No 5 (2017)
ТЕМА НОМЕРА: СЕМЕЙНОЕ ПРАВО
11-15 508
Abstract
On February 27 2017 the International Scientific and Practical Conference "Reform of Family Law: The Concept and Development" was held at the Kutafin Moscow State Law University (MSAL). The Conference was organized by the Department of Civil Law of the Kutafin Moscow State Law University (MSAL) under the joint information support of the "Prospekt" Publishing House, "The Judge" Journal and ATP "KonsultantPlus." Representatives of the scientific community, legislature, judiciary and the Bar participated in the event. The presentations of some speakers were held in the videoconference mode. During the Conference, the participants discussed the main approaches, first results and ways of the further reform of family law of the Russian Federation. The article provides a brief overview of the presentations made by the Conference participants and recommendations put forward regarding the issues under discussion.
16-20 1213
Abstract
The article discusses the problems of defining the nature of specific principles of Family Law. It is concluded that they amount to an autonomous form of law that exercises a supreme legal force as compared with other forms due to the fact that it reflects the objective socio-economic laws of the society. The author highlights the multidirectional nature of these principles. The principles' disposition in Article 1 of the RF Family Code (RF FC) indicates that they are primarily addressed to the law-maker to be taken into account during the law-making process. It is justified that the principles of Family Law are binding on courts. Some principles of Family Law are formulated as requirements applied to the conduct of the participants in family relations. Based on the content of Article 5 of the RF FC, the author concludes that the principle of good faith is to be applied to family relations. The legal nature of the principles referred to in Article 1 of the RF FC is described as the need to develop family relations based on the feelings of mutual love and respect, cooperation and responsibility towards the family of all its members
21-30 1293
Abstract
The article deals with the constitutional consolidation of the family as a value for the state and society. It analyses the normative content of the constitutional human right to the family life and constitutional responsibility of parents to maintain and bring up children. Attention is paid to the problem of competition between the right to the family and other fundamental rights. The author examines the problems of permissibility of imposing legal restrictions on the constitutional right to the family life. Special attention is paid to the constitutional and judicial protection of the rights of fathers, mothers and children. The author refers to the analysis of the federal legislation and the laws of the constituent entities of the Russian Federation providing for the division of powers of the federal and regional state authorities regulating family support as a guarantee of the constitutional right to the family life. It is concluded that the federal authorities need to encourage the regional authorities to make independent decisions that facilitate their economic and social development, as well as to soften the rigid model of centralizing tax revenues and to ensure financial equalization of the levels of providing the constituent entities of the RF with their budgets. These measures are aimed at ensuring the rights of citizens, including the right to the family life.
31-34 1358
Abstract
The development of modern family legislation has led to an increased interest in the study of separate institutions within the framework of family law, as well as to the study of the family law legislation in general taking into account the main tendencies in its development. We believe that improving the legal regulation of family relations should be based on a scientifically sound system of legislation. The article formulates some proposals to amend and supplement the existing matrimonial legislation. Unfortunately, it must be noted that many family law rules are not only ineffective, but they also fall foul with the concept of uniformity of legal regulation of relations arising from marriage and family affiliation.
35-40 565
Abstract
Ideas about the family existing in the society serve as a prerequisite for the legal regulation of family relations; they are formed under the influence of a number of factors. The state as a specific institution organizing and regulating the society cooperates in a certain manner with the Family, law being the most important tool of regulation. Activities of the State authorities should ensure preservation and development of the society, its demographic well-being, which cannot but be reflected in legislation. The analysis of the RF Constitution and the main political and legal sources forming the Russian state family policy leads to the conclusion that the support and protection of a "traditional" family is declared as its priority. This conceptual ideological approach meets the interests of the development of the Russian society and is shared by the majority of the population. The basic source of Family Law, the RF Family Code, is generally aimed at solving the problem of preserving a traditional family organization and may be considered as a normative basis for its further development. Legalization of the so-called "family transformation" processes can have a negative impact on the institution of the family and, in fact, leads to a legal deformation of this category. The author makes a general evaluation of draft laws in the area of the family legislation that provide for unjustified interference of state authorities and non-profit organizations in family relations from the perspective of the necessity to support and protect the family and traditional values; further devaluation of the value of motherhood due to the deprivation of a surrogate mother of the right to formalize her motherhood.
41-45 798
Abstract
The article provides an assessment of an attempt to carry out a systematic reform of Family Law of the Russian Federation. The author analyzes provisions of The Concept on Improving Family Law of the Russian Federation and Proposals for the Improvement of Family Laws in the context of expectations defined by the Concept on the State Family Policy in the Russian Federation for the period up to 2025. Special attention is paid to the principles of Family Law, their interaction and the combination within the framework of regulating family relations. The author justifies the possibility and necessity of entrenching the principle of good faith based on the presumption of good faith in contemporary Family Law. It is proposed that the principle of preserving and strengthening traditional family values should be enshrined as a principle of family law. The author draws his attention to the potential of this principle and the possibility of using it beyond family law. It is noted that there is no not only substantive but also methodological unity in the ongoing efforts aimed at improving family legislation. The author concludes that it is necessary to develop a new Concept on Improvement of Family Law in the Russian Federation.
46-49 512
Abstract
Overcoming a demographic crisis, preventing its catastrophic consequences is possible only within the framework of the new family policy of the Russian Federation aimed at strengthening the institution of the family, restoring family values and preserving the family culture. The development and improvement of family laws will, in our view, create conditions for the family to perform its functions, to harmonize human rights and the needs of the Russian society. The development and improvement of measures carried out to support the family, motherhood and childhood will, in our view, enable the family to perform its functions and to create conditions for securing the well-being of its members, to ensure the development of an individual and realization of personal interests of each member of the Russian society. The family is a vital tool of the society. Only in this way the State will ensure the social security of the family, its well-being, the conditions for the fulfillment of socially important functions. The Concept on the Development of Family Law of the Russian Federation, in our view, takes into account the tendencies and demands of the modern Russian society, fills in the gaps, eliminates contractions between the Family Code of the RF and other acts of existing legislation.
50-55 554
Abstract
In the paper the author notes a mediable nature of most family disputes and indicates the need to change family law on mediation. The author highlights the significance of the Concept on Improving Family Law as the document that has determined the main ideas for the reform of the RF Family Code on mediation. The author justifies the need to exclude mediation in cases concerning imposing measures of matrimonial responsibility on parents and parental substitutes. The author analyzes the possibility of imposing compulsory mediation in a number of family disputes, and proposes to apply different types of compulsory mediation, requirements for its introduction; the author makes a conclusion concerning the problems associated with the introduction of compulsory mediation. The paper analyses the status of the child during mediation in family disputes with regard to the interests of children; the author concludes that the child is not the third party in the meaning of Section 5 Article 1 of the Federal Law "On Mediation” and proposes appropriate amendments to the legislation. The paper analyses provisions of the FL "On Mediation" concerning confidentiality and the provisions of the RF FC regarding the need to protect the rights; the conclusion is made on the supremacy of the family legislation; the author suggests relevant amendments to the existing legislation.
56-60 737
Abstract
The question of the criteria applied to evaluate professionalism of a mediator and a mediator in family disputes is being vigorously discussed in the international professional community. This issue is also relevant after the approval of the Russian professional standard in the sphere of mediation. Based on a comparative legal analysis of the requirements for the theoretical and practical training of family mediators in some countries, including those where the law provides for a compulsory pre-trial conference with a mediator in a number of disputes including family disputes, and standards of skills and conduct systematized by the International Mediation Institute, the author concludes that there is a need to improve the system of qualifications and requirements applied to practical experience of experts in family mediation. Specific requirements for family mediators can be shaped, inter alia, by means of eliminating the concept "non-professional mediator" from the legislation, introducing the system of voluntary accreditation based on the feedback, establishing mediator registers differentiated by their specialization, introducing the system of undergoing compulsory supervision for aspiring mediators, the wide dissemination of the practice of co-mediation conducted by mediators of different specialties.
61-66 529
Abstract
. International instruments and Russian legislation treat the right of the child to care and material support as the priority rights. In real life, this right is not always ensured. More than two million children in Russia do not receive child support. It is necessary to work on the further strengthening of legal safeguards for minor children left without sufficient support. The establishment of a minimum size of child support collected in favor of minors will eliminate the instances of unjustified reduction of the child support amount. The author considers erroneous the judicial practice aimed at determining the amount of child support in accordance with the debtor's obligation to support other children. The paper justifies a differentiated approach to determining the rates applied to calculate the amount of child support based on a regressive scale depending on the income of the debtor. Based on international law and Russian legislation concerning the priority of the rights and interests of minor children, it is proposed to provide for the possibility of compensating the amounts unpaid by debtors from state funds in the Russian family legislation. It is unacceptable to limit the right of adult children, who had the right to child support, to recover penalties when such claims are made after the expiry of a three-year period from the moment when they reach the age of majority.
67-71 478
Abstract
The article examines the issues of the necessity to amend the RF FC in the sphere of alimentation in connection with the urgent problems that create preconditions for the violation of the rights of minor children and other persons entitled to receive support. The author makes an analysis of the points of view with regard to the problems of alimentation and reveals the most discussed areas of reform in this area taking into account legislative initiatives. The article justifies the reasonableness of transition from the shared system of calculation of child support to the system of calculation based on the basic rate of child support in the absence of a maintenance agreement. The article refers to the need for a total refusal from the cost-sharing system due to the social and economic situation changes as compared with the Soviet times. It is proposed to use the subsistence level as a base rate. The author explains the necessity of harmonization of such an approach not only to minor children but to other individuals that have right to child support.
72-77 482
Abstract
The state implements a comprehensive program on ensuring unimpeded enjoyment of child support rights by the children. Nevertheless it leaves safeguards of the rights of a child support payer without due regard. Therefore, the article examines some of the problems that arise in judicial practice with regard to the protection of rights of payers rather than recipients (beneficiaries). One way to protect rights is to change the legal relationship. Special attention is paid to the analysis of Article 119 of the RF FC, the wording of which allows the law-maker to exercise an individual approach to determining the child support amount taking into account all circumstances of a particular case but in fact it negates the debtor's rights in maintenance obligations, as it does not guarantee the possibility of protecting debtor's rights to reduce the amount of child support. Using a particular court case as an example, the author concludes that the situational method of the legal regulation of family relations often fails to protect the debtor's interests in child support obligations, expresses her own opinion concerning the interpretation of certain family law rules connected with child support. Attention is drawn to the fact that the child support obligation, despite its expressly propitiatory nature, is inherently of a personal nature. Thus, this fact must be taken into account by a decision-maker in resolving child support disputes, and proposals are made aimed at improving the existing legislation.
78-81 892
Abstract
The article examines the legislative and enforcement aspects of changing the manner and order of enforcing a court order (holding or injunction) on recovery of child support by allowing the payment of not more than a half of the amount of child support to a bank account in the child's name. This measure is intended to prevent misuse of the child support by the parent who receives it (acts as a beneficiary). It was concluded that it is necessary to supplement the Family Code provision that allows the payment of not more than 50 per cent of the amount of child support to the bank accounts in the name of the child with an indicative list of grounds that the child support payer can rely on to go to court with a relevant claim. It is also proposed that Chapter 17 of the RF FC be supplemented by a provision giving the court the right to compel a parent who receives the child support the amount of which exceeds the amount stipulated by the law to submit to the child support payer a monthly report on child support expenditure.
82-86 638
Abstract
Family conflicts are seldom resolved by legal means due to the personal and trust nature of family relations, and the moral and ethical means are used to regulate them. Only extreme, socially dangerous forms of conflict lead to the participation of the state in their resolution. The potential of the private law means of resolving such conflicts is not implemented to full extent. The article examines the possibility of recovering proprietary damage and compensating moral damage in family relations; it is noted that the RF FC lacks proper and sufficient regulation of these sanctions in the RF Family Law. The paper justifies the conclusion according to which tort obligations between the members of the family have a specific nature that is predetermined by a specific nature of proprietary relations (between spouses) and a high level of fiduciarity of family relations. Having examined Family Law in a number of foreign countries (Estonia, Germany, Belarus, Ukraine), the author concludes that it is necessary to pass a law to entrench in the RF FC the opportunity of compensation for proprietary damage and compensation for moral damage as a general method of protecting family rights.
87-91 673
Abstract
The article discusses the problems of the child's name registration at birth, violation of the terms provided for applying to the Civil Status Registry Office by parents, and giving a double surname to the child at birth in the context of provisions of draft Federal Law № 1051801-6 "On Making Amendments to Individual Legislative Acts of the Russian Federation in the Part of Changing the Order of Giving and Registration of the Name." This draft law, which is planned for consideration by the State Duma in 2017, proposes changes, which are considered in this paper, to the Civil Code of the RF, the Family Code of the Russian Federation and the Federal Act "On Acts of Civil Status." The author concludes that it is necessary to adjust the requirements for the child's name, to introduce the possibility of giving a child a double surname, and to make other changes in the named draft law taking into account the balance between the interests of the child and respect for his or her personality and parental freedom to give the name to the child at their own choice.
92-96 707
Abstract
The exercise of parental rights in respect of their child in parental separation is a complex and topical issue in Russian Family Law. Despite the fact that Family Law governs disputes associated with the upbringing of children, and the jurisprudence over a long period of time has established general rules of resolving disputes in the interest of children, there is a considerable number of unresolved problems. The principle of equality of rights and obligations of parents as established under the Family Code of the RF, in the opinion of the author, needs to be revised because it does not meet the objective life realities, particularly in the context of the separation of parents. The role and powers of custody and guardianship authorities participating in cases that involve the issues of upbringing children should be changed. Determining the place of residence of a child with one of the parents should mean a change in parental status and, as a consequence, change the principle of equality of parental rights. The failure to resolve the issues associated with the exercise of parental rights in the separation of parents does not effectively address other issues, such as the proper fulfillment of a parental duty to maintain children (child support). The author proposes for discussion some options to address the issues in question.
97-103 965
Abstract
The article deals with the content of the concept "the interests of the child" as it is understood in Russian and international law. It is noted that, while Russian scholars define the content of the concept, the western authors, acting within the framework of the presumption that there is no need to maintain the exhaustive content of the concept, examine the practice of its application, namely, which acts undertaken by state authorities amount to respect of the interests of the child and which ones result in their violation. The author analyses the weight given to the interests of the child in balancing various rights and interests. Whereas in international law the best interests of the child are assessed and taken into account as a priority and overriding consideration, in Russian family law the priority is given to the interests of the family as a union. The author concludes that including the "best interests of the child" into the principles of family law will help to reduce the number of cases when children are unreasonably taken from the family, which is in line with the objectives of the family law reform.
104-109 480
Abstract
The article highlights the problems associated with the priority right of parents to raise their children from the position of the public interest in the context of implementation of the Russian Federation state family policy aimed at raising the authority of parenthood in the family and society. On the basis of a comparative analysis of the Provisions of the RSFSR Code1969 and the RF FC, the author concludes that certain rules of the RSFSR Code 1969 provided more comprehensive protection of the parental right to raise a child than the existing Family Code. It is proved that, despite the identical language of the legislator with regard to the exercise of the right of parents and guardians to demand the return of the child from any person who illegally retains a child, the content of the priority right of parents and guardians is specific, and their full analogy may lead to the competition of these rights and, as a consequence, to the loss of the authority of parenthood.
110-117 1076
Abstract
The article explores the determination of parentage, the establishment of a legal relationship between a mother and children, the notion of motherhood. To determine the basic norms governing the relations on the establishment of parentage, the author explores the subject of legal regulation of family, civil, and medical law. The author draws attention to the principles of family law and legislation, the procedure for exercising family rights. The article raises issues related to the use of modern medical technologies such as surrogate maternity. The life of a child is under State protection and decision-making on the occurrence of parental relations can not be in the scope of the medical institution or other organization except those indicated specifically in family law. As a result, the author concludes that the priority is given to family law in establishing the parentage over those of other branches of law, including civil and medical law. It is also mentioned that it is impossible to use other federal laws and other contractual structures when establishing the parentage and, accordingly, transferring children, except based on family law. It is concluded that the adopted legislation in this area should not be controversial.
118-125 1191
Abstract
The article deals with the development of the institution of property relations of spouses in Russia from the perspective of the principle of equality of the spouses within the family. It is noted that since ancient times, the spouses have possessed estate autonomy and have been equal, but the matter of equality were interpreted differently in different epochs. It is concluded that in the Soviet period the spouses equality of property rights underwent certain metamorphoses, namely it appeared not as equal opportunity for spouses to enjoy the estate autonomy (in pre-revolutionary law, marriage did not comprise a commonality of matrimonial property) but as the equal prospects for husband and wife to get the right to property acquired during the marriage (marriage became the basis for the recognition of common property acquired therein). It is noted that, as a result of the "new" "revolutionary" interpretation of this principle, we lost the traditional for Russia understanding of the purpose of marriage, namely creating families where common interests are disclosed not at the expense of the property component, but due to the spiritual one. In frames of improving the family legislation it is proposed to consider an opportunity to return to the historically established in pre-revolutionary Russia interpretation of the principle of equality of the spouses in property relations, namely, the consolidation of the principle of separation of matrimonial property as legal regime of matrimonial assets.
126-130 866
Abstract
This article discusses the problems of resolving legal conflicts in the so-called "zones of co-regulation" of the relations regulated by family and civil law. As the primary means of resolving conflicts in the case of "penetration" of the norms of some branches of law into the codes of other branches, the author proposes the principle of "mutual priority" of the branch codes regarding "their rules". It is recognized that this principle is not always applicable, in particular, in regulating a number of property relations between the spouses. The author analyzes the forms of interaction of family and civil law in the area of matrimonial property and divides them into three groups: 1. different regulation of the same relations; 2. outwardly independent regulation, in which there is a certain degree of influence of one branch onto another; 3. regulation of each of the branches of one or another side of the same (or close) relations. For each of the group the author's way of solving conflicts is suggested: for the first group-"meaningful criterion"; for the second group - the way of the inadmissibility of "infringing" one branch of law by the other branch through unwarranted "invasion" in the legal field of the former; for the third - connection of the various "sides" of the same (or close) relations in a single complex, taking into account their diversity and variability. The "matter criterion" refers to the realization of an individual approach to each specific situation, based on understanding the meaning of legal norms. The author concludes that this way as an independent one can be applied only in the case where the principle of mutual priority of branch codes cannot be used. However, it is indispensable as a means of serving the purpose of identifying nature of legal norms as a basis for the use of the principle of mutual priority.
131-136 2122
Abstract
The question of the relationship between the concepts of "matrimonial property" and "the common property of the spouses" in national family law is one of the most discussed. The current edition of Art. 34 of the Family Code of the Russian Federation and Art. 256 of the Civil Code of the Russian Federation use the concept of "matrimonial property" and "the common property of the spouses" as identical and equivalent. The author of the article, analyzing legislative and law enforcement practices, concludes that at the present stage of the development the spouses may receive income from not only labour and entrepreneurship, income from intellectual property, but also income from participation in corporate relations. The broad interpretation of the concept of "property" allows you to include in the common property of the spouses not only property provided by Ch. 2 Art. 34 of the Family Code of the Russian Federation, but also other assets, including certain kinds of limited real rights, property rights, as well as the general requirements of the debentures that are an integral part of married life. As a result, based on current legislation and judicial practice, the author of the article defends the view that with regard to the legal regulation of property relations of spouses it is advisable to use the term "common property of the spouses" as it most accurately and fully reflects the essence and the content of property acquired by spouses during their marriage.
137-141 990
Abstract
The article analyses the results of the regulation of family relations involving foreign citizens and persons without citizenship in Russia. There is some imperfection of the rules of Section VII of the Family Code of the Russian Federation, their non-conformity to modern needs in the legal regulation of family relations involving foreigners. It is noted that there are some gaps that require correction. The author draws attention to new types of marital and family relations, as well as the significant complication of property and personal non-property relations of family members, and highlights the importance of the problems of unification of family law, as well as account of new developments on choice of applicable law and the application of foreign law. The article formulates conflict-of-laws rules that would establish an effective system of legal regulation of family relations involving foreigners. In particular, it is proposed to amend and supplement Art. 161,163 of the Family Code of the Russian Federation, consolidate the conflict-of-laws rules, identifying the law to be applied to the surrogacy agreement.
142-146 675
Abstract
For better understanding of the legal relations of surrogacy, it is essential to define the structure of such relationships. Proper understanding of structure will make it possible to fully understand the specifics, conditions and patterns of development of the considered legal relations that, ultimately, would be of great practical significance, as this understanding will serve as a basis for adequate legal regulation of surrogacy legal relationships in the future. The article discusses the emergence of base of legal relations of surrogate motherhood, gives an overview about the object of legal relationship and agreement of surrogacy, as well as on the subject of such relationships. As a result, based on the submitted in the article understanding of the surrogacy legal relations, the author formulates the definition of surrogacy, as well as the definition of legal relations of surrogate motherhood in general.
147-152 459
Abstract
The article discusses the economic situation of families (households), associated with the volatility of the economic situation in the Russian Federation. The author analyses the provisions of the European Social Charter, relating to the protection of the economic, legal and social protection of family life by paying social, family benefits, tax benefits and exemptions, housing, assistance to young families; and on the equalization of opportunities for persons with family responsibilities. The author draws attention to trends in the birth rate and the dynamics of marriages in Russia associated with demographic waves, rising losses in the war years, and the factors (topical for both Russia and other developed countries), associated with traditional life patterns and affect the family tradition, but not found directly reflected in the text of the European Social Charter. The article provides the statistics of the birth rate in Russia, both in chronological and regional perspective, and discusses their relation to the various factors that affect the birth rate.
153-157 410
Abstract
The right to legal assistance is guaranteed under the Constitution of the Republic of Belarus. In the Republic of Belarus legal assistance is provided only on professional basis, including the implementation and protection of family rights. This conclusion is confirmed by the decision of the Constitutional Court of the Republic of Belarus of 05 October 2000. In accordance with the current legislation of the Republic of Belarus legal assistance in the implementation and protection of the family rights is provided by lawyers, notaries, agencies of tutorship and guardianship, bodies formalizing civil status acts and other bodies entitled to legal aid. The article describes types of assistance possible to be provided to citizens in the exercise and protection of family rights. The author mainly describes the legal aid provided by lawyers. This article provides examples of legal assistance provided by lawyers, lists the persons to whom the legal assistance is provided free of charge Including other entities entitled to provide legal assistance. Thus, the article examines the types of legal assistance by notaries, agencies of tutorship and guardianship.
THE THEORY AND PHILOSOPHY OF LAW
158-166 564
Abstract
The article analyzes the remedies of the contractual law regulation which are used both in international law and national law. The author makes a conclusion about the necessity to differentiate such categories as "contractual law remedies" and " remedies of contractual law regulation". The author's gives his own interpretation of the reviewed categories. This article discusses general and specific features of contractual law remedies.
167-174 1692
Abstract
The main problem arising when considering the impact of the legal nature on the essence of the Federation and building up of State power is, in the opinion of the author, the lack of historical and theoretical study of key aspects of the theory of the Federal State. Often well-known provisions of Federal theory are simply transferred to the State power that creates many inconsistencies in the interpretation of its devices in the Federation. The conducted analysis suggests that in detailed study of the legal nature of the Federation there are no contradictions. The thesis on the origin of the Federation as a result of the merger of the States is historically groundless, which removes the idea of State power as the subject of dual sovereignty. Therefore, the public authority cannot regard the peoples of the united territories as its source. The federal principle of government is not comparable and not contrary to the public nature, therefore, the power of the State does not express divergent trends in the structure of the State, and does not impersonate the oscillatory nature of the Federation. As a consequence, decentralization in a federal State is one way of centralized State power devices by establishing federal started activities of State power of constituent entities of the Russian Federation. All of this demonstrates the consistency of the legal nature of the Federation.
PUBLIC ADMINISTRATION AND ADMINISTRATIVE PROCESS
175-182 1393
Abstract
Based on the preconception of well-established scientific views on administrative responsibility as one of the institutions of administrative law the author justifies the conclusion that the rules governing this type of legal responsibility form an independent branch of Russian Law - Administrative Tort Law. The evolution of these standards has changed their status; they have acquired all the characteristics inherent in the sphere of law. Administrative tort law carries out logistical and legal regulation of administrative responsibility. The combination of its constituent rules has its object, the method of legal regulation, a separate organization of normative material in the form of the Administrative Offenses Code of the Russian Federation and laws of constituent entities of the Russian Federation on administrative offences. The modern administrative tort law is characterized by integration of criminal law that make possible the more efficient use of their capacity in the prevention of offences.
183-189 426
Abstract
The article examines the possibility of delivering rulings on appointment of administrative penalties for certain traffic offenses without a formal protocol on administrative violation based on the recorded in special mobile applications of photo-materials and (or) video in the uncorrectable regime with indication of the shooting time received from citizens registered in the Common Government Services Portal of the Russian Federation.
FINANCIAL LAW
190-197 478
Abstract
This article examines the characteristics of determining tax residency, prevailing in international practice. Based on the analysis of court cases the article explains the basic criteria for determining tax residency, in particular the following criteria: the place of the central management and control (the common law test for corporate residence); the place of incorporation (place of incorporation); the place of effective management and control (place of effective management).
CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS
198-206 749
Abstract
This article discusses the theoretical and practical problems regarding the protection of the interests of the creditors in the bankruptcy case when submitting new creditor statements about incorporating its require ments in the register of creditors ' claims. Bankruptcy legislation does not allow the filing of objections to the declared requirements, if an enforceable Court Act supports them. The author concludes that this rule is a rule of preclusion from unreasonably extended subjective limits. It is stipulated that the expansion of the subjective limits of preclusion, when the interests of persons not involved in the case were not indirectly represented in the proceedings. The author criticizes the order generated by judicial practice for protection of creditors ' interests, which involves the appeal of specified judicial act as violating the interests of the lender and pronounced without his participation. The contradictions in judicial practice when using this type of protection are analyzed. The author finds that there is no theoretical reason in this case to prevent objections regarding requirements, confirmed by a judicial act. The author also proposes to eliminate the specified prohibition from the existing legislation.
207-220 340
Abstract
During the examination of civil cases involving international (intergovernmental) organizations, courts raise a question of what right to give preference to the right to access justice or the right to judicial immunity? This brings a different issue: is it possible to consider a civil case if one of the required co-defendants is an international organization and refers to judicial immunity. According to the author of the article, sometimes the only way in which you can find the answer to these questions, is categorized as a "person of integrity” in civil proceedings. The author identifies some factors attesting to the misconduct of an international organization, abuse of the right of immunity in the case of compulsory complicity of this organization on the side of the defendant in the trial.
CRIMINAL LAW
221-226 906
Abstract
For the purposes of in-depth study of a crime under Art. 191.1. of the Criminal Code of the Russian Federation, the article deals with such forms of illicit traffic of wood as its transportation, storage and processing with trading purposes. Based on the existing legislation and judicial practice the author discloses the contents of these acts. For each studied form of the objective part, the author reviews the content, modus operandi, place, time of the end, special purpose of the crime. The author makes conclusions about the actions indicating the presence of features of illegally logged wood storage; equates the understanding of the term "storage" for other crimes, in particular those related to illicit arms trafficking; correlates concepts of "transfer", "transport", and "transportation"; excludes logging and individual floating of illegal wood from the content of the transportation; considers liability options for complicity of the driver of the vehicle; discloses all forms and types of processing of illegal timber; and identifies mandatory features of the final product processing.
ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW
227-234 690
Abstract
At the present stage of socio-economic development of Russia, special relevance is given to implementation and protection of the right to the common use of land, which allows citizens to move freely and reside on a variety of land and territories, thereby realizing their social, cultural, political, and other rights, and satisfying the everyday needs. Lands with the regime of common use of land is a de facto recognition of the legal basis of the right to the common land. However, this right is not sufficiently secured and guaranteed, including measures of responsibility and lack of citizen to defend their individual rights by means of civil and de facto judicial means. It is revealed that the mechanisms for the implementation of the right to common land or remain underdeveloped and insufficient for the full realization of this right, or non-existent at all. In practice, it is possible to refer to administrative protection of the right of free access of citizens to the water and its foreshore, while the protection of the rights of citizens against unauthorized access restrictions on public land, public access to forests remain underdeveloped. There is also a need to establish mechanisms for the implementation and protection of the right to the individual level, including with the use of civil law instruments
LEGAL EDUCATION AND SCIENCE
235-241 333
Abstract
The article examines the functions and role of the founder, his relationship with subordinate organizations in the formation of dissertational councils, the problems of optimizing the work of dissertational councils and the system of attestation of scientific personnel.
ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)
ISSN 2782-1862 (Online)