KAZAN UNIVERSITY LAW REVIEW, 2019, том 4, № 3


KAZAN UNIVERSITY LAW REVIEW ■ Volume 4, Fall 2019, Number 3


        TABLE OF CONTENTS


   Damir Valeev (Kazan, Russia) Welcoming remark of the Editor-in-Chief ......................... 151

ARTICLES:
   Valery Lazarev (Moscow, Russia)
   Dmitry Fursov (Moscow, Russia) Technologies. Law. Person........................................ 154
   Vladimir Orlov (Helsinki, Finland) Russian Law Sources, Doctrine and Interpretation ................ 169
   Carlos Henrique Soares (Belo Horizonte, Brazil)
   Tatiane Costa de Andrade (Belo Horizonte, Brazil) Judicial powers and enforcement of judgments in Brazil .......... 192

COMMENTARIES:
   Roza Sitdikova (Kazan, Russia) Concept of interest in copyright: definition and types........... 215

CONFERENCE REVIEWS:
   Valery Golubtsov (Perm, Russia)
   Olga Kuznetsova (Perm, Russia)
   Perm readings on methodological problems of civilistic research . 224

KAZAN UNIVERSITY LAW REVIEW ■ Volume 4, Fall 2019, Number 3





            ARTICLES



                                         Valery Lazarev
                                         Doctor of Legal Sciences, Professor, Honored worker of science of the Russian Federation, Chief Researcher of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

                                         Dmitry Fursov
                                         Doctor of Legal Sciences,
                                         Professor of the Department of Civil and Administrative Proceedings of the Russian State University of Justice

        TECHNOLOGIES. LAW. PERSON.


https://doi.org/10.30729/2541-8823-2019-4-3-154-168

    Abstract: This article discusses current problems associated with the application of various types of technologies, their benefits and threats to humans. Now lawyers have unexpectedly become concerned with the general issues of what constitutes a model of state and law in a post-industrial society. From the authors’ point of view, innovative results in the characterization of this society can be expected from the lawyers only after a system of diverse technologies will be considered in their direct and immediate connection with a person. Among the many technologies of various kinds, types and varieties, there are three main groups that require special attention. The most significant technologies can develop only in the legal field, under the control of society and the state. One of these technologies, associated with the creation and development of intellectual systems, is analyzed in terms of the prospects for its use in professional activities in the dispensation of justice.

    Keywords: state, law, justice, technology, artificial intelligence, human rights, computing systems.

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    “The semiconductor revolution was the basis of what we call modern information technologies and what we call today a post-industrial society,” said Zhores Alferov.¹ This is a capacious characteristic of the technologies in modern society from the representatives of the physical worldview. And what can state and legal scholars say just as significant about this society?
    Much has been written about the changes in society in the digital age.² At the last two legal forums in St. Petersburg there were several discussion platforms on specific aspects of legal activity.³ Moreover, lawyers have unexpectedly become concerned with the general issues of what constitutes a model of state and law in a post-industrial society. An international scientific conference was held at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, supported by the Department of Social Sciences of the Russian Academy of Sciences. It was dedicated to the 100th anniversary of Daniel Bell’s birth, whoops one of the theorists of postindustrial society.
    From our point of view, innovative results in the characterization of this society can be expected from the lawyers only after a system of diverse technologies will be considered in their direct and immediate connection with a person - the main value of a democratic social structure. Hence there is an appeal to law, to the actual legal technologies. One of which, called the technology of legal court proceedings, is discussed in detail in this article.
    Our century is characterized by the rapid development of technologies, by which we mean a set of scientifically based methods and means that allow us to achieve our goals in the most complex areas of activity. All technologies are hypothetically aimed to benefit a human: development of production, ensuring national security, further deepening of knowledge, providing medical and other types of assistance, and other areas of adequate interaction with the environment in a rapidly changing world.
    The classification of technologies is not an easy task, since they are all heterogeneous, all have a different scale of application, different social significance, and all belong to different areas of human life. Not pursuing the goal of creating an exhaustive classification, it is extremely important to understand to what extent various types of technologies are under state and public control, whether they contain not only benefits,

¹ http://tvkultura.ru/video/show/brand_id/20898/episode_id/156362/;http://xn--80akfo2a.xn--p1ai/2017/05/23/3742/

² Andreeva L. A. On the issue of digital jurisprudence, Actual problems of jurisprudence: a collection of articles based on the materials of the I International scientific-practical conference. Novosibirsk, 2017, No. 1 (1), p. 32-41; Khlebnikov P. Digitalization of law as a consequence of the digitalization of life, http:// www.justicemaker.ru/view-article.php?id=7&art=6860.

³ At St. Petersburg International Economic Forum, the Chairman of the Constitutional Court of the Russian Federation Professor V. D. Zorkin discussed the possibility of packing laws into a program code and the place of the artificial intelligence in court procedures, https://rg.ru/2018/05/29/zorkin-zadacha-gosudarstva-priznavat-i-zashchishchat-cifrovye-prava-grazhdan.html.

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but also potential threats to humans.¹ On this basis, it is necessary to assess the degree of sufficiency of legal regulation of the entire sphere of public relations, adjacent to the development, use and improvement of the most important technological processes.²
    The first group of such technologies should include defense military complexes. They include not only weapons, but also the delivery vehicles for them, which entail the possibility of mass destruction of people, including threats on a planetary scale. In this area of interstate relations with the participation of countries with nuclear capacity, no serious problems can arise as long as each carrier of the most destructive weapons cares only about its own security, has no territorial and other claims, and is subject to generally accepted norms of international law.
    Expectations of prosperity are replaced by anxiety from the moment there appear the states aspiring to world leadership or domination, seeking to subjugate the rest of the world, declaring foreign territories and government regimes in other sovereign states to be the spheres of their own direct or indirect interests. Under the most hypocritical pretexts, the goal is set to subordinate other countries to their economic benefits, to parasitize at the expense of other nations. To achieve it, all means are used, from direct threats and blackmail to forming military blocs and undisguised military aggression. The norms of international law turn into fiction, the former world order is mercilessly destroyed, moral values remain the destiny of only noble people.
    The competitive environment slowly but surely changes the balance of power in the world, some problems are replaced by others, for which the main antidote can only be a bilateral or multilateral (convention) international agreement. Agreements between sovereign states are concluded only on a voluntary basis, which must be formed.
    Assistance in the conclusion of international treaties and the subsequent support, including systematic mutual inspections, is carried out through the disclosure of all tactical and strategic benefits for each of the participants. An illustrative example is the demonstration by N.S. Khrushchev of an intercontinental ballistic missile aimed at Paris to De Gaulle only because of France's membership in NATO. The defenselessness in the event of launching it in the conditions of a military conflict prompted the illustrious general to immediately withdraw France from the North Atlantic Treaty during his presidency.

¹ Some authors argue for the creation of a fund for the collection and analysis of information on the use of the results of intellectual activity. See, for example, Leonov A. V., Pronin A. Yu. Innovative and technological ways to ensure national security of Russia, Moscow, 2018, p. 248.

² The analysis of the program “Digital Economy of the Russian Federation”, approved by Decree of the Government of the Russian Federation of July 28, 2017 No. 1632-p, allows to conclude that the law appears in it “as a means, and not an object of digitalization” (Khabrieva T. Ya., Chernogor N. N. Law in the environment of the digital reality, Journal of Russian Law, 2018, no. 1, p. 85). Legal technologies, the use of which is provided for by the Program, are also not digital at all. Meanwhile, the action and image of many social institutions and regulators are refracted in this reality. This includes law as “it becomes not only a means, a tool, ensuring the introduction of digital technologies and their use in various areas of public life - economics, management and other segments of social being, but also a subject of digitalization. The content, form, mechanism of action of law is changing” (Khabrieva T. Ya. Law in front of the challenges of digital reality, Journal of Russian Law, 2018, no. 1, p. 6).

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    In modern conditions, many countries of the European Union, providing their territories for the deployment of American military bases, live under the illusion of guaranteeing their own security. The obvious fact of turning objects located in their national territories into primary targets in order to please an overseas ally is not recognized or it is ignored completely. This looks strange to adherents of inalienable human rights, among which the right to life comes first.
    The problems are exacerbated by the fact that the missile systems are controlled by automation with the minimal involvement of human factor in decision making. This is both good and bad at the same time. The activation of the defense systems in any camp can be false. The presence of a nuclear charge in a given missile is unpredictable. The time for its approaching, taking into account the provocative actions to deploy military bases near state borders, is minimal. Under such conditions, the risks of a local and a large-scale military conflict increase.
    All this does not mean that military technology is an absolute evil. On the contrary, they have a huge peacekeeping potential. It is well known that sovereign states possessing nuclear weapons are treated differently than all others without such weapons.
    Nevertheless, tremendous efforts are required, comparable to the destructive power of accumulated warheads, for restraining strong-willed decisions by law, promoting a peaceful existence instead of rattling weapons and rejecting international obligations. The work on involving all interested countries in the negotiation process must be carried out regardless of their block affiliation and block consciousness, bordering on the renunciation of their own sovereignty.
    Currently, the reality is that block consciousness within NATO prevails over common sense. This is manifested in the treacherous attack on other states under false pretences, and in the dissemination of slanderous fabrications in order to create a vicious opinion about the system of government of objectionable countries that do not obey American hegemonism, and in double standards in assessing single-order phenomena, and in hypocritical interpretations of democratic principles, as well as in readiness to condone any false, unproven statement to please the allies.
    Law, unlike politics and numerous legislative acts adopted by unfriendly states, is always directed towards justice. It treats the problems in full, taking into account the possibilities of their solution in certain conditions. The legal regulation of international problems associated with threats of using military technology has no alternative. In modern conditions, it is not international law that has lost its authority, but the subjects of international law that do not appreciate its value.
    The second group of the most significant technologies is represented by digital technologies. There is no distance between military technologies and electronic systems based on software products; differences are observed only in the areas of application. Therefore, there is a need to evaluate modern digital technologies in terms of law in a wider context.
    The main direction of the development of digital technologies is associated with artificial intelligence and its carriers (computer technology and robotics). Despite the

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high rates of technological progress, especially in the aforementioned field of scientific knowledge, it is necessary to state a certain limit that has been reached to date.
    The latest generations of personal computers are fundamentally no different from each other, except for the size of the memory. The use of neural fields is problematic, and the technology of quantum computers seems to be a matter of the near future. Therefore, the world is waiting for the scientific breakthroughs, that would open up fundamentally new opportunities for a human.
    At the stage of the development of knowledge in the field of artificial intelligence, legal norms only accompany the results of intellectual activity. The legislator resolves issues as they appear.¹ Already now it is useful to think about the use of artificial intelligence in such a field as judicial activity, which is distinguished by traditional overload, repeating from year to year. All prerequisites for this are present.
    Firstly, in modern conditions, unlike during the time of King Hammurabi, when all the laws were carved on a stone pillar, not a single lawyer is able to know and remember the countless laws, by-laws, and their judicial interpretations. Artificial intelligence has essentially an unlimited memory. Unlike a human being, it is able to constantly gain information without fatigue, medical leaves or other reasons for idleness.
    Secondly, modern AI is already capable of keeping all facts in sight, highlighting the most significant ones and those that are crucial for drawing conclusions. Unlike a human being, it does not forget anything, it is not distracted, it does not confuse things and does not form conclusions with a violation of logic, that are contrary to the established facts.
    Thirdly, artificial intelligence is controlled. Before the application, the testing of all its functions and capabilities is carried out. The results of intellectual activity are not issued in an abstract form, not by the principle of a black box, but under the conditions of bringing the most detailed justification. A person also has the skills to write a motivated judicial act, but because of the excessive workload, he or she is sometimes not able to carry out this work in full and with impeccable quality.
    Fourth, AI in the goal setting mode is able to accurately determine for the interested parties (the plaintiff and defendant or the prosecution and defense) all legally relevant facts and methods of proof. In this sense, the persons participating in a trial will not experience any inconvenience compared to participating in a regular court session. Moreover, it is always possible for them to clarify the details of evidence-based activities without interfering with the adversarial process, which, will not lose its relevance even when using intelligent systems.

¹ In the field of medicine, for example, the Federal Law dated July 29, 2017 no. 242-FZ “On Amending Certain Legislative Acts of the Russian Federation on the Use of Information Technologies in the Field of Health Care” was adopted, which was followed by an Order of the Ministry of Health of the Russian Federation dated November 30, 2017 no. 965 “On approval of the organization of medical care using telemedicine technologies.” These documents approved the procedure for consultation between general practitioners and leading specialists in narrow areas of medical knowledge during diagnosis, surgical intervention and further follow-up treatment of patients.

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    Fifth, the activity of AI is never spontaneous. It plans its work, puts forward hypotheses, collects information, evaluates it, determining the extent of significance, monitors each argument individually and collectively, takes care of the reliability of the conclusions and arguments of the final decisions. The software product is focused on checking the most significant versions, and with a large amount of uncertain information, unlike a person, it is not inclined to panic. On the contrary, as it collects even the most mixed information, it notes a positive tendency to reduce uncertainty.¹
    Sixth, AI is the embodiment of the long-held dream of an impartial trial of civil and criminal cases with full knowledge of all examples of the established judicial practice, taking into account the special circumstances of the case under consideration and without regard for higher authorities, since it is capable of creating (making) reference decisions and sentences. It may take more than a thousand years before a person acquires impartiality in their scientific understanding and can work perfectly, while for an intelligent machine this is tomorrow.
    Seventh, AI is able to study the prevailing judicial practice and identify trends in its development, identify promising ways, consistent approach to the most fair decisions in the given conditions. The widespread introduction of AI in the administration of justice involves the receipt of the smallest number of complaints to the supervisory bodies, not to mention the fundamental transformations that await the supervisory bodies themselves, which will not be able to maintain their current structure when not needed.
    Eighth, artificial intelligence prepared for the administration of justice, unlike the best professional judging personnel, can always be cloned in any quantity. And it is known that each of the robots will perform the assigned work equally successfully, since there is nothing more definite, evidence-based and verified than the mathematical calculations on which all varieties of artificial intelligence are built. Therefore, the adaptation of artificial intelligence to solving issues related to the provision and administration of justice has obvious prospects.
    Ninth, AI has already proved its advantages over the human mind in all game activities. Even world chess champions, one-of-a-kind personalities, cannot defeat a computer.
    In the same way, in the field of justice, a robot has the opportunity to note all the shortcomings in the work of the judge (insufficiently convincing motivation for the decision made, mood swings and fluctuations in mental activity during the working day, subjective preferences of some methods of proving or arguing over others). While a professional judge cannot reproach a robot with artificial intelligence for anything like that.
    Tenth, from the point of view of scientific knowledge, a trial is a set of algorithms. By algorithms we mean the consistent implementation of all the rules that determine the procedural activity that allow to convert input to output correctly. All judicial procedural activities should be arranged as a set of sufficient algorithms.

1

    Morhat P. M. Artificial intelligence. Legal view. Moscow, 2017, p. 65 - 66.

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    There are no obstacles to programming a solution to any problem that arises in judicial practice, using algorithms for its subsequent implementation on a computer. After the basic functions of brain activity are sufficiently studied, AI will have common sense in its ordinary understanding and will never suffer from a sick imagination. This is the obvious advantage of a computational theory of information.
    In this situation, there are no obstacles for making a robot stuffed with AI to be an indispensable assistant to the judge (with a huge amount of information, gaining quick access to the necessary information based on structured catalogs, offsetting the risk of errors when processing the necessary information,¹ delegating it all cases examined by the legislator in a simplified manner. After proper testing, there are no obstacles for transferring to the artificial intelligence robot all the other categories of cases, including the most complex civil, administrative and criminal cases.
    Accomplishing this task requires close cooperation between professional judicial personnel and programmers, since artificial intelligence belongs to the field of software products. Such work will result in full robotization of activities related to the administration of justice with all the predictable results.
    In the professional legal environment, there are authors who do not accept the idea of robotization.² In their opinion, the human factor is indispensable in the administration of justice. But such an approach is akin to the rejection in medicine of modern high technologies in favor of personal medical experience, which looks incorrect in the statement of the problem of their relationship. Personal experience, personal participation, and personal skills are not depreciated. But they cannot compete with the automated speed, completeness of information and accuracy of calculations.
    The reason for the mistrust of lawyers in robots is related to their remoteness from the field of robotics with AI. Lawyers have never dealt with mathematical logic, since in humanitarian universities they teach classical (Aristotelian) logic, and so far there have been no attempts to bring them together on a single scientific platform.
    The time for such a rapprochement has come, since machines operating intellectually have long existed, and the scientific problem boils down to the creation of artificial intelligence instead of its limited imitation. In the mathematical logic underlying the theory of algorithms, there is removal of implications as double negations, that is, binary logical connectives, distribution and movement of logical connectives, Skolemization, removal of universal quantifiers and other operations in order to ensure only first-order logic. A system for ensuring the truth of judgments is built on the basis of a software product capable of performing searches with returns based on managed dependencies.³

¹ Digital economy: information technology and models, ed. N.V. Apatova, Simferopol, 2018, p. 75 - 77.

² In particular, the former judge of the Constitutional Court of the Russian Federation M. I. Kleandrov discusses this problem. See Kleandrov M. I. Reflections on the topic: can a robot be a judge? Russian Justice, 2018, no. 6, p. 15 - 25.

³ Russell S., Norvig P. Artificial Intelligence. The modern approach. Moscow, St. Petersburg, Kiev, 2018, p. 235, 409, 1271 - 1272.

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    At the same time, skolemization is understood as the conversion of free variables using constant and functional symbols, quantifiers refer to renaming without changing the truth values, and logical connectives of negation are disjunction (a pair of two statements is false only when both statements are false), conjunction (a pair of two statements is true when each of them is true), implication (the whole statement is false when the premise is true, but the conclusion is false) and equivalence (two statements are equally true only when each of them is true).¹
    It is absolutely clear that no living person is capable of ensuring such an academic purity of analysis, verification and assessment of circumstances in the most complex cases. Artificial intelligence is out of competition, it has undeniable advantages in any field of activity, including justice. Any human attempt to act as promptly and accurately as a robot is fundamentally impossible in itself, while for artificial intelligence hardware accelerators have been created.²
    Logically, questions may arise about the lack of emotions and human feelings, including the sense of justice, fundamental in court. These arguments are most often mentioned by those authors who completely deny the idea of digital justice, do not even think about the robotization of this area of activity.
    In connection with the above arguments of potential opponents, at least two circumstances deserve our attention. First, programming human emotions has long ceased to be a problem. It is sufficient to turn to the algebra of emotions, which is built according to all possible values in the direction of plus and minus, based on universal causeeffect relationships, classification of emotions, their properties, resources and emotional states. Any complex emotions are mathematically accurately decomposed into simple operations that allow to simulate and complement the intelligent system.³
    Therefore, the criteria of justice are expected to be met much faster, more controlled, more stable and more accurate with artificial intelligence than with humans. Equally important is such a circumstance as the total provision of a given highest level of justice in all cases without exception and throughout the territory under national jurisdiction.
    The second circumstance is connected to the negative costs of human emotions, which are not usually talked about because of the presumption of an impartial administration of justice. Even presumptions established by the legislator can be valid only until they raise doubts or provide evidence to the contrary. It is quite obvious that the judge may become tired, under conditions of multiple workload they are in a state of constant stress, have subjective preferences, and no one is exempt from everyday problems.

¹ Vereshchagin N.K., Shen A. Languages and calculus. Lectures on mathematical logic and theory of algorithms. Moscow, 2012, p. 15 - 21,40 - 57, 76 - 79.

² Gift N. Pragmatic artificial intelligence. Machine learning and cloud computing. St. Petersburg, 2019, p. 298 - 299.

³ Fominykh I. B., Alekseev N. P. On the calculus of emotions, Hybrid and synergetic intellectual systems, Materials of the IV All-Russian Pospelovsky Conference with international participation. Kaliningrad, 2018, p. 123 - 132.

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    The third circumstance we associate with the fact that the negative emotion towards unlawful behavior, which is always prohibited, predominates in the sphere of justice. The academic A.A. Guseynov, not without reason, points out that moral requirements take predominantly a form of prohibitions and only prohibitions can become universally effective on a scale of the whole humanity.¹ In this regard, it is possible to draw analogies with law, the original value of which was reduced precisely to prohibitions inseparable from moral attitudes. Today, legal scholars emphasize the positive regulatory function of law, focused on the promotion of certain behavior. However, any statutory incentive or permitting regulation can be expanded as a norm prohibiting or at least not approving certain behaviors. It is important for us to emphasize this fact, since programming prohibitions is technically simpler and socially more valuable.
    Each judge as a person is unique in one or another form of professional activity. Giving a unified judicial status to people who are different in character, way of thinking, good faith, experience, depth of legal understanding of disputed relations does not fundamentally change anything. Neither intellectual abilities, nor upbringing, nor attitude to business and other people’s destinies, nor work alone or in association with others undergo any significant changes.
    It is these unique characteristics, many subjective properties in assessing objective circumstances that lead to judicial errors, which, with proper testing, are excluded from the work of artificial intelligence. This is the case when unique personality traits can have both a negative and positive value. It is no coincidence that it is well recognized that living with a genius person is most often unbearable. Artificial intelligence, not deprived of the signs of reason, does not suffer from such extremes.
    Intervention in the functionality of a robot with artificial intelligence, which many practitioners fear, is easy to prevent. An artificial intelligence robot is a fairly complex device that is not accessible to many users. There are many other barriers to interfering with its work. From special storage conditions to systematic maintenance in order to verify settings, filling it with information without using network resources, control testing and analysis of final judicial acts from the point of view of their sufficient and adequate justification. The latter form of control can be carried out both by authorized officials independently, or by involving another robot with artificial intelligence.
    Judicial experience has shown that with the advent of analogue, and then digital audio recordings of the trial, the long-standing conflicts and scientific disputes about ways to overcome distortions in the information subject to protocol recording as judicial evidence that form the basis of the court decision and court sentence have disappeared. That is, the smallest technical device made it possible to overcome a problem of enormous proportions, which the most intelligent specialists could not solve for decades, devoting numerous scientific reports to this issue.
    But it is not technical issues that dominate the assessment of relevant social technologies. At the center of law and legal relations is a person with their claims to justice,

1

   https://studref.com/398404/filosofiya/guseynov

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reasonableness and certainty in their relations from other members of the community and from the state. Accordingly, it is customary to consider these values as a goal, principle, property and even the “beginning” of law. The question is: is it possible to provide them during the robotization of legal proceedings? Yes, of course, if we proceed from the fact that the listed properties are not immanent in law, they are the essence of the quality introduced into it from outside and are variable in accordance with the conditions of place and time with very significant influences of the subjective factor. Can it be considered reasonable or unreasonable when the principle of election or appointment of the head of a constituent entity of the Russian Federation is justified? The Constitutional Court, as it is known, recognized both practices as constitutional.
    If law is a volitional regulator, then the reasonableness of the will of the subject of lawmaking is not necessarily reasonable for others, especially since there is always a social conflict that determines the emergence of law. If law is understood as a natural-legal formation that is connected to a person (his/her nature), then it immediately reveals how many unreasonable or relatively reasonable properties are in its manifestations. Even in the theological version of natural law, where law is declared as a divine command, one can see the foolishness of being: why are children sick and dying?
    By the law of a slave society, a person with all the certainty is “instrumentum vocale”, an animal. This is an objective reality. Is this reasonable from the point of view of objective reason? Should the category of reason be involved here? The answers to such questions will most likely be won by instrumentalists and legal realists on the basis of pragmatic philosophy, according to which it is true, reasonable and fair what is profitable.
    But law, as requirements (rules) of a proper nature or as proper behavior itself, is not evaluated in the categories of truth. The rational law of subsequent eras was not so specific in equating a man with a beast and did everything to obscure the exploitative essence of the existing legal relations, to present formal equality as equality in general, etc. From the perspective of the ruling elites (classes) this was reasonable, it was fair. Within the framework of this reasonableness and justice, both certainty and uncertainty of legal regulation could be justified. Reason should bind the understanding of law, the doctrine of law, and not law itself, unless, of course, we have in mind some ideal (“pure”) law. Reason and rationality are beyond law, as an external factor mediating law and its implementation. From here, those social values that are accepted by a particular society are introduced into the robotic legal program.
    The characterization of law in terms of will and interest, service and benefit organically implies the need to hide the true content of the norms and, as a result, in this sense supports uncertainty. But uncertainty is sometimes regarded as a positive phenomenon from a purely legal perspective. The uncertainty of legal regulation is pointed out when the regulatory importance is given to the principles of law or when the legislator leaves the decision to the discretion of the law enforcer. In our opinion, this is a reasonable decision (normal phenomenon) in the name of certainty in achieving justice.
    Law differs from all other means of regulatory regulation by the fact that in all its elements - hypotheses, dispositions and sanctions - certainty must be present. Its absence