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Siberian Law Review

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Vol 21, No 4 (2024)
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PUBLIC LEGAL (STATE LEGAL) SCIENCES

454-469 695
Abstract

The study focuses on analyzing Turkish national legislation regarding the territorial and administrative structure of local governance. The relevance of this research stems from the limited exploration of this subject within domestic legal studies. This article is based on the national Turkish legislation, presented in the Author’s translation. The Author describes the legal framework governing local government in Türkiye’s villages, with particular emphasis on the structure and organization of local governance. The analysis of local government legislation was conducted to achieve several aims: first, to identify the territorial structure of local governance; second, to define the local governance system at the lowest level of public authority, specifically in villages; and third, to clarify the legislative delineation of the roles and responsibilities of local governance bodies and officials. The study explores both the foundational and evolving territorial and administrative principles underpinning local governance in Türkiye, highlighting their resilience and effectiveness, which have endured for over a century. The article draws attention to attempts at reforming these territorial and administrative foundations in line with Türkiye’s broader state development goals. The Author employs general, specialized, and specific scientific methods, including formal-logical, historical-legal, analysis and synthesis, abstraction, and problem-chronological methods, to provide a comprehensive overview of Turkish legislation, examine its evolution, and draw conclusions. Notably, the study identifies a direct correlation between the issues facing rural municipalities and Türkiye’s territorial governance structure, which is, in turn, shaped by the country’s administrative-territorial organization. An analysis of Türkiye’s local governance system throughout the 20th and early 21st centuries illustrates a hybrid model of local governance. 

470-489 711
Abstract

This article examines the academic research school of administrative law, highlighting its importance within the scientific community. An academic school is understood as a cohesive local community of scholars united by a common idea, which forms part of the larger professional scientific community. Key features of a scientific school are outlined, including the presence of distinct research directions, which are typically defined by the scientific interests and expertise of the most influential members of the school. The origins and development of the academic research school of administrative law, founded by Professor Semyon Sevast’yanovich Studenikin, are explored. The article analyzes Studenikin’s foundational ideas that shaped this school and highlights areas of particular interest to him. A brief overview of the scientific achievements of the school’s representatives, which developed and continues to flourish at the Institute of State and Law of the Russian Academy of Sciences, is provided. Three main research areas within this scientific school are identified: theoretical, public-administrative, and the protection of citizens’ subjective rights in the field of public administration. The first two areas were developed by Professor S.S. Studenikin, while the third was pioneered by Professor M.D. Zagryatskov. The contributions of the followers of these scholars, including contemporary academics, to each of the three primary directions of the school are also discussed.

490-516 687
Abstract

This article presents a comparative analysis of the structure of norms in the Code of Administrative Offenses of the Russian Federation, based on positions of the highest legislative and judicial authorities, as well as the opinions of legal scholars on administrative liability for violations committed under extraordinary legal regimes (including states of emergency, high-alert, and antiterrorism regimes). Particular attention is given to administrative offenses outlined in Articles 20.3, 20.5, 20.5.1, 20.6, 20.6.1, 20.7, 20.19, and 20.27 of the Code of Administrative Offenses of the Russian Federation, and their relationship to similar norms in the Draft of the Administrative Code from May 29, 2020, developed by the Russian Ministry of Justice. It is noted that most norms regarding administrative liability for violations under extraordinary legal regimes are drafted as blanket norms that refer to regulatory laws, often without detailed guidance on their application. The Authors suggest that using this legislative approach is appropriate in cases where it enhances the effective implementation of extraordinary regimes and ensures clarity in the regulation of accountability. The Authors conclude that inconsistent changes to administrative legislation can lead to conflicts within the Code of Administrative Offenses of the Russian Federation and propose a comprehensive approach to improving administrative legislation, specifically in Chapter 20 of the Code. This includes developing methodological recommendations to support administrative offense cases related to extraordinary legal regimes.

517-532 663
Abstract

This article examines the role, significance, and operational features of the mechanism through which citizens exercise their right to petition government bodies and local authorities during the Russian Federation's special military operation. Special attention is given to this mechanism within the context of the operation, reflecting Russia’s broader objective of building a participatory model of the rule of law – an endeavor that has acquired particular urgency and importance in the current environment. The study aims to substantiate proposals for enhancing the mechanism that enables citizens to exercise their constitutional right to address public authorities. An analysis of normative legal acts, law enforcement practices, and specific studies on the topic reveal serious deficiencies and accumulated problems in the operation of this mechanism, particularly highlighted by the ongoing military operation. These unresolved issues include the absence of a legally defined procedure for the timely consideration of petitions; inconsistencies in the forms, methods, and procedures for submitting and processing electronic petitions due to a lack of unified standards and adequate legal regulation; the legislature’s failure to implement legal provisions for collective petitions within the existing framework; and the restricted nature of law enforcement agencies’ activities in Russia, which has resulted in numerous violations of citizens’ rights to petition these agencies. To address these challenges, specific proposals and recommendations are formulated for the federal legislature, aimed at rectifying existing gaps and contradictions in the regulatory framework and improving the effectiveness of the petition mechanism. The article places particular emphasis on the urgent issue of submitting or posting collective public petitions, especially in light of recent amendments to the Criminal Code of the Russian Federation and the Code of the Russian Federation on Administrative Offenses, which establish punitive sanctions for public actions aimed at discrediting the use of the Armed Forces of the Russian Federation. The Authors employ contemporary methods of legal analysis, developed and validated within the field of legal science, to conduct a comprehensive examination of the topic and to elucidate its interrelation with other legal phenomena and categories. Additionally, the study utilizes a range of specialized methodologies, including formal-logical, historical, analytical-synthetic, abstraction, and modeling techniques, among others, to thoroughly investigate the issues at hand.

533-560 714
Abstract

The concept of administrative discretion has become a significant topic in legal scholarship, focusing not on abstract legal terms and concepts, but on the fundamental possibility and extent (intensity, boundaries, limits) of judicial review of the legality of discretionary decisions, actions (or inaction) by public administration. In this context, the article examines the legal positions of the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Plenum) as reflected in its resolutions adopted after the enactment of the Russian Federation’s Law No. 4866-1, “On Appealing Actions and Decisions Violating Citizens' Rights and Freedoms in Court”, dated April 27, 1993. These resolutions concern the judicial review of the legality of discretionary decisions, actions (or inaction) of public administration contested by citizens and organizations through administrative and arbitration proceedings. The purpose of the study is to outline the development trends of these legal positions and assess their capacity to ensure substantive judicial review of the legality of discretionary decisions, actions (or inaction) by public administration. Employing dialectical, formal-logical, historical, formal-legal methods, and the method of legal interpretation, the Author concludes that the Plenum’s legal positions have evolved from an initial disregard of the issue to the establishment of concrete criteria for such a review. This progression, despite certain limitations noted in the article, significantly supports meaningful judicial review of the legality of discretionary decisions, actions (or inaction) by public administration, thereby enhancing the protection of citizens' rights, freedoms, and legitimate interests, as well as those of organizations. The Author suggests that a comprehensive solution would not involve the legislative proposal, made by some authors, to abandon the requirement for courts to determine the illegality of such decisions or actions as a prerequisite for satisfying an administrative claim. Instead, a more effective approach would be the enactment of a federal law on administrative procedures, which is currently absent. Such a law would comprehensively outline principles to serve as criteria for substantive judicial review of the legality of administrative discretion. Until the adoption of this federal law, the Author advocates for a new legal position by the Plenum to clarify how judicial practice interprets the legal requirement for satisfying an administrative claim challenging discretionary decisions or actions by public administration. Specifically, this would involve defining the requirement for courts to establish that the challenged decision, action (or inaction) violated the rights, freedoms, or legitimate interests of the administrative claimant. Adopting the proposed legal position, as outlined in this article, would remove the immunity of administrative discretion from judicial review.

561-578 263
Abstract

The article discusses the evolution of legislation concerning the judicial review of administrative offense cases across post-Soviet countries. It concludes that the Fundamentals of the Legislation of the USSR and the Union Republics on Administrative Offenses, adopted in 1980, represented only a partial codification of administrative-procedural norms. However, this legislative act established a tradition of fully codifying administrative tort and related procedural laws, merging judicial and non-judicial processes for handling administrative offense cases into a unified proceeding. In the post-Soviet period, despite this legacy, nearly all neighboring countries have seen a consistent trend of judicial proceedings separating from non-judicial ones in the realm of administrative offenses. Integrating judicial procedures into the administrative procedure code is an exception rather than a rule; instead, these procedures often resemble criminal proceedings, sometimes even referencing criminal procedure codes. Nevertheless, even within the administrative-jurisdictional system, judicial procedures increasingly diverge from non-judicial ones, either evolving into separate procedural institutions or prevailing as the primary procedural framework. In this context, the Author aligns with the views of Yu. P. Solovey and P. P. Serkov, who argue that proceedings on administrative offenses are distinct from public-law dispute resolution, and that judicial consideration of administrative offenses differs fundamentally from non-judicial administrative-jurisdictional activities. Consequently, the article concludes that judicial and non-judicial reviews of administrative-tort cases do not form a single, cohesive administrative offense proceeding. Anticipating future developments in Russian legislation, based on comparative legal analysis, the Author suggests that the adoption of a Procedural Code on Administrative Offenses may serve only as a temporary measure. In the near future, the need to establish a separate procedural law governing administrative offense cases in courts of general jurisdiction may arise.

PRIVATE LEGAL (CIVILITY) SCIENCES

579-595 311
Abstract

In today’s context of growing volumes of personal data and the increasing number of legally significant actions that can be conducted with access to such data, the importance of legal protection for personal data has become more pronounced. This paper aims to examine the nature of the right to personal data. Based on an analysis of Russian legislation, the Author concludes that there exists an unnamed, independent subjective right, which serves to enable the data subject to control and define the conditions for data processing, as well as to protect personal data from unauthorized use. The study critically evaluates the current scientific debate regarding the nature of this right. Three primary approaches in the academic discourse on the autonomy of this right are identified, tentatively categorized as the “ignoring”, “denying”, and “recognizing” approaches. The Author notes the lack of a uniform scientific approach to naming this right and suggests designating it as “the right to the inviolability of personal data”. This right is characterized as an independent, subjective, personal non-property, and absolute civil right. The paper further explores the conditions under which this right arises and terminates. Specifically, it originates at the birth of an individual and terminates when the purpose of personal data processing ceases, typically upon the death of the individual whose data was processed. The need for legal succession is justified to allow heirs to ensure the inviolability of the testator’s personal data if its processing continues posthumously. In distinguishing between the right to the inviolability of personal data and the right to privacy, the Author argues that these are distinct subjective rights. They are interconnected only in theoretical frameworks that enable the use of protective measures for one right when the other is infringed. A trend in judicial practice has been identified, where courts recognize the existence of a right to personal data. Although not explicitly named, this right is nonetheless afforded legal protection.

CRIMINAL LEGAL SCIENCES

596-608 323
Abstract

This article examines the criminal-legal, criminological, and forensic characteristics, as well as specific investigative aspects, of “trash streams” – online broadcasts that display the commission of crimes. These streams contain criminologically significant information and promote unlawful behavior, making the actions of individuals involved in such broadcasts subject to criminal and forensic analysis. It is concluded that current criminal law does not establish separate liability for trash streams; within the framework of existing legislation, there has only been an intensification of criminal responsibility for already established crimes against individuals. In attempts to impose specific liability for trash streams, legislators have not adequately addressed the criminal motives of the perpetrators or the role of “viewers” of these streams. However, complicity provisions allow law enforcement to consider these viewers as accomplices or instigators. The Authors argue that in cases of live broadcasting of illegal actions as specified under Articles 105, 111, 112, 117, 119, 126, 127, 1271 , and 1272 of the Criminal Code of the Russian Federation, it is appropriate to consider the context of the crime’s commission. Meanwhile, the broadcast of recordings of these crimes should be treated as criminalized post-crime behavior. In both scenarios, public morality serves as an auxiliary object of this category of crimes.

609-620 266
Abstract

This article explores the potential for reunification between South and North Korea. Beyond examining statements made by leaders of these countries, it analyzes the content and focus of the criminal laws of the Republic of Korea and the Democratic People's Republic of Korea, particularly regarding the preservation of political systems and inter-ethnic relations, along with changes over time. Criminal laws protect the relationships essential to societal function, which can indicate either concern or a lack of interest from the leadership of the Korean Peninsula’s two states regarding reunification. The study aims to assess the prospects for Korean unification based on an analysis of the criminal legislation of both countries on the peninsula. Judicial practices that enhance the understanding derived from studying current legislation are also considered. In South Korea, despite its economic successes, the country faces significant challenges in maintaining a Korean population base and limiting immigration. Additionally, the Republic of Korea prioritizes safeguarding its liberal democratic system from North Korean communist ideology. These concerns are reflected in criminal law norms that comprehensively and stringently address these issues, symbolizing a barrier to North Korean ideological influence. In North Korea, concern for Korean reunification exists, albeit in a different form. According to the criminal laws of the DPRK, the leadership emphasizes maintaining weak diplomatic relations with other countries, reinforcing the Korean people's struggle for reunification, and protecting the Korean nation overall. However, the repressive methods employed by the DPRK to implement criminal norms ultimately hinder North Korea’s chances of reunification with the South. The Authors assess the prospects for political unification of the two Korean states as unlikely, though they express hope for greater interaction between the Korean people.

621-635 380
Abstract

This article addresses the criminal-legal characteristics of the location of cybercrimes – offenses committed using electronic or information and telecommunications networks, including the Internet. The concept of the crime’s location in criminal and criminal procedural law is examined, including possible approaches to defining a unified concept of location, which is associated with specific legal consequences in criminal and criminal procedural law: sector-specific (focused on issues within a specific field) and cross-sectoral (aiming for a universal definition applicable across fields). It is noted that all approaches require defining the crime’s location based on legal fiction. This means the crime’s location is formally tied to the territorial localization of one of the crime’s elements (usually the place of action and/or the place of social harm). Based on the explanations provided by the Plenum of the Supreme Court of the Russian Federation and current judicial practice, it is concluded that both criminal and procedural law regard the crime’s location as determined by the time of its commission (as per Article 9, Part 2, of the Criminal Code of the Russian Federation). Therefore, the location of a crime is considered to be where the socially dangerous action (or inaction) occurred, regardless of where the consequences took place. The article also analyzes issues surrounding the determination of cybercrime locations, considering the complex design of their objective aspects. The location of a single cybercrime involving several illegal actions, separated in both time and space, should be considered the location of each action. Procedurally, such a crime is regarded as “initiated in one place and completed in another”, which affects jurisdiction based on the “place of completion” (interpreted in procedural, rather than criminal, terms). This is typically the place where the final act that constitutes part of the crime occurred (per Article 32, Part 2, and Article 152, Part 2, of the Criminal Procedure Code of the Russian Federation).

 



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ISSN 2658-7602 (Print)
ISSN 2658-7610 (Online)