“It seems to me that education in Russia is very good. And it seems to me that in Russia there are a lot of talents and a lot of interesting things from the point of view of technology. ”On the other hand, the judge of the Constitutional Court Aranovsky K.V. in a dissenting opinion in the Decision of the Constitutional Court of the Russian Federation on the case of checking the constitutionality of the provisions of paragraphs 1 and 2 of Article 3 of the Law of the Russian Federation “On Employment in the Russian Federation” in connection with a complaint of a citizen M.V. Tchaikovsky, spoke very critically on October 8, 2019:
“Then it will probably be possible to re-discuss how much vocational education certifies access to professions and whether the exercise of certain rights should be associated with diplomas.”At the same time, Aranovsky K.V. motivates the connection of these constitutional rights with the conditions:
“If professional education confidently guaranteed the qualifications of diploma holders, then in the constitutional balance of interests and values this would probably have a different weight, which would give more reasons to maintain the credibility of the diploma, so that possessing it would be a condition for exercising freedom of work and related right. ”As can be seen from the statement of Aranovsky K.V. There is a direct link to professional certification and the scope of human rights. And such a relationship, confirmed by the position of a judge of the Constitutional Court, can be an argument for strengthening the position in the event of the initiation of legal proceedings while protecting the rights of the author. I will try to reveal this aspect in this material.
The relevance of the judge’s position can be confirmed by the words of a successful person from the other end of the world, Jack Ma ( Ma Yun, Jack Ma ):
“After 20-30 years, our children simply will not be able to survive with the education that we give them” ( Eng. ).
I suppose that the motives of the opinion of Judge Aranovsky K.V. they are worried about the current situation with higher education in Russia and addressing the “administrative estate” with a request, on behalf of the masses, which Vladislav Surkov , in his article “The Long State of Putin” , has vested with the following properties:
“With their gigantic supermass, the deep people create the irresistible force of cultural gravity, which unites the nation and pulls (pushes) the elite to the ground (to their native land), from time to time trying to cosmopolitanically soar.”I will explain in a simple outline the essence of the problem that the Constitutional Court considered in this process. Citizen M.V. Tchaikovsky turned to the employment center with a request to recognize him unemployed. The employment center refused to grant him this status, based on the fact that he did not provide the necessary copies of documents from the established list: income statement and documents confirming qualifications. The citizen appealed to the court and the courts of first instance and subsequent recognized this refusal legitimate. Then he turned to the Constitutional Court of the Russian Federation. The court examined the circumstances of the case and found that the requirements of the employment center were unlawful.
The logic of the interconnections of the Constitutional Court was argued by the fact that diplomas of qualification are not mandatory, since the state undertakes to recognize potentially all citizens of the Russian Federation as unemployed, including those who do not have any qualifications.
Referee Aranovsky K.V. considered that such a system of argumentation is not enough in this matter and that the logic of recognition should be approximately as follows. The differentiation of the number of rights that the state guarantees to a certified specialist should occur when the state has provided a full range of opportunities for the realization of human talents in the field of socially useful activities. And already on the basis of the successes of this person, differentiation is possible. But at the moment this is not, and cannot be theoretically, since the higher education system in the Russian Federation, for the sake of the "administrative class", is on a path that ignores the whole experience of mankind.
In order for the Khabrovites to more clearly understand the logic of the judge, I consider it necessary to clarify that the judge does not operate on moral and ethical criteria accepted in society. This is explained quite well in the textbook by A.N. Golovistikova, Yu.A. Dmitriev. Problems of the theory of state and law: Textbook. - M .: EKSMO, 2005 .:
“Morality and law have different evaluation criteria for human behavior. The law uses such criteria as lawfully - illegally, lawfully - illegally, has the right - bears the duty, etc. There are other criteria for a moral assessment: morally - immorally, honestly - dishonestly, meritorious - shameful, noble - mean, etc. "These principles are laid down in the norms of articles:
1) Code of Civil Procedure of the Russian Federation Article 16. Grounds for challenging a judge
3) is personally, directly or indirectly interested in the outcome of the case, or there are other circumstances that cast doubt on its objectivity and impartiality.2) APC RF Article 21. Recusal of a judge
7) made public statements or assessed the merits of the case3) Code of Criminal Procedure Article 61. Circumstances precluding participation in criminal proceedings
2. Persons referred to in the first part of this article may not participate in criminal proceedings also in cases where there are other circumstances giving reason to believe that they are personally, directly or indirectly, interested in the outcome of this criminal case.Agree that it’s quite difficult to justify your position that the ongoing social processes will lead to negative moral and ethical results in the space of legal formulations.
Next, I present the recorded opinion of the judge in full.
The opinion of the judge of the Constitutional Court K.V. ARANOVSKY
In accordance with the Resolution on the case on checking the constitutionality of the provisions of paragraphs 1 and 2 of Article 3 of the Law of the Russian Federation “On Employment in the Russian Federation” in connection with the complaint of citizen M.V. Tchaikovsky, I consider it important to note the following.
Upon receiving the status of unemployed, a citizen is no longer required to present a diploma of higher education, in particular, education in evidence of professional qualifications. This is not the first time that the Constitutional Court of the Russian Federation has terminated the direct dependence of the exercise of rights on the presentation of a diploma. In the Decree of November 14, 2018 No. 41-P, the Constitutional Court of the Russian Federation concluded that even the right to pedagogical activity (of certain types) cannot be strictly determined by the presence of a diploma if it is successfully carried out by a person who corresponds to his position.
The decision of the Constitutional Court of the Russian Federation could probably take place in a slightly different content, if the educational documents had a different reputation than now. If professional education confidently guaranteed the qualifications of diploma holders, then in the constitutional balance of interests and values this would probably have a different weight, which would give more reasons to maintain the credibility of the diploma, so that possessing it would be a condition for exercising freedom of work and related rights .
The refusal of the education system to privilege the certification of professions is difficult not to associate with its state, when there are so many dynamics in it that one cannot count on the stable quality of the educational product. So, some time ago, an interdepartmental group under the Government of Russia started work, which was supposed to lead to the next revision of the rules of accreditation of universities and to their distribution into three categories: basic, advanced and leading. Basic universities had to switch to online courses, which would make them educational and consulting points with distance learning, probably, like online points where the cost of the service would include a diploma. These peripheral cell universities would enter the pyramidal structures as ordinary members and would practice coaching, instill “competencies”, as instill leadership and compliance at master classes and trainings in the spirit of network marketing. Leading universities, if that were all, would have to prepare educational products for distribution in the future through the network through "advanced" middle-level universities. Then, of course, universities would reduce costs due to the scale and resources of the network while reducing the staff of teachers. Such undertakings invariably enjoy support in the administrative class and among activists; they constantly ripen there and sometimes get realization.
Not everyone, however, sees in them the progress of enlightenment. Someone will decide that the continuous risk of structural changes, not to mention the real implementation of them, deprives science and professional education of the opportunity to maintain quality at a decent level. So, not everyone considers the introduction of the Bologna system useful, and many would prefer to do without it, as German universities, for example, did. Not everyone is convinced that the introduction of undergraduate and graduate programs according to Bologna standards has increased the quality of education and that now Russian diplomas are recognized according to international standards, as expected. The innumerable resources that were spent on this could be spent for the benefit of science and for a decent payment for teaching work. Improvements in education last about thirty years, and their results are still controversial, so now that there is so much spent and trust in diplomas, there is no reason to continue to rely on ministerial decisions, the initiative of the administration and the enthusiasm of activists.
It is possible that now we will have to wait until the diplomas of most universities and technical schools (lyceums, colleges, etc.) become convincing. Then it will probably be possible to discuss again how much vocational education certifies access to professions and whether the exercise of certain rights should be associated with diplomas. So far, however, administrators and activists cannot provide the educational standards stipulated by the Constitution of the Russian Federation itself (part 5 of Article 43) except in the documents and reports prescribed by their department, although university autonomy and academic freedom presuppose, rather, prevailing orienting pattern.
Until recently, the privilege of issuing diplomas has guaranteed the vocational education system protected by law incomes, including budget ones. Leaving her such guarantees, probably, is already imprudent without the certainty that they will benefit the education itself. During the time spent in the reforms, the system allocated resources in such a way that this hardly affected the professionalism, well-being and dignity of the teachers, i.e. on the quality of training. The system pays meagerly if the teacher does not receive the paid role of administrator, performer, or activist enthusiast in her managerial sector. Sometimes it allows the teacher to increase his poor earnings a little, but not for work, but for good statistics and reporting, for demonstrating competency-based approach instead of academic methods, for grants and for ratings, monitoring with schedules and everything else that is expensive for the administration’s services and departments. For this, the teacher needs to cultivate the skills and abilities to write resumes and applications, place them in funds and departments, draw up accreditations, and form citation indices.
In such an environment, it is not teaching and learning that are valued, but educational and methodical complexes that are needed not by students and teachers, but by services, so that they feel good and remain in important positions at important positions. It is unlikely, however, for the sake of this, it is necessary to preserve the privileges of the system, ensured by the obligatory diplomas. Its interests and values are unconvincing, and for their sake it is impossible to limit the freedoms of citizens, the possibilities of social statehood contrary to the provisions of Articles 2, 7, 17, 18, 21, 34, 37, part 3 of Article 55 of the Constitution of the Russian Federation.
Subordination and reporting under the supervision of administrators inhibits teaching and science, when universities give up their self-government, academic freedom, style and maintain a system that issues permits for the profession. Autonomy is a prerequisite for the activities of the university, and if we assume that Russian universities are not capable of it, then the calculations for a good education and diplomas are unrealistic, of course.
The Constitutional Court of the Russian Federation sees in the autonomy of universities the fundamental beginning of their activities, which determines their relations with the state and state policy in the field of education (Decision No. 19-P of December 27, 1999); he states that autonomy has justified itself historically in the pan-European university tradition, and connects it with the goals of the social state, the freedom of scientific, technical and other forms of creativity, teaching, everyone’s right to education and other constitutional values that follow from the provisions of articles 7, 17, 18, 43 (parts 1 and 5), 44 (part 1) of the Constitution of the Russian Federation; it allows limitations on the autonomy of state and municipal universities by public authorities only for constitutionally significant purposes and insofar as these bodies, as the founder, control the compliance of the university with its statutory goals (Decision No. 767-O-O of June 7, 2011). The autonomy of educational institutions — with academic freedom in the search for truth, with its free presentation and distribution under the professional responsibility of teachers without the care of superiors — was recognized in Article 3 of the Federal Law “On Higher and Postgraduate Professional Education”. Article 3 of the Federal Law “On Education in the Russian Federation” proceeds from the same principle, classifying the freedom of the teacher in determining the forms and methods of training and education, the autonomy of educational organizations, the academic rights and freedoms of teachers and students as principles of education (paragraphs 7, 8, 9) . The implementation of these provisions is doubtful if the system puts the participants in the educational business at the service of their interests. Even Peter I did not doubt that “the sciences of submission cannot tolerate,” and N.I. Pirogov insisted even more so that administrative uniformity is incompatible with an “autonomous university,” [1] that “autonomy and bureaucracy go together” and that “science has its own hierarchy; having become bureaucratic, it loses its significance ”[2].
Now, a lot has come to the point that it will soon be necessary, perhaps, in the most diverse legal relations, to wait with the strict obligation of diplomas, until there is strong evidence that universities are restoring autonomy. But this is unrealistic if the administrative part in the education system does not become underpopulated due to the reduction of staff and services, the loss of their functions and methodological guidelines. It is also necessary to make sure that structural changes in education are reduced mainly to the elimination of dying institutions, and existing institutions have lost interest in reorganization and change of titles, and that enthusiasts will no longer succeed in their initiatives to create a department the size of a faculty or to establish “schools” instead and “directions”.
While the administrative part, together with the activists, behaves as the organizer and owner of the education, determines its architecture and fate, it is futile and unnecessary to spend the force of law on the compulsory nature of diplomas, which in this case loses constitutional and legal grounds. The foregoing does not differ from the Resolution adopted in the present case.
[1] See: University issue // Bulletin of Europe. T. 1 (237). St. Petersburg, 1906.P. 1, 15.
[2] See: Kropotova N.V. Nikolai Ivanovich Pirogov on university culture: What has changed over a century and a half? // Modern scientific research and innovation. 2016.No7 // web.snauka.ru/issues/2016/07/70077 .
Upon receiving the status of unemployed, a citizen is no longer required to present a diploma of higher education, in particular, education in evidence of professional qualifications. This is not the first time that the Constitutional Court of the Russian Federation has terminated the direct dependence of the exercise of rights on the presentation of a diploma. In the Decree of November 14, 2018 No. 41-P, the Constitutional Court of the Russian Federation concluded that even the right to pedagogical activity (of certain types) cannot be strictly determined by the presence of a diploma if it is successfully carried out by a person who corresponds to his position.
The decision of the Constitutional Court of the Russian Federation could probably take place in a slightly different content, if the educational documents had a different reputation than now. If professional education confidently guaranteed the qualifications of diploma holders, then in the constitutional balance of interests and values this would probably have a different weight, which would give more reasons to maintain the credibility of the diploma, so that possessing it would be a condition for exercising freedom of work and related rights .
The refusal of the education system to privilege the certification of professions is difficult not to associate with its state, when there are so many dynamics in it that one cannot count on the stable quality of the educational product. So, some time ago, an interdepartmental group under the Government of Russia started work, which was supposed to lead to the next revision of the rules of accreditation of universities and to their distribution into three categories: basic, advanced and leading. Basic universities had to switch to online courses, which would make them educational and consulting points with distance learning, probably, like online points where the cost of the service would include a diploma. These peripheral cell universities would enter the pyramidal structures as ordinary members and would practice coaching, instill “competencies”, as instill leadership and compliance at master classes and trainings in the spirit of network marketing. Leading universities, if that were all, would have to prepare educational products for distribution in the future through the network through "advanced" middle-level universities. Then, of course, universities would reduce costs due to the scale and resources of the network while reducing the staff of teachers. Such undertakings invariably enjoy support in the administrative class and among activists; they constantly ripen there and sometimes get realization.
Not everyone, however, sees in them the progress of enlightenment. Someone will decide that the continuous risk of structural changes, not to mention the real implementation of them, deprives science and professional education of the opportunity to maintain quality at a decent level. So, not everyone considers the introduction of the Bologna system useful, and many would prefer to do without it, as German universities, for example, did. Not everyone is convinced that the introduction of undergraduate and graduate programs according to Bologna standards has increased the quality of education and that now Russian diplomas are recognized according to international standards, as expected. The innumerable resources that were spent on this could be spent for the benefit of science and for a decent payment for teaching work. Improvements in education last about thirty years, and their results are still controversial, so now that there is so much spent and trust in diplomas, there is no reason to continue to rely on ministerial decisions, the initiative of the administration and the enthusiasm of activists.
It is possible that now we will have to wait until the diplomas of most universities and technical schools (lyceums, colleges, etc.) become convincing. Then it will probably be possible to discuss again how much vocational education certifies access to professions and whether the exercise of certain rights should be associated with diplomas. So far, however, administrators and activists cannot provide the educational standards stipulated by the Constitution of the Russian Federation itself (part 5 of Article 43) except in the documents and reports prescribed by their department, although university autonomy and academic freedom presuppose, rather, prevailing orienting pattern.
Until recently, the privilege of issuing diplomas has guaranteed the vocational education system protected by law incomes, including budget ones. Leaving her such guarantees, probably, is already imprudent without the certainty that they will benefit the education itself. During the time spent in the reforms, the system allocated resources in such a way that this hardly affected the professionalism, well-being and dignity of the teachers, i.e. on the quality of training. The system pays meagerly if the teacher does not receive the paid role of administrator, performer, or activist enthusiast in her managerial sector. Sometimes it allows the teacher to increase his poor earnings a little, but not for work, but for good statistics and reporting, for demonstrating competency-based approach instead of academic methods, for grants and for ratings, monitoring with schedules and everything else that is expensive for the administration’s services and departments. For this, the teacher needs to cultivate the skills and abilities to write resumes and applications, place them in funds and departments, draw up accreditations, and form citation indices.
In such an environment, it is not teaching and learning that are valued, but educational and methodical complexes that are needed not by students and teachers, but by services, so that they feel good and remain in important positions at important positions. It is unlikely, however, for the sake of this, it is necessary to preserve the privileges of the system, ensured by the obligatory diplomas. Its interests and values are unconvincing, and for their sake it is impossible to limit the freedoms of citizens, the possibilities of social statehood contrary to the provisions of Articles 2, 7, 17, 18, 21, 34, 37, part 3 of Article 55 of the Constitution of the Russian Federation.
Subordination and reporting under the supervision of administrators inhibits teaching and science, when universities give up their self-government, academic freedom, style and maintain a system that issues permits for the profession. Autonomy is a prerequisite for the activities of the university, and if we assume that Russian universities are not capable of it, then the calculations for a good education and diplomas are unrealistic, of course.
The Constitutional Court of the Russian Federation sees in the autonomy of universities the fundamental beginning of their activities, which determines their relations with the state and state policy in the field of education (Decision No. 19-P of December 27, 1999); he states that autonomy has justified itself historically in the pan-European university tradition, and connects it with the goals of the social state, the freedom of scientific, technical and other forms of creativity, teaching, everyone’s right to education and other constitutional values that follow from the provisions of articles 7, 17, 18, 43 (parts 1 and 5), 44 (part 1) of the Constitution of the Russian Federation; it allows limitations on the autonomy of state and municipal universities by public authorities only for constitutionally significant purposes and insofar as these bodies, as the founder, control the compliance of the university with its statutory goals (Decision No. 767-O-O of June 7, 2011). The autonomy of educational institutions — with academic freedom in the search for truth, with its free presentation and distribution under the professional responsibility of teachers without the care of superiors — was recognized in Article 3 of the Federal Law “On Higher and Postgraduate Professional Education”. Article 3 of the Federal Law “On Education in the Russian Federation” proceeds from the same principle, classifying the freedom of the teacher in determining the forms and methods of training and education, the autonomy of educational organizations, the academic rights and freedoms of teachers and students as principles of education (paragraphs 7, 8, 9) . The implementation of these provisions is doubtful if the system puts the participants in the educational business at the service of their interests. Even Peter I did not doubt that “the sciences of submission cannot tolerate,” and N.I. Pirogov insisted even more so that administrative uniformity is incompatible with an “autonomous university,” [1] that “autonomy and bureaucracy go together” and that “science has its own hierarchy; having become bureaucratic, it loses its significance ”[2].
Now, a lot has come to the point that it will soon be necessary, perhaps, in the most diverse legal relations, to wait with the strict obligation of diplomas, until there is strong evidence that universities are restoring autonomy. But this is unrealistic if the administrative part in the education system does not become underpopulated due to the reduction of staff and services, the loss of their functions and methodological guidelines. It is also necessary to make sure that structural changes in education are reduced mainly to the elimination of dying institutions, and existing institutions have lost interest in reorganization and change of titles, and that enthusiasts will no longer succeed in their initiatives to create a department the size of a faculty or to establish “schools” instead and “directions”.
While the administrative part, together with the activists, behaves as the organizer and owner of the education, determines its architecture and fate, it is futile and unnecessary to spend the force of law on the compulsory nature of diplomas, which in this case loses constitutional and legal grounds. The foregoing does not differ from the Resolution adopted in the present case.
[1] See: University issue // Bulletin of Europe. T. 1 (237). St. Petersburg, 1906.P. 1, 15.
[2] See: Kropotova N.V. Nikolai Ivanovich Pirogov on university culture: What has changed over a century and a half? // Modern scientific research and innovation. 2016.No7 // web.snauka.ru/issues/2016/07/70077 .
In what situations is the case set forth in the Decree of the Constitutional Court of the Russian Federation on the constitutionality of the provisions of paragraphs 1 and 2 of Article 3 of the Law of the Russian Federation “On Employment in the Russian Federation” in connection with a complaint of a citizen M.V. Tchaikovsky, the dissenting opinion of Judge K. Aranovsky can be used to justify the weight of the position of one of the parties?
In my opinion, the argument of a judge of the Constitutional Court can be used when, based on the premise that the conclusions of a certified specialist are more significant than the conclusions of a specialist without a diploma, one of the parties requires, in her opinion, a change in the terms of the contract. The simplest example may be the situation when some development was carried out by a specialist who does not have a diploma in the profile of a software engineer. The counterpart presented a specialist’s opinion, with an appropriate diploma, and from this conclusion it follows that the quality of the work performed does not correspond to the necessary. As a result, it may require appropriate progress from the performer. And the fact that the specialist of the contractor, for example, has been doing this for many years, has implemented dozens of projects, according to the customer, is not significant.
At this stage it is necessary to clarify that the court always determines the proportionality of compensations and concessions with the level prevailing in the state in this direction. And, as a result, the party providing the development services must prove the validity of prices, their services, their uniqueness, etc., in cases where the counterpart tries to lower them. The optimal solution is to break down the total amount into components, since the court has to look for separate algorithms for reducing claims in each case.
A good example of this mechanism is decision No. 2-3980 / 2018 of November 6, 2018 of the Kirovsky District Court of St. Petersburg . In this process, the plaintiff, for using the image of the panorama plan of St. Petersburg created by him on the respondent’s website, demanded to recover, in compensation for copyright infringement, 5 million rubles. The court decided to recover 150 thousand rubles and costs.
It should always be borne in mind that the position recorded in the Resolution of the Constitutional Court is not a direct rule of law. And relying on it, rushing “with a saber into tanks” will not be effective. The mechanisms for integrating the arguments from the Constitutional Court Decision must be taken, understanding the status of this judicial authority. To clarify this aspect, I will use quotes from scientific articles to avoid accusations of bias.
Kuryatnikov V.V. Constitutional (statutory) justice: concept and essence.
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“The scope of constitutional (statutory) justice in its territorial aspect extends only to the territory in which the relevant state authority is created and operates, in terms of subject matter - to the special sphere of public public law relations regarding the“ complicity in the overall process of constitutional review in the Russian Federation".
Krapivkina O.A. The nature of the institute of dissenting opinion of judges in various legal systems Vestnik ISTU №2 (97) 2015
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“The institute of dissenting opinion is legally enshrined in many democracies, including the USA, Russia, Canada, Germany, England and others. In some countries, a dissenting opinion is published together with a court decision (USA, Russia), in others it is included in the text of the reasoning part of the decision (Germany). But there are democratic countries with a developed judicial system where there is no such judicial institution at all. Among them, for example, France, Belgium and Italy. The main reason for the lack of a dissenting opinion institution is, obviously, an enduring fear of revealing the secret of the deliberation room and undermining the authority of the court decision. The absence of this institution in a number of judicial systems is also explained by the legal traditions of the state. ”
“For Anglo-American lawyers, the institution of dissent is a typical attribute of a lawsuit. Moreover, it is the pride of American justice. The dissenting opinions of US Supreme Court Justice O. Holmes are rightfully considered, as American researcher E. Dumbold notes, “treasures of legal thought” [7]. US Chief Justice A. Scalia notes that dissent is a product of independent and deep thinking; they are of interest to the legislator for their constructions and attention to the nuances of the case, serve as evidence of the complexity of the legal issues under consideration, requiring a balanced approach; naturally turn the court into a body where legal disputes are being conducted, and legal thought is developing. ”
“In the Anglo-Saxon tradition, dissenting opinions are an institution speaking in three guises — prophecy, dialogue, and the guarantor of honesty [6]. Although, it is worth noting that the initial attitude towards the institution of dissenting opinions in the United States was negative. The author of one of the first dissenting opinions, Judge William Johnson, wrote to the then President of the United States, Thomas Jefferson, that after expressing his dissenting opinion, he only heard moral advice about the indecent behavior of judges who lunge against each other [10]. Nevertheless, the percentage of decisions made by the US Supreme Court, to which at least one dissenting opinion was attached, subsequently grew steadily [8]. So, as an example of the prophetic role of a dissenting opinion, we can recall the dissenting opinion of the judge of the Supreme Court of Canada Laskin, who in Murdoch v. Murdoch opposed the old system of property law by upholding the right of divorced women who were married to do housework and raise children to a portion of the property. Later in the Rathwell v. The Rathwell court, chaired by Dickson, ruled in support of Laskin's dissenting opinion. Thus, it became a kind of forerunner of changes in legislation aimed at protecting the rights of women. ”
“In China, a dissenting opinion was first attached to the decision of the Shanghai Arbitration Court No. 2 in September 2003. This institution has long been alien to Chinese justice. Chinese judges are used to drafting short, “unfounded” acts.
...
The possibility of including dissenting opinions of judges in court decisions reflects the reformist trend in the Chinese justice system, makes judges more responsible, and also helps to change the practice of drawing up court decisions. Until recently, the decisions of the Chinese courts were short acts of up to six pages in which only the factual side of the case and the court ruling itself were summarized. There was no argumentative part, the legal justification of the decision, the assessment of evidence, the arguments of the parties were not mentioned in the text of the decision. Among the shortcomings of this form of decision, Chinese critics called the non-transparency of the trial. Only in the late 1990s did calls for reform take effect. Courts of various levels, including the Supreme People’s Court, demanded that judges substantiate their decisions in the texts of decisions. So, in July 2004, the Foshan Arbitration Court of Guangdong Province issued a decision of more than 100 pages. ”
“For Anglo-American lawyers, the institution of dissent is a typical attribute of a lawsuit. Moreover, it is the pride of American justice. The dissenting opinions of US Supreme Court Justice O. Holmes are rightfully considered, as American researcher E. Dumbold notes, “treasures of legal thought” [7]. US Chief Justice A. Scalia notes that dissent is a product of independent and deep thinking; they are of interest to the legislator for their constructions and attention to the nuances of the case, serve as evidence of the complexity of the legal issues under consideration, requiring a balanced approach; naturally turn the court into a body where legal disputes are being conducted, and legal thought is developing. ”
“In the Anglo-Saxon tradition, dissenting opinions are an institution speaking in three guises — prophecy, dialogue, and the guarantor of honesty [6]. Although, it is worth noting that the initial attitude towards the institution of dissenting opinions in the United States was negative. The author of one of the first dissenting opinions, Judge William Johnson, wrote to the then President of the United States, Thomas Jefferson, that after expressing his dissenting opinion, he only heard moral advice about the indecent behavior of judges who lunge against each other [10]. Nevertheless, the percentage of decisions made by the US Supreme Court, to which at least one dissenting opinion was attached, subsequently grew steadily [8]. So, as an example of the prophetic role of a dissenting opinion, we can recall the dissenting opinion of the judge of the Supreme Court of Canada Laskin, who in Murdoch v. Murdoch opposed the old system of property law by upholding the right of divorced women who were married to do housework and raise children to a portion of the property. Later in the Rathwell v. The Rathwell court, chaired by Dickson, ruled in support of Laskin's dissenting opinion. Thus, it became a kind of forerunner of changes in legislation aimed at protecting the rights of women. ”
“In China, a dissenting opinion was first attached to the decision of the Shanghai Arbitration Court No. 2 in September 2003. This institution has long been alien to Chinese justice. Chinese judges are used to drafting short, “unfounded” acts.
...
The possibility of including dissenting opinions of judges in court decisions reflects the reformist trend in the Chinese justice system, makes judges more responsible, and also helps to change the practice of drawing up court decisions. Until recently, the decisions of the Chinese courts were short acts of up to six pages in which only the factual side of the case and the court ruling itself were summarized. There was no argumentative part, the legal justification of the decision, the assessment of evidence, the arguments of the parties were not mentioned in the text of the decision. Among the shortcomings of this form of decision, Chinese critics called the non-transparency of the trial. Only in the late 1990s did calls for reform take effect. Courts of various levels, including the Supreme People’s Court, demanded that judges substantiate their decisions in the texts of decisions. So, in July 2004, the Foshan Arbitration Court of Guangdong Province issued a decision of more than 100 pages. ”
O.A. Krapivkina Separate opinion of the judge vs. Collective judgment or individualism vs. institutionalism.
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« , [3]. , . ., « , – « ».
Sergeev A.B. Separate opinion of a judge in the administration of justice in criminal proceedings.
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« , , . . : «… – , . , -, . – , , , , , » [7, .46]. , « », , ».
From the excerpts presented above, it is clear that a direct appeal to a dissenting opinion is practically impossible, and one of the arguments is that by doing so this appeal will incite the court to make a decision based on a precedent, which can be perceived by the court as pressure on it. On the other hand, it is necessary to build a coherent, logically connected system of the materiality of the legal positions of the parties to the litigation. And in the matter of protecting copyright and related rights, given the uncertainty of many wordings, this is quite complicated. On Habr there is a post "Exposing 12 legal errors of computer programs"and he, in my opinion, systematically enough systematized the branch points that must be taken into account when a copyright protection law enforcement gets into a situation. The post was published in 2013 and, since I personally did not check the relevance of the analysis carried out in it, I advise you to do this before using its contents. This need arises from the fact that the development of the legal issue is ongoing, a certain judicial practice is taking shape, clarifications of the Supreme Court appear.
I will present two examples of how the degree of competence can be used in protecting intellectual property rights.
The first and not losing relevance situation is related to the situation when an employee capturing all the results goes to the customer and leaves the contractor without remuneration. This situation is described in a post from 2013, “Compilation of court decisions. Software and courts ” , and the fact that this aspect has not lost its relevance can be seen from the recent post “ The developer wants to go to startup. What should the employer do? ”. In the material of 2013, the first process, the situation is described when the team of authors who created the program as part of the performance of their duties is a software product rights to which belong to the organization. And, subsequently, one of the employees of the specified team moving to another organization created another product using the best practices of the team from the previous place of work. The link to the decision of the arbitration court, in that material, is already inoperative, but after the search a working link to the decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region in case No. A56-18671 / 2014 of May 23, 2014 was found , which gives reason to use the materials of the post on Habré.
In general, the court decision was made in favor of the plaintiff, the one from whom the program was stolen, based on the expert’s opinion, which, by comparing the program code of the modules, quote:
“According to the expert’s conclusion, when analyzing the fragments of the source codes of the OpenSky-2 and Meridian software products, a difference (2 lines) was found in the name of the registry branch used to store settings that determine how the program functions, where instead of the \ Software \ RIVC_PULKOVO \ AS_RDS (Spp) \ Alerts "used by" OpenSky-2 ", for the same purpose, with the same composition of tags and with the same formats of values stored in them, in the" Meridian "branch" \ Software \ Aeronavigator \ Meridian is used \ Alerts. "As far as I can assume, in such matters, the plaintiff is trying to prove what he can. The questions were correctly formulated before the forensic examination and the necessary result was obtained. Perhaps if the employee who stole the program was more thorough in covering up the tracks, such a result would not have worked. Then we would have to rely on a difference in the level of competencies.
The question arises - how to determine the degree of competence? For the case described above, I would propose the following scheme. It was noted above that the product was created by a team of authors. Typically, in such teams, everyone is engaged in what they know well and, as a result, once used other solutions in other products. Collect from each of the authors two or three examples of previously used solutions and put the question before the examination, in approximately the following form: the solutions used in the stolen product, in one module or another, do they match in style, technology, format, composition with the creative work decisions of a specific author in products manufactured earlier. By the principle of handwriting identity. I suppose that if the constituent elements coincide, then it will be easy to relate to the source of origin of the product.
The next example will be the Decision of the Leninsk-Kuznetsk city court of the Kemerovo region, case No. 2-13 / 2019 of February 4, 2019 .
The essence of the matter is formulated as follows: a citizen, while working at Vodokanal LLC, made an Excel file in which it was possible to automatically process data using the technology GOST R 50779.42-99 (ISO 8258-91) “Statistical methods. Shekhart control charts. " Most Habrovites saw, in many organizations, these Excel files stored as the apple of an eye, which are transferred from employee to employee as the greatest know-how. There is no point in arguing with this state of things, since in reality they save a lot of time for employees. After his dismissal, the company continued to use this development of a former employee. She decided that such use of her development harms her and filed a lawsuit in court where she estimated the amount of claims in the amount of 100 thousand rubles.
The woman was refused with the following motivation:
Subject to:
“A computer program is an objective set of data and commands designed to operate computers and other computer devices in order to obtain a specific result, including preparatory materials obtained during the development of a computer program and the audio-visual displays generated by it.”That is, the examination did not find a computer program in the specified file. From a formal point of view, this is so, since the Excel file itself cannot make the iron work (function). That is, if there is no computer program, then there can be no claims. This logic is simple and clear.
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Naturally, there is a clear mistake on the part of the plaintiff. By the way, it can be corrected by sending a new claim, in which a new subject of the claim is indicated and the requirement is satisfied, quote:
« . 1300 , , , , , , ».I suppose that for such situations, the statement of competence priority can be used in determining claims. That is, a person was able to make a module with his creative work, which saves a lot of working time for employees of a commercial enterprise. It is unique, since no one working before it could realize this and the author is entitled to royalties from the economic effect.
In conclusion, I want to note that our society is moving towards the understanding that the title, title, belonging to some social group is a consequence of a person’s value for society and this value is determined by the level of usefulness, that is, the level of his skills and competences in the implementation of the right to work.