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Actual Problems of Russian Law

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Vol 15, No 2 (2020)
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THEORY OF LAW

11-18 1469
Abstract
The paper analyzes the problems arising while new elements in the structure of legal relations in the context of development of information and telecommunication technologies are emerging: objects (the Internet, artificial intelligence, etc.), subjects or participants (virtual identity, a provider, a virtual bank, etc.), as well as  the content. As a result of the analysis of normative legal acts operating in the information field, the author has determined a number of conclusions related to the subject-object composition of legal relations that have emerged in the process of digitalization, as well as the development of information law and legislation originating from processes under consideration. The author has drawn a conclusion that entrenchment of the content of legal relations (subjective rights and legal obligations) in the legislation of the Russian Federation has its own characteristic features. The paper contains the definition of the process of digitalization and the conclusion about the need to substantiate the content of legal relations in the conditions of development of information and communication technologies with the functionality that provides orderly arrangement of processes of digitalization of all fields of public life.


19-25 609
Abstract
Heuristic methodological opportunities of a system analysis in constitutional law research at the current stage of development of scientific thought are significantly underestimated. Meanwhile, examination of social and legal processes through the prism of synergistic provisions allows to identify their new essential features and propose more effective approaches to achieving topical scientific and theoretical objectives.
The paper is devoted to the study of the paradigm of constitutional law making as a complex self-organizing system that includes law-making and interpretation and law-making elements. The approach proposed by the author allowed: to consider the mechanisms of textual and non-textual development of the Constitution of the Russian Federation within a uniform category of constitutional law; to identify and justify the phenomenon of constitutional law-making synergy; to trace the merger of the legal stances of the Constitutional Court of the Russian Federation and the norms of the Constitution into a single regulatory complex — an integrative source of constitutional law.


26-35 2763
Abstract
The paper is devoted to the problems of implementation of the principle of timeliness of law-making. The author substantiates two aspects of the principle of timeliness of law-making: 1) adequacy of the intensity of the law-making process with regard to the temporal parameters of formation of the need of society for legal regulation; and 2) its compliance with the law-making intensity values ensuring minimization of the risk of adoption of ineffective legal acts. Based on the federal law making, the author identifies current problems of implementation of the principle of timeliness of law-making expressed in the “lag” of the law-making process behind formation of the needs of society for legal regulation, as well as excessive law-making activity of authorized bodies. The author concludes that it is important to develop technologies of legal analysis that ensure optimal intensity of law-making.


STATE POWER AND LOCAL SELF-GOVERNMENT

36-43 452
Abstract
Information, political, and legal principles of establishing and developing the status of the Arctic zone of the Russian Federation require a comprehensive approach on the part of both the State and the public. A contemporary civil society has the necessary potential to assist and participate in the protection and securing of the rights and legitimate interests of citizens living in the Arctic and adjacent northern territories. Issues of formation of organizational and legal principles, means, methods, forms of inclusion of public structures in the processes of servicing the Arctic space deserve specific examination on behalf of branch scholars and general theory of law. The author of the paper ensures the reader that the establishment of a legal framework for the use of public initiatives through entrepreneurship, national-cultural associations, indigenous peoples of the North, other public structures in the field of development of the Arctic zone requires systematic law-making monitoring and effective law enforcement. Active forms of democracy and public-private partnership should be actively used to strengthen the sovereignty and the Russian Federation presence in the Arctic zone.


FINANCIAL LAW

44-53 22412
Abstract
Consolidation of the financial and legal foundations of local self-government in the Constitution of the RF involves the implementation in the Russian Federation of the relevant financial and legal policy aimed at the implementation of constitutional rules regarding financial activities of municipalities. Due to the fact that the concept of financial and legal policy is not legally determined, different points of view on its content and types can be found in the literature. The fiscal and fiscal policy pursued in the State as a whole is important for the financial activities of municipalities. One of the most important documents defining the financial and legal policy in general, including municipalities, are the messages of the President of the Russian Federation. An examination of the messages of the President of the Russian Federation has showed that financial and legal support of municipalities is not a separate priority of the financial and legal policy of the State as a whole. The measures of financial support to municipalities, enshrined in the messages of the President of the Russian Federation, constitute the basis for subsequent regulatory decisions taken both at the federal and regional levels.


54-62 395
Abstract
Russian legislation establishes a special procedure for taxation of foreign organizations that do not operate in the territory of the Russian Federation, but receive income from Russian sources. When paying income to foreign organizations, Russian organizations may be obligated to pay both an income tax and VAT. The regulation of a taxation procedure applied to foreign organizations paying taxes from Russian sources is complex and covers the norms contained both in national legislation and in international agreements devoted to avoidance of double taxation. Despite the fact that a considerable number of works written by scholars and practitioners are devoted to certain aspects of taxation of foreign organizations, at present insufficient attention is paid to the nature and place of norms establishing the taxation regime for foreign organizations not operating in the Russian Federation. At the same time, a misunderstanding regarding the nature and place of the norms under consideration in the system of Tax Law of the Russian Federation can lead to incorrect law enforcement in the field of taxation of foreign organizations’ income that they receive from Russian sources. The author has analyzed the applicable legislation and viewpoints of scientists on this issue, and on their basis he has made a conclusion about the composition and place of the abovementioned norms in the system of Tax Law of the Russian Federation.
63-69 745
Abstract
The paper examines the powers of federal cities to establish and implement regional taxes that constitute a part of the tax system of the Russian Federation. The author comes to the conclusion that the jurisdiction of federal cities in the field of taxes is attributed to the joint jurisdiction of the Russian Federation and the constituent entity of the Russian Federation, namely, the federal city. Changes in legislation have a significant impact on the structure of revenues of Moscow budget due to the emergence of new fiscal revenue sources of federal cities, increase the amount of revenues received from the property tax of organizations in connection with the expansion of the list of real estate objects in respect of which the tax base is defined as their cadastral cost, etc. At the same time, the corporate tax, personal income tax and property tax invariably remain the main sources of tax revenues of the city of Moscow.


CIVIL AND FAMILY LAW

70-78 1009
Abstract
The article examines five organizational and legal forms of commercial corporate legal entities: economic partnerships, economic societies, peasant (farming) entities, partnerships and production cooperatives. Some problems of their legal status and activity have been determined. Suggestions for changing the current legislation regulating the forms of legal entities under consideration have been put foreward: 1) It is necessary to abolish a general partnership by improving a partnership in commendam where the participation of partners is not obligatory; such a legal entity must be renamed to “business partnership;” legal rules regulating a full partnership should be abolished. The maximum number of legitimate partners should be increased to 30. It is necessary to replace a memorandum of association by articles of association; 2) Federal Law of July 19, 1998, No. 115-FZ “On features of the legal status of joint-stock companies of workers (people’s enterprises)” should be abolished; 3) The new wording of Para 2 of Art. 66.3 of the Civil Code of the Russian Federation has been formulated: “A joint-stock company which does not meet the criteria specified in Para 1 of the Article shall be recognized as non-public;” 4) It is necessary to eliminate duality of a legal status of a peasant (farmering) entity by amending Art. 86.1 of the Civil Code of the Russian Federation, as well as the Federal Law of June 11, 2003, № 74-FZ “On a peasant (farming) entity” with an indication of the possibility of formation of such a business organization only as a legal entity.
79-85 3178
Abstract
By including Сhapter III.2 “Liability of the debtor’s chief executive and other persons in bankruptcy proceedings” into the Federal Law “On Insolvency (Bankruptcy)”, the legislator has extended the procedure of bringing a person controlling the debtor to subsidiary liability. But the established order gives rise to the questions concerning the order of its implementation. Such questions do not always have answers. The paper has examined the problems that arise with determination of the moment when the creditor chooses the method of brining the person controlling the debtor to subsidiary liability, as well as the problems arising due to the direct exercise of the right under consideration. The paper analyzes the peculiarities of the creditor’s choice of a method of disposing of the right of brining to subsidiary liability depending on the bankruptcy procedure in which such a choice takes place. Attempts are made to find an optimal solution to the identified difficulties with the implementation of the procedure under consideration. The paper has examined possible difficulties that may arise when a board of creditors or a creditor committee approves the statement on the sale of the right of claim for bringing to subsidiary liability of the person controlling the debtor. The author also suggests some ways of resolving the problems, offers solutions to the identified problems.
86-93 639
Abstract
At the moment, social and economic conditions of social development focus on shared consumption, which raises new issues of the legal regime of property rights, namely, rights (claims), options, digital rights, uncertificated and paperless securities.
Uncertificated and paperless securities and digital rights have become an important stage in the information revolution, but their legal regime is ambiguous and undefined.
An optional design was provided back in 2008 under the Concept of Development of Civil Legislation of the Russian Federation. Subsequently, it was included in the draft federal law on amendments to the Civil Code of the Russian Federation. Based on some provisions of the draft law, the Federal Law of March 8, 2015, on Amendments to Part One of the Civil Code of the Russian Federation in Art. 429.2 of the Civil Code of the Russian Federation set forth the option to make a contract and, in Art. 429.3 of the Civil Code of the Russian Federation, an option agreement was set forth.
In the legal doctrine, the spread of ownership to property rights as “incorporeal things” caused a critical response. The legal regime of these objects in the context of specific legal regulation and judicial interpretation is ambiguous.
The paper analyses the concept, legal nature, qualifying features of property rights, makes a proposal to introduce a unified legal regime in relation to these objects.

BUSINESS AND CORPORATE LAW

94-104 684
Abstract
The 2015 reform of liabilities and contract law expressed in a clearer manner the division of obligations into those related to the implementation of business operations (b2b — business liabilities themselves, b2c) and those not related to the implementation of business operations (c2c). Given this division, the issue of classification of relations that arise from corporate contracts seems problematic. The paper determines that such relations are binding, but the question of which liability rules are to be applied remains open. The Civil Code of the Russian Federation only fragmentarily indicates the application of the rules on business liabilities to relations arising from a corporate contract. The position of the Constitutional Court of the Russian Federation Discussion contributes to the discussion of the issue. It states that relations related to the exercise of corporate rights do not relate to business, but to other economic operations, which makes it difficult to apply the rules specifically to business liabilities. At the same time, the author proposes to classify corporate contracts liabilities as business if the persons concluding a corporate contract are affiliated with this legal entity or if, because of the conclusion of a corporate contract, its participants become affiliated persons.

CIVIL AND ADMINISTRATIVE COURT PROCEEDINGS

105-112 2412
Abstract
The paper discusses problems related to out-of-court challenge of a debtor’s transactions. In particular, the author explores the current position of the Supreme Court of the Russian Federation on questions of challenging debtor’s transactions before the insolvency proceedings, the procedure for distributing the burden of proof, legal grounds for challenging. Based on the results of the study, the author concludes that out-of-court challenge has a number of undeniable advantages similar to one within the insolvency proceedings. It may as well aim at preventing the withdrawal of assets of the debtor, protecting the creditor from abuse of the right by the debtor. The out-of-court challenge provides for additional guarantees to creditors even before the initiation of the insolvency proceedings. However, to claw back transaction made by the debtor in anticipation of bankruptcy based on Art. 10, 168 of the Civil Code of the Russian Federation, it is necessary to provide the court with strong evidence of the abuse of the right aiming at harming creditors both from the debtor and the counterparty’s side. In addition, out-ofcourt challenge  requires careful study at the legislative level in order to prevent abuse by creditors, in particular in order to minimize the possibility of double challenge (first, out-of-court, then within the insolvency proceedings).
113-124 494
Abstract
Based on the analysis of judicial practice and science, the paper substantiates that the decision of the antimonopoly body on violation of the antimonopoly legislation by an economic entity and the injunction issued on its basis can be attributed to public non-regulatory legal acts, and challenging them can be referred to as proceedings on cases arising from public legal relations. The author highlights some problems of theoretical and practical nature of a separate dispute of a decision and a prescription. It is justified that challenging the decision and prescription separately is impractical. In cases of challenging only the decision or only the order of the antimonopoly body, a state commercial court, in case of doubts about the legality of both acts, may, on its own initiative, check for the legality of both of these public non-regulatory legal acts, going beyond the stated requirements. The author substantiates that the existence of two non-regulatory legal acts of the antimonopoly body (decisions and prescriptions) is unjustified and, over time, the decision and prescription of the antimonopoly body can be reduced to one act — the decision of the antimonopoly body.

125-132 725
Abstract
The paper is devoted to some aspects of applying the institution of prejudice in the framework of the arbitration proceedings. The paper analyzes two topical issues of interest for both procedural science and law enforcement practice. The first question relates to the prejudicial effect of general jurisdiction and commercial courts’ decisions for arbitration proceedings that entered into legal force: can the circumstances established by the enacted act of the state court not be subject to proof in the framework of the arbitration proceedings? Based on the results of the study of this issue, conclusions are drawn. Another issue concerns the equally important problem of applying the institution of prejudice in arbitration proceedings: Does the arbitral award have the feature of prejudice and can the circumstances established by the arbitral award not be subject to dispute when considering another case, both within the framework of arbitration proceedings and in the framework of state justice? Based on the analysis of scientific doctrine and judicial practice, including the legal positions of the Constitutional Court of the Russian Federation, the author proposes a set of measures aimed at improving the legal regulation of arbitration proceedings.



CRIMINAL LAW

133-140 3830
Abstract
The classification of a terrorist act (Article 205 of the Criminal Code of the Russian Federation) experiences law enforcement problems due to the complexity of the legal rule and gaps in the current legislation. In the criminal law doctrine, these issues remain debatable, in practice there is also no uniform approach. The paper studies the features of the elements of a terrorist act, reveals the complex issues of classifying a crime and delimiting it from related elements. The authors note that when characterizing the object of the crime in question, the following should be borne in mind: the main object of a terrorist act is deemed to be public safety, an additional object — the life, health of citizens and (or) property belonging to them. Moreover, domestic legislation does not contain a definition of public safety. This term does not have a universally recognized definition in international law. The paper provides recommendations on the application of the criminal law rule about a terrorist act and on the improvement of legislation.

CRIMINAL PROCEDURE

141-149 1325
Abstract
Choosing remand in custody for the defendant on the sole basis of the need to ensure the execution of the sentence, without establishing and taking into account the risk of evading serving the sentence, is unacceptable. In such cases, the restrictive measure lacks a fundamental feature, i.e. its preventive nature. In this regard, the emerging criminal procedural relations are not governed by the provisions of Ch. 13 of the Criminal Procedural Code of the Russian Federation, but are subject to Ch. 46 of the Criminal Procedural Code of the Russian Federation, regulating the issues of presentation of the sentence for execution. The presentation of the sentence, yet to enter into legal force, in terms of the punishment imposed, for immediate execution bypassing the prohibition established by law, as well as the choice of a restrictive measure according to the punishment imposed when deciding the sentence solely for the purpose of its execution, contradicts the constitutional principle of the presumption of innocence. The provisions of Part 2 Art. 97 of the Criminal Procedural Code of the Russian Federation determine the possibility to choose a restrictive measure for ensuring the execution of the sentence. The constitutional legal sense suggests that in order to ensure the execution of the punishment imposed by a sentence yet to become effective, the court has the right to choose or change a restrictive measure according to the punishment imposed, if there are sufficient grounds to believe that the accused will evade serving the sentence imposed on him. The court does not have the right to choose or change a measure of restraint in respect of the accused according to the sentence imposed simultaneously with the sentencing. The issue of the necessity of applying a restrictive measure in connection with the decision of the sentence shall be resolved in a separate court session at the request of the prosecution or at the initiative of the court after the pronouncement of the sentence.

CRIMINALISTICS AND CRIMINOLOGY. FORENSIC SCIENCE

150-158 1736
Abstract
The paper is devoted to the problems of non-governmental forensic activities, especially in the field of non-governmental forensic institutions (organizations). As part of the consideration of these problems, the concepts of “forensic institution” and “forensic organization” are analyzed. The author substantiates the standpoint according to which non-governmental forensic expert organizations should be created on a non-commercial basis. The requirements that may be brought against non-governmental forensic organizations are considered. Based on this, proposals have been made to improve the regulation, including legal, non-governmental forensic activities. First, they include the creation of a forensic expert community that would bring together experts based on the presentation of common requirements for them, which requires standardization in the field of forensic activities and certification of forensic experts. The author considers the features of advertising forensic organizations and their equipment. The latter includes the problem of the lack of non-governmental forensic organizations with sufficient equipment for conducting forensic examinations.

INTERNATIONAL LAW

159-165 526
Abstract

This paper analyzes the 2018 Nuffield Council on Bioethics Report on genetic engineering and human genome editing. The direction of the formation of international legal principles for regulating these relations is presented. There are two fundamental principles presented in the report: welfare when using genetic engineering (and based on the rights and interests of a particular person, society and humanity as a whole) and the use of editing the human genome, which will not lead to exacerbation of inequality and marginalization in society. The author studies the possibilities of genetic engineering at the present stage of the development of science and technology, in particular, somatic editing and editing the germline of the human genome. The need for legal regulation is ascertained. The author presents substantiations for the formation of an international dialogue in the field of information exchange on scientific discoveries in this field, which will allow us to formulate the main direction of legal thought and the mechanisms of legal regulation.

INTEGRATION LAW

166-172 1122
Abstract
Currently, the European Union has a developed regime for counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism. Over the nearly 30 years of its existence, this regime has proven to be effective in achieving its goals thanks to the comprehensive nature of regulation and compliance with international achievements in the field of combating money laundering and the financing of terrorism, primarily the recommendations of the Financial Action Task Force on Money Laundering (FATF). The AML / CFT regime developed by the European legislator has become an effective tool for combating money laundering in conditions when this problem turned to be acute due to the widespread tightening of counter-terrorism measures, including international ones. It is for this reason that the European AML / CFT regime has served as a guideline in the development of “anti-laundering” measures of many states that are not members of the European Union, including the Russian Federation. The paper discusses the content of current trends in the legal regulation of the European Union in the field of combating money laundering and the financing of terrorism, as well as an overview of the main development prospects and directions.



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ISSN 1994-1471 (Print)
ISSN 2782-1862 (Online)