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ARCHIVE FOR 2018    RUSSIAN

Сентябрь 2018

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

A.V. Shamraev Electronification of Letters of Credit: International and Domestic Regulatory Developments
The trade finance industry is becoming one of the areas of most active digitalisation, especially with the development of blockchain projects. Creating an effective legal framework to provide adequate solutions for digital transactions and electronic filing, including under a Letter of Credit, is an urgent task for the international community and individual jurisdictions. The article describes regulatory developments using documents produced by the International Chamber of Commerce and UNCITRAL, as well as amendments proposed by the Bank of Russia to its Regulation on Money Transfer Rules, No. 383-P of 19 June 2012.
Keywords: payment by letter of credit, electronic filing, blockchain
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T.S. Mikoni Legal Regime of the Joint Account
This article touches upon novelties in the regulation of joint bank accounts (Article 845 Clause 5 of the Civil Code of the Russian Federation). Particular attention is given to the legal status of funds in the joint account along with the rights and obligations of the joint account holders. The author also analyses special features of the spouses’ joint account.
Keywords: bank account agreement, joint account, plurality of account holders, rights to funds, disposal of funds in joint bank account, spouses’ joint account
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A.A. Vishnevskiy Financial Attorney vs Financial Ombudsman: Effectiveness of Institutional Structures for Protecting Consumers of Financial Services
The article considers the fundamentals of a newly established office of the Financial Attorney for the Rights of the Consumers of Financial Services (Federal Law of June 4, 2018 No. 233-FZ). The analysis is conducted in the light of comparison of the Financial Attorney with the fundamentals of the offices of financial ombudsmen widely used for consumer protection in the financial markets in many countries. Considering from comparative legal perspectives the basic features of these two offices, the author comes to a conclusion that the Financial Attorney in the Russian Federation — in the way established by the Federal Law — will not be able to perform the role comparable to the role of the financial ombudsmen in European jurisdictions. Therefore, the legal regulation of the bank-customer relations in Russia is still having the substantial gap which theoretically might be filled in if the financial ombudsmen get legal recognition from Russian banking associations.
Keywords: financial ombudsman, financial attorney, consumer protection, consumer in the financial market, bank-client relations
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I.F. Ruderman Certain Legal Aspects of International Payment Systems
This article is devoted to the study of the most topical issues in the regulation of the creation and operation of international payment systems. The author analyses the monitoring procedure for international payment systems, which, as a rule, is carried out by the central bank of the country where the payment system is incorporated, paying particular attention to the life cycle of the payment in the system and the moment of fulfillment of mutual obligations by participants in the system, the payment system’s contractual framework essential for mutual rights and obligations of all participants, lien issues, as well as the correlation between the legal infrastructure of the international payment system and payment technology.
Keywords: international payment systems, Bank for International Settlements, cross-border money transfer, multi-currency settlements
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R.A. Zhirnov Taxation of Personal Income in the Form of a Coupon and (or) Discount From Rouble-Denominated Circulating Russian Corporate Bonds
The article deals with the statutory regulation of the taxation of personal income gained by natural persons in the form of a coupon and (or) discount from rouble-denominated circulating Russian corporate bonds. The author points out that the substitution of two notions such as — ‘Circulation of Securities’ and ‘Circulation of Securities in the Formal Securities Market’ — made by the Ministry of Finance of the Russian Federation cannot be deemed acceptable. The author uses the mechanisms of strictly formal, systematic, historical and target-setting interpretation of the text of Russian Tax and Civil Laws, and therefore shows the inconsistency between the law-enforcement position held by the Ministry of Finance of the Russian Federation and the legislative will, aims and objectives. Such inconsistency may have a negative impact on the process of attracting private investments to Russian economy as described herein. The author concludes by stating that the legislation of the Russian Federation currently in force exempts from taxation on personal income within the established limits the interest (coupons or discounts) for any outstanding issues of bonds denominated in roubles issued by Russian legal entities after January 1, 2017, irrespective of the authority (organisation) that registered the issue, of the type of placement, of the admission of securities to the listing, of the delisting, of the public or non-public status of the issuer (existing during the period of placement and circulation of securities). The article expresses the author’s private opinion published for scientific purposes primarily. The stated conclusion and its reasoning are not the proposition of the LECAP Law Firm and they should not be interpreted as a formal legal opinion or advice for clients.
Keywords: bonds, circulation of securities, formal securities market, Russian commercial bonds, personal income tax
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Discussion Board

L.V. Sannikova, Yu.S. Kharitonova Legal Essence of New Digital Assets
Changing economic situation and active legislative activity in the sphere of regulation of the digital economy spurs numerous discussions on perhaps the main new phenomenon for turnover — the digital asset. The authors set out to show the legal essence of these objects, which distinguishes them from all the objects of civil turnover known to the law, the legal nature of which is defined and enshrined in the law. Digital assets have such features that allow to put them apart in the system of objects of rights, which entails the need to develop new legal mechanisms of regulation, different from the existing ones and oriented to the circulation of the material world.
Keywords: digital asset, digital asset characteristics, cryptocurrency, token, Big Data, account, domain name
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Yu.V. Kuznetsov Cryptoassets as Definitive Securities
The paper focuses on the issue of legal status of a broad class of cryptoassets (cryptocurrencies, tokens) realized as distinct units or “coins” in contrast to account balances. This kind of cryptoassets is functionally equivalent to some types of definitive securities defined in Russian law, such as promissory notes or order commercial papers, the difference being primarily in the information medium. It makes possible to define the legal framework for this class of objects without introducing of new civil law objects in the Civil Code of the Russian Federation. All it takes is to repeal the rule that definitive security must be a corporeal thing and to modify the definition of “electronic documents” in the Russian information law and the relevant requirements for them.
Keywords: cryptoasset, cryptocurrency, token, definitive security, civil law object
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A.V. Sazhenov Cryptocurrencies: Dematerialisation of Legal Category of Things in Civil Law
This article focuses on the legal nature of cryptocurrencies in light of the existing legal institutions. An attempt is made to determine the legal nature of cryptocurrencies. The main issues being considered include possession, transfer and protection of rights to cryptocurrencies. The qualification of the rights to cryptocurrencies as rights in rem, the general concept of money and objects of the civil rights are also covered. This analysis leads to the conclusion that cryptocurrencies should most likely be considered as things in the modern legal system.
Keywords: cryptocurrencies, tokens, objects of civil rights, property, property rights, ownership, thing, possession, money, tradition, assignment, vindication, tort, condictio, absolute rights, numerus clausus
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Judicial practice. Comments

P.A. Skoblikov Ruling of the Plenum of the RF Supreme Court on Asset Forfeiture: A Critical Review
This article offers a critical review of Ruling of the Plenum of the RF Supreme Court No. 17 of 14 June 2018 on asset forfeiture in criminal proceedings. It looks at some general problems associated with the interpretive power of the Supreme Court. The analysis of Plenum rulings is followed by suggested approaches to the following private issues: competing interests of the victim seeking damages from the offender’s assets and those of the State seeking forfeiture of the same assets; confiscation of criminal proceeds and instrumentalities without a criminal conviction; confiscation of instrumentalities of reckless crimes and assets that were intended for criminal activity but were no longer involved; forfeiture of assets the defendant transferred to third parties etc. Ruling of the RF Constitutional Court No. 5-P of 7 March 2017 is further analysed insofar as it gives legal grounds for forfeiture of the defendant’s assets without a criminal conviction. The author believes that this ruling was decisive for the Plenum of the RF Supreme Court in determining a few aspects of the matter at hand.
Keywords: asset forfeiture, interpretation of statutory provisions, ruling of Plenum of RF Supreme Court, the RF Constitutional Court errors, protection of victim’s rights, principle of legality, principle of separation of powers
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Theory and practice

A.V. Asoskov Violation of Public Policy as a Ground for Nonenforcement of International Commercial Arbitral Awards Made within the Russian Federation
Correct application of the public policy exception has always created difficulties in Russian courts for cases regarding recognition and enforcement of foreign arbitral awards. As of 1 September 2016, this legal concept became applicable to the enforcement of both domestic and foreign arbitral awards made within the Russian Federation. The author proposes an algorithm, which should be used by Russian courts to assess grounds leading to application of the public policy exception.
Keywords: public policy, arbitral award, international commercial arbitration, overriding mandatory provision
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N.V. Kozlova, S.Yu. Filippova Qualification of Suretyship Relationships under Civil Law: Basis, Substance and Legal Nature
This article looks at suretyship relations between the creditor, surety and debtor. It analyses the basis of these relationships, their legal nature, and the parties’ rights and obligations. The authors conclude that the surety and the debtor enter into a related relationship as the contract is signed between the surety and the creditor. At the same time there is a common collateral obligation with participatory plurality between the creditor, on the one hand, and the debtor and the surety, on the other, where the obligation between the debtor and the creditor is primary and the surety’s undertaking to pay is secondary.
Keywords: suretyship, third party, debtor, creditor, surety, ensuring performance, obligation, civil liability
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O.A. Zharkova Transaction Form for Ownership Interests n Farmland
The author compares the term ‘interest in land’ with the term ‘ownership interest in land’ and concludes that an ownership interest in farmland will not necessarily constitute an interest in land. Therefore, any transaction involving disposal of ownership interest in land needs to be notarised.
Keywords: interest in land, written, notarised, void transaction
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D.G. Kopylov The Legal Regime of Treasury Shares and Their Legal Fate
This article deals with peculiarities of the legal regime of treasury shares and issues related to their legal fate. The author gives special attention to the identification and analysis of those problems that arise in connection with the realisation by a company of its shares and offers possible solutions thereof. The author comes to the conclusion that shareholders of a public company should enjoy a pre-emptive right of purchasing shares, which are realised by the public company to the public, in proportion to a number of shares of the relevant category (type) belonging to each of them. Additionally, the realisation by a public company of treasury shares should be allowed only for specified purposes and be accompanied by the disclosure of information on a transaction and its purpose. Any transaction involving realisation by the company of treasury shares in favour of a particular person needs preliminary consent from the company’s general meeting of shareholders.
Keywords: public companies, private companies, treasury shares, realization by a company of its shares
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M.B. Napso Improved Efficiency of Administration of Taxes, Levies and Insurance Payments: Economic and Legal Aspects
In the light of the declared tax amnesty the economic and legal consequences of a failure to perform an obligation on payment of tax is a very relevant question to study. The problem is considered in the context of tax compliance from the point of view of administrative costs, taking into account the latest legislative changes and initiatives, and through the prism of a legal design of taxes, levies and insurance instalments. The author concludes that the consequences of non-payment of taxes, levies and insurance instalments are conditioned by their legal nature and fiscal purpose. As a result, certain ways are suggested to reform the Russian tax system.
Keywords: consequences of non-payment of taxes, levies, insurance instalments, tax amnesty, tax administration, decrease in budgetary costs, fiscal load
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A.V. Konovalov Roman Legal Heritage and Principles of Law
The author analyses how the principles of law are understood in Roman law and the influence of such understanding on subsequent development of law in different legal systems. Drawing on available excerpts from the Digest and scholarly articles by prominent researches in the field of Roman law, e.g. I.B. Novitskiy, D.D. Dozhdev and others, the author proves that certain common approaches to solving practical legal problems existed in Roman law. Presumably those approaches can be considered as prototypes of modern understanding of the principles of law. The author also argues that one of the most significant achievements of Roman law and the major reason for its widespread reception was the method of juridical abstraction.
Keywords: Roman law, juridical abstraction, jus honorarium, aequitas