Elon Musk () by videoconference ( tracker 11:25) in the process of participating in a business forum , Krasnodar 18/19.10.2019-XNUMX/XNUMX said (translation ):
“It seems to me that education in Russia is very good. And it seems to me that there is a lot of talent in Russia and a lot of interesting things in terms of technology.”
On the other hand, Judge of the Constitutional Court Aranovsky K.V. in a dissenting opinion in connection with the complaint of citizen M.V. Tchaikovsky, on October 8, 2019, he spoke very critically:
“Then it will probably be possible to re-discuss to what extent 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 vocational education confidently guaranteed the qualifications of diploma holders, then in the constitutional and legal balance of interests and values this would probably have a different weight, which would give more grounds to support the authority of a diploma, so that its possession would be a condition for the exercise of freedom of labor and related rights."
As can be seen from the statement of Aranovsky K.V. there is a direct relationship with professional certification and the scope of human rights. And such a connection, confirmed by the position of the judge of the Constitutional Court, can be an argument for strengthening the position in the event of initiating lawsuits in order to protect the rights of the author. I will try to reveal this aspect in this material.
The relevance of the position of the judge can be confirmed by the words of a successful person from the other side of the world, Jack Ma ():
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I suppose that the motives of the judge Aranovsky K.The. are experiencing for the existing situation with higher education in Russia and addressing the "administrative class" with a request, on behalf of the masses, which , in his article , endowed with properties:
“With its gigantic supermass, the deep people create an irresistible force of cultural gravity that connects the nation and pulls (presses) to the earth (to the native land) the elite, from time to time trying to soar cosmopolitanly.”
I will explain in a simple scheme the essence of the problem that was considered by the Constitutional Court (CC) in this process. Citizen M.V. Tchaikovsky turned to the employment center with a request to recognize him as unemployed. The Employment Center refused to assign this status to him, 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 as lawful. Then he turned to the Constitutional Court of the Russian Federation. The court, having considered the circumstances of the case, recognized that the requirements of the employment center were unlawful.
The logic of the relationship 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.
Judge Aranovsky K.The. considered that such a system of argumentation is not enough in this matter and that the logic of recognition should be approximately as follows. 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 a person's talents in the field of socially useful activity. And already on the basis of the success of this person, differentiation is possible. But at the moment this is not, and cannot be theoretically, since the system of higher education in the Russian Federation, in favor of the "administrative class", follows a path that ignores the entire experience of mankind.
In order for Khabrovites to more clearly understand the logic of the judge, I consider it necessary to clarify that the judge does not operate with moral and ethical criteria accepted in society. This is well explained 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 people's behavior. The law uses such criteria as legally - illegally, legally - illegally, has the right - is obliged, etc. There are other criteria for moral evaluation: morally - immorally, honestly - dishonestly, commendably - shamefully, noblely - vilely, etc.».
These principles are laid down in the norms of the articles:
1) Code of Civil Procedure of the Russian Federation Article 16. Grounds for disqualification of a judge
3) is personally, directly or indirectly interested in the outcome of the case, or there are other circumstances that raise doubts about his objectivity and impartiality.
2) Arbitration Procedure Code of the Russian Federation Article 21. Disqualification of a judge
7) made public statements or gave an assessment on the merits of the case under consideration
3) Criminal Procedure Code of the Russian Federation Article 61. Circumstances excluding participation in criminal proceedings
2. The persons referred to in the first part of this article may not participate in the proceedings on a criminal case also in cases where there are other circumstances that give reason to believe that they are personally, directly or indirectly, interested in the outcome of this criminal case.
Agree that it is quite difficult to substantiate your position that the ongoing social processes will lead to negative moral and ethical results in the space of legal formulations.
Below I present the recorded opinion of the judge in full.
The opinion of the judge of the Constitutional Court K.V. ARANOVSKYIn accordance with the Ruling on the case on the verification of 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 as proof 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 Resolution No. 14-P dated November 2018, 41, the Constitutional Court of the Russian Federation concluded that even the right to pedagogical activity (of certain types) cannot be strictly conditioned 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 educational documents had a different reputation than they do now. If vocational education confidently guaranteed the qualifications of diploma holders, then in the constitutional and legal balance of interests and values, this would probably have a different weight, which would give more reason to support the authority of a diploma, so that its possession would be a condition for the exercise of freedom of labor and related rights. .
It is difficult not to associate the refusal of the education system with privileges for certification of professions with its state, when there are so many dynamics in it that it is impossible to count on the stable quality of the educational product. So, some time ago, an interdepartmental group under the Government of Russia began work, which was supposed to lead to the next revision of the rules for 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, apparently, similar to Internet points, where the cost of the service would include a diploma. These peripheral universities-cells would enter the pyramidal structures as ordinary members and would practice coaching there, instill "competences", as they instill leadership and compliance in master classes and trainings in the spirit of network marketing. Leading universities, if all this happened, would have to prepare educational products for further distribution over 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 implementation.
Not everyone, however, sees in them the progress of enlightenment. Someone will decide that the continuous risk of structural changes, not to mention their real implementation, deprives science and professional education of the opportunity to maintain quality at a decent level. So, not everyone considers it useful to introduce the Bologna system, and many would prefer to do without it, as, for example, German universities did. Not everyone is convinced that the introduction of bachelor's and master's degrees according to Bologna standards has increased the quality of education and that now Russian diplomas are recognized according to international standards, as expected. The countless resources that were spent on this could have been spent for the benefit of science and for decent pay for teaching work. Improvements in education have been going on for thirty years, and their results are still debatable, so now, when so much has been spent, and there is no confidence in diplomas, there is no reason to continue to rely on ministerial decisions, the initiative of administrations 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 re-discuss to what extent 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 present the educational standards provided for by the Constitution of the Russian Federation itself (part 5 of Article 43) except in documents and reports prescribed by their department, although university autonomy and academic freedom suggest in the standards, rather, established orienting pattern.
Until recently, the privilege to issue diplomas guaranteed the vocational education system legally protected revenues, including budgetary ones. To leave such guarantees behind her is probably already imprudent without the certainty that they will go to the benefit of education itself. During the time spent in reforms, the system distributed resources in such a way that it hardly had a good effect on the professionalism, well-being and dignity of teachers, i.e. on the quality of education. The system pays meagerly unless the educator is given a paid role as an administrator, performer, or enthusiastic activist in its management 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 a competency-based approach instead of academic methods, for seeking grants and for ratings, monitoring with graphs and for everything else that is expensive for administration services and departments. To do this, the teacher needs to develop the skills and abilities to write resumes and applications, place them among funds and departments, issue accreditations, and form citation indices.
In such an environment, it is not teaching or learning that is valued, but educational and methodological complexes that are needed not by students and teachers, but by services, so that they feel good and remain in advantageous positions during important work. It is unlikely, however, for the sake of this, it is necessary to preserve the privileges of the system, provided by the obligatory diplomas. Its interests and values are unconvincing, and for their sake it is impossible to restrict 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 accountability under the authority of administrators oppress teaching and science, when universities cede their self-government, academic freedom, style and maintain a system that issues permits for the profession. Autonomy is a prerequisite for the operation of a university, and if we assume that Russian universities are not capable of it, then the hopes 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 (Resolution of December 27, 1999 No. 19-P); he states that autonomy has justified itself historically in the pan-European university tradition, and connects it with the goals of the welfare state, the freedom of scientific, technical and other types of creativity, teaching, with the right of everyone to education and with 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 restrictions on the autonomy of state and municipal universities by public authorities only for constitutionally significant purposes and insofar as these bodies, as a founder, control the compliance of the activities of the university with its statutory goals (Determination of June 7, 2011 No 767-О-О). The autonomy of educational institutions - with academic freedom in the search for truth, with its free presentation and dissemination under the professional responsibility of teachers without the care of superiors - was recognized by 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, including the freedom of the teacher in determining the forms and methods of teaching and upbringing, the autonomy of educational organizations, the academic rights and freedoms of teachers and students (paragraphs 7, 8, 9) as the principles of education . The implementation of these provisions is doubtful if the system puts the participants in the educational business at the service of its own interests. Even Peter I had no doubt that “they can’t stand the sciences of subordination”, and N.I. Pirogov even more insisted that administrative uniformity is incompatible with the “autonomous university”,[1] that “autonomy and bureaucracy do not go together” and that “science has its own hierarchy; having become bureaucratic, it loses its significance”[2].
Now, however, much suggests that soon it will be necessary, perhaps in a variety of legal relations, to postpone the strict obligatory nature of diplomas until there is strong evidence that universities are restoring autonomy. But this is unrealistic if the administrative part of the education system does not become sparsely populated due to the reduction of staff and services, the disappearance of their functions and methodological guidelines. We also need to make sure that structural changes in education come down mainly to the elimination of moribund institutions, and existing institutions have lost interest in reorganizations and in changing titles, and that enthusiasts no longer succeed in their initiatives to create departments the size of a faculty or institutions instead of "schools" and "directions".
As long as the administrative part, together with activists, behaves as the organizer and owner of education, determines its architecture and destiny, it is futile and there is no need to waste the force of law on the obligatory diplomas, which in this case loses constitutional and legal grounds. The foregoing is inconsistent with the decision adopted in the present case.
[1] See: University question // Bulletin of Europe. T. 1(237). SPb., 1906. S. 1, 15.[2] See: Kropotova N.V. Nikolay Ivanovich Pirogov about university culture: What has changed in a century and a half? // Modern scientific research and innovation. 2016. No7 // .
In what situations, set out in the Resolution of the Constitutional Court of the Russian Federation in the case on the verification of 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, the dissenting opinion of Judge Aranovsky K.V. can be used to justify the weight of the position of one of the parties?
In my opinion, the argumentation of the judge of the Constitutional Court can be used when, based on the premise that the conclusions of a certified specialist are more weighty than the conclusions of a specialist who does not have a diploma, one of the parties requires, in its opinion, a change in the terms of the contract. The simplest example might be a situation where some development was carried out by a specialist who does not have a diploma in the profile of a software engineer. The counter party presented the opinion of a specialist with an appropriate diploma, and from this conclusion it follows that the quality of the work performed does not meet the required. As a consequence, it may require appropriate advances from the performer. And the fact that the contractor's specialist, let's say, 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 compensation and concessions with the level prevailing in the state in this direction. And, as a result, the party providing development services must prove the validity of prices, their services, their uniqueness, etc., in cases where the opposite party is trying to reduce them. The best 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 the solution . In this process, the plaintiff, for using the image of the panorama plan of St. Petersburg created by him on the defendant's website, demanded to recover 5 million rubles as compensation for copyright infringement. The court decided to recover 150 thousand rubles and expenses.
It must always be taken into account that the position fixed in the Resolution of the Constitutional Court is not a direct rule of law. And relying on it to rush "with a saber at tanks" will not be effective. Mechanisms for integrating arguments from the Resolution of the Constitutional Court must be taken, understanding the status of this body of the judiciary. To clarify this aspect, I will use quotes from scientific articles in order to avoid accusations of bias.
Expand“The scope of constitutional (statutory) justice in its territorial aspect extends only to the territory where the relevant state authority is created and operates, in the subject plan - to a special sphere of public public law relations regarding “complicity in the general process of constitutional control In Russian federation".
Krapivkina O.A. The nature of the institution of a dissenting opinion of a judge in various legal systems Bulletin of ISTU No. 2 (97) 2015
Expand“The institution of a dissenting opinion is legislated in many democratic states, including the United States, Russia, Canada, Germany, England, etc. In some countries, a dissenting opinion is published along 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 absence of the institution of a dissenting opinion is, obviously, the persistent fear of revealing the secret of the deliberation room, undermining the authority of the decision of the court. 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 a dissenting opinion is a typical attribute of the litigation. Moreover, he is the pride of American justice. The dissenting opinions of the US Supreme Court Judge O. Holmes are rightfully considered, as the American researcher E. Dumbold notes, “treasures of legal thought” [7]. US Supreme Judge A. Scalia notes that dissenting opinions are the product of independent and deep thinking; they are of interest to the legislator with 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 conducted, and legal thought is developed.
“In the Anglo-Saxon tradition, dissenting opinions are an institution that acts in three forms – prophecy, dialogue, and a guarantor of honesty [6]. Although, it is worth noting, 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 US President Thomas Jefferson that after his dissenting opinion, he heard only moralizing about the obscene behavior of judges making attacks against each other [10]. However, the percentage of decisions handed down by the US Supreme Court, to which at least one dissenting opinion was attached, has steadily increased since then [8]. Thus, as an example of the prophetic role of a dissenting opinion, one can recall the dissenting opinion of the Justice of the Supreme Court of Canada Laskin, who in Murdoch v. Murdoch opposed the old system of property law, supporting the right of divorced women who were engaged in housework and raising children in marriage to a part of the property. Later, in Rathwell v. The Rathwell Court, presided over by Dixon, issued a ruling upholding 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 accustomed to making 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 contributes to changing the practice of drafting 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 decision itself were stated in a concise form. The argumentative part was absent, the legal substantiation 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 lack of transparency of the trial. It was not until the late 1990s that calls for reform took effect. Courts at various levels, including the Supreme People's Court, required judges to substantiate their rulings in the texts of the decisions. For example, in July 2004, the Guangdong Provincial Court of Foshan Arbitration published a decision of more than 100 pages.”
Expand“The right to a dissenting opinion individualizes the figure of a judge, distinguishes him as an autonomous and responsible subject of the judicial body [3]. The institution of a dissenting opinion undermines the authoritarian nature of the law, not allowing the opinion of the majority to serve as the only option for interpreting constitutional norms. As A. Scalia noted, “the system of dissenting opinions has turned the US Supreme Court into the central arena of modern legal debate, and its decisions from a simple record of reasoned legal decisions into something like the History of American Legal Philosophy with Commentaries.”
Expand“The essence of the dissenting opinion and the motives for its preparation by the judge, who remained united during the voting, is most clearly formulated by A. L. Kononov: “... expressing and defending one’s opinion is an emotionally and psychologically difficult mission, always a serious internal conflict. It is very difficult to overcome doubts and avoid the influence of authorities, remaining in the minority among your fellow judges, each of whom, by definition, is a specialist of the highest qualification. A dissenting opinion is, of course, an extreme version of the judge’s position, when the price of a decision is obviously high, when an internal compromise is impossible, and the conviction of a miscarriage of justice is maximum” [7, p.46]. The reason that caused a "serious internal conflict" is the judge's awareness of responsibility for decisions made on issues that are resolved during the sentencing and that become important for the future fate of the defendant.
From the excerpts presented above, it can be seen that a direct appeal to a dissenting opinion is practically impossible and one of the arguments is that this appeal will thereby incline the court to make a decision on the basis of 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 trial. And in the issue of protection of copyright and related rights, given the uncertainty of many formulations, it is quite difficult. There is a post on Habré and he, in my opinion, quite qualitatively systematized the branching points that must be taken into account when getting into a situation of judicial protection of copyright. The post was published in 2013 and, since I did not personally 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 continuous, there is a certain judicial practice, there are clarifications of the Supreme Court.
I will present two examples of how the degree of competence can be used in the protection of intellectual property rights.
The first situation, which does not lose its relevance, is connected with the situation when an employee, having captured all the results, goes to the customer and leaves the contractor without remuneration. This situation is described in a post from 2013. , and the fact that this aspect has not lost its relevance can be seen from a fresh post . The material of 2013, the first process, describes the situation when a team of authors who created a program as part of the performance of their work duties, a software product, the rights to which belong to the organization. And, later, one of the employees of the specified team, moving to another organization, created another product using the team's developments from the previous place of work. The link to the decision of the arbitration court, in that material, is no longer working, but after searching, a working link to , 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 fragments of the source codes of the software products “OpenSky-2” and “Meridian”, a difference (2 lines) was found in the name of the registry branch used to store the settings that determine the methods of the program’s functioning, where instead of the branch “SoftwareRIVC_PULKOVOAS_RDS (Spp ) Alerts", which is used by "OpenSky-2", with the same purpose, with the same composition of tags and with the same formats of values stored in them, Meridian uses the "SoftwareAeronavigator Meridian Alerts" branch.
As far as I can guess, in such matters, the plaintiff is trying to prove what he can. Questions were correctly formulated before the forensic examination and the necessary result was obtained. Perhaps if the employee who stole the program had been more thorough in covering their tracks, such a result would not have happened. Then one would have to rely on the difference in the level of competencies.
The question arises - how to determine the degree of competence? For the case described above, I would suggest the following scheme. It was noted above that the product was created by a team of authors. Usually, in such teams, everyone does what they know well and, as a result, once used similar solutions in other products. Collect from each of the authors two or three examples of previously used solutions and put a question before the examination, approximately in 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 produced creative work decisions of a certain author in products produced earlier. According to the principle of handwriting identity. I assume that if the constituent elements coincide, then it will be easy to associate with the source of origin of the product.
The next example would be .
The essence of the matter is formulated as follows, while working at Vodokanal LLC, a citizen made an Excel file in which it was possible to carry out automatic data processing using the technology GOST R 50779.42-99 (ISO 8258-91) “Statistical methods. Shewhart's Control Charts. Most of the Khabrovites saw, in many organizations, these Excel files stored like 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 affairs, 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 harmed 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:
Taking into account:
“A computer program is a set of data and commands presented in an objective form intended for the functioning of a computer and other computer devices in order to obtain a certain result, including preparatory materials obtained during the development of a computer program and the audiovisual displays generated by it.”
...
Thus it is during the trial claimant Proskurina C.The. no evidence was provided of the plaintiff's exclusive rights to the relevant intellectual property object and the fact of the use of these rights by the defendant, since on the SanDisk electronic media presented by the plaintiff (m / o <number>), in the "map-xls" file located in the "doc. excel”, there is no intellectual property object in the form of a computer program for working with tables and constructing programmable charts Shewhart Maps.
Due to the fact that the plaintiff filed claims for recognition of exclusive authorship of the computer program for working with tables and the construction of programmable charts Shewhart Maps, the court concludes that they are denied satisfaction, since during the trial these circumstances were not confirmed and refuted by the written materials of the case.
That is, the examination did not find a computer program in the specified file. From a formal point of view, this is true, since an Excel file by itself cannot make the hardware work (function). That is, if there is no computer program, then there can be no claims. This logic is simple and clear.
Naturally, there is an unequivocal error on the part of the plaintiff. By the way, it can be corrected by sending a new claim, in which the new subject of the claim is indicated and the requirement is met, quote:
“In accordance with Art. 1300 of the Civil Code of the Russian Federation, information on copyright is recognized as any information that identifies a work, the author or other right holder, or information about the conditions for using the work, is attached to it or appears in connection with broadcasting or by cable or bringing such work to the public, as well as any numbers and codes that contain such information.
I suppose that for such situations, the statement of priority of competencies can be used in determining claims. That is, a person was able to make a module with his creative work that saves a lot of working time for employees of a commercial enterprise. It is unique, since none of those working before him could realize it, and the author is entitled to royalties from the economic effect.
In conclusion, I would like to note that our society is moving towards understanding that the title, rank, belonging to some social group is a consequence of the value of a person for society and this value is determined by the level of utility, that is, the level of his skills and competencies in the implementation of the right to work.
Source: habr.com