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ARCHIVE FOR 2018    RUSSIAN

Январь 2018

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

D.A. Tumanov, E.G. Strel’tsova Some Conceptual Issues in Civil Justice
The paper deals with the role the courts and the judicial mechanism play in the protection of rights and interests. The conclusion is made that the judicial mechanism has a special significance for the State, the community and individuals. However, the authors do not de-emphasise the role some other mechanisms of right protection have to play. The delivery of justice by the court of law may finalise a legal dispute once and for all and implies that the court should operate in a special mode of guarantees. The paper also concludes that the workload allocation between courts and non-judicial authorities necessitates systemic changes unrelated to any limitations on the jurisdiction. To expand the applicability of non-judicial remedies, the general approaches to the legal regulation type should be modified, and a broader use of soft law and the enforcement options should be made at the public self-regulation level. Besides, the paper evaluates whether or not the legal protection of public interests can be implemented through judicial lawmaking and review of cases where such interest constitutes an indirect and direct item to be protected.
Keywords: justice, non-judicial remedies of rights and interests, public self-regulation, protection of public interests
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A.R. Sultanov Justice Can Not Be Unmotivated!
The author has considered two proposals of the Russian Federation Supreme Court’s Plenum on improving the procedural legislation by excluding the term “subordination” from the procedural codes of and dismissing judges from drafting a reasoned judicial decision. The author believes that the exemption from motivation of judicial resolution not only contradicts Russia’s international legal obligations, but also contradicts the Russian legal doctrine and the constitutional and legal principles of fair justice.
Keywords: jurisdiction, subordination, motivation, fair trial, transparency
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K.L. Branovitskii Information Technology Used as a Way of Optimising Civil Litigation
The paper gives an overview of the actual trends in the domestic civil procedure in relation to the use of information technology from the standpoint of the need to ensure equal access to justice and optimisation of civil litigation. The author emphasises that any practical implementation of new information technologies should be considered from the judicial, procedural and organisational aspects. A closer look is taken on the rules that were introduced on 1 January 2017 by Federal Law № 220-FZ of 23 June 2016 “On Amending Certain Legislative Acts of the Russian Federation Regarding the Use of Electronic Documents by Judicial Authorities”. Further process requires IT system synchronisation between commercial courts and courts of general jurisdiction. In addition to the review of legislative changes, the author suggests strategic directions of development in this field, and also analyses potential risks of information technology and their impact on procedural principles.
Keywords: optimisation of civil litigation, accessibility of justice, civil procedure, trends in civil procedure, information technology
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I.K. Lyaskovskiy The Fiction of Notification in Civil Process
The paper analyses the novelties proposed for the Civil Procedural Code of the Russian Federation with regard to notifying the persons involved in the case. The bill, which was introduced by the Russian Supreme Court Plenum’s Decree No. 30 of October 3, 2017, includes provisions equating the actual receipt of a summons by the addressee to his failure to appear following receipt of the mail, which the recipient could be unaware of. By analysing the rules of the current Civil Procedure Code of the Russian Federation, their practical application and the history of Russian procedural law, the author comes to the conclusion that the novelty proposed by the bill is inorganic and inopportune. The paper demonstrates that it is unjust to equate the valid notification of participants in proceedings with a fictitious one and proposes to balance the interests of the parties by entering a judgment in default. The author suggests the introduction of mandatory notification of the participants in proceedings not only by mail, but also through other simpler and less onerous means, such as the portal of public and municipal services, and by phone. The paper proposes to regulate the number of notification attempts and their methods. Another proposal is to establish the procedural effect of posting information in the Justice State Automated System.
Keywords: proper notification, legal fiction, notices and summonses
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Discussion Board

Yu.E. Monastyrsky Comparative Modern Meaning of Damages (Private Reflections)
The meaning of “damages” should be elucidated in order to examine thoroughly this important remedy. It is not a simple matter because even the very word “damages” is polysemous. Damages result from negligence, natural causes, external injurious factors, actions by other actors, non-performance etc. As a remedial option, we consider an award of damages in the first place. The legislator uses this concept alongside other terms such as “injury”, “harm”, “expenses”, “losses”, and “costs”. The question then arises, “Why is this?” After all, many authors consider them to be synonymous with “damages”. The author substantiates the idea that these terms are used in different contexts and therefore have different meanings. The category of losses has been set apart in Russian legislation; it still gives no clear guidance on application and creates confusion in adjudication. Clarifying the meaning of “damages” is crucial to agreements between parties under private law, parties themselves, and their consistent interpretation of the scope of obligations.
Keywords: damages, harm, loss, compensation, civil liability
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Press Release

 

 

 

Theory and practice

Yu.B. Fogelson Legal Consciousness of Russian Judges and Its Reflection in the Judicial Practice of Higher Courts
The paper proposes a method for studying the legal consciousness of judges, based on the analysis of judicial decisions, which overcomes certain limitations of questionnaires and interviews. The effectiveness of this method is shown — a study of several groups of Russian higher court judgments has allowed describing deep attitudes in the legal consciousness of judges of these courts. The analysis covered the legal reasoning of the RF Constitutional Court, the RF Supreme Court and the RF Supreme Arbitrazh (Commercial) Court as well as their interpretation of legal norms and the mechanisms for selecting decisions for referral to the Supreme courts. It is also shown that, despite the limited material used in the study, it is sufficient to make general and justified conclusions about the legal consciousness of judges.
Keywords: legal consciousness, judicial practice, separation of powers, rule of law
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L.V. Golovko Draft Legislation on Misdemeanor: Manufactured Meanings and Real Rationale
The Supreme Court of the Russian Federation has drafted a law introducing the category of “misdemeanor” into Russian criminal legislation which has generated intense debate. But discussions are dominated by manufactured meanings that, on closer examination, bear no relevance to this bill. At the same time, little attention is being paid to its real rationale based on the intent to curtail victims’ rights by wider use of court fines and subsequent discharge.
Keywords: Supreme Court of the Russian Federation, misdemeanor, court fine, victims’ rights
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A.A. Tolkachenko Deliberating over the Misdemeanour Bill, or How Court Fines Can Be Helped by SC Plenum’s Ruling No. 42 of 31 October 2017
The author closely analyses the recently proposed and already updated legislative initiative of the Russian Supreme Court to extend the list of grounds for exemption from criminal liability and introduce the category of “misdemeanour”. The paper demonstrates conflicting aspects that practice might bring before judges and lawmakers after enactment. In light of the latest legislative initiatives, it gives specific consideration to court fines and improvements that can be made to judicial practice in the imposition of fines.
Keywords: misdemeanour, court fine, exemption from criminal liability, other criminal sanctions
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N.V. Rostovtseva, E.P. Gavrilov Leo Tolstoy’s Wills/Testaments and Russia’s Civil Legislation Currently in Force
Leo Tolstoy the world’s most famous author strongly disapproved of any kind of property, exclusive copyright included. Therefore, he renounced his exclusive copyright to some of his works. Later he many times expressed his desire that after his death all of his writings should pass into the public domain. Three times he concluded wills to this effect. The last will was probated and executed. Complex legal problems facing writers/authors in their attempts to renounce their copyrights during their lifetime and following their death (in the will) are considered in the paper. These legal issues are discussed on the basis of legislation which was in force in tsarist Russia during the life span of Leo Tolstoy as well as on the basis of legislation which is in force in Russia now.
Keywords: exclusive right inheritance, transfer of exclusive rights to the public domain, exclusive copyright renunciation, will for the benefit of third parties, civil law of Imperial Russia
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M.S. Varyushin Telemedicine Legal Framework in the EU and Russia: Two Steps Forward, One Step Back
This paper tells about the regulation of telemedicine in the EU and Russia. The author takes the example of healthcare legislation to demonstrate the dualism of telemedicine legal framework. A detailed analysis is provided of EU transnational legislation along with Russian legislation and Federal Law No 242-ФЗ of 29 June 2017 which sets a legal framework for telemedicine as a healthcare service. The author assesses the current system of telemedicine regulation in Russia looking at the use of telemedicine technologies, legal relationships arising from this service, contractual relationships, and the legal status of telemedicine providers. This paper is intended for medicine law scientists and practitioners providing legal advice, marketing services and healthcare quality control.
Keywords: telemedicine, medical law, medical care, medical services, comparative law
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A.V. Neznamov Rules of Unmanned Driving: Changes to the Vienna Convention on Road Traffic
The paper is devoted to current challenges for regulation of highly automated cars. The paper deals with the problems of terminology and classification; it also describes different approaches to legal regulation. Amendments to the Vienna Convention on Road Traffic, which came into force in 2016, are also covered alongside comments on prospects for further development of regulation at the international level and in Russia.
Keywords: automotive, unmanned vehicles, road transport, road rules, Vienna Convention on Road Traffic
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Foreign experience

A.I. Snegireva Fundamental Safeguards in Criminal Procedure and Arbitrability of Punitive Damages Claims in the USA
Punitive damages can be characterised as quasi-criminal sanctions. The paper concentrates on the issue of arbitrability of punitive damages claims in the USA in the light of their legal nature. Special attention is given to inherent procedural safeguards to protect a defendant against such kind of claims. The author comes to the conclusion that all special procedural safeguards can be secured only if punitive damages are awarded according to the rules of criminal procedure.
Keywords: punitive damages, arbitration, arbitrability, criminal procedure, the USA
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