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ARCHIVE FOR 2018    RUSSIAN

Март 2018

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

V.A. Maslakov, T.L. Rukavishnikova, O.M. Shestoperov Excessiveness Criteria in Regulatory Impact Analysis of Proposed and Existing Regulations
This paper explores an approach to defining the excessiveness criteria for legal norms and their elements based on necessity and sufficiency for achieving the aim of regulation. Types of target setting defects are considered. In conclusion, a legal norm is defined that will not be excessive. The definition creates a methodical approach to the practical assessment of redundancy of regulations.
Keywords: excessive regulatory requirements, regulatory burden, reducing burden on businesses, regulation goal-setting defects
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I.V. Salamatina, D.I. Smolnikov Deregulation in Russia
Over the past few years, Russia and some other countries have been taking steps to reduce the number of regulations for businesses. Through comparative analysis the authors come to the conclusion that efforts at deregulation are feeble because of fragmentation. They also emphasise the importance of continuous and consistent codification of existing regulations.
Keywords: legal norm, codification, one-in, two-out, regulatory impact assessment
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A.A. Yefremov Assessing the Impact of Legal Regulation on the Development of Information Technologies: Mechanisms and Methods
This paper considers existing and prospective approaches to the identification and elimination of legal barriers for digital transformation and the use of breakthrough information technologies, including under the National Information Society Development Strategy and the Russian Digital Economy Programme. The experience of introduction of technological assessments into the legislative processes of a number of foreign countries, as well as existing national approaches to technological assessment in public administration and legal regulation are analysed. Also, the rationale is explained for introducing a special methodology for assessing the impact of both drafted and enacted normative acts on the development of information technologies and digital economy in the Russian Federation along with proposals for the latter’s normative institutionalisation and its use as part of legal regulation of digital transformation in the economy and public administration.
Keywords: information technology, enforcement monitoring, regulatory impact assessment, legal regulation, legal barriers, digital transformation, digitalisation
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A.E. Shastitko, N.S. Pavlova Why Law and Economics Matters?
The incentives of individuals are determined by the existing system of rules and enforcement mechanisms — it follows logically that effective rules can be subject to economic analysis. The paper outlines the role of economic analysis of law as a tool for assessing the efficiency of norms, discusses the concept of efficiency of legal norms as such in the context of enforcement errors, and examines the application of economic analysis to the process of designing legal norms, including the choice of types of sanctions for violations. Far from doubting the legal approaches to designing and evaluating norms, the paper instead suggests looking at the areas of complementarity between a legal approach and an economic one, where their combination can improve law enforcement and design from a social welfare point of view.
Keywords: law and economics, enforcement, design of legal norms, type I and type II legal errors, fine
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S.A. Belov, N.M. Kropachev, M.A. Revazov Saint Petersburg University Monitoring of the Application of Laws
Monitoring the application of laws is a key mechanism for evaluating the fulfilment of legislative intention, developments in the application and interpretation of laws, as well as their conflicting provisions. This paper describes the monitoring mechanism that is being implemented at Saint Petersburg University.
Keywords: monitoring the application of laws, jurisprudence, enforcement practice, practical skills of law students, law clinic
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Discussion Board

Yu.E. Monastyrsky Soviet Theory and Contemporary Theory of Damages in Civil Law
This work recounts legal views on the compensation of losses in the Soviet Union. The legislative approaches were initially embodied in the 1922 Civil Code. A few outstanding scholars showed a trace of succession between the 19th century period of monarchy and the Soviet Époque. Theory could not choose but react to the socialist system and its economics. As a result, the major works on the subject of liability embracing the principal issues of recovery of damages appeared with a rare frequency. The doctrines of the Soviet times remain popular as they gave an impulse to further development of the legal theory. The author comes to the conclusion that since legal regulation of that time did not support the concept of the full commercial independence of participants, there was no ground for scrupulous research on recovery of losses in the USSR.
Keywords: soviet theory, civil law, liability, damages

 

Press Release

 

Theory and practice

V.A. Vaypan The Principle of Social Justice in Judicial Practice
This paper covers the implementation of the principle of social justice in judicial practice. It analyses the different understandings of justice in science, legislation, and in the courts. Attention is drawn to a dangerous transformation of judicial practice into subjective discretion based on the principle of justice.
Keywords: principle of justice, judicial practice, judicial discretion

 

N.V. Ilyutchenko Authority of Judicial Practice in the Criminal Procedure
The notion of judicial practice is traditionally debatable in the domestic law doctrine. That is the reason why the judicial precedent and the judicial practice are collated in this paper. The opinion on the discrepancy in the understanding of the judicial precedent and the judicial practice is expressed. It is concluded that the judicial precedent is a kind of the judicial practice. The author analyses in detail the relation of the judicial practice and the law. Judgments which were passed contra legem are revealed in the sphere of criminal proceedings. The practice of the Supreme Court of the Russian Federation has changed since the Court not only interprets the judicial practice but sometimes explains the law “for the future” when the practice has not been yet worked out. Nowadays the authority of the judicial practice as a whole and in criminal cases in particular is rather high. The effect of “euthanasia of criminal procedure law” is observed. There should be no controversies between the judicial practice and the law but they do exist — and this phenomenon is explained by objective and subjective factors. A mechanism for overcoming these controversies is urgent.
Keywords: judicial practice, judicial precedent, interpretation of judicial practice, criminal procedure law, the Supreme Court of the Russian Federation, law enforcement
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V.A. Alexeev Single Immovable Complex and Complex Immovable Thing: the Issues of Correlation
The paper identifies a correlation between the concept of complex thing and the concept of single immovable complex and concludes that single immovable complex is a kind of complex thing. Contentious issues with the application of Art. 133.1 of the Civil Code of the Russian Federation are addressed, and proposals to improve the legislation on single immovable complexes are advanced.
Keywords: immovable thing, complex thing, indivisible thing, single immovable complex
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I.R. Medvedev Public Consultations on Town Planning Projects in Light of Law No. 455-FZ
This paper examines the provisions of Law No. 455-FZ, which was signed by the President of the Russian Federation close to New 2018 Year’s Eve along with a package of amendments to the Town Planning Code. The author emphasises the relationship of the provisions governing public consultations with the concept of the ‘right to the city’ and critically assesses the traditional public hearings. It seems right to secure a balance between the “weak” citizen and the “strong” official at any stage of the discussion on urban development projects. The author considers that the electronic form of public consultations will make the procedure even more controversial, and that new progressive tools for civic participation should be implemented into Russian legislation.
Keywords: public hearings, public consultations, notification, “Active citizen”, urban planning
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I.V. Stasyuk Property Damage Recovery in Corporate Tax Evasion Cases
This paper provides commentary on Russia’s Constitutional Court Judgment No. 39-P of 8 December 2017. It addresses the recovery of damages from those who have committed a tax evasion offence in the context of the damages rules of civil law, the tax rules for arrears, and bankruptcy laws.
Keywords: tax arrears collection, tort liability, corporate insolvency, bankruptcy, secondary liability of controlling persons
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Foreign experience

A.A. Gribanov General Data Protection Regulation: Ideas for Improvement of Russian Legislation
Russian legislation on personal data has a number of defects that impede its practical implementation, effective protection of rights and interests of data subjects, and commercial activity of data operators. Some of these defects involve the definition of personal data, processing of personal data of representatives of a data operator’s partners, consent requirements for personal data processing in electronic form, definition of biometric personal data, consent requirements for data processing in written form, personal data processing for direct marketing purposes, notification of data processing to data protection authority, territorial scope of data protection legislation, and requirements for data processing policies. General Data Protection Regulation (GDPR) contains legal solutions that can be used to correct these defects. The article consists of the introduction, analysis of the above problems, conclusion, and list of references. The purpose of this article is to elaborate proposals for improvement of Russian data protection legislation facilitating harmonization of Russian and European data protection regulation, strengthening protection of rights and interests of data subjects as well as promotion of business activity in Russia. The results of the research presented in this article can be used by companies processing personal data, data protection consultants as well as by Russia’s State Duma, Ministry of Telecom and Mass Communications of Russia, and Roskomnadzor.
Keywords: General Data Protection Regulation (GDPR), data protection legislation, personal data, Big data
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O.V. Antipkina Bail-Out and Bail-In Mechanisms of Bank Resolution in EU Banking Law: Advantages and Disadvantages
One of today’s pillars of the banking union is recovery and resolution of financial organisations with a new strategy — known as bail-in — according to which the losses of a bank likely to fail shall be compensated at the expense of the bank itself and its creditors. The present paper considers the pros and cons of bail-in strategy as well as advantages and disadvantages of its predecessor. Due to its urgency, the raised problem requires an analysis of the causes of the 2008 financial crisis in order to prevent a negative impact on the EU banking sector in the future. Besides, comparison of pros and cons of bank recovery and resolution strategies applied in the European Union may be useful for the purposes of their implementation in Russian banking regulation. The paper analyses different opinions from the foreign doctrine for resolution strategies. It examines legal and economic challenges in bank recovery and resolution in one country as well as in different countries.
Keywords: bank failure, bail-out, bail-in, bank recovery, bank resolution, banking regulation, banking union
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