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Actual Problems of Russian Law

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Vol 15, No 10 (2020)
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THEORY OF LAW

11-19 881
Abstract

A network paradigm involves looking at the society as an open, multilayered, decentralized system of interactions. A social concept of the networked society terminologically corresponds to the idea of the network state; the network state is characterized by decentralization of power, priority of horizontal relations, almost equal position of the State among other political actors. Legal science does not tend to exaggerate the role of networks and relies on the need for sovereign state power, the mandatory existence of hierarchical power relations.

Nevertheless, it is important to see both the new opportunities that network technologies provide for the institution of the State and the corresponding risks. Modern jurisprudence knows both the advantages and disadvantages of network strategies relatively badly, and promising research is being carried out at the intersection of legal science and political science, sociology, and management science. The network methodology can be integrated seamlessly into the jurisprudence methodological toolkit. At the same time, legal science reflects many problems of the theory of the network society and networkization of the state activity in its concepts and categories without the use of “network” terminology.

20-27 541
Abstract

The paper investigates one of the possible models of the modern state, namely: the Schumpeterian Workfare State, on the basis of the analysis of scientific literature. The author gives an assessment of the phenomena that determined the transition to a new production and technical paradigm of Post-Fordism. The paper elucidates the preconditions of formation of the idea of the Schumpeterian Workfare State and its essential characteristics.

In particular, it is noted that the model of the Schumpeterian Workfare State is applicable to any capitalist states at the present stage regardless of whether they have passed the stage of Fordism. The author proposes his own definition of the category of the Schumpeterian Workfare State that was missing in the modern domestic theory of the state. The author poses a number of problems that we must resolve for theoretical understanding and practical application of the model of the Schumpeterian Workfare State. To this end, the author believes that it is necessary to update the doctrine about the state in the national science to create solid theoretical foundations for the development and functioning of the Russian Federation at the modern stage.

PAGES OF HISTORY

28-35 635
Abstract

In the context of the objective reconstruction of the foreign policy situation of Central Asia in the era of Antiquity, the author insists that the victory of Greece and Macedonia over the Achaemenid Empire, which included Central Asian regions (Sogd, Bactria, Margiana, Parthia, Hyrcania), was the victory of the more developed slave economy over the backward economic forms. This ensured the creation of favourable conditions in Central Asia for the further development of economic links, widespread deployment of trade, establishment of regular cash circulation, in other words, integration of the Central Asian region into the ancient community. At the same time, the danger of separatism on behalf of the large provinces (satrapies) that formed an economic and cultural-ethnic unity was suppressed more effectively than under the Achaemenids. The fusion of the elite Greek (Hellenistic) culture and lifestyle of the original local society gave rise to a progressive historical phenomenon — Hellenism. It covered not only the Middle East and the Mediterranean, but also the Central Asian region up to the Tashkent Oasis (Chach). At the same time, the external forms of ancient Greek statehood on the territory of Central Asia throughout the 4th-3rd centuries BC absorbed the features inherent in the Eastern tyranny.

STATE POWER AND LOCAL SELF-GOVERNMENT

36-43 2389
Abstract

The paper is devoted to the problems concerning the legal nature, normative regulation and the procedure for the implementation of the institute of preliminary constitutional review in the Russian Federation. Although the exercise of this type of constitutional control ensurs the prevention of the detected violations, it also carries certain risks associated with the limited time frame of its implementation, impossibility of taking into account interpretation of the contested norm in law enforcement, etc. The author demonstartes permissible forms of the use of preliminary control in the activity of the bodies of constitutional justice in Russia (when checking the constitutionality of international agreements and treaties of the Russian Federation, evaluating constitutional amendments, etc.). The author also investigates the practice of implementing the relevant powers. Particular attention is paid to the analysis of the legal positions of the Constitutional Court of the Russian Federation that stipulate the limits of the implementation of preliminary judicial constitutional review. The paper examines the issue of the powers of constitutional (charter) courts of constituent entities of the Russian Federation in the area under consideration.

FINANCIAL LAW

44-56 947
Abstract

Modern cross-border tax relations operate within the framework of a multi-level system of legal regulation on the basis of international, supranational and national law. In 2020, the coronavirus pandemic (COVID-19) caused a systemic crisis, requiring urgent responses, including in the area of taxation. In response to the threats posed by the pandemic, the OECD, EU and individual states have taken tax measures to mitigate the effects of the economic crisis and ensure the safety of their citizens. The paper provides an overview of these support measures and concludes that these measures need to be considered in both national and transboundary contexts. It is noted that in the situation of the pandemic, different countries around the world faced a problem common for all. At the same time, the means of tax regulation have become one of the most important mechanisms of state support for affected enterprises and citizens. However, in different States, these mechanisms and the results of their application differed and have different effects.

57-64 547
Abstract

In the context of the need to finance large investment projects in the Russian Federation, a regional investment project has become a promising mechanism for granting tax incentives to investors. The Tax Code of the Russian Federation provides for three types of participants in regional investment projects, in respect of which there is a different procedure for granting tax incentives and their scope. The mechanism for granting benefits to participants in regional investment projects is carried out through joint legal regulation by the Russian Federation and its constituent entities. Such a mechanism effectively takes into account the fiscal interests of constituent entities of the Russian Federation by means of transferring additional fiscal powers to them granting tax incentives to participants of regional investment projects. At the same time, the Tax Code of the Russian Federation provides for a mechanism for granting benefits to participants of regional investment projects regardless of the opinion of the constituent entity of the Russian Federation on the basis of the decision of the executive power. This can lead to the loss of financial stability by the constituent entity due to the impossibility of regulating its budget income. Further improvement of the institution of a regional investment project is required in order to ensure a genuine balance of fiscal powers between the Russian Federation and its constituent entities.

CIVIL AND FAMILY LAW

65-71 576
Abstract

The paper deals with the history of the institution of bankruptcy of citizens in the Russian legislation, substantiates its socio-rehabilitative nature. The author analyzes the grounds of application of the legal institute of refusal to discharge of obligations upon completion of bankruptcy proceedings. The paper describes the legal grounds for refusal of discharging of obligations, related to both the wrongful actions of the citizen prior to initiation of bankruptcy proceedings and to actions, committed in the course of bankruptcy proceedings. The main reason for the refusal to discharge obligations is the concealment of necessary information by the debtor or submission of knowingly unreliable information. At the same time, the author concludes that in each case there is the need to identify features of abuse of the right (bad faith) on behalf of the debtor. The author also expresses an opinion concerning the abstract nature of such categories as abuse of the right and good faith that depends on the court's evaluation of the specific circumstances of the case and judicial discretion.

72-81 880
Abstract

The paper carries out psychological and legal analysis of such categories as will, declaration of will, and interest. It is emphasized that the initially studied concepts represent the object of study for the psychological science, but they also have their expression and application in jurisprudence. The author focuses on the etymology of this concepts, along with the psychological and legal characterization of these categories. It is established that these concepts, having dualistic properties in their legal nature, express interconnected, mutually reinforcing processes. The paper presents the author's definitions of the categories under consideration based on their legal characteristics. The legal analysis of the investigated problems is carried out based on the existing normative legal acts and judicial and arbitration practice. In conclusion, the paper emphasizes that the categories that have become the subject matter of this work are not sufficiently investigated by legal science and need further scrupulous analysis.

82-94 513
Abstract

Today, the procedure for emergence and termination of membership in partnerships of real estate owners is not defined in the law and has not yet been elaborated in detail in the scientific doctrine unlike its main types: a horticultural and gardening non-profit partnership and condominium partnership, which has led to the expediency of the paper. The study of the grounds for the emergence of membership in a horticultural and gardening nonprofit partnership, as well as in a partnership of housing owners, allowed the author to come to the conclusion that "automatic" membership of the partnership of real estate owners does not emerge. It is necessary to personally apply to a specific partnership of property owners with an application to join it as a member. The introduction of any additional conditions preventing the emergence of membership in the partnership of real estate owners and its types is in fact unacceptable. Despite the fact that the issues of termination of membership in different types of partnerships of real estate owners have been resolved differently, the study found that the partnership of real estate owners is a collective category in relation to its types. As a result, it is concluded that there are general and special grounds for the termination of membership in the partnership of real estate owners. The general grounds apply both to the partnership of real estate owners and to any of its types. General grounds include the application of withdrawal from the membership of the partnership of real estate owners and termination of ownership of property owned by the member of the partnership of real estate owners. Special grounds for the termination of membership apply only to a specific type of the partnership of real estate owners or to the partnership of real estate owners itself and other types of such a partnership that do not refer to its main type if there is a direct reference to it in the main document of the partnership, i.e. the articles of partnership.

LEGAL REGULATION IN THE INFORMATION SPHERE

95-104 542
Abstract

The paper examines a number of systems of accounting of rights concerning individual contractual relations in their relation to the systems of state registration. The key attention is paid to the consideration of the notary system of accounting for movable property pledges operating in Russia since 2014. With regard to the solution of the problem of accounting the pledge of non-individualized property, the authors conclude that it is possible to adapt the construction of fixed charge to the needs of modern turnover. It is proposed to consider the issue of supplementing the standard of bona fide behavior of the pledger (collateral giver) by placing on the pledged items without other individualizing designations, information that includes the number of the notice of pledge, as well as the corresponding code (barcode, QR code) in any form. The authors focus on the need to supplement the register of notices of pledges with the information concerning the amount of the claim secured by the pledge. On the basis of the analysis of foreign experience, it is concluded that it is advisable to preserve the possibility for the pledge holder (collateralholder) to go to the notary to register the notice in the register. Suggestions have been made to amend the mortgage legislation. With regard to intellectual property accounting systems, there is no legal impediment to the development of such accounting systems with regard to intellectual activity and relevant intellectual rights; the examples of accounting systems in this area are given. The development of such systems will allow to involve in legal circulation a much larger number of digital objects of intellectual rights and create maximum guarantees for the protection of their holders.

LABOR RELATIONS AND SOCIAL SECURITY

105-115 705
Abstract

The paper is devoted to the differentiation of legal regulation of labor related to the increasing expansion of atypical forms of employment. The author determines approaches to the allocation of grounds (criteria) of differentiation and its limits, analyzes the ratio between differentiation norms preconditioned by the development of atypical forms of employment and other norms of labor legislation devoted to the regulation of certain categories of labor, in particular the labor of employees working in areas of the Far North and equivalent localities, juvenile employees, employees with disabilities. The paper substantiates the conclusion on attribution of differentiation factors taking place in atypical employment to objective factors unrelated to the employee's personality, analyzes the attribution of norms adopted to legalise atypical employment to norms-exemptions or norms-adjustments. The conclusion is drawn that there is a need for a more precise definition of the limits of differentiation in order to maintain a uniform approach to the minimum standard of labor rights of an employee.

BUSINESS AND CORPORATE LAW

116-124 465
Abstract

In the paper, the author examines the independence of joint-stock companies subsidiaries with predominant state participation in decision-making through the prism of the practice of building corporate governance at JSC 'Russian Railways'. The author sets the task to study the limits of participation of the main company in the formation of the will of the management bodies of a subsidiary company using the example of one of the largest Russian joint-stock companies with state participation. The author concludes that the parent company has virtually unlimited powers in determining the subsidiary's decisions, which is generated by the broad approach of the legislator to the definition of the subsidiary. For the first time, the paper identifies two independent forms of determining the decisions of a subsidiary by the main company, which are actively used in practice, but without direct consolidation at the legislative level. They are as follows: the direction to the subsidiaries by the main company of draft local regulations subject to approval by the management bodies of the subsidiary; and issuance by the parent company of instructions for voting at the annual general meeting and the meeting of the board of directors of the subsidiary. The author notes that under the conditions of unlimited powers of the parent company when determining the decisions of the subsidiary company there is the risk of transformation of subsidiaries of joint-stock companies with predominant state participation into nominal structures not interested in high-quality corporate governance, blindly fulfilling the will of the parent company. The material presented in the paper can be used both in further scientific research when studying the issue of independence of subsidiaries of joint-stock companies with predominant state participation, and by practicing lawyers working in joint-stock companies with state participation and their subsidiaries, as well as by state bodies participating in the improvement of corporate law.

MEDICAL LAW

125-131 465
Abstract

The paper considers the Australian experience of human genome patenting legal regulation, and studies the Australian court practice on this issue. The aim of the study is to examine the approaches of the Australian law enforcement agencies to one of the most important aspects of the genome research legal regulation, i.e. human genome patenting, and to compare them (to conduct a comparative analysis) with the approaches of the judicial authorities of other states (USA). The authors note that, based on the Australian court practice, patenting of human DNA is possible, which makes the development of research in the human genome quite attractive for commercial companies, since it protects the possibility of such companies to obtain economic benefits from the use of scientific developments. The authors point out that the issue of patenting of an isolated genetic sequence has been the subject of litigation in other jurisdictions (in particular, the United States) involving the same defendant (Myriad Genetics). It is emphasized that, despite the similarity of legal systems, the identity of the subject of claims, the judicial authorities of the United States and Australia have formulated different approaches to determining the possibility of patenting human DNA.

132-140 506
Abstract

The paper considers the most discussed areas of individual genomic data application. The authors note an increase in the volume of research on the individual genome decoding and the use of genomic data in the field of assisted reproductive technologies. The development of ethical principles, the development of national ethical requirements, and the formation of an ethical code are being discussed in the Russian Federation. The question is raised about the mechanisms for introducing the principles of self-regulation. A possible key to solving this issue is the creation of self-regulatory professional associations, as well as the improvement of the legislative framework of the Russian Federation in this area.

THE JUDICIARY AND COURT SYSTEM

141-150 2501
Abstract

The history of the regional constitutional justice formation in the Russian Federation is a series of flaws and compromises that hindered its normal functioning. Initially badly considered and not properly formalized by law, the system faced numerous problems that led to the reversal of the process and the abolition of the constitutional (charter) courts of the constituent entities of the Russian Federation. This resulted in the adoption of amendments to the Constitution of the Russian Federation, excluding these courts from the judicial system. This decision seems logical in the current circumstances, but incorrect from the standpoint of strengthening democratic and federal principles in the state structure. The proposal to liquidate constitutional courts is an example of avoiding a solution to the problem: a simple path is chosen instead of careful examination of the issue and working out measures for possible optimization of this system and using its potential. Reforming constitutional justice bodies with a significant expansion of their jurisdiction can turn them into an effective tool for solving the main task of the state, i.e. protecting the rights and freedoms of citizens.

INTERNATIONAL LAW

151-156 494
Abstract

The Federal Law of November 24, 2014 No. 376-FZ "On Amendments to Parts One and Two of the Tax Code of the Russian Federation (with regard to taxation of profits of controlled foreign companies and foreign organizations proceeds)" adopted in the framework of the deoffshorization program caused the increase in the doctrinal discussions of this program. It aimed at reducing the outflow of capital abroad, to fight against the concealment of the proceeds of legal entities whose beneficiaries are Russian residents formally registered in offshore zones. It is worth noting that due to the name of the program, designated by the President of the Russian Federation at the end of 2013, the law in question became known as the "anti-offshore law" Such a wording provoked the formation of an erroneous opinion that the construction "controlled foreign company" introduced by this law is synonymous with the term "offshore company". The paper analyzes the doctrinal sources that reveal the concept and essence of the two phenomena (controlled by a foreign company and an offshore company), and scrutinizes their legal definitions. The paper provides not only the characteristics of both business entities, but also the features that make it possible to draw a clear line between these types of organizations. Thus, the author concludes that the companies under consideration have some autonomy, but, despite this fact, she still notes three important and significant conditions, the observance of which leads to the equivalence of a controlled foreign company and an offshore company.

157-167 583
Abstract

The paper is devoted to the problems of the formation of ethical and legal methods of regulation and control over scientific developments and discoveries in the field of genetic engineering and biomedical cell technologies. The author highlights the main stages of the development of science in this area and the implementation of the results in global practice and civil circulation. The paper raises a question about the delimitation of the ways of public discussion of scientific discoveries and achievements in the global aspect for the legal methods of regulation and control to be formed. The paper considers some aspects of commercialization of scientific discoveries, their use in the framework of international competition and stimulation of the economies of countries participating in scientific progress in the field of genetic engineering. It is concluded that it is necessary to form a unified global approach to scientific developments in order to avoid bypassing the law and using "weak" legal order to legalize the results of scientific research that are currently unacceptable. It is important to differentiate between technical safety criteria and ethical, social, religious, legal aspects, and in addition, to include the political and economic context, which is becoming increasingly inherent in scientific research as new products and services are introduced to the market.

ENERGY, ENVIRONMENTAL AND NATURAL RESOURCES LAW

168-175 527
Abstract

The conducted analysis shows that the group of legal norms regulating the procedure of forced and voluntary resettlement of residents (environmental migration) and the protection of the rights and freedoms of these environmental migrants is a special case, a kind of integral part, of the general legal institution for regulating environmental migration of the population from emergency areas of natural and man-made nature and zones of environmental disasters, i.e. territories where the constitutional right of a person and a citizen to a favorable environment is violated, as well as protection of the rights and freedoms of environmental migrants. This legal institution is currently at the stage of formation. The main reason for this situation is, first of all, the absence of a basic federal law that defines the general principles of the functioning of the legal mechanism for regulating forced or voluntary temporary or permanent resettlement of the population from areas where the right of a person and citizen to a favorable environment (environmental migration) is violated, and the protection of rights and freedoms of environmental migrants. The conducted analysis makes it possible to determine the legal status of an ecological migrant as a legally enshrined state of a person who, due to the deterioration of the quality of the natural environment and violation of the constitutional right of a person and citizen to a favorable environment, left his place of permanent residence or stay and who, in the case of long-term stabilization of the ecological situation in the area of the previous place of residence or stay, obtains additional guarantees at the new place of residence until the moment of its complete arrangement facilitating the implementation of individual rights, freedoms and obligations inherent only to this category of persons and which must be enshrined in both international and domestic legislation (the Constitution of the Russian Federation and sectoral regulations).

176-185 516
Abstract

The current law "On Insolvency (Bankruptcy)" contains no norms regulating the environmental safety of an insolvent debtor. Significant share of rehabilitation procedures is characteristic of the production of bankruptcy cases, which results in insufficient financing of reclamation measures and a high risk of environmental pollution when the enterprise is terminated. Business retention and a high return on creditors allow both the debtor and the creditors to comply with the requirements of environmental legislation at relatively low costs for themselves. The authors conclude that the absence of ecology aimed norms in the Law "On insolvency (Bankruptcy)" contradicts the requirements of the Strategy for Ensuring the Environmental Safety of the Russian Federation. The innovations taking place in the regulation of insolvency relations of environmentally hazardous enterprises in foreign countries turned out to be useless for the national legislation. The authors give recommendations on the implementation of the norms of foreign legislation on the bankruptcy of environmentally hazardous enterprises, which have proven their effectiveness in practice.

186-192 533
Abstract

In the paper, the author proposes his own definition of the connection (technological connection) to the heat supply system agreement, as well as the classification of such agreements. The classification of the heat supply agreement is made by the author on the following grounds: the type of heat carrier used, the type of heat supply system, the type of heat load, the procedure for determining the price, the procedure for setting the tariff, the type of the connected object, the purpose for concluding the agreement, the structure of the contractual relationship, the frequency of connection. The types of connection agreements identified by the author are illustrated with examples from judicial practice. According to the results of the classification, the author reveals contradictions in the legislation that require improvement of regulatory legal regulation, in particular, when connecting (technological connection) to the district heating system of heat sources and heating networks. It is noted that the procedure for calculating connection fees based on the heat load of the applicant's heat-consuming installation is unsuitable for connecting heat supply facilities, since the source of heat energy and the heat network are not devices for receiving energy resources. In this regard, the author proposes to connect heat supply facilities under a heat supply agreement based on an individual fee, taking into account the actual costs of technological connection to the heat supply system of a new energy source and heat networks.

193-199 595
Abstract

The Constitution of the Russian Federation determined the goals and objectives of the state policy in the field of environmental protection and nature management, designed to ensure an ecologically safe environment and natural resource potential for the present and future generations of the peoples of Russia, which, in the context of the legal positions developed by the Constitutional Court of the Russian Federation, determines the principle of priority provision of public environmental interests as one of the most important principles of legal regulation of environmental protection and nature management. This principle is considered as the main component of the state environmental policy and the dominant of the environmental development of the Russian Federation, since it is designed to provide the current natural resource needs of socio-economic development and the preservation of natural potential for future generations of Russian citizens and all of humanity. The priority provision of public environmental interests is seen as a guarantee for the protection of legitimate private environmental interests. 



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