Alexander A. Gogin, Anna N. Fedorova, Ramil F. Vagapov, Alexey V. Sergeev

DOI: https://doi.org/10.34069/AI/2021.41.05.12

Received: March 7, 2021 Accepted: May 30, 2021

Written by:

https://orcid.org/0000-0003-0949-4169

https://orcid.org/0000-0003-1348-5134

https://orcid.org/0000-0002-4243-7775

https://orcid.org/0000-0002-6670-1438

The article deals with some issues that characterize the Basic Laws of the Republic of Austria and the Russian Federation. When choosing the leading research method, the authors of this article were guided by the fundamental dialectical means of cognition, which is the ascent from the individual to the general. The comparison technique used in this case is based on a consistent understanding and analysis of similar conditions, rules and requirements for the Republic of Austria and the Russian Federation. The applied historical and legal method made it possible to consider various historical events in motion, development, and in connection with modernity. The methods of analysis and synthesis are widely used in the work. As the main results of the study, we note the generalization of the most significant distinctive features that are the foundation of the Basic Laws of both federal states.

Keywords: constitutionalism, state, federalism, society, personality, rights, comparison.

В статье рассматриваются некоторые вопросы, характеризующие основные законы Австрийской Республики и Российской Федерации. При выборе ведущего метода исследования авторы данной статьи руководствовались основным диалектическим средством познания - восхождением от индивидуального к общему. Используемая в данном случае методика сравнения основана на последовательном понимании и анализе схожих условий, правил и требований для Австрийской Республики и Российской Федерации. Примененный историко-правовой метод позволил рассматривать различные исторические события в движении, развитии и в связи с современностью. В работе широко используются методы анализа и синтеза. В качестве основных результатов исследования отметим обобщение наиболее значимых отличительных черт, лежащих в основе Основных законов обоих федеральных земель.

Ключевые слова: конституционализм, государство, федерализм, общество, личность, права, сопоставление.

The subject of this study is the most significant provisions of the Basic Laws of the Republic of Austria and the Russian Federation. Despite certain differences, they are comparable in a number of criteria. These acts contain those value aspects that not only reflect the essence of legal

38 Doctor of Law, associate professor, Department of Civil Law and Procedure, Togliatti State University, Togliatti (Russia). 39 PhD in Law, associate professor, the Head of Civil Law and Procedure, Togliatti State University, Togliatti (Russia). 40 PhD in Law, associate professor, Department of Civil Law and Procedure, Togliatti State University, Togliatti (Russia). 41 PhD in Law, associate professor, Department of Civil Law and Procedure, Togliatti State University, Togliatti (Russia).

doctrines, but also the conditions for their practical implementation.

The object of the research is a system of legal regulations that form and implement the vital rights, freedoms and interests of citizens of both countries at the current stage of social development. This takes into account both the need and the need to improve them and effectively protect them from various negative challenges and threats.

The relevance of the work is due to the polemic nature of the problems under study, since the changes made to the Federal Constitutional Law of Austria in 2008 and to the Constitution of the Russian Federation in 2020 caused mixed assessments among many representatives of the social strata of both countries. However, these amendments, regardless of their differences, in their essence are intended to serve as a supplement to the time-tested, previously fixed basic constitutional principles.

Before considering the main issues of the topic, it is necessary to conduct a brief historical review of the events of a century ago. This will allow us to better understand a number of relevant aspects related to the legislative and other processes that took place in Austria and the Russian Federation, although in different time periods.

After the end of the First World War, the peoples of certain European countries faced the question of creating legislative acts that correspond to the interests of the vast majority of citizens, and take into account the prevailing realities of that era. These problems were most acute in the new subjects of the world community that emerged on the territory of the former Austro-Hungarian monarchy.

On September 10, 1919, in the suburbs of the French capital, the suburb of Saint-Germain-enLaye, a peace treaty was signed between the Entente countries and Austria, which, as an ally of the defeated Germany, suffered very serious territorial, economic, financial, human, moral and other losses. As an ultimatum, it was ordered to strictly implement many extremely tough and painful sanctions.

In particular, from now on, the territory of the newly formed small state was only 84 thousand square kilometers, and the population was about 6.7 million people. In addition, Austria, as the losing party, lost the Adriatic coast forever, as a result of which it lost the entire military, commercial and fishing fleet.

Also, on the basis of Article 120 of the said agreement, it was forbidden to have an armed force of more than 30 thousand soldiers. Army formations were to be completed exclusively on a voluntary basis and were intended only for the maintenance of internal order.

Since, in accordance with Article 144 of the signed treaty, Austria was forbidden to have chemical weapons, tank units and combat aircraft, from now on its armed forces consisted exclusively of infantry formations that did not pose a threat to its European neighbors (Gafurova & Zuboka, 1960).

Another unconditional condition on the part of the winners was a directive on the establishment of a democratic republic in the country. Not only for most politicians, but also for ordinary citizens, this was a surprise, because in the past history Austria had a centuries-old monarchical form of government.

In fact, it required not only a decisive revision of the previously existing legislation, but also a radical reorganization of the central and local legislative and executive authorities, the judicial system and law enforcement agencies. To a certain extent, the issue of breaking the national mentality, social consciousness and the psychological mood of citizens was on the agenda.

Subsequent events clearly showed that a significant part of the representatives of various social strata, supported by the clerics, was not ready for such serious challenges and changes. At the same time, the last Austro-Hungarian emperor, Charles I, not only did not give up hope, but also made some attempts to return to the throne.

At the same time, it should be emphasized that the meaning and essence of parliamentarism were quite familiar to the Austrian public from the middle of the nineteenth century. Here, a year after the revolutionary events of 1848, the first constitution in the history of the state was published, according to which a constitutional monarchy was established in the country.

For many reasons, the original text of this document has been changed several times. The landowners - the nobles and the urban bourgeoisie, the officials and the Catholic Church, the intelligentsia and the military-

defended their positions. However, after severe conflicts, agreements and mutual concessions since 1867, in addition to the emperor, who had broad powers, a number of issues of domestic and foreign policy were transferred to the competence of a representative body - the Reichsrat, consisting of the Chamber of Peers and the Chamber of Deputies. Note that these issues, including the use of previously unpublished sources, are quite thoroughly described in the work of O. E. Prudnikov (Prudnikov, 2012, pp. 78-83).

It was against this political, historical and social background, despite the enormous post-war losses and costs, class, group and party divisions, that the Federal Constitutional Law (German: Bundes-Verfassungsgesetz) came into force in Austria on November 10, 1920.

It is important to emphasize that many changes were carried out in an evolutionary way, since those regulatory and legal provisions that adequately met the interests of the citizens of the new state were not discarded. This is evidenced by the fact that in the Republic of Austria, some acts of the monarchy that was a thing of the past were recognized as valid and retained their legal force.

For comparison, it should be recalled that at the same time in Soviet Russia, after the October events of 1917 and the civil war, the nihilistic attitude to the previous system of power and legal thought extended to everything. "In addition to breaking the state machine, the 30-volume code of laws of the Russian Empire also fell into the millstones of the revolution," Yu.S. Vashchenko stated (Vashchenko, 2002, p. 27).

At that controversial period, it was difficult to imagine that the Austrian Federal Constitutional Law would have a long fate, because it is not enough to proclaim advanced doctrines and slogans in legislative form. In such an environment, the main purpose of the State and progressive social forces is to effectively implement the constitutional provisions and to resolutely defend them if necessary.

A textbook example of the purposeful inaction of the highest authorities and the disunity of the anti-fascist movement is the sad experience of the collapse of the democratic principles of the German Weimar Constitution of 1919, which was of sufficient quality for its time.

In Austria in the early thirties, the situation was also very critical. The consequences of the Great economic depression, falling production, low living standards and other negative phenomena contributed to the fact that on May 13, 1932, the leader of the right-wing Christian Social Party, E. Dollfuss, became Chancellor.

Relying on a parliamentary majority and the support of his constituents, he established a strict authoritarian regime, and after the suppression of the uprising of the left opposition forces in February 1934, the above-mentioned Federal Constitutional Law lost its legal force. A new act came into force, called the "May" Constitution (Maiverfassung), from which many positive norms were eliminated or radically revised.

For example, Article 1 of the previous law was excluded, which read: "Austria is a democratic republic. Its right comes from the people." Instead of this fundamental postulate, a slogan was proclaimed, reflecting the position of extremely conservative and clerical circles: "In the name of God Almighty, who grants all rights, the Austrian people received this constitution for their Christian German union state, built on the class principle."

The " May " Constitution was based on the ideas of the so-called "corporate state". An attempt to create it in the Italian Kingdom was made by the dictator B. Mussolini. This borrowing is explained by the fact that E. Dollfuss and his inner circle shared the doctrine of "Italo-fascism" and the corresponding views were actively transferred to Austrian society, which, in the face of severe contradictions, fell on favorable ground.

However, in July 1934, after an unsuccessful putsch by supporters of Hitler's Nazism, the Chancellor died. Formally, the " May " constitution functioned until 1938. Then, as a result of the "Anschluss" (annexation), Austria lost its independence and became an integral part of the German Reich.

Since 1945, Austria has been under the occupation of four victorious powers: the USSR, the United States, Great Britain and France. Ten years later, their allied troops left the country after the adoption of the Declaration of Independence. In accordance with the Federal Constitutional Law of October 26, 1955 (B. y., 1957), the permanent neutrality of Austria was declared.

At the same time, by the end of the twentieth century, there were significant deviations from the provisions of the above-mentioned act. In

1995, the country joined the EU and its military units now take part in the rapid reaction forces of this union. In addition, Austria is included in the program of the NATO military bloc "Partnership for Peace", which already contradicts the meaning and content of the concept of neutrality. Our task does not include a detailed analysis of all the leading conditions of the Federal Constitutional Law of 1920 (Federal constitutional law, 1920). We will briefly comment only on some of the most fundamental requirements that still exist today. It should be noted that at that time, a significant part of the Austrian population perceived them as purely abstract, because in the opinion of ordinary people they were not in harmony with the surrounding reality and the pressing problems of life.

The form of government of the newly formed state was a parliamentary republic, where the highest legislative body was the bicameral Federal Assembly. The Federal Chancellor, as head of government, was accountable to the lower house of Parliament, the National Council. In turn, the head of state, the Federal President, was elected at a joint session of both chambers, but was given purely representative functions, which is typical for parliamentary republics.

In addition to the general rules, the act clearly sets out the characteristics of the three branches of federal power: legislative, executive and judicial; establishes the principle of direct democracy; defines the powers of the legislative and executive authorities of the lands, as well as other areas and issues that are important for society and the state. In our opinion, two aspects deserve special attention among them:

a) this is the legal position of the Audit

Chamber – an independent control and supervisory republican body that reports only to the National Council. Its main functions are to check and analyze the financial activities of ministries and departments; other government entities; land and community bodies; legal entities created with the participation of state capital; and to prepare and submit to Parliament a report on the formation and implementation of the country's budget; b) the above-mentioned law, for the first time in comparison with other subjects of the world community, formulates the status of the Constitutional Court of the Republic of

Austria. First of all, this structure, as the highest judicial instance, is called upon to consider questions about the compliance of newly adopted normative legal acts of various legal force with the Basic Law of the country.

The Constitutional Court also has jurisdiction over a number of other narrower and more specific disputes arising between public authorities and other entities, the scope of which is defined in an exhaustive manner and is not subject to broad interpretation.

Here it is necessary to make some digression. In the legislative practice of countries belonging to the Romano-German legal family, to which Austria and Russia belong, it is not customary to focus in any way on the names of specialists who developed and justified certain normative legal acts, even if they were later of primary importance in the life of society and the state. However, when it comes to the Austrian Federal Constitutional Law, as a rule, mention is made of the great personal and scientific contribution made to its preparation by the world-famous lawyer, G. Kelsen (Kelsen, 2006, No. 8, pp. 5-14; Kelsen, 2006, No. 9, pp. 5-18).

He shared the views and theses about the guiding principles of building state power. At the end of the XVIII century raised to a higher level by the famous German thinker I. Kant.

Thus, in his famous work " The Critique of Pure Reason ", the following legal categories are justified:

 the principle of the social contract;  the principle of popular sovereignty;  the principle of the rule of law;  the principle of separation of powers (Kant, 1964).

A detailed analysis of the general and special provisions of the Federal Constitutional Law allows us to assert that, taking into account the existing realities at that time, these concepts somehow received legal consolidation as relevant regulatory provisions.

In our opinion, this is a vivid example when proposals put forward by specific people are separated from their creators, acquire complete independence, individuality and a purely independent, sovereign character. In fact, there is a situation in which the authors can no longer change the current situation and influence it in any way. Their ideas, scientific projects and developments have acquired the form established by law and have become legal instruments in the hands of society and the state.

In addition, it was Mr. Kelsen (Kelsen, 2006, No. 8, pp. 5-14; Kelsen, 2006, No. 9, pp. 5-18) who, during the preparation of the analyzed law, comprehensively presented the doctrine of the Constitutional Court, justified its role and significance in the observance of the principles of legality and justice, the protection of rights and socially significant interests. In the future, he developed and defended his position in a number of subsequent studies.

In this regard, the translation of his work "Judicial Guarantee of the Constitution (constitutional Justice)", published in 2006 in the eighth and ninth issues of the journal "Law and Politics" (Kelsen, 2006, No. 8, pp. 5-14; Kelsen, 2006, No. 9, pp. 5-18), is of interest. Interested persons are also addressed to the publication of G. Kelsen "Pure Theory of Law and Analytical Jurisprudence", which was published in the collection "Russian Yearbook of the Theory of Law". No. 2 for 2009 (Kelsen, 2009, pp. 432453).

It should be noted that the general characteristics of both the original and the current concept of Austrian constitutionalism and its constituent elements are presented in the publications of Russian researchers V. V. Novinsk (Novinsky, 2001, pp. 112-116); A. V. Manoilo and I. A. Nizovkina (Manoilo & Nizovkina, 2014, pp. 180-183); A. Yu. Solomatin and A. S. Koryakina (Solomatin & Koryakina, 2015, pp.34-41).

Of course, the Federal Constitutional Law, while maintaining the foundation laid in 1920, has now undergone many changes and received additions, caused both by the negative lessons of the past and by quite objective, modern reasons associated with profound changes in European life and in international politics.

For example, in order to exclude the usurpation of power by any party of the parliamentary majority, as was the case in 1934, on the basis of the relevant legal act, the Republic of Austria established a proportional division of ministerial portfolios in the government among all parties that passed the National Council, taking into account the number of parliamentary seats in Parliament.

In turn, the significant additions made to the Federal Constitutional Law in 2008 were due to Austria's accession to the European Union (EU). This led to the voluntary transfer of certain powers in the field of domestic and foreign policy to the governing, supranational structures of this entity. However, at present, the real situation in the Austrian society is far from ambiguous. There were serious problems in the field of migration quotas imposed on the country from above; disputes in the field of certain industries, mandatory supplies of certain products from abroad; a certain disregard for the national, historical and cultural traditions of the indigenous population, the pressure of the supranational bureaucratic apparatus.

The characteristics of these changes, called the Austrian constitutional reform of 2008, are described in sufficient detail in the dissertation and publications of E. A. Vodianitskaya (Vodyanitskaya, 2011, pp. 193-198); among the Austrian specialists, we will name the monographs Brauneder W., Lachmayer F. (Brauneder & Lachmayer, 1996); Lien-bacher G. (Lienbacher, 2008).

As one of the leading research methods, the authors were guided by a fundamental dialectical means of cognition: the ascent from the individual to the general. The singular characterizes the immediate certainty of a particular event or phenomenon, emphasizes their individual features, their fixation in time and space. In turn, the general, as a philosophical category, allows us to understand the objectively formed reality, the repeatability of individual properties, events or phenomena, their similarities and relationships.

Based on these factors, the authors, on the basis of individual facts, presented their own, general, unbiased vision of the formation of constitutional principles in Austria and Russia in the past and their current state.

Since the article pays the most significant attention to the events of the past decades, the comparative legal approach, which is a special element of scientific research in the field of state and public institutions of different countries and their legislation, was actively used. Comparison, as a logical technique, is based on a consistent understanding and analysis of similar conditions, rules and requirements. Therefore, we compared the analogous provisions of the Federal Constitutional Law of the Republic of Austria and the Constitution of the Russian Federation. This made it possible to objectively perceive the constitutional principles that deserve attention and support, to weigh their criteria, to establish the similarities and differences between them, on the basis of which to formulate conclusions about

the most optimal ways to solve the existing problems.

The appeal to the historical and legal method made it possible to present a picture of the events of a century ago, when, after the end of the First World War, a Federal Constitutional Law (Federal constitutional law, 1920) was adopted in Austria, which has passed the test of time and is still in force in its classical part.

In the course of this study, the authors were also guided by the principle of historicism. All the events described in the publication are considered in the movement, development, in their permanent or temporary contacts with other significant factors that relate not only to a specific era of the beginning of the last century. First of all, their inseparable relationship with the time was evaluated.

When preparing the publication, certain elements of the principle of complexity were also taken into account. The meaning of this approach was that some historical facts, certain aspects of constitutional provisions were studied not only from the legal point of view, but also from the philosophical and political positions.

This is manifested in the fact that the cardinal complication of social relations, wars, international and internal conflicts clearly show that even very positive legal ideas implemented in practice need certain clarifications at some point, and if they are fixed in the leading legislative acts: unconditional and effective protection. If there is no such interdependence, then a carefully developed teaching can turn into an immobile amalgam of separate categories, abstract concepts, and strictly abstract truths in a fairly short time.

According to the authors, it is from this point of view that it is necessary to perceive the amendments made to the Basic Laws of the two states. However, you must consider their fundamental differences, which are clearly expressed in the following aspects:

 supplement the Federal constitutional law of the Republic of Austria, especially due to its membership in the European Union (EU), which resulted in a voluntary transfer of certain powers in the field of internal and foreign policy guidelines, supra-national entities of a given entity;  meanwhile, the main purpose of the amendments made to the Constitution of the

Russian Federation during the national vote held on July 1, 2020, is the implementation and translation into practice of the security and protective conditions of domestic constitutionalism. To illustrate, among the many innovations, we will single out only three of the most fundamental norms aimed at protecting the interests of Russian citizens.

Thus, under the terms of clause 2.1 of Article 67 of the Basic Law, actions or appeals of this kind aimed at alienating part of the Russian territory are not allowed. In accordance with the rules of paragraph "g" of paragraph 1 of Article 72, the institution of marriage as a union of a man and a woman is protected by the State. Due to the requirements of Article 79, decisions of international bodies that contradict the Constitution of the Russian Federation are not subject to implementation on the territory of the country.

In the course of the work, methods of analysis and synthesis were widely used, which are classic and indisputable methods of any scientific research in the field of legal and other humanities.

A constructive and critical approach to the assessment of past and modern state-legal doctrines made it possible to draw attention to the role of well-known theorists in the history of the creation of the Federal Constitutional Law of the Republic of Austria and the Constitution of the Russian Federation.

The purpose of the research is to identify and fix the general and specific elements of Austrian and Russian constitutionalism, as well as the regularities of their historical and legal interaction at the current stage of state and social development. Ultimately, the creative application of various research methods and techniques allowed us to solve the problems faced by the authors of the proposed publication.

Ultimately, the current Austrian Constitution can be viewed in two dimensions. In the narrow sense of the word, this is the Federal Constitutional Law of November 10, 1920 (Federal constitutional law, 1920). In the broad perception, it is a conglomerate that unites more than three hundred normative legal acts containing certain constitutional requirements, through which a significant range of the most important public relations is regulated.

If we talk about modern Russia, the adoption of its Basic Law took place with a significant gap in time in a different political, economic and social environment. However, there were certain, similar circumstances. This is the collapse of the USSR, the extremely difficult economic situation in the country, a sharp drop in the standard of living of the country's population, rampant crime, the confrontation between the entourage of President Boris Yeltsin and supporters of the Supreme Soviet of the Russian Federation, which resulted in the dramatic events of October 1993, which caused human casualties.

Nevertheless, on December 12 of the same year, the Constitution of the Russian Federation was approved by a national referendum and entered into official force. As in the Austrian Federal Constitutional Law, it is based on the principles of democracy and equality; legality and justice; federalism and the separation of powers; the subjects of competence and powers are divided between the federal center and the authorities of the subjects; the institutions of private property and entrepreneurship have acquired a legal status.

The Basic Law also does not contain any ideological guidelines that fix the priority of a particular political party or social movement, and excludes a class approach to various social strata and groups.

At the same time, the norms of the Constitution of the Russian Federation, which occupies a leading place in the hierarchy of laws and bylaws, are not blind copies of foreign standards, since they contain very significant features that emphasize their specificity and originality. Let's look at some conditions in more detail.

First of all, the Basic Law highlights the provisions that the highest value of the Russian state is the person, his rights and freedoms: political, economic, social, cultural, ecological; freedom of movement and occupation; choice of place of residence and freedom of religion.

When analyzing the federal structure of Russia, first of all, it is necessary to pay close attention to its uniqueness. The corresponding entity is created on a national-territorial basis. It unites dozens of peoples and nationalities living on a vast territory, located in different time zones and climatic conditions. Therefore, the structure of state authorities and local self-government bodies has its own distinctive features. Thus, the republics that are part of a single state have their own constitutions, which reflect the issues inherent in a particular subject of the Federation. If necessary, the specifics of the relationship between the center and other population groups are regulated by separate laws. As an example, the Federal Law of the Russian Federation No. 82-FZ of April 30, 1999 (as amended on July 13, 2020) "On Guarantees of the rights of Indigenous small-numbered Peoples of the Russian Federation" (Law № 82-FZ, 1999) which recognizes independent ethnic communities numbering less than fifty thousand people.

The law takes into account the historical experience of their ancestors in the field of nature management, the original social organization of living and the original culture. The state pays special attention to the preservation of the customs and beliefs of this category of Russian citizens, the protection of the native habitat of the traditional way of life, economic activities and crafts. The bodies of territorial public selfgovernment of indigenous small-numbered peoples play a certain positive role in this.

In our opinion, the above-mentioned act not only declares, but also develops and concretizes the previously proclaimed constitutional principles of legality, justice and equality, public culture and morality. The value of a person, regardless of his nationality, lifestyle and status, is emphasized. At the same time, the State assumes responsibility for the economic support of small indigenous peoples.

It can be stated that a certain decentralization and significant independence of the regions is balanced by the fundamental principles presented in the Basic Law, designed to guarantee the inviolability of the territorial community and the indivisibility of the Russian state. Among them, the following basic principles can be distinguished:

a) equality of the subjects of the Federation in relations with the highest state authorities and among themselves, regardless of historical, economic, national and other features and differences; b) unity and protection of the foundations of the state system of the Russian Federation; c) the undisputed priority of federal legislation over regional regulations; d) the inadmissibility of actions aimed at changing the territorial integrity of the

Russian state.

Unlike Austria, the Russian Federation has a presidential republic as a form of government, in which the head of state has the broadest powers. It is the guarantor of the Basic Law, the rights and freedoms of citizens; determines the main directions of domestic and foreign policy; ensures the coordinated functioning and interaction of state authorities.

In addition to the President, these include the bicameral Federal Assembly (the Federation Council and the State Duma), the Government of the country and its courts at all levels, based on the terms of Article 11 of the Constitution of the Russian Federation. At the same time, as the Supreme Commander-in-Chief, the President of Russia bears personal responsibility for the protection of its state sovereignty, the inviolability of its borders, and the protection of the country from external challenges and threats. It should be emphasized that such an exceptional legal position of the President of the Russian Federation has been subjected to numerous attacks. At the same time, it is necessary to recognize that this form of government largely contributed to overcoming many of the centrifugal processes that engulfed Russia on the verge of two centuries.

Such critical phenomena included the "parade of sovereignty"; the adoption of various regulations in the regions that fundamentally contradict the requirements of the Constitution of the Russian Federation and other federal laws; attempts to infringe on the electoral rights of non-indigenous citizens in certain republics; the introduction of illegal taxes and fees, as well as other negative aspects.

The events in the North Caucasus, which resulted in a violent confrontation with separatism, became the apogee, threatening the real destruction of the Russian statehood. This led to the large-scale involvement of the country's armed forces in combat operations with the enemy.

In this situation, the President of the country and the federal authorities had to immediately make quick and energetic decisions, the implementation of which was carried out only by force. It seems that under the parliamentary form of government, many pressing problems could be drowned in endless debates, agreements and disputes between representatives of various parties, lobbying groups and other similar structures. The support of a significant part of Russian citizens for the presidential form of government is explained by a number of reasons that go back to the distant past. In particular, it is necessary to take into account the uniqueness, originality and other most significant traditions of Russian society: communality, sobornost, power, patriotism, a special understanding of justice (Gogin, 2016, pp. 34).

In our opinion, regardless of the change of generations and the passage of time, the ideas of paternalism that are ingrained in the minds of people somehow have an impact on the consciousness and behavior of people, which in no way can be perceived in a negative way. History shows that often the role of the subjective factor was the determining factor in many state and other socially significant achievements. These issues are deeply and thoroughly analyzed in the monographs of S. A. Avakyan (Avakian, 2000); N. A. Bobrova (Bobrova, 2012); V. D. Zorkin (Zorkin, 2019) and many other publications.

Among the new federal authorities created in Russia on the basis of the constitutional rules were the Constitutional Court of the Russian Federation and the Accounting Chamber. The conditions of their activities and powers are in many respects comparable to the status of the relevant structures in the Republic of Austria.

At the same time, the constitutional provisions are not postulates that have been frozen for many decades, but a living document designed to change under the influence of objective reasons and socially significant requirements in particularly significant situations.

The complex of accumulated problems of various nature, among which a significant place was occupied by gaps in legislation, legal conflicts, the need to specify and clarify a number of conditions, contributed to the fact that in 2020 the Constitution of the Russian Federation underwent significant adjustments. The works of N. M. Dobrynin (Dobrynin, 2020, pp.3-11); S. N. Baburin [20, pp. 3-8]; A.V. Bezrukov (Baburin, 2020, pp. 3-9] and many other researchers are devoted to the current state of Russian constitutionalism, especially in the context of the reform of 2020.

The complex of accumulated problems of various nature, among which a significant place was occupied by gaps in legislation, legal conflicts, the need to specify and clarify a

number of conditions, contributed to the fact that in 2020 the Constitution of the Russian Federation underwent significant adjustments. The works of (Dobrynin, 2020, pp.3-11); S. N. Baburin (Baburin, 2020, pp. 3-8); A.V. Bezrukov (Bezrukov, 2020, pp. 3-9) and many other researchers are devoted to the current state of Russian constitutionalism, especially in the context of the reform of 2020.

In addition to the changes indicated at the beginning of the publication, it is necessary to briefly describe several other amendments that are of primary importance, because in the near future they will play their role and will have an impact not only on the daily state of affairs, but also on the future.

First of all, we note a very significant expansion of the powers of the President of the Russian Federation in the field of public administration. In particular, he can not only attend a cabinet meeting, but also carry out "general management" of the government's activities; appoint and dismiss the heads of federal executive bodies, including the ministers of the security sector and foreign affairs; the Prosecutor General and his deputies, and regional prosecutors.

When evaluating other innovations, the content of paragraph 2 of Article 67.1 of the Constitution of the Russian Federation deserves special attention. It is stated here that the Russian Federation, united by a thousand-year history, preserving the memory of our ancestors who passed on our ideals and faith in God, as well as continuity in the development of the Russian state, recognizes the historically established state unity. Many critical comments have been made about this article, but, in our opinion, there is a serious moral potential here, which must be consistently developed in theory and in practice.

In both countries, the adoption of the Basic Laws was preceded to some extent by similar, negative events of different levels. For the Republic of Austria, the decisive factor was the defeat of the Austro-Hungarian monarchy in the First World War and the formation of several independent states on its former territory. For the Russian Federation, this is the collapse of the Soviet Union caused by a complex of objective and subjective reasons.

The foundation of the constitutionalism of both countries is made up of the principles of democracy and equality, legality and justice, federalism and separation of powers, protection of the rights, welfare and diverse interests of citizens, as well as other value aspects designed to determine the main directions of life and development of modern society.

At the same time, each state, due to a huge range of specific features, has the right to fix in its laws those conditions and provisions that meet the social needs of the country's population, even if they may be perceived in certain elements by other subjects of the world community in a controversial and ambiguous way.

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Volume 1. (1917-1939 Documents and Materials), Moscow: Publishing House of SocioEconomic Literature. Gogin, A. A. (2016). Offense: general theoretical, intersectoral and branch aspects: monograph, Moscow: Yurlitinform. Kant, I. (1964). The Critique of Pure Reason. Essays in six volumes. Vol. 3. Publishing house of socio-economic literature, Moscow: "Thought". Kelsen, G. (2006). Judicial guarantee of the Constitution (constitutional justice). Part 1. Law and Politics, Moscow: NOTA BENE, No. 8, pp. 5-14. Kelsen, G. (2006). Judicial guarantee of the Constitution (constitutional justice) Part 2. Ending. Law and Politics, Moscow: NOTA BENE, No. 9, pp. 5-18. Kelsen, G. (2009). Pure doctrine of law and analytical jurisprudence. Perev. from the English by A. A. Kraevsky. Russian Yearbook of the Theory of Law, No. 2, pp. 432-453. Lienbacher, G. (2008). The first part of the constitutional reform. Journal of Research Practice. Manoilo, A.V., & Nizovkina, I. A. (2014). Features of Austrian federalism. International Relations, No. 2, pp. 180-183. Novinsky, V. V. (2001). Evolution of the constitutional legislation of the Republic of Austria. Russian Law Journal, No. 1(29), pp. 112-116. Prudnikov, O. E. (2012). Formation of the foundations of the constitutional legislation of the Austrian Imperial Monarchy in the 18661867 – ies. Bulletin of the Volgograd State University. Series 5: Jurisprudence, No. 1(14), pp. 78-83. Solomatin, A. Yu., & Koryakina, A. S. (2015). Austrian federalism. Science, Society, State, 3(4), pp. 34-41. Vashchenko, Yu. S. (2002). Philological interpretation of the norms of law: a monograph. Tolyatti: Publishing House of the V. N. Tatishchev Volzhsky University. Vodyanitskaya, E. A. (2011). The 2008 Austrian Constitutional Reform. MGIMO Bulletin, No. 4, pp. 193-198. Zorkin, V. D. (2019). Constitutional and legal development of Russia. Monograph, M.: Norma.

DOI: https://doi.org/10.34069/AI/2021.41.05.13

Received: April 27, 2021 Accepted: May 30, 2021

Written by:

https://orcid.org/0000-0002-4244-2419 Web of Science researcher code: ABC-1338-2020

https://orcid.org/0000-0003-4846-2573 Web of Science researcher code: AAP-5453-2021

https://orcid.org/0000-0003-4231-537X Web of Science researcher code: AAP-5545-2021

https://orcid.org/0000-0002-5498-1620 Web of Science researcher code: U-6786-2017

https://orcid.org/0000-0001-5722-7183 Web of Science researcher code: AAP-5548-2021

The article's purpose is the criminological and forensic characteristics of the forms of embezzlement of funds by the use of information technology and international and foreign experience in combating this destructive phenomenon. The object of this article is the relationship that arises in connection with the implementation and counteraction to theft in the field of information technology. The authors used various methods of scientific cognition to write this work. In particular, historical, observation, generalization, comparison and analogy, statistical, analytical, and others. The article emphasizes that the emergence and rapid development of new information technologies do not always positively affect criminals because criminals can transform positive qualities into crime. In particular, crimes of embezzlement through the use of information technology are now widespread. This article has tried to provide a criminological description of the three main forms of cybercrime against money: carding,

Метою статті є кримінологічна та криміналістична характеристики форм розкрадань грошових коштів шляхом, вчинених використання інформаційних технологій та міжнародний і зарубіжний досвід протидії цьому деструктивному явищу. Об’єктом цієї статті євідносини, що виникають у зв’язку зі здійсненням та протидією розкраданню у сфері інформаційних технологій. Для написання даної роботи було використано різні методи наукового пізнання.Зокрема, історичний, спостереження, узагальнення, порівняння та аналогії, статистичний, аналітичний та інші.У статі акцентовано увагу на тому, що поява та стрімкий розвиток новітніх інформаційних технологій не завжди справляє позитивний ефект, адже злочинці можуть трансформувати позитивні якості у злочинні. Зокрема нині широкого поширення отримали злочини з розкрадання грошових коштів шляхом використання інформаційних технологій. У

42 PhD in Law, Senior Lecturer, Department of Criminal Legal Disciplines and Procedure, Sumy State University, Ukraine. 43 Doctor of Legal Sciences, Professor, Professor of the Department of Civil Law and Process of Dnipropetrovsk State University of Internal Affairs, Ukraine. 44 Doctor of Scienceof Law, HonoredLawyerofUkraine, Kyiv Scientific Research Institute of Forensic Expertise, Ukraine. 45 Doctor of Scienceof Law, Assotiate Professor, Admiral Makarov National University of Shipbuilding, Ukraine. 46 Assotiate Professor, Assotiate Professor of the operative-searching department in National academy of internal affairs, Ukraine.

phishing, and embezzlement committed using NFC technology. In addition, emphasis was placed on the importance, role, tasks of computer and technical expertise in the investigation of embezzlement dedicated through the use of information technology. The importance of implementing international conventions and the positive experience of foreign countries in combating the embezzlement of funds committed through the use of information technology.

Keywords: cybercrime, carding, phishing, Near Field Communication, computer and technical expertise, foreign experience.

At the present stage of formation and development of the information society, digitalization is global, comprehensive, penetrating all spheres of public life. This is becoming one of the leading social development factors and essentially characterizes modern social dynamics (Babanina, Tkachenko, Matiushenko & Krutevych, 2021). World scientific and technological progress has led to the emergence of a large number of new technologies. Such technologies have introduced a large number of innovations into public life. An important point of development is the emergence of the first computers and computer networks, which opened up many opportunities for humankind. Considering all the features of progress and other factors, it is possible to view the emergence of a new criminal link in cyberspace. At the same time, along with the apparent positive effect of the use of information technology, there are accompanying negative manifestations (Kurmaiev, Seliverstova, Bondarenko & Husarevych, 2020). Cybercrime is a very pressing issue in society today. This is evidenced by news worldwide, criminal statistics, problematic issues in the science of criminal law, and problems in the criminal process. All this is because, as a phenomenon, cybercrime is a particular category that is constantly evolving in parallel with technological progress. This proves the lack of an effective mechanism for protection against this phenomenon (Utkina, Bondarenko & Malanchuk, 2021). The urgency of issues related to criminal liability for theft committed with the use of information technology, because currently offenses that infringe on property relations, and directly related to computer technology and the Internet, have become widely spread acquired a prominent international character. In most cases, individuals do not know each other in real life, and their interaction is realized through virtual identification (Vorontsova, 2011).

Accordingly, information security requires a constant search for new mechanisms to combat cybercrime, including legal instruments, analysis of the causes, risks, and threats of high-tech criminal offenses against property. Cybercrime is a problem that needs to be taken seriously. This is because the impact of these unlawful encroachments is far-reaching and harms the economy. If left unchecked, these crimes will develop and require more attention from law enforcement and the legislature (Sujono, 2019).

New forms of crime are challenging our society. Until a few decades ago, there were only a few mentions of cybercrime, but in a short time, cybercrime has spread so that it not only poses a threat to individual states but has reached global proportions. The most common crimes in cyberspace are thefts committed by fraud, the scope of which allows us to talk about their types: payment fraud (theft using payment cards); skimming (crimes related to the use of ATM fraud); malicious payment software (theft through the development and use of malicious programs); social engineering (illegal obtaining

статті ми спробували надати кримінологічну характеристику трьом основним формам кіберзлочинів проти грошових коштів: кардингу, фішингу та розкраданням, що вчиняються за допомогою технології NFC. Крім того, акцентували на значенні, ролі, завданнях комп'ютерно-технічної експертизи під час розслідування розкрадань грошових коштів, вчинених шляхом використання інформаційних технологій. Наголошено на важливості реалізації міжнародних конвенцій та позитивного досвіду зарубіжних держав у контексті протидії розкраданням грошових коштів, вчинених шляхом використання інформаційних технологій.

Ключові слова: кіберзлочини, кардинг, фішинг, технологія «зв'язок на невеликих відстанях»,комп'ютерно-технічна експертиза, зарубіжний досвід.

of information for selfish purposes); phishing (gaining access to confidential personal data by sending e-mails); fraud in e-commerce (theft related to the vulnerability of payment systems of online stores, platforms for ordering tickets, car rental, and others); prepaid copy (a promise to provide services or deliver goods after prepayment).

This confirms the fact that the improvement of computer technology, the rapid development of information technology creates a qualitative change in criminal offenses in computer information, and today there is a specialization in this part of the criminal environment. For example, property crimes should no longer involve personal contact between the offender and the victim (Kunz and Wilson, 2014). Depending on which began to appear such types of criminals as carders, phishers (criminals who engage in computer fraud by obtaining illegal access to bank details, numbers of plastic payment cards, etc.), frackers (criminals who specialize in committing crimes in areas of telecommunications using confidential computer information and unique technology means for covert receipt of information from technical channels).

The purpose of scientific work is criminological and forensic characteristics of forms of embezzlement through the use of information technology and international and foreign experience in combating this destructive phenomenon.

Carding as a form of embezzlement through the use of information technology

Modern technology is firmly entrenched in our daily lives and is now an integral part of it. Speaking of the Internet, we can say that this area of human interaction is developing rapidly. Now there you can find any information, including criminal. And what about crimes committed on the Internet?

Unlike traditional types of crime, the history of which spans centuries, such as murder or theft, the phenomenon of cybercrime is relatively young and new, which arose almost simultaneously with the advent of the Internet.

In modern Ukraine, the terms "theft in the field of information technology" are not officially defined in regulations. At the same time, the concept itself was formed through the activities of law enforcement agencies of developed countries in Europe and the world, including crimes in the field of computer technology, illicit trafficking in electronic and special hardware, distribution of unlicensed computer software, and some other types. crimes (Bondarenko & Repin, 2018).

The most common crime on the Internet is theft. In the field of information technology, theft has developed quite well and therefore has many types. One of these is "carding," or in other words, theft associated with bank cards. An attacker can commit this act by hacking the servers of online stores, which store payment data, payment systems in general, or hacking a user's personal computer to obtain personal data of bank cards, accounts, etc.

Theft of details that identify users on the Internet as holders of bank credit cards, with their possible further use for illegal financial transactions (purchase of goods or money laundering) is called karting (Sachkov & Smirnova, 2015).

The increased interest of delinquents in increasing the number of online payments necessitates the improvement of legislation in combating carding. Moreover, this area's low level of resistance has turned carding into an independent measurement of criminal business with huge profits. The analysis of unique and scientific literature allows us to conclude that the scientific community pays attention to counteracting the theft of money from bank cards.

Tereshchenko L. K., Starodubova O. E defines carding as one type of fraud in which transactions are performed using someone else's payment card or its details that are not initiated or confirmed by its owner (Tereshchenko & Starodubova, 2017).

S. Usachev proposes to consider the theft of funds from payment cards, in other words, called carding and refers to the commission of various transactions directly through the use of the card itself or its details without the knowledge and permission of its official owner (Ermolenko, 2015).

M. Batiushkin notes that carding is an act of stealing someone else's property or acquiring the right to someone else's property by entering, deleting, blocking, modifying computer information or other interference in the operation of storage, processing, or transmission of

computer information or information and telecommunications networks (Batyushkin, 2021). D. Grib notes that carding as theft is possible only with the help of computer manipulations, which consist in deceiving the victim or the person to whom the property is entrusted or under whose protection it was, using the information processing system (Grib, 2019).

In our opinion, "carding" should be defined as the theft of someone else's property, money, or rights to someone else's property by entering, deleting, blocking, modifying computer information or other interference in the operation of storage, processing, or transmission of computer information or information telecommunication networks.

Phishing is a form of embezzlement through the use of information technology

According to M. Mogunov, "phishing" is a particularly dangerous crime associated with erroneous messages from banks, payment system administrators, or sending messages on social networks. These messages often ask you to follow the link to change the password or other actions, thereby obtaining a valid login and user password. The purpose of such manipulations can be a bank account, an account in payment systems, e-mail, and social networks. Once scammers get what they need, they quickly apply it to access the user's bank account.

Phishing can be defined as the acquisition by deception or social engineering methods (hacking using the human factor) of personal data for selfish, criminal purposes. The implementation of phishing has two mechanisms: first, the intermediary receipt of personal data, and second, the receipt of personal data from their owner (Mogunova, 2020).

Near Field Communication (NFC)

L. Bondarenko, N. Yaroshevich, and A. Tarabinovych note that NFC, or Near Field Communication, translated from English, means "near field communication". It is this technology that allows two devices equipped with NFC chips to wirelessly exchange data at a distance of up to 10 cm (Bondarenko, Yaroshevich & Tarabinovich, 2019). In general, NFC technology is a logical continuation and extension of the ISO 14443 standard, which combines the interface of a smart card and a reader into a single device. This allows the measure to cover a broader range of tasks and standardize a much larger set of devices. Currently, NFC is actively used primarily in a considerable number of digital mobile devices, such as mobile phones. NFC chips are built into the default and are also used in public transport and payment systems. Contactless payment is one of the most valuable features of modern smartphones. With its help, it is enough to bring the gadget to the payment terminal or turnstile in public transport to pay for a purchase or trip. Mobile banking is another incredible invention that simplifies the lives of millions of users. However, how safe is it to store card data on a smartphone and pay for everything in a row using the gadget?

Various methods of scientific cognition were used to write this work. In particular, the historical process is used to clarify historical moments in cybercrime and theft in information technology. The method of observation to get acquainted with the essence of theft in information technology and the difficulties it causes. The authors used the generalization method to define the general concept of theft in information technology and its significance for the economic security of the state and society. The way of comparison and analogy is used to identify some standard and distinctive features among the regulations of different countries. The statistical method made it possible to investigate and assess the scale of the development of theft in information technology. The analytical approach is used to study the individual components of theft in information technology: the causes and methods of its commission.

Web carding: a description of the essence

Recently, web carding is gaining popularity, i.e., the theft of funds from payment card accounts, virtual accounts, cryptocurrency using the Internet. The low level of interaction between law enforcement agencies of different countries complicates counteracting webcarding. A person who steals money under a similar scheme is called a "carder" or a "web carder." Unemployed men are engaged in carding, as this kind of activity takes almost all the time. Age of malefactors from 18 to 40 years, not married. As a rule, these are people without education or have incomplete higher education, not previously convicted. These people have an increased ability

to work because to commit theft, for example, from American payment cards, the last switch to a specific sleep mode, similar to the US time zone (conduct their "work" at night, sleep during the day) (Golovinov & Pogorelov, 2016).

Skimming as a kind of carding

Let's turn to one of its most challenging to identify – skimming (such theft is carried out using special devices and tools that allow you to read payment card information (e.g., magnetic stripe). Ways to read information are currently different; continuous technical development, science, and technology determine the constant improvement of these methods by criminals.

Today, law enforcement agencies know such methods of reading magnetic strips of payment cards as the use of special devices that read the magnetic head and adapter to connect to a computer, allowing you to process the necessary data of the magnetic stripe cardreproduce it on a fake further. In addition, criminals use minivideo cameras, the task of which is to obtain data on the PINcodes of payment cards (Likholetov, 2016). The main problem of detecting these devices at ATMs or other terminals, gas stations, vending machines is their careful camouflage and lack of knowledge about the authentic appearance of these terminals among citizens. Yes, not a specialist in this field of expertise is unlikely to distinguish an ATM with the original elements from the receiving tray with a cover in the form of a magnetic head. First of all, such devices are not conspicuous, and the overlays have the original color, shape, and other external data.

The essence of the use of skimmers is the ability of such devices to concentrate criminally obtained information about payment cards, as well as transmit it through communication channels for further production of a duplicate card, both for cash and for various purchases without direct withdrawal funds from the card (Smagorinsky & Senchenko, 2016).

A significant problem in detecting such crimes is the relatively high level of development of the so-called "criminal electronics". Improving the methods of embezzling money from bank cards makes it difficult to create a particular algorithm of actions of law enforcement officers, which allows you to respond competently to such facts of illegal activities of criminals.

Phishing: characterization of the essence The principle of "phishing" redirects the user to fake network resources created by attackers, outwardly no different from actual Internet pages.

By following the link attached to the letter, the user gets to a fake site that looks just like the accurate site of any bank, store, or social network. Once a user fills out a form with a login and password to log in to their account, they are detected by attackers. The criminal, gaining access to the login and password from the report to the Internet banking, transfers funds from the victim's account, thereby committing theft.

For example, there is a well-known cryptocurrency payment service www.myetherwallet.com. On such a service, you can create a virtual cryptocurrency wallet and buy and store cryptocurrency. In their messages or messages, intruders sending links to this site allegedly change several or even one letter to other characters to be invisible. For example, the actual link of this system is as follows: www.myetherwallet.com, and the attacker's link will look something like this: www.myetherwalIet.com (Decision of Appeal ruling of the Supreme Court of the Udmurt Republic, 2019). It should be emphasized that "phishing" does not affect the software on the victim's computer. The victim himself goes to the sent link and enters the login and password. In the future, the theft of funds is carried out using the received login and password, but not due to exposure to the victim's device.

Using NFC technology to steal money

Theft is associated with contactless payment, i.e., due to NFC, a wireless data transmission technology with a shortrange, which allows the exchange of data between devices at a distance of 4 centimeters. This technology is now present in almost every bank card and smartphone. Itenables you to pay for purchases up to a certain amount only by attaching a bank card without entering a password.

The essence of criminal activity is to intercept NFC signals using illegal readers. RFID interceptors are analogs of conventional contactless PIC card terminals with increased functionality that capture and process electromagnetic waves. Such a device is usually equipped with an antenna, a particular controller, connectors for extracting information from the reader, and pirated computer software, i.e., software. To receive money, the attacker is enough to be 10 centimeters from the bank card,

which will get money and all its data. However, progress is not standing still, and today there are some ways to protect against attackers: many manufacturers have started selling unique aluminum card covers that dampen electromagnetic waves, thus limiting the use of the contactless payment, then there is an option to set a limit for contactless payment without entering a password and others.

The role and importance of computer forensics in the investigation of embezzlement through the use of information technology

It is worth emphasizing one of the achievements of recent years in the field of detection and investigation of criminal offenses, namely the emergence of computer science, which is included in the relevant list of genera (types) of forensic examinations performed in forensic departments. With exceptional knowledge in computer technology, experts (experts) can contribute to the investigator's activities to establish the truth in the investigation of crimes (Shaevich, 2011).

The possibilities of forensic examination are challenging to overestimate. This fact is entirely accurateA. Vardanyan and O. Gribunov noted that current law enforcement practice is focused on the appointment and conduct of examinations that will reveal information about the mechanism of criminal activity, the identity of an unidentified offender, and other signs and properties, thereby serving as evidence in a criminal case (Vardanyan, Gribunov, 2016).

Consider the possibility of computer forensics as an essential aid in detecting and investigating criminal offenses related to the theft of funds from bank cards. Criminals, in most cases in terms of ways to commit illegal acts, use objects of electronic devices designed to intercept information about customers of remote banking systems.

The subject of computer-technical examination, which is conducted to establish the facts of theft of funds from payment cards, are the following categories: the establishment of factual circumstances relevant to the criminal case under investigation (1); establishing the actual occurrences associated with the use of electronic devices that allow you to seize the data of the payment bank card, as well as information about PIN-codes (2). Objects of computer and technical examination are unique devices and tools that allow you to read the statement of payment cards installed on the elements and nodes of the terminals of remote banking systems (ATMs), which are withdrawn directly from ATMs or during the inspection and searches (Pilipchuk & Dzioban, 2011).

The objectives of this examination, which is assigned in the investigation of criminal cases initiated on the facts of the investigated thefts, are: to determine the direct possibility of interception of information about customers, submitted for investigation equipment (1); diagnosing individual bank card numbers intercepted by them (2) (Golub, 2016).

Establishing these tasks will provide information about involvement in the crime and serve as the evidence in detecting compromised payment cards and determining the possible damage caused to the victim.

During the computer forensic examination, which is assigned to this category of crimes, the expert can answer the following questions: 1) whether it is possible to use the presented devices to obtain information available on plastic payment cards, as well as information about keystrokes on the ATM keyboard (including a number about PIN codes)? 2) does the presented objects contain data on plastic payment card numbers and their PINcodes? 3) in what way is it supposed to receive the presented equipment (device) data on the received information?

The relatively narrow list of issues to be resolved by experts is explained by the fact that this type of forensic examination is still relatively "young". The potential and opportunities of the study are not fully disclosed, which affects the formation ofthe quality evidence base in criminal cases.

Moreover, currently, there is no specialized method of producing such examinations, including all aspects of this activity, the exact algorithm, and ways to resolve disputes that arise at the stage of formulating conclusions. Continuous improvement of skills and abilities of criminals in terms of improving the concealment of traces of criminal activity on the proposed crimes indicates the need for constant monitoring of consumer radio technology, as well as the importance of developing new tools and methods to establish the facts of illegal actions, namely embezzlement—payment bank cards.

International and foreign experience in combating theft using information technology and computer information

The problems of counteracting such embezzlement are acute for the world community, which adequately assesses the current situation, recognizing the obligation to take urgent international action (Jahankhani, AlNemrat & Hosseinian-Far, 2014).

The UN makes a significant contribution to solving the problem of combating cybercrime. The UN Office on Drugs and Crime has conducted a comprehensive study of cybercrime to study the problem of counteraction and develop proposals for improving international legal measures and national legislation. At the request of the UN General Assembly (Resolution No. 65/230, 2011), the Commission on Crime Prevention and Criminal Justice set up an intergovernmental group of open-ended experts to identify the research topics and methodology, take note of the study itself, and take action. In response, the Member States, the international community, and the private sector, and in 2017 proposed a platform for further discussion of cybercrime issues to closely monitor new trends (United Nations, 2021).

Documents developed in the context of or under the auspices of the Council of Europe or the European Union, the Commonwealth of Independent States or the Shanghai Cooperation Organization, African intergovernmental organizations, the League of Arab States, and the United Nations (United Nations, 2021) are also necessary. First of all, it is essential to analyze the Council of Europe Convention on Cybercrime, adopted on November 23, 2001, also known as the Budapest Convention. It is currently the only global document at the international level that is mandatory for member states, which regulates actions to combat cybercrime (Council of Europe, 2001). Cybercrime in the Budapest Convention is divided into five groups: crimes against confidentiality, integrity, and availability of computer data and systems (illegal access, unauthorized interception, influence on data, influence on the functioning of the system, unlawful use of devices) (1); crimes for which a computer is used (forgery with the use of computer technology, fraud with the help of computer technology) (2); crimes related to data retention (child pornography) (3); crimes related to the infringement of copyright and related rights (4); crimes related to racism and xenophobia committed with the help of computer systems (5). It is important to note that the Convention, as the primary document of international character, sets out the criteria for the development of national legislation defining the types of acts to be criminalized; fraud with computer technology has identified a separate crime.

In addition to studying international regulations aimed at combating the theft of money through information technology, it is worth emphasizing the example of similar experiences in foreign countries.

In the French Criminal Code, the rules for liability for computer crimes are contained in two books. Thus, the second book, "On crimes and misdemeanors against the person, " includes the chapter "On encroachments on the person", including the composition of such crimes as illegal actions with personal data in telecommunications systems. The third book, "On property crimes and misdemeanors," contains a chapter "On encroachments on automated data processing systems", the rules of which provide for criminal liability for its misuse. It follows that personal data, as well as telecommunication systems, are subject to criminal law protection. The Criminal Code of France does not contain special rules on theft committed with the use of computer information (Criminal Code of the French Republic, 2020).

In the Criminal Code of the Federal Republic of Germany, computer fraud is a separate crime; paragraph 263a establishes liability for actions to obtain for themselves or a third party illegal property gain, which harms the property of another person by influencing the outcome of computer data processing compiling incorrect programs, using inaccurate or incomplete data, unauthorized use of data or other illegal influence on the data processing process. Computer information, in this case, is a way of committing theft (Criminal Code of the Federal Republic of Germany, 2013).

In 1986, the United States passed the Computer Fraud and Abuse Act. This law is one of the few components of federal law on theft using computer systems. Paragraph 1030 of Chapter 47, Section 18 of the U.S. Code, which establishes liability for committing fraud by accessing a computer, has become part of this law (Khilyuta, 2013). Under this rule, criminal liability arises for access to a computer that is carried out with fraudulent intent, and its use to obtain anything of value through fraud, including the illegal use of computer time worth more than $ 5,000 during the year, that is, without paying for the benefit of computer networks and services. Thus, US law separates computer fraud

from the traditional, its essence - access to a computer and computer use.

The Swiss Criminal Code provides for liability for electronic espionage, perfect for selfish purposes. Thus, a person who, for his or her illicit enrichment or the enrichment of another, acquires for himself or another person data collected or transmitted electronically or in a similar manner is subject to criminal punishment. In addition, Article 147 criminalizes fraudulent abuse of a data processing facility (Swiss Criminal Code № SR 311.0, 2020).

Paragraph 2 of Article 278 of the Criminal Code of the Republic of Polandstates that a person who receives someone else's computer program to obtain property gain is subject to criminal punishment without the consent of an authorized person (Criminal Code of the Republic of Poland, 1997). In addition, paragraph 1 of Article 287 provides for criminal liability for unlawful receipt of property gain or wrongful infliction of harm to another person by influencing the automated conversion, collection, or transmission of information, its modification, deletion, or introduction of a new record on computer media (Criminal Code of the Republic of Poland, 1997). Crimes, which the legislator classified as a computer, in Poland are divided into groups depending on what the person's actions were aimed at - to obtain information or to obtain property benefits

The Turkish Criminal Code does not provide for computer fraud. Still, Article 504, paragraph 3, establishes liability for fraud using postal, telegraph, and telephone communications as a tool of crime (Penal Code of Turkey, 2016).

According to paragraph 279a of the Danish Penal Code, computer fraud refers to the unlawful alteration, addition, destruction of information or programs used for electronic data processing committed for illegal gain (Order No. 909, 2005).

The Criminal Code of the Republic of Korea contains Article 347-2 "Computer fraud", according to which a person who receives any benefit from the property or facilitates the receipt of such service by a third party through the use of information, input of erroneous or improperly processed data in technical means, including a computer, is subject to criminal punishment (Criminal Code of the Republic of Korea, 1998).

Analyzing the international and foreign experience in combating computer theft, it should be noted that agreement on this issue has not been achieved at any level. In our opinion, it is worth developing a concept that would include the following segments: 1) a review of the activities of international organizations allows us to conclude that the world community is actively taking measures to combat cybercrime, making efforts to reform legislation. However, recognizing that effective confrontation is possible only with joint complex, coordinated actions, it has not yet achieved positive results in this direction. The adopted documents of international and regional organizations are characterized by a certain degree of fragmentation in the criminalization of acts. Some address the problem of cybercrime in the broadest sense as a growing threat to international security, including information terrorism, information warfare, and do not contain provisions relating to criminal justice, including crime and procedural powers. Other guidance documents containing these provisions do not provide a single approach, particularly addressing the criminalization of acts committed in cyberspace. Such differences can significantly impact how the requirements of international law will be taken into account in national legislation. At the same time, most countries of the world community recognize that the fight against cybercrime requires the strengthening of legal measures, improvement of legislation, including in the field of criminal law; 2) currently in foreign countries in terms of criminalization of theft committed with the use of computer information, different approaches are used. Several countries, such as the United Kingdom, France, and Georgia, use general rules on cyber theft with provisions that reflect components of acts such as unauthorized access, intrusion into personal data, and other information security crimes. In addition, an approach is being implemented in which the use of computer technology is envisaged as a qualifying feature of property crimes (Turkey). In other countries, such as the United States, Germany, Japan, Switzerland, Sweden, Poland, Denmark, Korea, China, Belarus, Armenia, thefts committed with computer information are allocated to separate warehouses in the system of property crimes. Such acts are mostly recognized as either theft or fraud and are prohibited by either the fundamental criminal law of the country, or unique, or both.

The emergence and rapid development of new information technologies do not always positively affect criminals because criminals can transform positive qualities into crime. In

particular, offenses related to the theft of money through information technology are now widespread. This article has tried to provide a criminological description of the three primary forms of cybercrime aimed at stealing money: carding, phishing, and embezzlement committed using NFC technology. In addition, emphasis was placed on the importance, role, and implications of computer and technical expertise in the investigation of embezzlement through information technology. The importance of implementing international conventions and the positive experience of foreign countries in combating the embezzlement of funds committed through the use of information technology.

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