Статьи номера | Issue №34

Articles of the journal issue №2 (34) (2nd quarter of 2020)

All articles in PDF

Yury V. Kosolapov, Anna Al. Sivova. Transportation of offenders by specific transport means in foreign countries

UDK: 348.3

Yury V. Kosolapov - Candidate of Chemical Sciences, associate professor of the department ‘Customs law and organization of the customs affairs’ of the Law Institute of the Russian University of Transport

Anna Al. Sivova - Candidate of Philological Sciences, head of the department for the study of domestic and foreign experience, history of the penitentiary system, comparative analysis of the penitentiary law of the Research Institute of the Federal Penitentiary Service of Russia

Abstract. The current paper has considered the problem of the transportation of convicted persons and persons taken into custody in foreign countries, based on the requirements of international regulations, national legislation in the field of escorting this category of people, as well as on penitentiary practice in the United States, Great Britain and Switzerland. There has been consistently proved that the modification and technical characteristics of any type of specific transport for escorting offenders must meet its purpose due to the principles of humanity with respect to those accompanied and traffic safety.

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Nikita Iv. Tyulenev. Legal basis for granting access to railway infrastructure in the Russian Federation and the Republic of Poland

UDK: 338

Nikita Iv. Tyulenev - leading legal counsel of the Kaliningrad railways, a branch of the JSCo “RZD”, Master's degree in Law

Abstract. In the conditions of a modern mobile and rapidly developing market, the industrial, processing, and trading enterprises need operational logistics support for their activities. Nowadays railway transport plays an important role in freight market formation, which ensures its stable participation in the transport system of any country. In the Russian Federation, railway transport operates on a partially competitive basis, i.e. partial privatization with a large share of state capital, both from the financing of the industry, and in performing administrative functions. In turn, the railway transport sector in the European Union is mostly represented by private carriers, logistics operators, and the state-owned company is the owner of the transport infrastructure. The developing strategies and programs for railway transport in Russia suggest the formation of a competitive freight market based on the principles of separating transportation services from railway infrastructure services. Taking into consideration the efficiency of the system in European countries, the current paper has analyzed the current legal regulation of the interaction of the carrier and the owner of the infrastructure in Russia and Poland, as a member country of the European Union, where there is a railway freight market with high rates of competition among its members.

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Ivan V. Kholikov., Aleksandr Ig. Zemlin. The main tendencies in criminal legal regulation of transport activities in the People’s Republic of China

UDK: 341.9:347.965

Ivan V. Kholikov - Doctor of Law, professor, professor of the department of state-juridical disciplines of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, deputy supervisor of the direction ‘Transport security’ of the Scientific-Advisory Section of the Center for Security Studies of the Russian Academy of Sciences (SAS CSS RAS)

Aleksandr Ig. Zemlin - Doctor of law, professor, head of the department ‘Transport Law’ of the Law Institute of the Russian University of Transport, honored scientist of the Russian Federation, supervisor of the direction ‘Transport security’ of the Scientific-Advisory Section of the Center for Security Studies of the Russian Academy of Sciences

Abstract. The current paper has examined the present state and main tendencies in the development of the criminal legislation of the PR China after the adoption of the Criminal Code in 1979, due to the political and economic changes. Taking into account the significant formal and dogmatic shortcomings identified in the process of law enforcement there has been a great necessity to make significant amendments through the adoption of numerous regulatory legal acts in the field of criminal law. This circumstance undoubtedly introduced a certain dissonance into the entire system of this legal branch. In order to form a unified and holistic view of the current Criminal Code, there has been conducted an analysis of the individual amendments which are the most important for the regulation of transport relations adopted in recent years. The current paper has also provided an overview of the current criminal law practice in China, has presented some crime statistics, discussed the tendencies specific to the criminal regulation of transport activities. At the same time, the authors have emphasized the attention paid by the Criminal law of China to the issues of enforcing the transport infrastructure security, both from the point of view of economic development, and ensuring geopolitical stability and security of the state. Indeed, for China, transport is the most important component of the country's economy, as well as the infrastructure component and the basis for the development of all other types of economy. In this regard, there has been emphasized that the specifics of China’s positive criminal law in the field of liability for crimes against transport security is that the legal provisions providing for the corresponding criminal sanction for offenses, in particular, in non-compliance with the established procedure for the functioning of the elements of the transport complex were formulated by simple dispositions and at the same time they had a minimum number of qualifying features. There has been noted that the specifics of the positive law of China in the field of criminal liability for violation of traffic rules, on the contrary, is the legalization of an impressive array of qualifying features. The abovementioned has allowed the authors to conclude about the necessity for constructive cooperation between legal scholars of the two states. The authors of the paper consider that the study of the problems of counteracting certain types of modern crime is an important area of scientific cooperation. No less significant is the interaction of the leading transport universities in Russia and China, which train lawyers in transport, as part of joint projects to study the experience of teaching legal disciplines, exchange students for various programs, including postgraduate programs, as well as networking.

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Dato R. Makharadze. The application results of the July 13, 2015 No. 246-ФЗ Federal Law in the Department of State Automobile and Road Supervision

UDK: 351.811.12

Dato R. Makharadze - senior state inspector of the Department of State Automobile and Road Supervision of the Rostransnadzor

Abstract. The current paper has analyzed the introduction of a number of significant amendments to the Federal Law “On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Implementation of State Control (Supervision) and Municipal Control”. The authors have studied the results of the weakening of the control impact on legal entities and entrepreneurs in the field of automobile transport and road economy. The paper has analyzed the changes in the existing way of interaction of the control and supervisory authority with economy entities by introducing holidays for small and medium-sized businesses and the transition to a risk-based approach in state control. The paper has considered the practice of creating a checklist taking into account the risk level of an economic entity, introducing transport control information systems based on the risk-based approach method and allowing remote monitoring of entities, contactless interaction with entities, and making decisions on supervisory response measures. Based on the application of systematic legal analysis methods, there have been studied the results of the planned inspections conducted by the Rostransnadzor. There has been estimated the statistical data on holding persons administratively liable since 2015. There has been also considered the efficiency of such a form of control and supervision activity as planned (raid) inspections of vehicles, which are carried out without interaction with economic entities. According to the study results there have been determined the directions of further study of the issue.

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Vladimir Al. Iliin. Comparative analysis of amendments in the Federal Law «On Transport Security» with regard to maritime transport

UDK: 347.463:656.61

Vladimir Al. Iliin - chief specialist of the Transport Security Support Devision of the Security Management Department of FSUE ‘Rosmorport, kokso@mail.com

Abstract. The current paper has presented the analysis of amendments in the regulatory legal framework for enforcing transport security with regard to maritime transport. Due to the applied methodology of legal analysis using the achievements of transport and legal science, there have been considered a critical understanding of the innovations in the legislation on transport security and their possible consequences for maritime transport. The incentive to write the current paper was the issued in August 2019 Federal Law No. 270-ФЗ “On Amendments in the Federal Law “On Transport Security” and Certain Legislative Acts of the Russian Federation on Providing Transport Security”. The law necessitated adjustments to the organization of work of transport infrastructure entities to enforce security of operating transport infrastructure facilities and vehicles of all modes of transport. The aforementioned Federal Law has made significant changes, for example, in the basic concepts, cancellation of categorization, vulnerability assessment, transport security requirements, planning and implementation of measures to ensure transport security, rights and obligations of transport infrastructure entities, training and certification of transport security staff, etc. At the same time, after coming into force of certain provisions of the Federal Law “On Transport Security” on January 30, 2020, the issue of fulfilling transport security requirements has still remained unclear for transport infrastructure entities (carriers) in maritime transport because of absence of by-laws and regulations that take into account the amendments in legislation. In this regard, taking into consideration the existing lag of by-laws, the current paper has explained the main provisions of the amendments with regard to maritime transport. There has been conducted the analysis of their effect on implementation of the requirements of the legislation in enforcing transport security, and has been made corresponding conclusions. According to the formal legal analysis of the provisions of the Federal Law “On Transport Security”, taking into account the amendments, the current paper has considered the problematic issues related to the extension of the requirements established by the new version of the norms of this act to almost all vessels used for merchant shipping.

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Olga M. Zemlina., Maksim M. Gaditsky. Legal characteristics of anti-terrorism security of railway transport

UDK: 343.34

Olga M. Zemlina - Candidate of law, docent, associate professor of the department ‘Transport Law’ of the Law Institute of the Russian University of Transport, honored worker of high professional education of the Russian Federation, member of the direction ‘Transport security’, an expert of the Scientific-Advisory Section of the Center for Security Studies of the Russian Academy of Sciences (SAS CSS RAS)

Maksim M. Gaditsky - Master’s Degree student of the Law Institute of the Russian University of Transport

Abstract. The current paper has considered some factors of the current increase in terrorism on railway transport, which is characteristic not only for Russia, but also becoming universal. The authors of the current study have used formal legal analysis tools and a systematic and legal approach. The current paper has identified the essential features of legal categories that are in a gender-specific relationship and dependent on the concept of “transport security” legalized in Russian law. As a result, the authors have formulated a definition of “anti-terrorist security of an object” being a part of the concept of "transport security". They consider that "transport security" is always considered in the narrow sense of the word, characteristic of the legal interpretation of the analyzed term; and it includes only the protection of transport infrastructure from terrorist crimes and does not affect other illegal actions that could have a negative impact on the degree of security and, accordingly, the efficiency of the transport complex and the transport system of Russia. According to the analysis of the issues of legal regulation of various aspects which enforce security of transport the authors have made a reasonable conclusion about their obvious omissionship and, in part, contradiction, which determines the necessity to resolve these problems of positive law in Russia. The current paper contains definitions of the constituent elements of terrorist criminality in railway transport. There has been substantiated the necessity to improve the anti-terrorism security of railway by establishing the priority of an interagency integrated approach. There has been proposed a set of measures to eliminate the terrorist threat. In particular, there has been proposed to consider the anti-terrorism security of railway transport as an independent direction of the state’s criminal policy.

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Tatiana An. Polyakova, Aleksey Ig. Khimchenko. Formation of an unmanned transport system: issues of public policy implementation, enforcement of information security and legal regulation

UDK: 347.823.4

Tatiana An. Polyakova - Doctor of Law, professor, acting head of the sector of information law and international information security of the Institute of State and Law of the Russian Academy of Sciences, honorary lawyer of the Russian Federation

Aleksey Ig. Khimchenko - Candidate of Law, applicant of the sector of information law and international information security of the Institute of State and Law of the Russian Academy of Sciences, honorary lawyer of the Russian Federation

Abstract. The current paper has considered the legal issues connected with the increasing importance of the use of unmanned vehicle technology. There have been analyzed the features, trends and approaches to expand the application of these technologies. There has been made an analysis of the international practice of several countries being initiative to legislatively regulate relations arising with the participation of highly automated and unmanned vehicles and their operation. There has been studied the current Russian legislation, program documents and strategic planning documents in the field of legal regulation of unmanned transport technologies. The current paper has focused on the relevance of the issues of ensuring the confidentiality of personal data of drivers and users of vehicles, enforcing the information security of the information infrastructure of unmanned vehicles and the developing information systems, including the security of information about traffic users, and ensuring protection against cyber attacks. Based on the study results of regulatory trends and issues, as well as for solving the upcoming tasks in the development of unmanned transport technologies, there have been formed the recommendations on the issues of legal regulation of new unmanned transport technologies.

The study was financially supported by the Russian Federal Property Fund, research project 18029-16013.

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Svetlana V. Borisova, Aleksandra Ig. Lavrentieva. Copyright protection on railway transport

UDK: 347.463

Svetlana V. Borisova - Candidate of Law, docent, associate professor of the department ‘Civil law, international private law and civil procedure’ of the Law Institute of the Russian University of Transport

Aleksandra Ig. Lavrentieva - student of the Law Institute of the Russian University of Transport

Abstract. The current paper has presented the study of the legal mechanism for the emergence and use of copyright in a state-owned holding company on railway transport. There has been noted that the use of copyright is carried out taking into account the specifics of their legal nature as objects of civil rights and is regulated at the federal and local levels. The state-owned holding company in the railway sector has successfully operated its own organizational and legal model of their use. For these purposes, a special department has been created at JSC "Russian Railways" that carries out internal accounting of copyright objects by introducing these objects into a special register of copyright objects of JSC "Russian Railways". The authors have also indicated that copyright objects can be created both by employees of JSC "Russian Railways" and by third parties under a copyright agreement, a contract on the creation of a work, including a scientific work, a film, etc. In the case of the creation of works by third parties, the exclusive right belongs to JSC "Russian Railways" as a customer. If the works referred to as official works are created by the employees of JSC "Russian Railways" and other holding members in a course of their labor duties or a specific task of the employer, the employer has got the exclusive right to them, as indicated in the local acts of JSC "Russian Railways". Therefore, there has been recommended to human resources’ employees, when signing employment contracts with employees of JSC "Russian Railways", to include the condition of an employee’s agreement to recognize the exclusive right of the employer on all official copyright objects. According to the authors, the refusal of JSC "Russian Railways" to sign an employment contract with an employee because of his disagreement to include the said point into the agreement should be considered illegal. There has also been noted in the work that computer programs as objects of copyright can be part of a complex object of an innovative project, intellectual rights to which can be held jointly by the holding participants and third parties.

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Marina An. Popova. Transport thefts as a type of mercenary crime: state and development trends

UDK: 343.7

Marina An. Popova - post graduate of the department ‘Criminal law, criminal procedure and criminalistics’ of the Law Institute of the Russian University of Transport

Abstract. In Criminal law, a mercenary motive is one of the predominant motives that has a criminal and legal value due to its rather frequent consolidation in criminal law norms, both as an obligatory sign of the subjective side of the crime, and as an additional or optional one. Meanwhile, in the criminal legislation there is neither legal definition of a mercenary motive, nor a section or chapter highlighting the list of mercenary crimes that make up the predominant part of modern crime. The gap is filled up by the various interpretations of both a mercenary motive and mercenary crimes, accompanied by their multiple classifications according to various criteria. Undoubtedly, a theft is one of the mercenary crimes, which is a significant part of all registered criminality in the Russian Federation, as well as crimes committed on transport. In this regard, the current paper has presented a brief criminological description of thefts committed on rail, air, river and maritime modes of transport. For this purpose, the author has analyzed the dynamics of thefts for the period from 2015-2019, identifying and evaluating their share in the structure of transport crime. The author has noted that the greatest number of thefts was committed annually in rail transport, therefore, they could act as a statistical image of thefts committed on transport. This fact has predetermined the author’s choice when characterizing the state and dynamics of certain types of thefts, including those committed on trains, at railway stations and stations, theft of goods on railway transport, theft of petroleum products, metals.

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Tatiana Al. Dikanova. On the criminality state on railway, water and air transport in 2015-2019

UDK: 343.9:656

Tatiana Al. Dikanova - Doctor of Law, head of the department of scientific support for prosecutorial supervision and strengthening the law in the activities of customs and transport of the Research Institute of the University of the Prosecutor's Office of the Russian Federation, honorary worker of the prosecutor's office

Abstract. The current paper has presented the analysis of the criminality state on railway, water and air transport and the fight against it over a five-year period, of the factors contributing to crime, crime prevention measures. There have been shown the main causes of criminality on transport, the features of the activities of law enforcement agencies in transport to enforce the rule of law in the transport sector. There have been identified the disadvantages of the current statistical reports on criminality in transport. There have been made the suggestions to improve law enforcement in transport.

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