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ARCHIVE FOR 2013    RUSSIAN

Август 2013

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

L.V. Golovko ‘There Can Be No Confrontation between the Civil and the Criminal Justice’
Leonid Vitalyevich GOLOVKO, Head of the Department for Criminal Proceedings, Justice and Prosecutorial Supervision of the Law Faculty of Lomonosov Moscow State University, answers the questions of Yan Piskunov, Chief Editor of LAW magazine.
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The Event. Comments of the Experts

Liability of Directors: Waiting for Changes
Long-awaited Resolution of the Plenum of the Supreme Commercial Court of the Russian Federation On Certain Issues of Indemnification of Damages by Members of a Legal Entity’s Governing Bodies was published on August 20, 2013. We addressed to experts with view to evaluate the rules of indemnification of damages advanced by the Plenum and the possible changes in the arbitration practice that may take place after adoption of the above Resolution. Which dispositions of such Resolution shall be the most promising and, vice versa, which dispositions may be regarded as a failure?

 

Topic of the issue

I.A. Klepitsky Economics and Criminal Law
The civil law seeks to regulate relations arising with regard to commercial turnover, whereas the criminal law is intended to protect them. The scope of protection cannot be arbitrary; it varies depending on the state of economy. The criminal legislation should benefit the economy. The Russian economic criminal law is in its infancy and faces long-term development. The author of the article substantiates that problems relative to the quality of the law are more complex than they appear at first sight, and there is no easy way to solve them.
Keywords: criminal law, economic crimes, business crimes, prejudice, quality of the law, fraud
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P.A. Skoblikov Inter-branch and Intra-branch Prejudice of Sentences and Related Court Decisions
The article contemplates issues of inter-branch and intra-branch prejudice of sentences and related court decisions that remain obscure and not well-elaborated in the legal literature. Based on the analysis of current tendencies of the Russian law the author raises the questions of prejudice in the criminal proceedings of acts adopted in civil proceedings and the prejudicial value of convictions issued in trials held in the special order, highlights the mediated correlation between inter-branch prejudice, amnesty, termination of criminal prosecution due to non-rehabilitation circumstances, issues of indemnification of damage caused to crime victims, etc. In each case, the author advances solution to the problem being analyzed.
Keywords: Keywords: intra-branch prejudice, inter-branch prejudice, criminal proceedings, civil proceedings, arbitration proceedings, special order of the trial, amnesty, civil action in a criminal case
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G.K. Smirnov Problems of Improving the State Policy in the Field of Counteraction against Tax Crimes
The article examines the problems faced by the Russian law enforcement system after amendments introduced in the procedure of criminal prosecution for tax crimes. The author suggests certain legal and organizational measures to be taken in order to significantly improve the effectiveness of counteraction against tax crimes.
Keywords: tax evasion, tax crimes, fiscal policy, investigative activity, tax authorities, financial police
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M.A. Mikheyenkova The Principle of Autonomy of the Criminal Law and the Criminal Procedure in the Traditional Continental Legal Doctrine
The article envisages the traditional continental concept of the autonomy of the criminal law and the criminal procedure. The author briefly analyzes the formation of the concept and its contents formed in accordance with the modern doctrine and legal practice. The author furthermore observes basic procedural implications of the concept for the administration of justice, including its impact on the institute of prejudice.
Keywords: autonomy of the criminal law and the criminal procedure, independence of the judge in a criminal case, interpretation in criminal proceedings, prejudice

 

Z.M. Pogosova Correlation between the Criminal and the Civil Law in the Doctrine of the United States of America: the Institute of Punitive Sanctions
This article considers the institute of civil penalties appointed as a means of punishment in the American legal tradition in the context of correlation between the criminal and the civil law. Particular attention is paid to such categories as subjective and objective liability, wrongful and malicious acts, and imposition of punishment and award of compensation, correlation between the criminal reputation, imprisonment, restitution and monetary payments. The article contains analysis of the institute of compensatory monetary sanctions and of theories explaining their legal nature. The author arrives at a critical analysis of the compromise judicial practice in the form of civil penalties appointed as a means of punishment.
Keywords: punitive sanctions, criminal law, compromise judicial practice of the United States of America, penalty, and punitive civil sanctions
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Penalty in Contractual Settlements
In accordance with the Federal Law No. 223- FZ of 18.07.2011, based on the results of an open auction in the electronic form a company and a contractor entered into a contract, but the contractor violated the terms of its performance. Is the company entitled to withdraw the penalty (in the amount of one three-hundredth of the refinancing rate for each day of delay) for delay in execution of the contract from the amount due to the company immediately in the course of making settlements with the contractor? Or shall the company effect the payment in full and then to demand collection of the penalty in a judicial proceeding?

 

Theory and practice

V.G. Golubtsov Conciliation Procedures in the Area of Economic Justice: Tendencies and Prospects
The article covers issues of the effectiveness of conciliation procedures used in the arbitration proceedings, highlights specific features of the institute of judicial peacemakers. The author assesses proposed innovations and draws a conclusion on the necessity to establish competitive environment in order to implement reconciliation procedures in the area of economic justice.
Keywords: mediation, judicial mediation, alternative means of dispute resolution, conciliation procedures, economic justice
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O.L. Vasiliev A New Phase of the Reform of Pre-Trial Stages of the Criminal Proceedings. Critical Analysis of Amendments Introduced in 2013
The article investigates the major amendments to the Criminal Procedure Code of the Russian Federation. The author identifies the expansion of powers vested to interrogating officers and investigators of proof, including through non-investigative actions, which, according to the author, undermines the procedural safeguards. The author pays special attention and criticizes the new type of inquiry, namely inquiry in its shortened form, conducts historical parallels with the protocol form of trial preparation of materials and with the reform of the preliminary investigation held in 1920-1930's. It is concluded that the growing tendency to simplify the criminal proceedings must be suppressed.
Keywords: initiating criminal proceedings, preliminary investigation, inquiry in the shortened form, procedural actions, reform of pre-trial stages
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V.A. Kanashevsky Conflict Regulation of Relations of Representation in the Foreign Trade Turnover
The author analyzes the issues of conflict regulation of relationships of commercial representation in Russia and abroad, considers the concept and specific features of the agency agreement, as defined in accordance with the Russian and foreign laws, provides examples of resolution of disputes arising under commercial representation agreements in the Russian and foreign judicial practice.
Keywords: agency agreement, conflict regulation, commercial representation, power of attorney, form of foreign trade transactions, applicable law
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A.A. Glushetsky Purchase of Shares at the Request of Shareholders: Conflict Situations
The article focuses on controversies issues relative to purchase of shares at the request of shareholders in accordance with Articles 75-76 of the Federal Law On Joint Stock Companies.
Keywords: purchase of shares, pre-emptive right of purchase of shares, interests of shareholders, register of shareholders, joint stock companies, corporate conflicts, corporate control
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O.G. Lomidze, E.Yu. Lomidze Principles of Application of Remedies for Violated Rights
The strategy aimed at protection of violated rights involves selection of a proper remedy. It should take into account specific features of the legal status of the individual whose rights have been violated and that of the disputed object of title. The authors examine certain principles of application of civil remedies for violated rights arising from the legislation and jurisprudence and specify guidelines for their application.
Keywords: proper remedy, object of title, legitimation of the plaintiff and of the defendant
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A.N. Kryukov, D.V. Burachevsky Procedure for Application of Interim Measures by Commercial Courts in Corporate Disputes
The authors explore problems arising during application by commercial courts of interim measures in disputes related to establishment of a legal entity, management of such legal entity or participation in it. Conclusions contained in the article can be useful both for scientific and practical purposes.
Keywords: interim measures, arbitration proceedings, establishment of a legal entity, management of a legal entity, participation in a legal entity
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Foreign experience

Ya. A. Gaeva Assignment of Rights under the License Agreement in the Patent Law of the United States of America
The article presents an overview of the case law of American courts in disputes relative to assignment of rights under the license agreement. Based on the principle of exhaustion of patent rights, legally possible assignment of the patent license is currently limited to relations involving exclusive licenses. The rule of exhaustion of patent rights also applies to the cases of sale of products manufactured by the licensee under the license granted to it.
Keywords: patent license, assignment of a license, exhaustion of patent rights, license agreement
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