ARCHIVE FOR 2018 RUSSIAN
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Март 2018
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
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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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
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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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