No 4 (2024)
Articles
Unfair competition: the current state of criminalization
Abstract
The subject of the study is the state of criminalization of unfair competition in the Russian Federation. The article examines the relationship of the Criminal Code of the Russian Federation with the Federal Law "On Protection of Competition", which contains prohibitions on manifestations of unfair competition; the elements of crimes provided for in art. 128.1, 146, 147, 180, 183, 185.3 and 185.6 of the Criminal Code of the Russian Federation, when analyzing objective and subjective signs of which elements of certain forms of unfair competition are seen, as well as law enforcement in the designated area; static data reflecting the current situation of identifying facts of unfair competition in the activities of the antimonopoly authority, law enforcement agencies, as well as aspects of interaction between the antimonopoly authority and the Central Bank of the Russian Federation in the field of countering market manipulation and the misuse of insider information as separate manifestations of unfair competition. The methodology of the research is based on the provisions of the doctrine of materialistic dialectics, as well as a systematic approach, in particular, general scientific and private scientific methods of cognition were used – methods of system analysis, logical, comparative, formal dogmatic method, method of legal forecasting and classification. The novelty lies in establishing the fact of the correlation of crimes provided for in art.128.1, 146, 147, 180, 183, 185.3 and 185.6 of the Criminal Code of the Russian Federation, with the prohibitions of the Federal Law "On Protection of Competition" based on the analysis of objective and subjective signs of the listed crimes, as well as the practice of sentencing in this area, in substantiating the possibility of using articles of the Criminal Code of the Russian Federation to combat manifestations of unfair competition, but also to improve criminal law norms in order to unify their content with the prohibitions of a special law. The conclusions are that the above analysis of the signs of the elements of crimes provided for in art. 128.1, 146, 147, 180, 183, 185.3 and 185.6 of the Criminal Code of the Russian Federation, indicates a certain degree of their compatibility with the prohibitions of forms of unfair competition contained in the Federal Law "On Protection of Competition", although they need to be improved. Appropriate legislative changes are advisable due to the public danger of unfair competition, the level of which may be no less than that of cartels recognized as a threat to the country's economy.
Law and Politics. 2024;(4):1-23
1-23
On the effectiveness of regulatory restrictions in conducting telemedicine consultations
Abstract
The article examines the introduction of an experimental legal regime in the field of telemedicine in the Russian Federation. The authors investigate the general and experimental legal regulation in the field of telemedicine services. It is noted that the main prohibition leading to the emergence of the services in the field of medicine is a ban on clarifying and directly making a diagnosis within the framework of a remote consultation without prior face-to-face appointment with the attending physician. When establishing an experimental legal regime, this prohibition was relaxed, since it is possible to seek remote consultation from another doctor working in the same medical organization and having at least 7 years of experience in the specialty. It is stated that the information services that appeared to circumvent this prohibition are actually medical. In the course of the research, general scientific methods of cognition of the surrounding reality and legal matter, as well as special legal methods, including formal legal ones, were used to achieve these goals. It is noted that when establishing, within the framework of an experimental legal regime, the possibility of prescribing treatment or correcting it by another doctor working in the same medical organization as the attending physician who conducted the preliminary face-to-face appointment of the patient, medical organizations with an extensive network of branches receive advantages for development. In such a situation, it is possible to form two levels of medical care: within the framework of the first, primary face-to-face reception is carried out by the primary link of medical workers, within the framework of the second, specialized doctors conduct remote consultation to the patient (legal representative). The establishment of a ban on diagnosis and restrictions on the prescription of treatment remotely has led to the spread of shady online counseling services. Due to the motives and goals of the patient when accessing such a service, it is essentially medical.
Law and Politics. 2024;(4):24-35
24-35
Methodological foundations of the study of state control in the field of insolvency (bankruptcy): analysis and evaluation
Abstract
The subject of the study is to analyze and evaluate methodological approaches to the study of state control in the field of insolvency (bankruptcy). The article presents the author's established positions on the classification of methods of cognition in the field of theory of state and law. The article presents the author's established positions on the classification of methods of cognition in the field of theory of state and law. The authors of the article analyzed the essence and specifics of the implementation of general philosophical, general scientific and private scientific methods, highlighted their advantages and disadvantages in terms of applicability in the field of insolvency (bankruptcy). The research methodology is based on the use of general scientific and dialectical methods of cognition, as well as scientific techniques such as analysis, comparison and generalization. The scientific novelty of the research lies in the substantiation of the author's methodological approach to the study of state control in the field of insolvency (bankruptcy), consisting of philosophical (dialectical method), general scientific (analysis, synthesis, idealization, historical, systemic and logical methods), private scientific (statistical and cybernetic methods, institutional, functional-structural and communicative analysis, sociological research) and special legal (comparative legal, formal logical) methods. The authors also revealed the specifics of the application of each group of methods in the field of state control in the field of insolvency (bankruptcy). It is proved that the presented methodology makes it possible to comprehensively study the institutional and legislative support for the functioning of the administrative and legal mechanism of state control in the field of insolvency (bankruptcy) and develop relevant directions and measures to improve it.
Law and Politics. 2024;(4):36-49
36-49
The main models of cross-border data transmission regimes: EU, USA and China
Abstract
The subject of this article is the system of regulation of cross-border data flows and its legal regime. Data is a fundamental resource for the development of the digital economy. Today, with the great development of globalization, the presence of cross-border data flows in international trade is inevitable. However, the transfer of data abroad creates hidden threats to the confidentiality of personal information of citizens and national security. Many countries have established data transfer management systems to protect their own interests. Mature data transfer management regimes abroad often become an example for other countries. The adopted laws also served as a model for other countries. The most representative regimes currently exist in the EU, the USA and China, which demonstrate three ways of managing data. The purpose of this article is to compare the regimes of cross–border data transmission in the European Union, the United States and China in order to analyze the structure of the three representative regimes, as well as to study the causes of their formation and the consequences of their functioning. Considering the three systems makes it possible to show more clearly that the European Union, the United States and China have different value orientations, which directly led to the formation of three different legal systems. The free market and national security have become the main elements of national considerations in the development of laws on cross-border data. Based on the conducted research, it can be concluded that the regime of cross-border data transfer in the EU is the most complete and effective, having a demonstration effect. The Chinese system currently has serious flaws. And in recent years, US law has been increasingly focused on serving the interests of geopolitics. Laws on cross-border data transfer demonstrate trends in political instrumentalization. The Balkanization of the Internet is becoming more and more obvious.
Law and Politics. 2024;(4):50-60
50-60
The legal nature of preferential rights in corporate relations.
Abstract
The subject of the research in this article is the study of the legal nature of preferential rights in the activities of legal entities and the definition of the concept of preferential rights in the activities of legal entities in a narrow and broad sense. The study of pre-emptive rights in the activities of legal entities is carried out on the basis of their correlation with real, binding and secundary rights. The relevance of the research is due to the importance of studying the legal nature of preferential rights in the activities of legal entities and the need to systematize views on understanding the development of preferential rights in the activities of legal entities and, as a result, determining the origins of the legal nature of preferential rights in the activities of legal entities. It is also necessary to note the importance of conducting a comparative analysis of preferential rights in the activities of legal entities with real, binding and second rights. The scientific novelty of the research is determined by the goal itself and the results of the work. In the course of the scientific research, the author systematized the information defining the legal nature of preferential rights in the activities of legal entities, offered his vision of the concept of preferential rights in the activities of legal entities in narrow and broad senses, justified his conclusions; analyzed the content of relations on the implementation of preferential rights in the activities of legal entities with binding, real and second rights, their role and the importance for the institution of preferential rights in the activities of legal entities. The definition of preferential rights in the activities of legal entities is formulated in a narrow and broad sense.
Law and Politics. 2024;(4):61-68
61-68