVID-19. This article starts from the theory of the two stratum crime constitution of German and Japanese criminal law. At the illegality, the subject of the crime should be dealt with finely in order to better implement the principle of criminal law, adhere to the principle of a legally prescribed punishment for a specified crime, and at the same time, reconsider blank description of the crime. The legal interest protected by this crime is defined as complex legal interest, and the actual harm result and specific danger are redefined by using “contingency theory”. At the level of responsibility, this paper insists on the view that the form of crime is intentional, and uses the objective exceeding factors theory to make up for it, and refutes several other views. In addition, through the detailed consideration, economic consideration and subjective consideration of criminal policy, this paper discusses how to use this crime scientifically.
In the article, the author proceeds from the premise that the dynamics of public relations forces the legislator to improve the legal regulation of the activities of the prosecutor’s office to ensure national security more reliably. The author shows that challenges and threats to state security make it necessary to supplement the functionality of prosecutors with new tools that allow them to respond more quickly to identified violations in the information space and stop access to illegal content on the Internet using an out-of-court procedure. At the same time, law enforcement practice reveals several issues that the prosecutor faces in the process of preparing and forming an opinion on restricting access to illegal content on the Internet.
The codes of Chinese feudal society were based on the doctrine of legalism, but the judges generally adhered to Confucian philosophy. Although there was also a group of Coolies [strict or harsh officials] in feudal China who were far from Confucian norms of behavior, there were very few of them. It should be noted that the strict officials (Coolies) of the Han Dynasty were different from the later "harsh officials" (Coolies). The former were faithful to the law, while the latter manipulated the law. Some of the strict officials under the Han Dynasty were closer to Confucian norms of behavior.
According to the author, based on the general social environment of Ancient China, the ideal of Confucius was to strive to create a society “without litigation,” and Confucianism was preached by dezhi [virtuous government], zhenzhi [human governance], and lizhi [Ritual-based government]. Therefore, the judgment that the ancient officials were generally Confucianists without mastering legal knowledge is well founded.
The Criminal Law Amendment (XI) adds the crime of sexual assault by persons with care duties, and since this crime is a new crime, many controversies and problems have arisen in judicial practice, such as how to identify the legal interests of this crime, accurately define “special duties”, understand “having sexual relations”, and assess “aggravating circumstances”. These problems not only affect the fair implementation of the law, but also restricts the effective protection of victims. In response to these problems, the legal interests of the crime should be clarified, and the criteria for determining the “subject of the crime”, “sexual relations” and “aggravating circumstances” should be clarified in order to enhance the operability of the application of the law. In addition, the relationship between the crime of sexual assault by a person with care duties and the crime of rape should be analyzed, with the aim of clarifying the boundaries and differences in the application of the law and providing strong theoretical support and guidance for judicial practice.
УГОЛОВНОЕ ПРАВО
The current criminal law theoretical system is the product of the modern time, with a sharp-cut mark of the past time and historical limitations. The coming of the age of globalization entails reflecting the past and expecting the future conforming to the historic missions and the spirit of new era, adhering to the unification of basing ourselves upon the reality and having future in our minds, reforming and innovating the criminal law (theory) all-side so as to establish a new system of criminal law (theory) in the age of globalization.
The coerced civil juristic acts with the right of revocation and the crime of forced transaction belong to two concepts which have nothing to do with each other in the scope of civil law and criminal law, but by analyzing the status quo of the judicial practice of he coerced civil juristic acts and the crime of forced transaction, It can be known that the act of forced transaction violated the party’s freedom of will protected by the civil law and the order of social transactions and the personal rights and property rights of the parties regulated by criminal law at the same time. Therefore, even if the civil law provides that the parties have the right of revocation and a civil compensation system, It is still unable to cover the damage suffered by social rights and interests at the criminal level. Civil validity is not equal to criminal legality, so whether in the state of revocable civil juristic acts or after the elimination of the right of revocation of civil juristic acts, it may be established as a crime of forced transaction. It does not violate the principle of the unification of legal order and the modesty of criminal law, and it is also the embodiment of the reform of the principle of judicial trial of criminal procedure prior to civil procedure. And the establishment of the crime does not necessarily mean the criminal responsibility of the perpetrator, the criminal law gives the litigant the scope to be excused.
In recent years, the problem of juvenile crime, especially the campus violence crime has become increasingly prominent, and has become a hot issue of public concern.
The problem of campus violence crime can be described as "one careless move will lose the whole game", which has seriously threatened the campus security, and even has a significant impact on the physical and mental health of minors and the stability of social security. Therefore, it must be paid high attention by all walks of life in the society.
This topic in order to solve this problem, the impact on the attribution of school violence crime and prevention countermeasures are studied, the related literature at home and abroad research and practice, on the basis of combining with the judicial practice of campus violence governance at home and abroad, through to the campus violence causes properties of carding, analysis the harm of campus violence, school violence crime prevention and control countermeasures, thus effectively preventing school violence crimes do for the society from all walks of life make recommendations.
In this article, we analyze the nature and causes of violent crimes in schools, analyze the necessity of preventing violent crimes in schools, determine the harmful effects of violent crimes in schools according to the current situation and development trend of violent crimes in schools, and provide corresponding legal suggestions for preventing violent crimes in schools, in order to purify the environment for healthy growth of minors and better protect the legal rights of minors, and hope to contribute to the implementation of effective prevention of violent crimes in schools for all sectors of society.
ARTIFICIAL INTELLIGENCE AND LAW
Artificial intelligence is currently widely used by participants in both the Russian market and the global economy. The potential for its further application is significant. At the same time, the widespread use of artificial intelligence in various sectors of the economy, especially in the financial sector, creates not only opportunities, but also carries certain risks, threats and challenges. It seems necessary, on the one hand, to create regulatory conditions for the development of AI technology, and on the other hand, to identify areas for improving the legal regulation of artificial intelligence, allowing for a reasonable balance of interests of consumers, business, and the state and eliminate existing legal uncertainty.
Autonomous vehicle accidents involve drivers, car manufacturers, autonomous driving systems, and suppliers. The question of who is responsible for a significant accident becomes a very complex issue after it occurs. Suppliers must study their criminal liability as developers, controllers, and ultimate beneficiaries of the system. Naturally, individuals have the legal capacity for criminal responsibility in traffic accidents, while car manufacturers, who are independent of the system suppliers, have limited attention obligations due to commercial secrets and technologies. The autonomous driving system has a significant impact on related traffic accidents but is limited by its qualities and technological level and does not have the legal capacity for criminal liability.
Due to the high degree of specialization of technical norms and their high degree of fit to AI products, technical norms are needed to determine the suppliers’ duty of care when the subjective aspect of the crime is negligence. The crime of producing or selling false or inferior products and major responsibility accidents crimes cannot effectively pursue their criminal liability, and the problem of liability pursuit should be solved by explaining or modifying the existing specifications or establishing the crimes of designing, producing artificial intelligence products that do not conform to technical norms.
COPYRIGHT
This article presents the main provisions of the copyright institution in Russia and China. A comparative analysis of copyright objects and the conditions of their protectability under the legislation of Russia and China is carried out, the types of copyright, their content and validity periods are considered, as well as issues of disposal of property copyrights and their protection. The article presents an analysis of a Chinese court decision on the protection of copyright on a financial report generated by a computer program, which became the subject of discussion at the WIPO Intellectual Property Judges Forum.
INFORMATION SECURITY
Children are one of the most vulnerable populations in cyberspace. As they gain more access to the internet and social media, which in turn increases the risk of cyber threats that can have serious unintended consequences. The relevance of the study is determined by the fact that despite the fact that the Internet appeared a long time ago, and children have always been its active users, today the protection of their rights on the Internet is not sufficiently regulated from the point of view of law.
In the Big Data, Chinese society is affected by data technology, and the collection and analysis of information is no longer a random and unpredictable process. Digital citizens’ personal information contains huge interests. Therefore, it is necessary to deal with the relationship between social development under the background of Big Data and cracking down on citizens’ personal information crimes. By sorting out the existing Chinese criminal law norms of citizens’ personal information, and based on the three perspectives of criminal law concept, criminal law legislation and criminal justice, this paper analyzes the punishment and responsibility of infringing citizens’ personal information in China. Finally, based on the dual evaluation model of qualitative and quantitative crime in China, the infringing of citizens’ personal information is regarded as a circumstance crime, and the involved elements of circumstances directly determine the sentencing of the perpetrator. The lack of interpretation in Chinese judicial documents and the incomplete determination of circumstances lead to the discrepancy of case results, resulting in the criminal justice punishment of different judgments in the same case. For the comprehensive determination of the criminal circumstances of infringing on citizens’ personal information, the strategy of focusing on quantitative standards and supplemented by non-quantitative standards is adopted to realize the comprehensive determination and accurate classification of cases and highlight the value of criminal law.
Vicious incidents caused by internet violence that seriously pollute the Internet ecology. Internet violence is an anomalous act that uses the Internet as a medium to endanger the normal order of the Internet and infringe on the personal rights and interests of others through insults, slander, human flesh searches and other behaviors. At the criminal law level, insult and defamation are the main crimes that criminal law applies to internet violence. When applying criminal law to regulate internet violence, there is a phenomenon that "the law does not punish the public" and existing crimes are poorly regulated or even absent. To deal with internet violence at the criminal law level, we should clearly define the boundaries of criminal law’s involvement in social governance, clarify the responsible parties, and adjust the scope of application of relevant crimes.
СОВРЕМЕННЫЕ КОММУНИКАЦИОННЫЕ ПРОБЛЕМЫ НАУЧНОГО ОБЩЕНИЯ
The article examines the terms used to refer to those who administer debtor’s assets under insolvency and bankruptcy and analyzes possible translation options for these terms into Russian language in the context of the Russian legal culture. The author addresses terms such as insolvency practitioner, liquidator, official receiver, administrator, nominee, supervisor, arbitration manager, external administrator, bankruptcy administrator, etc. The author notes that the English legal system is more detailed and specialized when dealing with insolvency and bankruptcy issues. This phenomenon is reflected in the greater number of terms compared to the Russian system that denote various roles of individuals managing the debtor’s assets. Since the conceptual and terminological system always reflects the national specific picture of legal reality, the author emphasizes the importance of thorough study and deep analysis of the terminology of Anglo-American law for lawyers. This may help them avoid inaccuracies in translation, misunderstandings in judicial processes and interpretation of legal documents, and contribute not only to understanding of the differences in legal systems but also to a deeper comprehension of the Russian legal system.